December 2008
College May Penalize Tenured Professor for Disruptive Behavior
Holland & Knight Newsletter
A recent federal court decision provides welcome relief and encouragement to colleges struggling to improve relations among faculty. The United States Court of Appeals for the First Circuit ruled that Dartmouth College (the “College”) did not discriminate or retaliate when, after receiving complaints about a tenured professor’s behavior, it conducted a critical review and then reassigned the professor to entry-level classes. The case is Sabinson v. Trustees of Dartmouth College, 542 F.3d 1 (1st Cir. 2008).
Professor Sabinson had been tenured in the Theater Department of the College since 1991. Her evaluations were generally positive, but the administration received complaints about her behavior from her colleagues and students. Relations in the Theater Department were described as contentious, even acrimonious.
The Final Report and Cover Letter
When Professor Sabinson took a one-year sabbatical, the associate dean of the faculty took over as head of the Theater Department. He chose a three-person team to review the Theater Department. The review team’s final report expressed concern about enrollment, student attrition, and morale, but it prudently avoided reviewing individual teachers, including Professor Sabinson. In a confidential cover letter, however, the review team acknowledged widespread criticism of the professor, described her involvement as “corrosive,” and recommended that she be offered either an early retirement package or be “marginalized” to limited course offerings.
When confronted with the report, Professor Sabinson refused to resign and refused a buyout offer. She was subsequently reassigned to teach only entry-level classes. Professor Sabinson then filed a lawsuit, alleging retaliation and age, gender, and religious discrimination in violation of federal law. The trial court in New Hampshire granted summary judgment to the College, and Professor Sabinson appealed to the United States Court of Appeals for the First Circuit.
On appeal, the Court held that the College acted with legitimate reasons based upon the review team’s conclusion that the professor’s behavior was damaging the Theater Department. The case then turned on whether the College’s proffered reasons were pretext for discrimination or retaliation. Professor Sabinson offered evidence that the review team was biased and unfair. The review team’s report and the complaints about Professor Sabinson also contained vague and subjective judgments about “fit,” “culture,” and “marginalizing” – terms that traditionally raise red flags. Nevertheless, the court found no evidence of discriminatory or retaliatory intent.
Not All Unfairness Is Discrimination
In what is likely to be an oft quoted passage, the Court explained that unfairness is not the same thing as discrimination: “Discrimination is a form of unfairness; but not all unfairness is discrimination.” The Court went on to distinguish personal or professional animus from intent to discriminate: “Whether or not personal or professional hostility played a role in the assessment, federal law does not protect generally against arbitrary or unfair treatment in private employment, but only against actions motivated by listed prejudices such as race, age, and gender.” Thus, evidence of unfairness or bias, without more, is not enough to sustain an employment discrimination claim.
Professor Sabinson had no evidence that similarly situated faculty members were treated differently, but she did provide anecdotal evidence of discriminatory treatment on campus. The Court ruled that such evidence is not relevant unless it bears on the specific events or decision-makers at issue in the present case. The Court also ruled that offering a buyout to a faculty member does not constitute evidence of age discrimination. Lastly, the retaliation claim failed because there was no evidence that the College reassigned Professor Sabinson in retaliation for her lawsuit because the reassignment was planned before any legal claims were raised.
This decision provides an exceptionally favorable precedent for colleges taking steps to improve relations among faculty or defending against federal claims of discrimination and retaliation.
Professor Sabinson had been tenured in the Theater Department of the College since 1991. Her evaluations were generally positive, but the administration received complaints about her behavior from her colleagues and students. Relations in the Theater Department were described as contentious, even acrimonious.
The Final Report and Cover Letter
When Professor Sabinson took a one-year sabbatical, the associate dean of the faculty took over as head of the Theater Department. He chose a three-person team to review the Theater Department. The review team’s final report expressed concern about enrollment, student attrition, and morale, but it prudently avoided reviewing individual teachers, including Professor Sabinson. In a confidential cover letter, however, the review team acknowledged widespread criticism of the professor, described her involvement as “corrosive,” and recommended that she be offered either an early retirement package or be “marginalized” to limited course offerings.
When confronted with the report, Professor Sabinson refused to resign and refused a buyout offer. She was subsequently reassigned to teach only entry-level classes. Professor Sabinson then filed a lawsuit, alleging retaliation and age, gender, and religious discrimination in violation of federal law. The trial court in New Hampshire granted summary judgment to the College, and Professor Sabinson appealed to the United States Court of Appeals for the First Circuit.
On appeal, the Court held that the College acted with legitimate reasons based upon the review team’s conclusion that the professor’s behavior was damaging the Theater Department. The case then turned on whether the College’s proffered reasons were pretext for discrimination or retaliation. Professor Sabinson offered evidence that the review team was biased and unfair. The review team’s report and the complaints about Professor Sabinson also contained vague and subjective judgments about “fit,” “culture,” and “marginalizing” – terms that traditionally raise red flags. Nevertheless, the court found no evidence of discriminatory or retaliatory intent.
Not All Unfairness Is Discrimination
In what is likely to be an oft quoted passage, the Court explained that unfairness is not the same thing as discrimination: “Discrimination is a form of unfairness; but not all unfairness is discrimination.” The Court went on to distinguish personal or professional animus from intent to discriminate: “Whether or not personal or professional hostility played a role in the assessment, federal law does not protect generally against arbitrary or unfair treatment in private employment, but only against actions motivated by listed prejudices such as race, age, and gender.” Thus, evidence of unfairness or bias, without more, is not enough to sustain an employment discrimination claim.
Professor Sabinson had no evidence that similarly situated faculty members were treated differently, but she did provide anecdotal evidence of discriminatory treatment on campus. The Court ruled that such evidence is not relevant unless it bears on the specific events or decision-makers at issue in the present case. The Court also ruled that offering a buyout to a faculty member does not constitute evidence of age discrimination. Lastly, the retaliation claim failed because there was no evidence that the College reassigned Professor Sabinson in retaliation for her lawsuit because the reassignment was planned before any legal claims were raised.
This decision provides an exceptionally favorable precedent for colleges taking steps to improve relations among faculty or defending against federal claims of discrimination and retaliation.