United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
Yvette Turner has brought this action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., against her former employer, Jackson State University (JSU), alleging she was "retaliated against by being discharged because she opposed sex discrimination, and because she had filed EEOC charges." The case is presently before the court on JSU's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded in opposition to the motion, and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion is well taken and should be granted.
Turner was originally employed by JSU during the 1997-98 school year as a program coordinator in the JSU Math/Science Center. She subsequently became employed by JSU as a program assistant for the Institute for Educational Renewal. In 2002, she filed an EEOC charge against JSU alleging sexual harassment, and in 2004, she filed a lawsuit based on that charge. In 2005, while the case was pending, she resigned from JSU and took a teaching position out of state. In 2006, she reached a settlement with JSU in that lawsuit. As part of the parties' settlement agreement, Turner was offered and accepted a position as a tenure track professor in the School of Education commencing with the fall term 2006.
Under applicable policies of JSU and the Mississippi Institutions of Higher Learning, tenure track professors must apply for tenure no later than the sixth year of their tenure track employment. Accordingly, in September 2011, Turner submitted her application for promotion to associate professor with tenure. By letter dated March 9, 2012, then-JSU Provost Dr. Mark Hardy notified Turner that upon review of her application portfolio, he was unable to recommend her for tenure, as she had not met all of the criteria for tenure. Specifically, the letter recited she lacked "documented funding grants and the minimum number of peer reviewed publications" required for tenure. Hardy concluded his letter with the following:
I encourage you to meet with your department chair and college dean to explore alternative employment options with the University, along with referring to the Faculty Handbook for specific procedures related to this recommendation.
On March 23, 2012, JSU President Dr. Carolyn Meyers notified Turner by letter that she had accepted Dr. Hardy's recommendation to deny tenure. Like Hardy, Meyers advised plaintiff to "seek the advice of your department chair and college dean regarding this decision."
Turner testified that upon receiving Hardy's letter, she immediately went to see Dr. Daniel Watkins, Dean of the College of Education, about the decision to deny her tenure. According to Turner, Watkins assured her, "Dr. Turner, as long as I'm dean of this college, you will always have a job teaching here." Turner asserts that after speaking with Watkins, she then went to see Hardy, who told her she could remain at JSU in either a teaching track - presumably as non-tenure track contract faculty - or a research track. Turner states that at some point, she also had conversations with her department chair, Dr. Corrine Bishop, in which she claims that Bishop "confirmed that she would be recommending me for employment every year." Turner indicated that what these individuals told her was consistent with what she had observed over her years at JSU, which was that faculty who moved from a tenure track to a non-tenure track continued teaching at JSU. Thus, she was not alarmed upon being denied tenure; she thought she would continue teaching at JSU in a non-tenure track on a year-to-year contract from that point on. However, what happened instead was that in October 2012, she was given a "one year only" contract that ran from August 2012 to May 2013; and when that one-year contract expired in May 2013, it was not extended or renewed, and her employment at JSU ended.
In the meantime, Turner did appeal the tenure decision, but her appeal was denied and the decision confirmed. In addition, on September 13, 2012, Turner filed an EEOC charge, complaining that she had not been properly advised regarding the requirements for tenure, which she believed was in retaliation for her 2002 EEOC charge of sexual harassment against JSU. Later, in January 2013, she filed an amended EEOC charge, alleging that in retaliation for her EEOC charge(s), she was not being compensated for teaching additional classes and for coordinating certain programs. In June 2013, Turner filed another EEOC charge, complaining that JSU did not allow her to teach summer school. Finally, on August 5, 2013, plaintiff filed an EEOC charge complaining that she was terminated in retaliation for filing the previous EEOC charges. After receiving a notice of right to sue, Turner timely filed the present action on September 30, 2013.
Where, as here, a plaintiff lacks direct evidence of retaliation, her retaliation claim is evaluated under the McDonnell Douglas burden-shifting framework. See Davis v. Fort Bend Cty., 765 F.3d 480, 490 (5th Cir. 2014) (citation omitted). Under this framework, plaintiff must first demonstrate a prima facie case of retaliation by showing "(1) that she engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action." Id . (citations and internal quotation marks omitted). "If the employee establishes a prima facie case, the burden shifts to the employer to state a legitimate, non-retaliatory reason for its decision. Id . After the employer states its reason, the burden shifts back to the employee to demonstrate that the employer's reason is actually a pretext for retaliation." Id . (citations and internal quotation marks omitted).
In filing EEOC charges, Turner engaged in activity protected by Title VII. See Carter v. Target Corp., 541 Fed.App'x 413, 418 (5th Cir. 2013) (recognizing that a plaintiff who files a complaint with the EEOC engages in a protected activity). Moreover, there is no dispute that she suffered an adverse employment action, as she was terminated from her employment with JSU. However, the parties disagree as to precisely when this adverse employment action occurred; and this disagreement bears directly on the element of causation. JSU contends that plaintiff's termination occurred before she filed her EEOC charges in September 2012 and that consequently, her termination could not have been in retaliation for her filing of those charges. Cf. Ward v. Jackson State Univ., ___ Fed.App'x ___, 2015 WL 795826, at *1 (5th Cir. Feb. 26, 2015) (recognizing that to establish causation, the plaintiff "must at least demonstrate that prior to her termination, [the defendant] was aware of [the plaintiff's] [EEOC] complaint, because "[i]f an employer is unaware of an employee's protected conduct at the time of the adverse employment action, the employer plainly could not have retaliated against the employee based on that conduct."). More particularly, citing Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), JSU argues that when an employee is given notice and placed on a one-year "terminal" contract, the adverse employment action occurs (and the limitations period begins to run) when notice of termination is provided, not at the expiration of the contract, even though the effect of that notice may not occur until later. It thus maintains that although Turner's termination was not effected until May 2013, the adverse employment action that resulted in her termination occurred in March 2012, when Turner failed to meet the minimum requirements for tenure and promotion, received notice that her application for tenure would be denied, and was removed from the tenure track and given a one-year terminal contract. It maintains, therefore, that Turner's claim fails as a matter of law because her EEOC charges were filed after the challenged adverse employment action. Turner, on the other hand, claims that her termination occurred, at the latest, when JSU failed to extend or renew her contract in May 2013, but at the very earliest, in October 2012, when she was offered a "one year only" employment contract. She insists that at the time she filed her September 2012 EEOC charge, not only had she not been terminated but the termination process had not been set in motion, contrary to what JSU contends. Indeed, she claims that even when her one-year-only contract expired in May 2013, she reasonably expected that she would continue to be employed as a professor at JSU as a non-tenure track professor.
In Delaware State College v. Ricks, the defendant Delaware State College had a policy of not immediately discharging a faculty member who did not receive tenure but rather offering such a person a "terminal" contract to teach one additional year, with the employment relationship to end when that contract expired. 449 U.S. at 253, 101 S.Ct. 498. In keeping with the College's policy and practice in this regard, on July 26, 1974, when Ricks' tenure application was denied, the College offered him a one-year "terminal" contract, with explicit notice that his employment would end upon its expiration, i.e., that it would not renew his contract at the end of the 1974-75 school year. Id. at 253-54, 101 S.Ct. 498. In April 1975, Ricks filed an EEOC charge complaining that the decision to deny tenure was discriminatory. He thereafter filed suit under Title VII and 42 U.S.C. § 1981 complaining that the denial of tenure and his subsequent termination were discriminatory. Id. at 254, 1010 S.Ct. 498. In considering a challenge to the timeliness of Ricks' EEOC charge, the Supreme Court concluded that there was ...