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McKown v. Butler University

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

July 22, 2019




         Plaintiff Loni Smith McKown alleges that her former employer, Defendant Butler University, declined to renew her employment contract in retaliation for her protected activity, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Butler moves for summary judgment (ECF No. 34), and that motion is now fully briefed and ripe for decision. No. reasonable jury could find that an unlawful retaliatory motive caused McKown's nonrenewal, so Butler's motion is granted.

         I. Legal Standard

         “A district court properly grants summary judgment where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019). In considering a motion for summary judgment, the district court “must construe all the facts and reasonable inferences in the light most favorable to the nonmoving party.” Monroe v. Ind. Dep't of Transp., 871 F.3d 495, 503 (7th Cir. 2017). However, the district court must also view the evidence “through the prism of the substantive evidentiary burden, ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986), and does not draw “inferences that are supported by only speculation or conjecture, ” Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010).

         II. Background

         After a distinguished career as a journalist at the Indianapolis News, the Indianapolis Star, and WISH-TV, Plaintiff Loni Smith McKown joined the faculty of Butler University's Eugene S. Pulliam School of Journalism (then known simply as the “Department of Journalism”) as an adjunct professor in 2009. (McKown Dep. 7:18-13:16, ECF No. 37-1 at 7-13; ECF No. 35-1 at 36.) The following year, McKown received a one-year appointment as a full-time instructor and faculty adviser to The Butler Collegian, Butler's student newspaper. (ECF No. 35-1 at 37.) In 2011, she entered a two-year contract to serve as a full-time, non-tenure track, professional-in-practice faculty member. (ECF No. 35-1 at 38.) McKown's responsibilities comprised teaching (nine credits per semester, constituting 65 percent of her responsibilities), service (including advising the Collegian, representing 20 percent of her responsibilities), and professional activity (making up the remaining 15 percent of her responsibilities). (Id.)

         In 2013, McKown's contract was up for renewal. As part of the renewal process, the faculty member under review prepares a dossier for submission to a departmental committee and a professional standards committee. (Edgerton Dep. 15:8-21, ECF No. 37-2 at 15.) The departmental committee reviews the dossier, determines whether the faculty member met expectations in the relevant categories-in McKown's case, teaching, service, and professional activity-and makes a recommendation for renewal or non-renewal. That recommendation letter is then placed in the dossier and passed along to the professional standards committee. The professional standards committee likewise reviews the dossier and the letter from the departmental committee and makes its own determination whether the faculty member met expectations in each of the relevant categories. The professional standards committee adds its own letter to the dossier, which is then passed along to the dean-in McKown's case, Dean Gary Edgerton-to make a final renewal decision. (Edgerton Dep. 26:24-27:2, ECF No. 37-2 at 26-27.)

         McKown's 2013 departmental committee, consisting of three members of Butler's journalism faculty, split two-to-one on whether McKown should be renewed for three years or just one year. Dr. Nancy Whitmore, then-Director of the School of Journalism, and Dr. Kwadwo Anokwa “strongly recommend[ed]” a three-year renewal. (ECF No. 35-1 at 44.) Drs. Whitmore and Anokwa found that McKown's teaching exceeded expectations, focusing on her curriculum development and positive comments and letters from students and recent alumni. (ECF No. 35-1 at 40.) Drs. Whitmore and Anokwa also found that McKown's service exceeded expectations, noting her dedication to the Collegian and the various awards and accolades the paper earned under her watch. (ECF No. 35-1 at 43.) Finally, Drs. Whitmore and Anokwa found that McKown met expectations for professional activity. (ECF No. 35-1 at 42.)

         Dr. Margaretha Geertsema-Sligh, on the other hand, recommended a one-year renewal, citing relatively low student evaluation scores and negative student comments. Dr. Geertsema-Sligh noted that McKown's evaluation scores “between 2.1 and 4.3” were acceptable but higher scores should be expected given McKown's small class sizes. (ECF No. 35-1 at 45.) Dr. Geertsema-Sligh further observed that McKown received “overwhelmingly negative qualitative student comments” on her teaching, “which accounts for 65 percent of her responsibilities, ” and that those comments had not improved over McKown's time at Butler. (ECF No. 35-1 at 45.) Students commented that McKown “made me hate journalism, ” “killed my desire for journalism, ” and “turned me away from journalism”; that McKown “makes people run away”; that her expectations are “unreasonable, ” “too much, ” “overwhelming, ” “excessive, ” “intense, ” “impossible, ” and “absolutely ridiculous”; that she “puts students and their work down”; and that she is “degrading to students, ” “unhelpful, ” “demeaning, ” “rude, ” “arrogant, ” and “hurtful.” (ECF No. 35-1 at 45-46.) Dr. Geertsema-Sligh found that McKown met expectations for service and professional activity, but ultimately recommended a one-year renewal due to the negative student comments. (ECF No. 35-1 at 46.)

         The departmental committee's letters were included in McKown's dossier and forwarded to the College of Communication's professional standards committee. (ECF No. 35-1 at 47.) (Organizationally, the School of Journalism was part of Butler's College of Communication.) The professional standards committee, consisting of five faculty members, “unanimously agreed that [McKown] did not meet . . . expectations across all three areas of teaching, service and professional activity.” (ECF No. 35-1 at 47.) Like Dr. Geertsema-Sligh, the professional standards committee was “especially concerned by the negative student comments in light of the fact that 65% of Ms. McKown's appointment is based on her teaching.” (ECF No. 35-1 at 49.)

         McKown's dossier-containing the letters from both committees-was ultimately forwarded to Dr. Gary Edgerton, who served as dean of Butler's College of Communication beginning in 2012. On March 11, 2013, Edgerton wrote to Butler's Provost, Dr. Kathryn Morris, recommending a one-year renewal for McKown. (ECF No. 37-23 at 1.) Edgerton wrote, “Seeing such widely diverse appraisals of a faculty member's performance is indeed unique in my more than 25 years of evaluating non-tenure track and tenure-track faculty members . . . .” (ECF No. 37-23 at 2.) Edgerton found that McKown had “improved as a teacher since fall 2010” when she received her lowest student evaluation scores and “an unusually high number of open-ended criticisms[.]” (ECF No. 37-23 at 2.) In discussing McKown's negative student comments, Edgerton observed that at the time “McKown [was] still relatively new to university teaching. It is common that new teachers-whether coming to academe from graduate school or in Professor McKown's case, a profession such as journalism-to [sic] sometimes misread issues such as the expected and acceptable workload . . . or how best to provide constructive criticism to college-aged students.” (ECF No. 37-23 at 4.) He concluded, “All the concerns that students have identified in Professor McKown's classes are fixable. They just need timely and systematic attention.” (ECF No. 37-23 at 5.) Edgerton noted that McKown's only previous review had “down-play[ed] the negative student comments” such that McKown “received mixed signals about the required urgency needed to address the student concerns[.]” (ECF No. 37-23 at 7.) As Dean Edgerton recommended, McKown's contract was renewed for one year.

         McKown's contract was again up for renewal in 2014, and she again prepared a dossier for submission to a departmental committee, a professional standards committee, and Dean Edgerton. (ECF No. 35-1 at 57; ECF No. 35-2 at 19-30.) McKown's departmental committee, consisting of Dr. Whitmore, Dr. Geertsema-Sligh, and Dr. Christine Taylor, voted unanimously to “strongly recommend” a three-year reap-pointment. (ECF No. 35-2 at 19, 22.) The departmental committee found that McKown's teaching exceeded expectations for reappointment, noting “significantly improved student assessments, ” including both improved student evaluation scores and “very positive” student comments. (ECF No. 35-2 at 20.) The professional standards committee likewise found that McKown met expectations in teaching, service, and professional activity and voted unanimously to recommend renewal. (ECF No. 35-2 at 25.) The committee found that McKown “demonstrated significant progress in her teaching”-her student evaluation scores rose to within the College of Communication's averages and student comments were “much more positive in nature.” (ECF No. 35-2 at 24.)

         In reviewing the committee's letters and McKown's dossier, Dean Edgerton found that McKown had “put in the necessary time and effort to significantly improve her classroom performance” such that she “easily [met] expectations in teaching.” (ECF No. 35-2 at 29.) Edgerton also acknowledged McKown's “enormous time commitment” to advising the Collegian, which had received “literally dozens” of awards and recognitions under McKown. (ECF No. 35-2 at 29.) Edgerton concluded by “applaud[ing]” McKown for her “dramatic improvement” in teaching, service, and professional activity. (ECF No. 35-2 at 30.) On March 24, 2014, Edgerton recommended a three-year contract renewal, and in September 2014, McKown was reappointed for three years. (ECF No. 35-2 at 30; ECF No. 35-1 at 58.)

         Edgerton conducted McKown's annual performance review in April 2015, giving McKown an overall rating of “above expectations” for calendar-year 2014. While Edgerton praised McKown as “energetic” and “committed, ” he also noted that her student evaluation scores had fallen to “at or below [average]” in the fall of 2014 and that student comments were “decidedly mixed.” (ECF No. 35-2 at 35.) Specifically, Edgerton observed that “many of the critiques that existed prior to 2013 resurfaced, clustering around having unrealistic workloads and performance expectations and being harsh, unkind, and discouraging to students in providing them with feedback on their work.” (ECF No. 35-2 at 5.) He emphasized, “It is of the utmost importance that Professor McKown does not lose ground on the improvements that she made in the classroom from 2011 to 2013.” (ECF No. 35-2 at 5.)

         On August 12, 2015, McKown received an email from Butler's president about enrollment projections and salary changes. The next day, she forwarded the email to the Collegian's student editor-in-chief and two managing editors. (McKown Dep. 97:5-98:15, ECF No. 37-1 at 97-98.) In forwarding the president's email, McKown noted that she did not know whether it had been sent to students. (McKown Dep. 98:4-6, ECF No. 37-1 at 98.) On August 19, 2015, McKown received an email from Dean Edgerton about budget and enrollment shortfalls. (ECF No. 35-1 at 59.) The email, sent to the College of Communication's faculty and staff, contained a footer that read:

CONFIDENTIALITY NOTICE: This email, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure, or distribution is prohibited. If you received this email and are not the intended recipient, please inform the sender by email reply and destroy all copies of the original message.

(ECF No. 35-1 at 60.) McKown forwarded the email to the Collegian's editor-in-chief. (McKown Dep. 95:12-96:15, ECF No. 37-1 at 95-96; ECF No. 35-1 at 59.)

         Two days later, one of the Collegian's student-reporters emailed Edgerton about Butler's low enrollment and the specific budget cuts mentioned in Edgerton's August 19th email to faculty and staff. (ECF No. 35-4 at 9.) Edgerton emailed McKown and Dr. Whitmore to ask how the student obtained the email. (ECF No. 35-4 at 8.) McKown testifies that when Edgerton asked her about the forwarded email, she “immediately . . . apologized” and told Edgerton, “It will never happen again.” (McKown Dep. 96:13-15, ECF No. 37-1 at 96.)

         After McKown admitted to forwarding the email, Dr. Edgerton met with Dr. Whitmore and Assistant Dean Suzanne Reading; all three agreed that McKown should be removed from her position as adviser. (Edgerton Decl. ¶ 7, ECF No. 35-4 at 2; McKown Dep. 125:10-13, ECF No. 37-1 at 125.) On Dr. Whitmore's recommendation, Edgerton selected Marc Allen to serve as interim adviser to the Collegian to succeed McKown. (Edgerton Decl. ¶ 8, ECF No. 35-4 at 2.) Allen accepted the role on August 25, 2015. (Edgerton Decl. ¶ 8.)

         Two days later, Edgerton emailed Provost Morris to inform her of McKown's removal. (Edgerton Decl. ¶ 9, ECF No. 35-4 at 2.) Edgerton explained that McKown “made an ethical mistake” and “went beyond what is acceptable for her stated duties” as adviser. (ECF No. 35-4 at 11.) Edgerton noted that McKown was “trying to argue her case to stay on, ” but “from [his] perspective, it [was] not negotiable.” (ECF No. 35-4 at 11.) Edgerton further told Morris that he would give McKown “the option to resign so that the particulars of what she did need not be made public.” (ECF No. 35-4 at 11.)

         Dr. Whitmore met with McKown one-on-one to convey to McKown that Dr. Edgerton wanted her to step down from the adviser position for forwarding the email. (McKown Dep. 118:22-119:3, ECF No. 37-1 at 118-119.) McKown refused. Edgerton, Whitmore, and Reading then met with McKown on September 2, 2015, to discuss her removal. (McKown Dep. 118:12-21, ECF No. 37-1 at 118.) At the meeting, McKown brought a written statement; she asked to read it uninterrupted and did so. (McKown Dep. 121:4-6, ECF No. 37-1 at 121.)

         In her statement, McKown denied having tried to control the content of the Collegian and distinguished forwarding “news tips” from directing content. (ECF No. 35-1 at 62.) She added, “Most of the news tips [she had] forwarded over the years [were] ignored because students came up with better story ideas.” (Id.) Acknowledging that she forwarded the email, McKown stated in her defense:

I inadvertently forwarded an email from the dean of the College of Communication that had a confidentiality notice underneath his signature.
I acknowledged that I had no idea the notice was even at the bottom - had never noticed before and remain unsure when he started using it. It wasn't until his question about how a Collegian reporter learned the information and had requested an interview that I saw the confidentiality notice.
Furthermore, the information in the email related to public knowledge at the university: Enrollment lower than projected means belt tightening by all university departments and offices to help manage a smaller budget.
I accepted responsibility and apologized. This was not the Pentagon Papers I forwarded, not the scope of diplomatic cables dumped by WikiLeaks, not the classified information released by Edward Snowden.
In short, this is a minor offense - and certainly not a dismissible offense.


         McKown alleged that the request for her resignation was “a continuation of a hostile work environment. The dean's reaction is indicative of a continuance of hostility of Ph.D.'s toward professional practice and untenured faculty.” McKown continued, “Furthermore, since the dean joined the university three years ago, I have experienced increased and relentless examination under a microscope because of my position as Collegian adviser. The dean's reaction to this minor offense is indicative that he was looking for an excuse for a petty offense - but I am additionally concerned about a bias on his part against women, or someone my age, or against Jews.” (ECF No. 35-1 at 63.)

         After voicing her “concern[ ]” about Edgerton's purported sex-, age-, and religion-based bias, McKown immediately turned to the “repercussions” that would result “[i]f the dean chooses to pursue the effort to remove ...

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