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Butler v. Emory University

United States District Court, N.D. Georgia, Atlanta Division

September 19, 2014

H. ERIK BUTLER, Plaintiff,

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[Copyrighted Material Omitted]

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For H. Erik Butler, Plaintiff: Patrick W. McKee, LEAD ATTORNEY, McKee & Mitchell, LLC, Newnan, GA.

For Emory University, Defendant: Michael Wayne Johnston, Rebecca Cole Moore, LEAD ATTORNEYS, King & Spalding, LLP - ATL, Atlanta, GA.

For Equal Employment Opportunity Commission, Movant: Lakisha C. Duckett, Equal Employment Opportunity Commission-ATL, Atlanta District Office-Legal Unit, Atlanta, GA.

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Timothy C. Batten, Sr., United States District Judge.

H. Erik Butler was an untenured professor in Emory University's Department of German Studies. He claims that Emory unlawfully denied him tenure on the basis of his religion and his national origin, and in retaliation for prior complaints about discrimination.[1]

At Emory, tenure decisions are made with explicit consideration of, among other things, a professor's collegiality. And that is something that some of Butler's departmental colleagues thought he lacked. Over the course of several years, they painted the following picture of him: he made disparaging remarks about the department and other professors, including deriding a junior professor at a faculty

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meeting; he was outspoken and frank to the point of being detrimental to the department; he lacked diplomacy and tact; he was frequently angry and curmudgeonly; he was very difficult to talk to and work with; he alienated a significant number of professors in the department; he had a disengaged and dismissive attitude towards the department; he repeatedly expressed his low opinion of the department, for instance by sending emails to the department's interim chair accusing the department of bigotry, racism and chauvinism; and he accused the department's permanent chair of having a " fascist" management style.

Butler's tenure application was denied. Emory's provost, who ultimately made that decision, explained that Butler's lack of collegiality sunk his application. In this suit, Butler insists the real reason was either discrimination (because he is Jewish and American) or retaliation (because he had complained of discrimination in the German studies department).

Butler fails to meet his burden on summary judgment as to either claim. As to his discrimination claim, he has not established a prima facie case because he has not shown that Emory treated any similarly situated employee more favorably. And he has failed to create a jury question as to whether Emory's explanation for denying him tenure--that he lacked collegiality--is pretextual. And as to his retaliation claim, he has not shown that he engaged in any protected activity.

I. Background

A. Procedural History

Butler alleges that Emory violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Emory moved for summary judgment [61], and Magistrate Judge Linda T. Walker issued a Report and Recommendation [111]. She recommends granting Emory's motion, entering judgment in its favor on Butler's federal-law claims, and remanding his state-law claim.

Both parties object to the R& R [113, 114]. Butler says that Emory is not entitled to summary judgment. Emory agrees with Judge Walker insofar as she recommended granting summary judgment, but says that the Court should not remand Butler's state-law claim.

The seventy-four page R& R recounts the facts in detail and ably applies the law. The Court agrees with the R& R's conclusions in full, finds no merit in either party's objections, and will adopt the R& R as its order. Before doing so, the Court will briefly discuss the salient facts and address the parties' objections.

B. Tenure at Emory

The tenure system at Emory works as follows. Assistant professors (like Butler) are untenured and receive one-year appointments. Each year their appointment may be renewed, and after their sixth year they are considered for tenure. The tenure decision is up-or-out: if an assistant professor does not receive tenure in his sixth year, he will not receive a renewed appointment for a seventh year. The decision is based on a professor's success and future promise in three criteria: teaching, research and service. Service includes " displaying a collegial spirit of cooperation and avoidance of disruptive behavior."

Assistant professors need not wait six years to learn whether they are meeting the tenure criteria; they are evaluated yearly by their department. And in year four, they undergo a more stringent, " pre-tenure" version of the yearly evaluation meant to give concrete feedback on their progress. The pre-tenure review is more formalized than the regular yearly reviews; the chair of the professor's department

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writes a letter summarizing the department's evaluation of the professor and recommending whether the professor's appointment should be renewed for the following year. The pre-tenure review also includes a second layer of evaluation by the college's tenure and promotion committee. As discussed immediately below, that is the same committee that plays a part in the tenure decision.

After a professor's sixth year, the tenure decision is made. The process includes several steps.

First, the tenured members of the professor's department meet to consider whether to recommend tenure. After that meeting, the department's chair writes a detailed letter to the dean of the college explaining the department's recommendation. If the recommendation is not unanimous, the letter must record any dissenting opinions. Each member of the department who participates in the tenure meeting must either sign the chair's letter or write a separate letter with his or her own recommendation.

Second, if the department recommends tenure, the college's tenure and promotion committee reviews the department's letter and the supporting materials. That committee then makes a tenure recommendation, one way or the other, to the dean of the college.

Third, if the dean recommends tenure, everything created so far (the dean's recommendation, the tenure and promotion committee's recommendation, the department's letter(s), and any supporting materials) is forwarded through the provost to the president of the university.

Fourth, tenure is granted only if the president recommends it to the board of trustees and the board of trustees approves.

C. Butler's Employment and Fourth- and Fifth-Year Reviews

In 2004 Emory hired Butler as an untenured assistant professor in its Department of German Studies.

In 2008 the department conducted its fourth-year, pre-tenure evaluation of Butler, after which Dr. Peter Höyng, the department chair, issued a written review. The review spoke favorably of Butler's performance in two of the three tenure criteria (teaching and research), but it raised serious concerns about the third criterion: his service. The review noted that while the department welcomed Butler's " manner of speaking frankly and forthrightly on issues related to the [d]epartment," the department was " distressed that his frankness and outspoken style veers in directions that can be detrimental to the spirit of the department."

In addition, Höyng separately noted that he had serious concerns about Butler's collegiality. Höyng justified his concerns with the following explanation: Butler had derided a junior colleague about her research and teaching during a formal department meeting; and Höyng felt that Butler lacked a long-term commitment to the department, lacked respect for the department, and had no interest in shaping the department's future in a productive and collaborative way. Hö yng advised Butler to develop " diplomacy and tact" and to " transform his frequent attitude of a curmudgeon and [of] at times even anger into constructive criticism."

It was not just Höyng who believed that Butler lacked collegiality. Dr. Erdmann Waniek, a tenured member of the department, believed Butler had, as he described it, behavior problems. Waniek found it " very difficult to talk to" Butler because conversations would quickly become tense and ...

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