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Feresu v. Trustees of Indiana University

United States District Court, S.D. Indiana, Indianapolis Division

May 2, 2017

SHINGAIRAI FERESU, Plaintiff,
v.
TRUSTEES OF INDIANA UNIVERSITY, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          TANYA WALTON PRATT, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant the Trustees of Indiana University (“IU”) (Filing No. 42). Pro se Plaintiff Shingairai Feresu, (“Dr. Feresu”), is a former employee of IU's Bloomington, Indiana campus. As a professor at IU, she was subjected to a hostile work environment and eventually terminated. After her termination, she brought this action under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Equal Pay Act (“EPA”), alleging employment discrimination based on her race, nationality, and sex. IU filed a Motion for Summary Judgment, asserting, among other things, that Dr. Feresu did not meet IU's legitimate expectations and her EPA claim is outside the scope of her administrative charges of discrimination. For the following reasons, IU's Motion is granted.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Dr. Feresu as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Pursuant to local rule, the facts that Dr. Feresu asserts are true, to the extent admissible evidence supports them. L.R. 56-1(f)(2). In addition, the Court is to assume that the facts claimed and supported by admissible evidence by the movant (in this case IU) are admitted without controversy except to the extent that: (a) the non-movant (in this case Dr. Feresu) specifically controverts the facts in her statement of “Material Facts in Dispute” with admissible evidence, or (b) it is shown that IU's facts are not supported by admissible evidence, or (c) the facts, alone or in conjunction with other admissible evidence, allow the Court to draw reasonable inferences in Dr. Feresu's favor sufficient to preclude summary judgment. See S.D. Ind. LR 56-1(f)(1).

         A. Factual Background

         Dr. Feresu was born in Zimbabwe and came to the United States of America to study and work. She became a United States citizen in November 2011. She studied at Boston University and the University of Michigan and obtained a PhD.

         In 2010, Dr. Feresu was hired by IU as an assistant professor in the field of epidemiology. IU contends that Dr. Feresu began her work there in August 2010, while Dr. Feresu recalls starting in July 2010 (Filing No. 44-1 at 2, 7). This one month difference is not material. Before joining IU, Dr. Feresu was an adjunct professor at the Center for Afro-American and African Studies at the University of Michigan from 2001 to 2002 and a lecturer in the Department of Epidemiology, School of Public Health, at the University of Michigan in 2003. From 2004 to 2010, she was an assistant professor in the Department of Epidemiology, College of Public Health, at the University of Nebraska Medical Center (Filing No. 44-1 at 9). Dr. Feresu left her employment at the University of Nebraska Medical Center to join IU. Overlapping her time at the University of Michigan, the University of Nebraska, and IU, she also was a visiting professor at the Department of Community Medicine at the University of Zimbabwe from 2001 to 2012. Id.

         In Dr. Feresu's employment offer letter, IU explained the terms of her employment and the terms of obtaining tenure as a professor. The letter explained that she was being hired as an assistant professor, which was a three-year probationary tenure-track position. The letter further noted,

Your tenure clock will also begin on August 1, 2010, with the tenure decision to be made no later than May 1, 2016, assuming continuous full-time service and positive reappointment decisions. As generally is the case at Indiana University, teaching, research/creative activities, and service are included in your responsibilities as a faculty member. Please note that Indiana University bases its tenure and promotion recommendations upon performance in these three areas. Faculty members are normally expected to excel in one of the categories and to be at least satisfactory in the other two categories. In order to achieve tenure and/or promotion, you should ensure that you are meeting the standards established within your home department, school and campus through ongoing discussions with your chairperson, other senior faculty, and during annual evaluation reviews.

         (Filing No. 44-1 at 7.)

         The employment offer letter also explained, “You will be paid at an annual rate of $72, 000 for the 2010-11 academic year (10-month salary base) . . . . You should be aware that as part of your 10-month academic year commitment, you are expected to secure external funding for research.” Id.

In the letter, IU explained to Dr. Feresu,
We will provide $10, 000 in start-up funds to facilitate your research, teaching, and service obligations. Anything purchased with these funds remains the property of your Department although they will be dedicated to your use. If all of these startup funds are not spent in your first two years, they can be banked essentially indefinitely and used any time needs arise.

Id. at 8. IU also noted, “[w]e will provide you with the usual and customary setup that includes a computer, other related equipment, and necessary supplies. We will provide reimbursement for travel and moving expenses of up to $5, 000 for relocation . . . .” Id.

         The criteria for tenure was detailed in Dr. Feresu's employment offer letter, which noted tenure and promotion recommendations are based on the three areas of teaching, research, and service. Id. at 7. The offer letter explained that IU's tenure determination is usually at least a six-year process. Faculty are usually hired into an initial three-year, tenure-probationary appointment. If faculty members are reappointed in their third year, they then can receive annual one-year reappointments based on demonstrated growth in the areas of teaching, research, and service that, on a cumulative basis, makes it likely that the candidate will receive tenure at the end of the multi-year probationary period. The third-year review is the most elaborate and thorough review and is the first critical review for pre-tenured faculty. In the event that the pre-tenure review results in a negative recommendation, further employment is not offered to the faculty member. Id. at 2-3. When reappointment is not offered after the third-year pre-tenure review, the faculty member is allowed a “terminal year” of employment during which they continue to be employed but their salary remains frozen at the level set in the previous budget adjustment (Filing No. 44-3 at 2).

         When Dr. Feresu began her employment at IU in 2010, she was assigned to the Department of Kinesiology in the School of Health, Physical Education, and Recreation. She, along with a few other faculty members, had the task of starting a new Department of Epidemiology and Biostatistics to offer masters and doctoral programs. In July 2012, the School of Health, Physical Education, and Recreation transitioned into the School of Public Health, and Dr. Feresu transitioned into the newly created Department of Epidemiology and Biostatistics (Filing No. 44-1 at 2, 7, 9).

         Just prior to this transition, IU notified Dr. Feresu in April 2012 that her initial appointment to IU as an “assistant professor” was not consistent with her professional accomplishments and that she should have been designated as an “associate professor.” This improvement in rank was applied retroactively to Dr. Feresu's hire date but did not automatically affect her salary or her upcoming tenure review (Filing No. 56-6 at 1-2).

         During her entire period of employment with IU, Dr. Feresu describes that she was subjected to sex and race discrimination. She explains, “[w]hen initially hired, I was brought in at a lower rank than my White counterparts despite my vast experience. I was also given lower start up research funding than my White colleagues.” (Filing No. 44-2 at 4.) In addition, she asserts she was “subjected to sexist comments from management such as, ‘You're a good woman' or ‘You're a good Mother.'” Id.

         On October 30, 2012, approximately ten weeks into the semester, Dr. Feresu was removed from a class that she was teaching without any notice or warning. IU contends her removal was the result of student complaints. However, Dr. Feresu contends her removal from her class did not follow IU's policies, procedures, or protocol. The students' complaints were fabricated and she actually received several positive assessments from her students (Filing No. 23 at 2-3; Filing No. 44-2 at 4). This removal from class caused Dr. Feresu great stress and anxiety.

         Dr. Feresu's third-year pre-tenure review began in March 2013. The tenure review process started with a Pre-Tenure Review Committee (“the Committee”), composed of three IU professors from different departments (Filing No. 44-1 at 9-11). The Committee reviewed the materials submitted by Dr. Feresu for her third-year pre-tenure review. After their review of the materials and consideration of the three areas of tenure criteria (teaching, research, and service), the three Committee members voted “Teaching: 2 - effective and 1 - ineffective. Research: 3 - unsatisfactory. Service: 1 - good and 2 - satisfactory.” (Filing No. 44-1 at 9.) “The unanimous recommendation of the Committee was Non-reappointment.” Id.

         In its recommendation report, the Committee explained how it reached its conclusion regarding Dr. Feresu's unsatisfactory research. It explained that, of Dr. Feresu's fourteen peer-reviewed published articles, three book chapters, and two manuscripts accepted to open online journals, only the two manuscripts accepted to open online journals were produced by Dr. Feresu after she joined IU. The rest of her cited work had been completed before joining IU. Id. at 10. The Committee also raised a concern about the academic quality of the publishing outlets Dr. Feresu had selected, noting that her book was published by a vanity press, and open online journals are not subject to rigorous academic standards. Id. “The Committee determined that Dr. Feresu's level of performance at IU fails to meet the standards of excellence in research for potential tenure.” Id.

         In its review, the Committee also noted Dr. Feresu's positive contributions to the school in developing epidemiology curricula and starting the epidemiology program. The Committee also noted the generally positive evaluations from Dr. Feresu's peers and students. Id. Despite Dr. Feresu's contributions in teaching and service, the Committee unanimously recommended non-reappointment because of Dr. Feresu's unsatisfactory research performance.

         After the Committee made its recommendation of non-reappointment, Dr. Ka He (“Dr. He”), Professor and Chair of the Department of Epidemiology and Biostatistics, reviewed Dr. Feresu's submitted materials and determined that he “could not find convincing evidence to rebut the committee's recommendation.” (Filing No. 44-1 at 33.) Dr. He found that the Committee's review was “fair and evidence based, ” and he also recommended that Dr. Feresu not be reappointed. Id. Dr. He noted his concerns about Dr. Feresu's research efforts and contribution, including the lack of academic quality of Dr. Feresu's chosen publishers in online open access journals and vanity press. Id. In his review, Dr. He recognized the positive contribution Dr. Feresu made to the school in helping start the Department of Epidemiology and Biostatistics. Id. at 34.

         Following Dr. He's review, Mohammad Torabi (“Dean Torabi”), Dean of the School of Public Health, reviewed Dr. Feresu's materials, the report of the Pre-Tenure Review Committee, and the report of Dr. He and concurred with the prior recommendations to not reappoint Dr. Feresu (Filing No. 44-1 at 35). Dr. Feresu requested further review with the opportunity to supplement her materials.

         The unanimous recommendation of non-reappointment was presented to Thomas Gieryn (“V.P. Gieryn”), Vice Provost for Faculty and Academic Affairs. On May 28, 2013, V.P. Gieryn requested supplemental materials and information from Dr. Feresu, the Committee, Dr. He, and Dean Torabi to help him review the recommendation of non-reappointment. Id. at 36. The committee reviewed Dr. Feresu's rebuttal and supporting evidence and again concluded that, “[c]onsidering the research efforts of the past three years, tenure will be highly unlikely at Indiana University.” (Filing No. 44-1 at 42.) Dr. He also reviewed Dr. Feresu's rebuttal and additional materials and similarly concluded that non-reappointment was appropriate. Id. at 43-45. Dean Torabi reviewed Dr. Feresu's service load and responded to V.P. Gieryn that, as it impacts research productivity, Dr. Feresu's help with developing the new epidemiology department was not out of line with the service load required of other faculty members. Id. at 46. After Dr. Feresu provided her rebuttal and additional materials, and the Committee, chair, and dean each affirmed their earlier recommendations, V.P. Gieryn reviewed the materials and recommendations and agreed with the prior levels of review that Dr. Feresu's research was unsatisfactory, and she should not be reappointed. Id. at 49-52.

         Because reappointment was not offered to Dr. Feresu after the third-year pre-tenure review, she entered her “terminal year” of employment during the 2013-14 school year. Dr. Feresu was able to teach that school year; however, her salary remained frozen at the level set in the previous budget adjustment (Filing No. 44-3 at 2-3). Her employment with IU ended on May 31, 2014 (Filing No. 44-2 at 6).

         Dr. Feresu asserts that Dr. He “hated and tortured me” and had no knowledge of administrative processes and no experience. In addition, she states that others at IU wanted to fire her and “had natural hate and disgust of me because I am ‘black' and from Zimbabwe.” (Filing No. 23 at 4.) Dr. Feresu believes the Pre-Tenure Review Committee was manipulated and took “orders from Vice Provost Gieryn ‘who was interested in me as a woman.'” Id.

         While still employed at IU, Dr. Feresu filed her first “Charge of Discrimination” with the U.S. Equal Employment Opportunity Commission (“EEOC”) on October 17, 2013, asserting discrimination and retaliation based on race, sex, national origin, and disability (Filing No. 44-2 at 4). In her EEOC charge, Dr. Feresu alleged,

I am a qualified individual with a disability and have been employed by Indiana University since July 1, 2010, where I currently hold the position of Associate Professor, Epidemiology & Biostatistics. During my entire period of employment with IU, I have been subjected to racist and sexually biased behavior from management within my department and school. When initially hired, I was brought in at a lower rank than my White counterparts despite my vast experience. I was also given lower start up research funding than my White colleagues. In addition, I was also subjected to sexist comments ...

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