Slatkin v. University of Redlands

Facts

Dr. Wendy Slatkin began teaching art history part-time at the University of Redlands in spring 1986 and full-time (though off the tenure track) in fall 1992. In 1993, Philip A. Glotzbach, dean of the college of arts and sciences, offered her a tenure-track position as associate professor in the art department; her July 1993 contract provided that she would be considered for tenure in fall 1995. (Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1150.) The faculty handbook set three tenure criteria: teaching, research, and University (including departmental) service. (Ibid.) At her spring 1994 tenure-track review, both Dean Glotzbach and Dr. Penny A. McElroy “recommended her enthusiastically,” and her contract was renewed. (Ibid.)

Slatkin applied for tenure in fall 1995; the deadline for submissions bearing on the decision was October 30, 1995. (Slatkin, supra, 88 Cal.App.4th at p. 1151.) Three days before the deadline, McElroy — by then the art department chair — submitted a letter on behalf of the entire department supporting tenure. She praised Slatkin’s research and service; on teaching, she described a “paradox”: “In the classroom, Wendy is a lively and entertaining lecturer,” earning “high praise for her knowledge and command of the subject,” yet “there is also a pattern in the evaluations that characterizes the course as not very interesting or stimulating.” (Ibid.) On departmental service, McElroy noted “a distinct lack of listening skills,” with Slatkin “sometimes talking directly over her colleagues.” (Ibid.)

The turning point was a letter Slatkin herself wrote. Raúl Acero, another art department professor, was up for tenure at the same time, and on October 30, 1995, Slatkin submitted a letter “ostensibly supporting” him — while asserting that Acero had “participated in generating an environment in departmental meetings which makes frank and honest discussion difficult,” attributing to him “an inability to recognize genuine differences of opinion as well as his difficulty with clear verbal articulation,” and cataloguing the “institutional support” he had enjoyed. (Slatkin, supra, 88 Cal.App.4th at pp. 1151–1152.) On November 2 — after the deadline — Acero submitted a letter refusing to support Slatkin’s tenure, criticizing her teaching and departmental service. (Id. at p. 1152.) On November 6 — also after the deadline — McElroy submitted a second letter, this time recommending denial. She later explained: “Ms. Slatkin’s letter made it clear to me that she would not be able to interact effectively with her colleagues or achieve excellence in teaching, due to her inability to accept criticism. This incident tipped the balance against Ms. Slatkin in what had previously been a decision to recommend her for tenure.” (Ibid.)

The faculty review committee voted 6 to 4 to award tenure, but Dean Glotzbach denied it, citing “sufficient questions concerning the level at which classes are taught and her willingness to subject her teaching to critical analysis.” (Slatkin, supra, 88 Cal.App.4th at p. 1152 & fn. 2 [nominally a recommendation to the trustees, but in practice the dean’s negative recommendation constituted the denial].) An appeals committee recommended reversal: it found Slatkin’s Acero letter “responded appropriately to the requirements for faculty evaluation,” that the principal reason McElroy and Acero changed their recommendations was that letter, and that all three decisionmakers had applied “the unapproved criterion of collegiality,” with the dean improperly weighting a second McElroy letter “written after the deadline in anger.” (Id. at pp. 1152–1153.) President James R. Appleton overruled the denial but declined to grant tenure outright, deferring to the faculty review process; he invited Slatkin to reapply in 1996–1997 or 1997–1998. (Id. at p. 1153.)

Against the dean’s advice that she teach another year first, Slatkin reapplied immediately with a tenure packet she acknowledged was “fundamentally unchanged.” (Slatkin, supra, 88 Cal.App.4th at p. 1153.) Dean Glotzbach convened a “highly unusual” meeting of the art department about Slatkin — without notice to her — memorialized it in a highly critical memo placed in her tenure dossier, and, though he told her she could reply, her written reply never made it into the dossier. (Ibid.) He denied tenure a second time, citing colleagues’ charges that she did not engage students in critical thinking, that her recent changes might be “merely cosmetic and not self-motivated,” and that she was “volatile,” did not listen, and undermined the chair. (Id. at pp. 1153–1154.) Slatkin appealed again, contending among other things that “there is an element of anti-Semitic animus which is the subtext of these allegations and mis-characterizations of my work.” (Id. at p. 1154.) The second appeals committee found the “letter of the law” had been observed and most of her allegations refuted, declined to address the anti-Semitism charge as “outside the scope of the Appeals Committee to consider,” yet concluded “that Dr. Slatkin did not receive a wholly fair and unbiased review.” Under the heading “A prejudiced dean?,” it declared itself “uneasy” and “unhappy” about incidents suggesting the dean “did not work to create a strong dossier on Dr. Slatkin’s behalf,” and recommended she “should be allowed to try for tenure again in about three years.” (Ibid.) President Appleton let the denial stand and — for the first time ever — overruled an appeals committee’s recommendation, rejecting the retry. (Id. at pp. 1154–1155.) Both Glotzbach and McElroy testified that Slatkin’s religion played no part in their recommendations. (Id. at p. 1155.)

Procedural history

Slatkin sued on four theories: breach of implied contract, breach of the implied covenant of good faith and fair dealing, employment discrimination under FEHA (Gov. Code, § 12900 et seq.) — alleging the University denied her tenure because she was a Jew — and fraud. The University moved for summary judgment on all causes of action; Slatkin opposed as to the first three only. The trial court granted the motion and entered judgment for the University. (Slatkin, supra, 88 Cal.App.4th at p. 1155.) On appeal she challenged only the FEHA ruling. (Ibid.) The Court of Appeal affirmed, with costs to the University. (Id. at p. 1161.) The opinion was certified for partial publication: part III (evidentiary issues) and part V (denial of a continuance to complete discovery) are not published. (Id. at p. 1147, publication fn.)

Issue

Whether a professor denied tenure raised a triable issue that the university’s stated reasons — perceived teaching deficiencies and inability to accept criticism — were a pretext for religious discrimination, where her own showing established that the decisionmakers turned against her because of her letter opposing a colleague’s tenure, not her religion. (Slatkin, supra, 88 Cal.App.4th at pp. 1155–1156.) Embedded in the question is the doctrinal issue the case is cited for: is evidence of pretext “tantamount to evidence of discrimination,” such that rejecting the employer’s business reason as false is, by itself, enough to reach a jury? (Id. at pp. 1156–1157.)

Holding

Reasoning

The framework: three stages, and a summary judgment overlay. The court began with the settled structure: California has adopted the three-stage burden-shifting test of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 for disparate-treatment claims, as confirmed in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354. (Slatkin, supra, 88 Cal.App.4th at p. 1156.) On summary judgment, the employer bears the initial burden and carries it by “‘establish[ing] an undisputed legitimate, nondiscriminatory basis’” for the decision; absent “‘substantial responsive evidence . . . of the untruth of the employer’s justification or a pretext, a law and motion judge may summarily resolve the discrimination claim.’” (Ibid., quoting Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058.) The University met its burden with evidence that Glotzbach, McElroy, and others found Slatkin “uninspiring” as a teacher, “uncooperative” as a colleague, and “unable to accept criticism, and hence unlikely to improve.” (Id. at p. 1156.)

The pivotal concession — and the pivotal move. The court did not pretend the University’s account was airtight. It accepted that Slatkin had real pretext evidence: for instance, the student evaluations on which McElroy “purportedly relied” were “actually ‘very positive.’” (Slatkin, supra, 88 Cal.App.4th at p. 1156.) But it held that all of that evidence pointed in one direction — “lingering resentment over l’affaire Acero.” (Ibid.) Slatkin’s response was doctrinal: she argued that “rejection of a defendant employer’s proffered nondiscriminatory business reason as incorrect is ordinarily evidence the employer was concealing an unlawful motive.” The court answered flatly: “We disagree.” (Id. at pp. 1156–1157.)

First answer: the employer’s “real” reason may be found “lurking in the record” — even if the employer never formally advances it. Quoting St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 522–523, the court explained that an employer’s “articulated reasons” do not exist only in pleadings or formal statements; they are “to be found ‘lurking in the record.’” (Slatkin, supra, 88 Cal.App.4th at p. 1157.) The University “understandably might not want to argue that the tenure decision involved academic politics. Nevertheless, we may treat academic politics as a ‘proffered’ reason, not merely as evidence that the University’s other ‘proffered’ reasons were a pretext for discrimination.” (Ibid.) This is the opinion’s most distinctive analytical move: the alternative lawful motive revealed by the plaintiff’s own pretext showing becomes, functionally, a proffered reason the plaintiff must also rebut.

Second answer: lying is not discrimination. Even where pretext is shown, “an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination.” (Slatkin, supra, 88 Cal.App.4th at p. 1157, quoting Guz, supra, 24 Cal.4th at pp. 360–361.) Proof the employer’s reasons are “unworthy of credence” may “‘considerably assist’” a circumstantial case, “because it suggests the employer had cause to hide its true reasons,” but “there must be evidence supporting a rational inference that intentional discrimination . . . was the true cause.” (Ibid.) The court paired Guz with St. Mary’s: nothing in law permits substituting, for the required finding of unlawful discrimination, “the much different (and much lesser) finding that the employer’s explanation of its action was not believable.” (Ibid., quoting St. Mary’s Honor Center v. Hicks, supra, 509 U.S. at pp. 514–515.)

Third answer: a grudge is a “legitimate” reason, and concealment has an innocent explanation. “A personal grudge can constitute a ‘legitimate, nondiscriminatory reason’ for an adverse employment decision,” because under Guz “legitimate” reasons need not be “wise or correct” — they need only be “facially unrelated to prohibited bias” such that, if true, they “would . . . preclude a finding of discrimination.” (Slatkin, supra, 88 Cal.App.4th at pp. 1157–1158, quoting Guz, supra, 24 Cal.4th at p. 358.) And the fact that the University’s own rules forbade “collegiality” as a tenure criterion “does not turn covert reliance on it into evidence of discrimination. To the contrary, it shows why Dean Glotzbach and Dr. McElroy might have concealed their real reason, even if it was not discriminatory.” (Id. at p. 1158.) The grudge, moreover, was “all too genuine”: both Glotzbach and McElroy had championed Slatkin until the Acero letter — the dean had recruited her to the tenure track, both had “unreservedly supported” her contract renewal, her relationship with McElroy had been “cordial and collegial,” and the dean had assured her “that he was supporting [her] tenure bid.” (Ibid.) Invoking the same-actor inference — “‘[w]here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, . . . a strong inference arises that there was no discriminatory motive’” — the court found the sequence inconsistent with religious animus. (Ibid., quoting Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809.)

The Guz caveat acknowledged — and confined. The court recognized that “‘[i]n an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias.’” (Slatkin, supra, 88 Cal.App.4th at p. 1158, quoting Guz, supra, 24 Cal.4th at p. 356.) But it “question[ed] . . . whether this is ‘an appropriate case,’” because “all the evidence that the University’s claimed reasons were dishonest pointed equally to the conclusion that its true reasons were nondiscriminatory.” (Ibid.) The court even doubted the prima facie case itself under Guz, supra, 24 Cal.4th at page 355, and Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253, which require circumstances suggesting a discriminatory motive. (Id. at pp. 1158–1159.)

The animus evidence dissected. What remained of Slatkin’s religious-animus showing failed on admissibility and on substance. The second appeals committee report — the “prejudiced dean” document — was unauthenticated hearsay; and even if admissible, it showed at most that the decisionmakers were “prejudiced” against Slatkin: “It did not show why they were prejudiced.” (Slatkin, supra, 88 Cal.App.4th at p. 1159.) The committee never considered her anti-Semitism charge, and “no reasonable juror could conclude that such ‘prejudice’ was based on her religion rather than on the Acero incident.” (Ibid., citing Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1117–1118 [hostility alone does not supply a discriminatory motive].) The faculty retreat scheduled on the Jewish high holidays was insufficient because Government Code section 12940, subdivision (l), requires accommodation of religious observance — and “the University did in fact excuse Dr. Slatkin from her conflicting duties. There was no indication that she was disadvantaged by her nonattendance.” (Id. at p. 1159.) Following Lawrence v. Mars, Inc. (4th Cir. 1992) 955 F.2d 902, the court concluded “that scheduling a significant business event during the high holidays is not evidence of discriminatory animus.” (Id. at pp. 1159–1160.) Finally, colleagues’ descriptions of another Jewish professor as “abrasive,” “defensive,” “volatile,” or “aggressive” provided “no basis for concluding that any of these comments were anti-Semitic” — the court quipped, in a footnote, that they may have expressed “anti-Selcoism” rather than anti-Semitism — and isolated remarks by persons “not involved in the adverse employment decision” are “entitled to virtually no weight.” (Id. at p. 1160 & fn. 5, quoting Horn, supra, 72 Cal.App.4th at p. 809.)

The synthesis. “In summary, then, the evidence showed that the University denied Dr. Slatkin tenure for one of two reasons (or both): either (1) she did not deserve it, or (2) her colleagues could not forgive her for making negative comments about Acero. There was no admissible evidence that the University actually denied Dr. Slatkin tenure based on anti-Semitic bias against her.” (Slatkin, supra, 88 Cal.App.4th at p. 1160.)

Significance

Slatkin is the sharpest California statement of a proposition implicit in Guz and St. Mary’s: pretext evidence has a vector. It is not enough that the evidence discredits the employer’s stated reason; it must point toward the prohibited motive rather than toward some other, lawful one. Where the plaintiff’s own falsity showing simultaneously reveals a nondiscriminatory “real reason” — office politics, personal animosity, a grudge — the court may treat that revealed motive as itself a proffered reason “lurking in the record,” and the plaintiff must produce evidence that it, too, is a stand-in for discrimination. (Slatkin, supra, 88 Cal.App.4th at pp. 1157–1158.) That analytical move gives defendants a second line of defense that does not depend on the credibility of their first.

The decision also matters for what it does in the university setting: it treats tenure denials under ordinary FEHA burden-shifting rather than any special deference doctrine, but its facts show how peer-review records — late letters, unapproved criteria, procedural irregularities, even an appeals committee’s finding that the review was not “wholly fair and unbiased” — can establish unfairness without establishing discrimination. (Slatkin, supra, 88 Cal.App.4th at pp. 1152–1154, 1158–1159.) The court’s companion holdings have independent citation value: the same-actor inference applied to the dean who recruited the plaintiff to the tenure track (id. at p. 1158); the rule that religious-conflict scheduling is not animus evidence where the employee was excused without disadvantage (id. at pp. 1159–1160); and the discounting of isolated remarks by nondecisionmakers (id. at p. 1160). The countervailing principle survives, and Slatkin acknowledges it: under Guz, supra, 24 Cal.4th at page 356, dishonest reasons plus a prima facie case “may permit” a finding of bias in “an appropriate case” — and under Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, disbelief of the employer’s explanation can carry substantial probative weight. Slatkin marks the boundary: the inference collapses when the falsity evidence itself supplies the lawful explanation.

Key quotes

“Academic catfighting or anti-Semitism?” (Slatkin, supra, 88 Cal.App.4th at p. 1149.)

“[A]n inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit discrimination.” (Slatkin, supra, 88 Cal.App.4th at p. 1157, quoting Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 360–361.)

“The fact that the University prohibited the use of ‘collegiality’ as a criterion for tenure does not turn covert reliance on it into evidence of discrimination. To the contrary, it shows why Dean Glotzbach and Dr. McElroy might have concealed their real reason, even if it was not discriminatory.” (Slatkin, supra, 88 Cal.App.4th at p. 1158.)

“In summary, then, the evidence showed that the University denied Dr. Slatkin tenure for one of two reasons (or both): either (1) she did not deserve it, or (2) her colleagues could not forgive her for making negative comments about Acero.” (Slatkin, supra, 88 Cal.App.4th at p. 1160.)

Read the full opinion (Justia) →

Practice pointer

Open questions

Slatkin leaves the contours of Guz’s reservation — that “[i]n an appropriate case” dishonest reasons plus a prima facie case “may permit a finding of prohibited bias” — undefined; the court merely “question[ed]” whether this record qualified because the dishonesty evidence “pointed equally” to a lawful motive. (Slatkin, supra, 88 Cal.App.4th at p. 1158.) When falsity evidence is motive-neutral — discrediting the employer’s account without revealing any alternative explanation — the opinion does not say how much more a plaintiff needs. Second, because the court resolved the case on the pretext stage, it expressly stopped short of holding that Slatkin failed to make a prima facie case, noting only that “[w]e even question whether” she did. (Ibid.) Third, the evidentiary rulings that stripped the record of “nearly all” the anti-Semitism evidence sit in unpublished part III (id. at p. 1159), so the published opinion’s statement that the surviving evidence was insufficient rests on a foundation practitioners cannot fully inspect or cite. Finally, the court did not decide whether — or how — the second appeals committee’s findings could have changed the analysis had they been properly authenticated; it held in the alternative only that they failed to show why the decisionmakers were prejudiced. (Ibid.)