McIsaac v. University of Vermont
Annotate this Case
McIsaac v. University of Vermont (2003-241); 177 Vt. 16; 853 A.2d 77
2004 VT 50
[Filed 04-Jun-2004]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2004 VT 50
No. 2003-241
Mary Lee McIsaac Supreme Court
On Appeal from
v. Labor Relations Board
University of Vermont
March Term, 2004
Richard W. Park, Chair
Edwin L. Hobson, Burlington, for Plaintiff-Appellant.
Jeffrey J. Nolan of Dinse, Knapp & McAndrew, P.C., Burlington, for
Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Skoglund and Reiber, JJ.,
and Zimmerman, D.J., Specially Assigned
¶ 1. DOOLEY, J. Grievant Mary Lee McIsaac appeals an opinion
and order of the Vermont Labor Relations Board (Board) which found that the
University of Vermont (UVM) did not violate any rules or regulations when
it denied her application for tenure. Grievant argues that the Board erred
by: (1) incorrectly applying a mixed motive analysis to a sex
discrimination claim; (2) failing to require UVM to follow its own
procedures; and (3) failing to disqualify a member of the Board because he
had previously served as a member and chair of the UVM Board of Trustees.
We affirm.
¶ 2. The Board made the following findings of fact. Grievant was
a faculty member in the history department at UVM from fall 1994 until
spring 2001. She was a tenure-track assistant professor who was hired to
teach East Asian history with a focus on China and Japan. Tenure-track
professors at UVM are subject to three reviews. The first, done in the
second year, includes a review done by both the department and the dean of
the College of Arts and Sciences [dean]. The second, conducted two years
later, is considerably more extensive. It begins with a review by the
department and then is followed by a review by the dean who receives advice
from the College Faculty Standards Committee. The professor is then
reviewed by the provost with the advice of the Senate Faculty Affairs
Committee. The case is finally considered by the president who renders a
final decision. The process for the third and final review is similar to
the second review's; however, after the final review the professor is
either granted tenure and promoted to the rank of associate professor or
denied tenure and a further teaching contract. The final review, which can
culminate in a life-time faculty appointment at UVM, is complex and
multilayered with a thorough review at each level. At every level of
consideration, written comments about the applicant are submitted, and the
applicant either is or is not recommended for tenure. As the applicant's
file proceeds through the process, the written comments from the previous
levels are included.
¶ 3. During each review, the professor is evaluated in three
areas: teaching, service and scholarship. In each review, including the
final one, grievant received positive evaluations for teaching and service;
it was clear that she was a valued teacher who made significant
contributions to the UVM community. However, at every review the
decision-makers expressed concerns about grievant's scholarship. Following
her first review, the College Faculty Standards Committee, although
unanimously recommending grievant for reappointment, wrote, "The committee
is concerned about the apparent lack of scholarly projects as [grievant's]
C.V. does not indicate any work in progress." The dean expressed similar
concerns stating,
[Grievant] should indeed continue to use her dissertation to form
a substantial body of published work. However, in my view, it
would be a mistake to publish her thesis research as both articles
and as a book. She should decide which is best and proceed
accordingly. The reason for this advice is that I believe in
order to win a promotion and a permanent position at the
University, faculty must demonstrate that their scholarly work is
moving beyond the thesis. If too much time is spent in publishing
both articles and a book drawn from the thesis there is little
left over to demonstrate future promise which, in my view, is the
most important consideration for promotion and tenure.
Grievant did not receive a copy of the dean's comments until eighteen
months after they were written.
¶ 4. During the time between her first and second review, grievant
was working on both articles and a book, and was giving conference
presentations. She also had become involved in editorial activities for a
newsletter that focused on Chinese urban history. As part of her second
review, grievant submitted a curriculum vitae which listed her scholarly
accomplishments following her first review. Included on the list were the
following: an article to be published in a conference volume, an article
submitted to The American Historical Review - the preeminent scholarly
journal in grievant's field, and three submissions to the Chinese urban
history newsletter.
¶ 5. The comments grievant received following her second review
echoed those in the first. The College Faculty Standards Committee stated,
"In the area of scholarship the Committee found [grievant's] record to be
somewhat thin." The Committee went on to list grievant's scholarly
accomplishments including the work she was doing towards publishing a book
and concluded by stating, "The Committee recognizes the value of these
projects and wishes to stress the importance of their coming to fruition by
the time of consideration for tenure and promotion." In the same vein, the
dean explained, "While [grievant's] work is promising indeed. . . it is
important to point out that she needs to have her research accepted for
publication either in the book that is currently underway or in a series of
articles if she is to be successful in obtaining promotion and tenure in
her next personnel action." Similarly, the Faculty Affairs Committee that
advised the provost, who approved grievant's reappointment, stated, "[The
Committee] strongly reiterates the dean's concerns regarding publication
rate."
¶ 6. In the spring of 1998, grievant became pregnant. Consistent
with UVM policies she requested a leave from her teaching duties in spring
1999 and a one-year extension of her tenure clock. Grievant's requests
were granted, and her tenure review was set for the 2000-2001 academic
year, rather than the 1999-2000 academic year. Grievant submitted her
application for tenure in the fall of 2000. As part of her final tenure
dossier, grievant listed her scholarship to date. The list included two
articles in peer reviewed journals, one introduction to a special issue of
a journal, one newsletter article, one encyclopedia entry and one
dictionary entry. She also listed a book manuscript as a work in progress
that was being reviewed by two prestigious university presses.
¶ 7. Grievant's tenure review began at the department level. Each
UVM department handles a candidate's tenure review in a slightly different
manner. During grievant's tenure application period, the history
department's review process was in flux. Prior to grievant's
consideration, the chair of the department would appoint a two-person
tenure review committee. The primary job of the committee was to solicit
letters from outside evaluators regarding the candidate's scholarship. For
grievant's review, because of problems in a prior candidate's evaluation, a
two-person committee was not appointed; rather the chair of the department
handled this responsibility. In addition to soliciting letters, the chair
was also responsible for helping grievant compile her tenure dossier.
Moreover, after departmental consideration was complete, it was the chair's
responsibility to make a final tenure recommendation to the dean.
¶ 8. On October 30, 2000, the history department met to consider
grievant's case. When considering a tenure case it is typical for
department members to enter a written vote as to whether an applicant
should receive tenure. In grievant's case, the department vote was split:
eight voted for tenure, eight voted against. Those voting against grievant
found her scholarly record thin and voted to deny tenure primarily on that
basis. Of the eight faculty members voting against grievant, four made
some reference in their written comments to the extension grievant received
on her tenure clock for maternity reasons. After the faculty members
voted, the chair was required to make a recommendation to the dean.
¶ 9. In her initial vote as a member of the department faculty, the
chair concluded that grievant should be denied tenure because her
scholarship did not meet the basis for tenure and promotion. After
reconsideration and the faculty voting, the chair changed her conclusion
and recommended grievant for tenure "with strong reservations." In her
final recommendation, the chair described grievant's teaching as "clearly
excellent" and found her service was "solid." With regard to her
scholarship, the chair stated, "[Grievant's] publication record (as
distinct from her research record) remains essentially the same as it was
at her last reappointment review." The chair went on to describe the book
grievant had in progress and noted that while the readers at the two
university presses were impressed with its quality, "extensive revisions"
were suggested and grievant did not yet have a book contract. The chair
also explained that the external reviewers asked to evaluate grievant's
scholarship were uniformly positive in their assessments.
¶ 10. After the chair completed her evaluation and gathered the
evaluations of her colleagues, grievant was given an opportunity to
respond. In her response, grievant explained that some of her colleagues
were inaccurate in their assessment of her scholarship. Grievant also
responded that some of her colleagues had inappropriately raised and
considered the one year extension on her tenure clock. Grievant accurately
pointed out that the extension was not to be viewed as an "extra" year to
research and write, and that she should not be penalized in any way for
receiving the maternity extension. After grievant submitted her rebuttal
statement, her file was forwarded to the College Faculty Standards
Committee. As explained above, at each successive level of review the
evaluation(s) and rebuttal statement from the prior levels' reviews are
included in the applicant's tenure review file. Therefore, included in her
file were the written votes from the history department, four of which made
some reference to the extension grievant received on her tenure clock for
maternity reasons, and grievant's rebuttal statement.
¶ 11. The College Faculty Standards Committee voted three to two in
favor of granting grievant tenure and promotion to associate professor.
The committee, although voting to grant tenure, expressed the reasons for
the split decision,
Those voting in favor believed that the quality of [grievant's]
scholarship outweighed concerns about its appearance in print;
those voting against found that her scholarly output did not meet
the standards for tenure and promotion set out by her Department
and the Dean of the College at her last appointment.
Grievant's file was then forwarded to the dean.
¶ 12. The dean voted against granting grievant tenure. The dean
found grievant's teaching and service satisfactory for tenure, but
determined that she had not met the requirements in scholarship. In a
lengthy evaluation, the dean first described grievant's scholarship record
to date explaining that although grievant had demonstrated promise as a
scholar, this promise had yet to materialize in print. The dean found
grievant's failure to garner a book contract particularly troubling and
noted that throughout her tenure review-at every level-there were
significant reservations about her productivity as a scholar. The dean
concluded by finding that grievant had not met the standards for tenure and
promotion and stated, "[Grievant's] scholarly record simply does not meet
the standards we expect."
¶ 13. In a footnote to her evaluation, the dean addressed grievant's
concerns about her colleagues' statements indicating that they had
considered her maternity extension in their evaluation. The dean
explained,
[Grievant] worries that the extension was used by some of her
colleagues as a reason to ask for more than what is otherwise
normally required. I agree this would have been inappropriate but
do not believe that her colleagues were making this argument.
[Grievant] should not be asked to do more because her tenure clock
was stopped-what is the point of stopping the clock if that were
the case-but neither can she be held to a lesser standard on the
same grounds for which additional time had been offered and
accepted. We have been very careful in the College of Arts and
Sciences to make accommodations for the extra burden of maternity,
but once that accommodation is made, maternity cannot be used as a
reason for doing less.
¶ 14. Grievant's file was next considered by the Faculty Affairs
Committee that voted eight to two against granting grievant tenure. All
agreed that grievant's teaching and service were strong, but were split on
her scholarship. The committee's statement accounted for the split
explaining,
Those voting in favor felt that the record of scholarship is
sufficient to award tenure, citing in particular the extremely
positive external review letters. Those voting against felt the
candidate's current record of scholarship is insufficient for a
positive tenure recommendation.
After consideration by the Faculty Affairs Committee, grievant's file was
forwarded to the university's provost. Like those who had previously
considered her file, the provost concluded that grievant's teaching and
service met the university's standards for tenure, but found her record of
scholarship inadequate. The provost, in addition to evaluating grievant's
scholarship record, explained that he had reviewed her rebuttal statement
and stated, "[n]oteworthy were her comments about maternity leave and how
its length and nature had been misinterpreted by certain faculty in her
department. This issue was no factor whatever in my conclusion."
¶ 15. Following the provost's decision to deny her tenure and
promotion, grievant appealed to the acting president of the university for
a reversal. Grievant argued that both the dean and the provost denied her
tenure because they relied on "inaccuracies and misunderstandings" that had
occurred at the department level. The president denied grievant's appeal
finding that both the dean and the provost had reached the conclusion that
grievant's scholarship record was inadequate independently. That is,
neither the dean nor the provost relied on the written votes that made
reference to grievant's maternity extension in their decisions.
¶ 16. After the president denied her appeal, grievant filed a
grievance with the Faculty Grievance Committee. In this grievance,
grievant made nine complaints about the process used in the tenure
decision. The committee unanimously sustained five of the nine complaints
and recommended that grievant's tenure be reconsidered beginning at the
department level. The president rejected the committee's recommendation
and subsequent request for reconsideration. Grievant then appealed this
decision to the Board.
¶ 17. In her grievance to the Board, grievant made the same nine
allegations made to the Faculty Grievance Committee. They are: (1) as a
result of antagonism over the procedures for selecting outside evaluation
scholars, the history department chair abused her authority by presenting a
case against tenure in violation of Section 270.5 of the Officers' Handbook
of the University of Vermont [Officers' Handbook]; (2) the chair's conduct
in undertaking to present grievant's case for tenure and secretly opposing
it violated "even rudimentary standards of good faith and fair dealing" and
denied "the peer review guaranteed by the UVM tenure procedure;" (3) the
chair and part of the department faculty failed to apply the history
department guidelines governing tenure evaluation with respect to
scholarship, and the chair's standards represented a misreading of
standards set by the dean at the second review; (4) in their votes, some
faculty members penalized grievant for failure to publish during her
maternity leave and thereby, engaged in gender discrimination, violating
Officers' Handbook Sections 40.1, 40.2 & 270.5(c) (FN1); (5) although the
chair was fully conversant with the peer review standards for the journals
in which grievant had published, she failed to inform the department
faculty of these standards and denied grievant the full benefit of her
peer-reviewed publications; (6) the chair and others improperly considered
the reports of anonymous readers of grievant's book manuscript to determine
her scholarship and, therefore, denied her peer review of her scholarly
achievements; (7) the chair, without a rational basis, stated that
grievant's publication record at tenure review remained essentially as it
was at the second review; (8) without rational basis, members of the
faculty of the department stated that grievant's scholarship had not
progressed adequately beyond her dissertation in violation of Officers'
Handbook Section 270.5; and (9) by issuing a nominally positive tenure
recommendation although she actually opposed grievant's tenure application,
the chair improperly reduced grievant's appeal rights, and her action
abused the process and lacked a rational basis. The grievance complaint
contains a summary that reiterated grievant's claim that the tenure review
was "based on the discriminatory application of the rules" in violation of
her rights, and that the denial of tenure was "an abuse of authority, . . .
[without] a rational basis, and was discriminatory based on sex." The
summary cited Officers' Handbook Section 270.5 as the rule violated.
¶ 18. At the commencement of the hearing before the Board, grievant
moved to recuse one of the members of the hearing panel, Edward Zuccaro, a
former member and chair of the UVM Board of Trustees. The members of the
panel unanimously denied the motion. Following a lengthy hearing, in which
each side presented witnesses and documentary evidence, the Board dismissed
all of grievant's claims finding that she had failed to prove that any
university rule or regulation had been violated. The Board refused to
consider claims raised for the first time in grievant's post-hearing brief
because it found that grievant was required to raise all allegations in her
initial filing. See In re Grievance of Whitney, 168 Vt. 209, 215, 719 A.2d 875, 879 (1998).
¶ 19. We start with the motion to disqualify member Zuccaro because
it goes to the ability of the panel to take action. (FN2) Mr. Zuccaro sat
on the UVM Board of Trustees from 1991 to 1997 and chaired the Board of
Trustees from 1995-1996. Grievant objected to Mr. Zuccaro's presence on
the Board hearing panel, but he was not disqualified. Grievant argues that
the Board erred by failing to disqualify Mr. Zuccaro for three reasons: (1)
because he sat on the Board of Trustees when grievant's first review from
the dean, which she did not receive until eighteen months after it was
written, was drafted; (2) while Mr. Zuccaro sat on the Board of Trustees he
associated with the dean and the provost; and (3) as the only lawyer on the
panel Mr. Zuccaro was in a position of particular authority.
¶ 20. In support of her reasons, grievant argues that this Court
"applies the same standard for administrative tribunals as to judges."
This assertion misstates the law and ignores our holding in In re Crushed
Rock, Inc., 150 Vt. 613, 623, 557 A.2d 84, 90 (1988) where we explicitly
stated that "[w]hile the Legislature may choose to apply the Code of
Judicial Conduct to those with adjudicatory powers in the executive branch,
we find no indication that it has chosen to do so." See also Sec'y,
Agency of Natural Resources v. Upper Valley Reg'l Landfill Corp., 167 Vt.
228, 234, 705 A.2d 1001, 1005 (1997). The Legislature has not acted since
Crushed Rock to apply the Code to administrative proceedings. Thus the
Code provision on which grievant relied in support of her motion, which
states that "[a] judge shall disqualify himself or herself in a proceeding
in which the judge's impartiality might reasonably be questioned . . .,"
A.O. 10, Canon 3E(1), is inapplicable to this proceeding.
¶ 21. Grievant argues for the first time here that if the Code
provision does not apply, Mr. Zuccaro must be disqualified under 12 V.S.A.
§ 61(a). Although grievant's precise argument under the section is
unclear, we infer that she is arguing that Mr. Zuccaro acted in a "judicial
capacity" when he was "interested in the event of such cause or matter" as
those words are used in the section. In making this argument, grievant is
relying upon In re State Aid Highway, No. 1, Peru, 133 Vt. 4, 9-10, 328 A.2d 667, 670 (1974) in which we held that § 61(a) applied to the chair of
the environmental board, while she was presiding in a contested case, and
required the chair's disqualification because she was a member of the board
of an environmental organization which was participating as a party. UVM
responds that we cannot consider this argument because it is raised for the
first time on appeal, see Grievance of McMahon, 136 Vt. 512, 514, 394 A.2d 1136, 1138 (1978); that the applicable standard is that imposed by due
process of law as explained in Crushed Rock and Upper Valley Reg'l Landfill
Corp.; and that if § 61(a) is applicable, it was not violated.
¶ 22. We do not have to decide the applicable standard, because
under any standard, including that of the Code of Judicial Conduct, we
conclude that the Board acted correctly. In reaching this decision, we
emphasize that, as in judicial disqualification proceedings, the party
making the motion has the burden to establish the grounds for recusal, see
State v. Putnam, 164 Vt. 558, 563, 675 A.2d 422, 425 (1996), and the
decision on the motion by the panel as a whole must be affirmed unless we
find an abuse of discretion. See id. at 561, 675 A.2d at 424. The sparse
record made by grievant does not establish an abuse of discretion.
¶ 23. The record here is comparable to that in Gallipo v. City of
Rutland, 163 Vt. 83, 95-96, 656 A.2d 635, 643-44 (1994), in which the
plaintiff in a Vermont Fair Employment Practices Act case attempted to
disqualify the trial judge because he formally represented the City of
Rutland during a period when the Rutland Fire Department implemented the
employment policy that plaintiff alleged was illegally changed with respect
to him. We held that the judge's former position was not "sufficient by
itself to warrant disqualification." Id. at 96, 656 A.2d at 644; see also
Doyle v. Arlington Cty. School Bd., 953 F.2d 100, 102-03 (4th Cir. 1991)
(in special education case against school board, judge properly refused to
recuse himself where he was a member of the school board when parents first
applied for special education services, but not when the dispute giving
rise to the suit arose). Although we did not discuss § 61(a) in rendering
our decision, we conclude that the opinion was fully consistent with that
section. The wording of the section addresses conflicts between the
adjudication role and contemporaneous positions or interests, as was
present in State Aid Highway, but not conflicts that arise out of past
positions. (FN3)
¶ 24. Here, Mr. Zuccaro had left the UVM Board of Trustees before
grievant's tenure review process commenced, and, in any event, the Board of
Trustees had no role in the tenure review process. Grievant argues that
Mr. Zuccaro was a member of the Board of Trustees when she had her first
review, and the history department chair improperly failed to provide her
the dean's comments in the review. (FN4) We find this slight overlap between
Mr. Zuccaro's UVM tenure and this proceeding to be negligible. He had no
knowledge of the failure to forward the comments and had no responsibility
in the process, and, in any event, no grievance resulted from the failure.
Moreover, Mr. Zuccaro denied that he had more than a passing acquaintance
with the academic decision-makers - the dean and provost -, and grievant
failed to show any other connection between them. Mr. Zuccaro had no
special status on the VLRB because he is a lawyer. The Board acted within
its discretion to deny the motion to disqualify.
¶ 25. We turn now to the issues grievant raises with respect to the
merits. Grievant raises four arguments on appeal: (1) the Board erred in
not concluding that the tenure decision was based, in part, on gender
discrimination; (2) the Board erred in not finding that UVM violated
certain procedural rules in rendering its tenure decision; (3) the Board
failed to consider claims for violation of procedural rules not contained
in the grievance complaint; and (4) the Board failed to consider grievant's
claim that the tenure decision was arbitrary and a violation of the implied
covenant of good faith and fair dealing. Although grievant has not
separately mentioned all her grievance counts in her statements of issues
on appeal, the detail of her arguments return to virtually all of the
grievance counts as well as other claims made for the first time later in
the Board proceeding or in this Court. As a result, our review is
organized somewhat different from that presented by grievant.
¶ 26. When reviewing a decision by the Board, we presume it is valid
and reasonable, Vermont State Colls. Faculty Fed'n v. Vermont State Colls.,
151 Vt. 457, 460, 561 A.2d 417, 419-20 (1989), and give the Board
substantial deference. In re Grievance of Merrill, 151 Vt. 270, 272, 559 A.2d 651, 652-53 (1988). Even if we would not have reached the same
conclusion as the Board, we will uphold its findings if they are supported
by credible evidence. In re Grievance of Butler, 166 Vt. 423, 425, 697 A.2d 659, 661 (1997). Therefore, we will overturn a Board decision only if
it is shown to be clearly erroneous. Merrill, 151 Vt. at 273, 559 A.2d at
653.
¶ 27. The grievance jurisdiction of the Board is limited. A
grievance is a written expression of dissatisfaction with "aspects of
employment or working conditions under collective bargaining agreement or
the discriminatory application of a rule or regulation." 3 V.S.A. §
902(14). Where, as here, there is no applicable collective bargaining
agreement, the only ground for a grievance is the discriminatory
application of a rule or regulation. See In re Grievance of Gobin, 158 Vt.
432, 434, 610 A.2d 150, 151 (1992). On this ground, failure of the
employer to follow a binding rule constitutes an actionable grievance. Id.
¶ 28. The Board is empowered to adopt rules and regulations
governing grievance proceedings. 3 V.S.A. §§ 926, 928. It has adopted a
rule requiring the grievant to exhaust any administrative remedy available
in the agency before filing the grievance with the Board. Vermont Labor
Relations Board, Rules of Practice § 18.1. It has interpreted this rule to
prohibit the employee from raising issues in the Board that were not raised
in the prior administrative proceeding. See Grievance of Sklar, 19
V.L.R.B. 183, 206-08 (1996). It has also required by rule that a grievance
complaint make specific reference to the rule or regulation that is alleged
to have been violated, Vermont Labor Relations Board, Rules of Practice §
18.3(D), and held that failure to do so is a waiver of reliance on the
non-referenced section. See Grievance of McCort, 16 V.L.R.B. 70, 109
(1993).
¶ 29. The administrative process that grievant exhausted is
similarly limited. That process is not the tenure review process about
which grievant complains, but instead the Faculty Grievance Procedure set
out in Section 270 of the Officers' Handbook. Its purpose "is to provide a
process for the fair and timely resolution of those claims based upon an
event or condition which affects the terms and/or conditions of employment
of a faculty member," but not to provide "an alternative locus of judgment
as to a faculty member's academic qualifications or the wisdom (as opposed
to the fairness) of a personnel decision." Officer's Handbook, Section
270.1. The grievance procedure establishes a grievance committee of seven
persons to hear grievances, Section 270.2 b(1), but makes its action only a
recommendation to the president who makes the final decision. Id., Section
270.8. In this case, the grievance procedure was invoked after the tenure
decision was final to challenge the fairness of the tenure procedures.
Because grievant was limited in the matter before the Board to the issues
she raised in the faculty grievance procedure, the restrictions in the
scope of the university grievance process necessarily applied in the Board
process also.
¶ 30. To understand the appeal issues, it is helpful to summarize
the rationales for the Board's decision. The Board actually rejected the
claims raised in the grievance based on three overlapping, but independent,
rationales. The first rationale is that the grievant failed to prove the
claim on the merits. Most of grievant's claims were rejected on the merits
although there was confusion about the standard the Board was to use in
considering the merits, a confusion that has led to one of the main appeal
issues. The confusion has arisen because of lack of clear definition of
the rules UVM was alleged to have violated. Because the Board grievance
was, in essence, an appeal from the president's rejection of the Faculty
Grievance Committee decision, grievant expressed the grievance claims as
she presented them to the grievance committee. The scope of review and
jurisdiction of the Board and the Faculty Grievance Committee are not the
same. The committee has jurisdiction over complaints alleging (1) "a
violation of procedural rights . . . [including] cases in which existing
procedures were inadequate or inequitable;" (2) "a decision [that] had no
rational basis or was the result of an abuse of authority"; and (3) "a
violation of fundamental rights." Officers' Handbook Section 270.5(a), (b)
& (c). The Board, however, has jurisdiction only over claims of
discriminatory application of a rule or regulation. Despite the narrower
Board jurisdiction, grievant generally stated her claims in terms of the
review standards of the committee - for example, whether a particular
action of the history department chair had a rational basis or was an abuse
of authority. For some of grievant's claims, the Board also analyzed and
rejected the claim under the committee's review criteria. For others, it
reviewed the claim under the applicable UVM rule or history department
guideline establishing the substantive standards or procedures for tenure
review.
¶ 31. The second rationale for the Board's decision was that certain
claims grievant raised in her memorandum of law to the Board were not
preserved in her grievance complaint as required by Board rule 18.3. Thus,
the Board ruled that certain claims were waived because they were not
itemized in the complaint: that the history department chair violated
Officers'Handbook Section 231.2 in the way she conducted the faculty vote,
(FN5) that all reviewers violated Section 223.1 by not exercising
"reasonable flexibility" in evaluating grievant's scholarship, and that UVM
applied the tenure criteria in an "arbitrary manner."
¶ 32. The third rationale goes to the nucleus of the dispute
between the parties as it evolved before the Board. Grievant's challenges
to the procedures used in considering her tenure application related almost
exclusively to the first step in the tenure process - the consideration of
the application by the faculty of the history department and the
recommendation that resulted from that consideration. The actual decision
was made by the president after review by the dean and provost. Grievant
presented her challenges to the history department procedures to these
later decision-makers, and they stated that they reached their negative
decision without being influenced by the challenged procedures in the
history department. Thus, UVM's position in the Board and here is that the
alleged procedural defects are now irrelevant because grievant would have
been denied tenure even if the defects never occurred. Grievant's position
is that the tenure process "is a cumulative one" so that later reviews can
never purge errors in earlier reviews. The Board's primary rationale is
the acceptance of UVM's position, although it didn't apply it to all of
grievant's claims, as it could have. We note that this rationale was
applied in Nzomo v. Vermont State Colls., 138 Vt. 73, 76, 411 A.2d 1366, 1368 (1980) (Nzomo II), one of only two other faculty reappointment cases
this Court has reviewed. As is apparent from our discussion of the appeal
arguments below, and consistent with Nzomo II, we generally conclude that
the Board acted within its discretion in accepting the UVM position on this
rationale.
¶ 33. For some of UVM's claims, the Board appears to have employed
all the rationales cumulatively. For others, it applied only one or two of
the rationales. The use of alternative rationales complicates grievant's
position on appeal. To prevail she must show that each of the alternatives
is in error.
¶ 34. With this background in mind, we address grievant's appeal
issues with respect to the Board's decision. Grievant first argues that
the Board erred in not concluding that the tenure decision was based in
part on gender discrimination because four of the adverse votes by history
faculty members criticized grievant for not working on publication during
her maternity leave. The Board's analysis of this claim relies upon the
third rationale as described above. UVM's main response, without admitting
that any of the faculty votes involved gender discrimination, was that the
recommendations and decisions after the tenure case left the history
department were independent and explicitly rejected reliance on
non-publication during grievant's maternity leave. UVM particularly relied
upon the review by the dean, Joan Smith, and the provost, Robert Low. The
Board found that the history department's review was based in part on
gender discrimination, but accepted UVM's argument that the history
department review became irrelevant because of the later reviews.
¶ 35. Grievant argues here that the Board erred in not fully
analyzing the gender discrimination claim under the mixed motive analysis
developed in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), as applied
in Graff v. Eaton, 157 Vt. 321, 324-28, 598 A.2d 1383, 1384-87 (1991), and
in concluding that UVM would have denied tenure if the gender
discrimination had never occurred. In fact, the Board found that it was
unclear whether grievant was alleging that she had been discriminated
against on the basis of her gender under a pretext theory as described in
Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248 (1981) or the mixed
motive theory in Price Waterhouse. Rather than choosing for grievant, the
Board analyzed her claim under both theories. Because grievant has now
clearly chosen her theory, we examine that part of the Board's analysis.
¶ 36. Under a mixed motive analysis, which is guided by Price
Waterhouse, a plaintiff has the initial burden of showing that the adverse
employment action "at the moment it was made" was motivated by a mixture of
legitimate and illegitimate reasons. 490 U.S. at 241, 244-49. Once the
plaintiff shows that the decision was at least partially motivated by an
illegitimate reason, the burden then shifts to the employer to show that
the same decision would have been made even if the illegitimate reason had
not been considered. Id. at 244-45. Here the Board found that "[g]rievant
has not demonstrated that discrimination based on sex was a motivating
factor in the decision to deny her tenure and promotion." The Board
concluded that although the history department review was affected by
gender discrimination, the dean, provost and president independently, with
no reliance on the four statements made at the department level, found that
grievant's record of scholarship was inadequate for promotion and tenure.
¶ 37. Grievant's attack on the Board's analysis largely disputes its
factual findings and the conclusions based on those findings. Grievant
cites to language in the decisions of the dean and provost, as well as
testimony, that supports her view that the later decision-makers relied
upon the record made in the history department. She particularly relies
upon evidence that a tenure candidate who receives an unfavorable review at
the department level is highly likely to be denied tenure, while a positive
review at the department level results in tenure in 93% of cases.
¶ 38. Although grievant has pointed to evidence that might support a
different conclusion, she has not shown that the Board's findings are
unsupported by credible evidence as required by the standard of review.
See Butler, 166 Vt. at 425, 697 A.2d at 661. The Board determined that
during the tenure process grievant raised her concerns about the department
vote, made the decision-makers aware of these concerns and then the
decision-makers addressed grievant's concerns by disregarding the
department votes and making their own independent findings regarding
grievant's scholarship record. These findings are supported by the written
decisions as well as the testimony of the dean and provost. The issue was
also explicitly addressed in the president's grievance decision from which
grievant appealed to the Board. Citing the review decisions after the
history department action, the president found that the record "fails to
support findings or a conclusion that erroneous or improper considerations
associated with the [maternity] leave adversely affected the outcome of
this tenure review." In essence, the Board accepted this analysis.
¶ 39. The significance of grievant's statistical evidence was
disputed. Grievant drew the inference that the department chair's
recommendation was all but determinative. UVM argued that the evidence
showed that most applicants easily met the tenure standards and, thus,
there was no negative vote at any level because of the merits of the
application, not the weight of the chair's recommendation. UVM also noted
that grievant received a positive recommendation from the department chair.
The evidence did show that there were instances where the dean or provost
did not accept the department chair's recommendation and where the dean and
provost disagreed. We conclude that the statistical evidence went to
weight, and the Board could reject the inference grievant sought from it.
¶ 40. Grievant next contends that the Board erred by failing to
recognize the violation of a number of the written procedures applicable in
the tenure review process. Some of her claims go to specific written
tenure procedures; others go to the standards applied by the Faculty
Grievance Committee as discussed above. The Board analyzed both.
¶ 41. We conclude that grievant's arguments with respect to the
Faculty Grievance Committee standards were not properly before the Board.
As set forth above, grievant must prove to the Board a "discriminatory
application of a rule or regulation" as provided in 3 V.S.A. § 902(14).
Our precedents give some guidance on the meaning of that term. In Nzomo v.
Vermont State Colls., 136 Vt. 97, 385 A.2d 1099 (1978) (Nzomo I), grievant
argued that the decision to terminate him as an untenured faculty member
was made without compliance with certain of his procedural rights
specifically given by the Castleton College Faculty Handbook. We found
that this argument was within the grievance jurisdiction of the Board:
Discrimination in this instance simply means unequal treatment of
individuals in the same circumstances under the applicable rule.
... It is clear to us that the rules as written in the Castleton
Handbook are binding on the defendant, that they have not been
modified by past conduct, and that the defendant has failed to
apply these rules in plaintiff's case. This without more is
sufficient to require a finding of discrimination which
constitutes a grievance under 3 V.S.A. § 926.
Id. at 102-03, 385 A.2d at 1102 (citations omitted). We applied the
holding of Nzomo I in Boynton v. Snelling, 147 Vt. 564, 522 A.2d 232
(1987), where a state employee brought an action in superior court seeking
to require the Department of Libraries to comply with a statute giving
hiring preference to current classified employees. We held that the hiring
preference requirements were also contained in administrative rules and, as
a result, could be enforced only through grievance proceedings in the
Board. Id. at 566, 522 A.2d at 234. Finally and most recently in Gobin,
158 Vt. at 434, 610 A.2d at 151, we reiterated that failure of an employer
"to follow a binding rule constitutes an actionable grievance." We held
that the UVM provost's guidelines for the distribution of salary
adjustments were binding rules for purposes of grievant's complaint that he
did not receive the salary raise called for in those guidelines. Id. at
435, 610 A.2d at 152.
¶ 42. The rule on which grievant relies is unlike those in our
precedents. Rather than a mandate that governs the employer's conduct with
respect to employees, either substantively or procedurally, it governs only
the Faculty Grievance Committee in acting on employee grievances. (FN6)
More important, grievant has no claim of discriminatory application as
required by § 902(14). There is no allegation that UVM violated the rule
in the way we have considered in the past - that is, she has not alleged
that the Faculty Grievance Committee improperly applied the rule. Nor has
grievant alleged or shown that UVM applied the rule differently to grievant
than to others.
¶ 43. As UVM argues, the effect of holding that a grievance review
standard can be the basis for a grievance filed in the Board is that the
non-binding grievance review process set forth in UVM's Officers' Handbook
becomes binding because the president's decision can be appealed on its
merits to the Board. As § 902(14) states, this effect can be imposed by a
negotiated labor agreement between UVM and a employee's bargaining unit,
but we concur that in the absence of such an agreement, the language of the
grievance statute cannot be stretched to produce this effect.
¶ 44. Thus, we hold that grievant could prevail on her claim of a
rule violation only if she could show violation of a specific tenure
procedure rule. The rules governing the tenure review procedures within
the applicant's department are quite brief. Section 231.2 of the Officers'
Handbook provides:
Department chairpersons shall regularly review the performance of
faculty members of their departments and may recommend
reappointment, promotion or tenure to the dean. . . . In
considering whether to recommend reappointment, promotion and/or
tenure, the chairperson shall request the advice of all tenured
and tenure-track faculty members of the department or school. The
advice of other faculty members may be requested according to a
clear and consistently applied policy developed by the department
or school. In making a recommendation, the chairperson shall
report the extent of such consultation and the nature of the
advice received. The chairperson's recommendation should be
separate from the recorded opinion of the faculty.
With respect to reviewing scholarship of a tenure applicant, § 223.3 of the
handbook requires the department to "solicit evaluations [of the
applicant's work] from acknowledged scholars or practitioners at other
institutions." This requirement is supplemented by language in the History
Department Guidelines for Reappointment, Promotion and Tenure. Under
Research, Section 3(c) on "Review for Tenure" provides that "the candidate
must be able to show that colleagues in the discipline recognize the
importance, quality and value of his or her research," and goes on to
provide that "the department will solicit letters of evaluation from
outside colleagues about the candidate's research."
¶ 45. Grievant argues on appeal that four procedural defects in the
tenure process should have caused the Board to grant the grievance: (1) the
procedure employed by the chair of the history department in connection
with the faculty review; (2) the misstatement by the chair of the standards
used to judge grievant's scholarship; (3) the chair's misstatement of
grievant's publication activity since her second review; and (4) the
consideration of the letters of the anonymous readers of grievant's book
manuscript. We note that with respect to the second and third alleged
procedural defects, grievant has not specified what tenure rule was
violated by these actions, and none was cited to the Board. Grievant has
generally argued that the chair's improper actions in connection with the
faculty votes violated her right to advice of the faculty in Section 231.2,
but there is no indication that the rest of the faculty knew of these
comments. In any event, the Board found for each of these allegations that
any defect was cured by the later reviews by the dean, provost and
president, who were not under the misimpressions of the history chair or
faculty. (FN7) The evidence supports the findings which in turn support the
Board's conclusion. See Nzomo II, 138 Vt. at 76, 411 A.2d at 1368 (where
Labor Board's factual determination shows that the procedural defect did
affect "the final nonrenewal of plaintiff's contract," decision to deny
reinstatement was affirmed).
¶ 46. In describing the first defect, grievant criticizes the
history chair for failing to disclose her opposition to grievant's tenure
application, failing to advise her to submit a self-evaluation, and
speaking and voting against her in the faculty meeting. The Board found
that while the chair's conduct may not have been consistent with best
practices, it neither violated any rules or regulations nor deviated from
past practices. Based on the Board's findings and the very limited
applicable rule language, we agree. In any event, consistent with the
Board's earlier analysis, any defects did not prejudice grievant in the
later reviews. (FN8)
¶ 47. We reach a similar conclusion with respect to the anonymous
book reviews. The Board found that they were used solely to determine the
prospects for publication of her book, and not to determine the quality of
her work. There was evidence to support this finding. As with earlier
issues, the dean was clear that she did not use the reviews for an improper
purpose.
¶ 48. As her third claim of error on the merits, grievant argues
that the Board should have considered two claims even though they were not
itemized in the grievance complaint: (1) that UVM violated Section 223.1 of
the Officers' Handbook by not employing flexibility in judging her
scholarship; and (2) that the history department chair violated Section
231.1 by not sending her the recommendation of the dean for a publication
strategy at first review until eighteen months after they were made.
Grievant argues that the Board should have addressed the claims because
they were adequately alleged in the pleadings or they were tried by the
implied consent of the parties. Although the Board may have intended to
respond to the second claim, it did not explicitly do so. See fn. 4,
supra. It did, however, make a factual finding that grievant did not claim
that her conduct would have been different if she had received the dean's
recommendation earlier. In view of this finding, it is clear that any
violation of Section 231.1 would have had no effect on the tenure decision.
¶ 49. With respect to the claim of violation of Section 223.1, we
agree with the Board that even a liberal interpretation of the grievance
complaint did not cover this claim. Moreover, grievant failed to raise the
claim before the Faculty Grievance Committee as required by Board Rule §
18.1. We recognize that we have held that a pleading deficiency in a Board
proceeding can be overlooked "if an unpled issue is raised at trial, and
the opposing party had an ample opportunity to object and failed to do so."
Whitney, 168 Vt. at 213-14, 719 A.2d at 878. In Whitney, however, the
employer failed to object to the introduction of the new issue in the
Board, raising an objection for the first time in this Court. In this
case, the employer did immediately object when the issue was first raised
in passing in grievant's post-hearing memorandum. Assuming that the
implied consent rationale can overcome a deficiency in the failure to
preserve the issue in the earlier grievance proceeding, an issue left open
in Whitney, the Board acted in its discretion to hold that UVM did not
have ample opportunity to object to the introduction of the issue in this
case.
¶ 50. Finally, we address grievant's argument that in addition to
reviewing whether UVM violated its own rules, the Board should have
reviewed whether the tenure decision was arbitrary or in violation of the
implied contractual covenant of good faith and fair dealing. Under this
argument, grievant cites a number of defects in the tenure procedure that
grievant believes made it unfair and also claims that the Board should have
reviewed whether the result was substantively unfair. In making this
argument defendant relies primarily on Fairchild v. Vermont State Colls.,
141 Vt. 362, 449 A.2d 932 (1982), a case where a professor was denied
tenure. In Fairchild, we explained that the applicable collective
bargaining agreement expressly mandated that the Board was to "dismiss any
grievance involving denial of tenure unless the reasons offered in support
thereof represent an 'arbitrary or discriminatory' application of the
tenure criteria." Id. at 365, 449 A.2d at 934. Grievant's reliance on
Fairchild is misplaced because the standard of review was set out
specifically by the applicable collective bargaining agreement. Id. Here,
there is no collective bargaining agreement, and the Board correctly stated
that its standard of review for all of grievant's claims is governed by
Nzomo I, 136 Vt. at 102, 385 A.2d at 1102,which held that the Board can
consider only whether UVM violated a binding rule or regulation.
¶ 51. In her oral argument to this Court, grievant switched to the
argument that an arbitrariness standard applied through the application of
Section 270.5(b) of the Officers' Handbook. We have held above that the
standard of review set out in Section 270.5 does not apply at the Board
level.
¶ 52. Our holding on the arbitrariness standard applies equally to
grievant's argument that the Board should have considered whether UVM
violated the covenant of good faith and fair dealing that was part of her
employment contract with UVM. We see no basis to hold that the covenant is
embodied in a rule or regulation.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Grievant also charged that UVM had violated the Vermont Fair
Employment Practices Act and the Vermont Parental and Family Leave Act.
The Board ruled that it had no jurisdiction over such claims in a grievance
proceeding. The grievant has not appealed this ruling so we do not
consider these claims.
FN2. UVM argues that even if Mr. Zuccaro should have been disqualified,
this error is not grounds for reversal of the Board's decision because it
was voted unanimously by the other members of the panel. In view of our
disposition, we need not reach this argument.
FN3. Grievant cited two cases involving zoning and municipal boards in
support of her position that member Zuccaro had a conflict of interest.
Both involve conflicts arising out of the property interests of the board
member held at the time the member cast the vote being challenged. See
Clark v. City of Hermosa Beach, 56 Cal. Rptr. 2d 223, 235 (Cal. Ct. App.
1996); Kovalik v. Planning & Zoning Comm'n, 234 A.2d 838, 838-39 (Conn.
1967). Thus, they are similar to State Aid Highway and do not aid
grievant's position.
FN4. Grievant's complaint that the chair failed to provide her a copy of
the dean's comments with a reasonable period of time was not raised in the
grievance complaint and, thus, was not raised at the time of the recusal
motion.
FN5. There is reason to believe from the context that the Board meant
Section 231.1 and was responding to grievant's argument made for the first
time in her post-hearing memorandum that the chair's failure for eighteen
months to send her the dean's publication recommendations from her first
review violated that rule.
FN6. This is even more apparent from some of the other review standards
applicable to the committee. Under Officers' Handbook Section 270.5 (a),
the committee can grant a grievance where it finds that existing procedures
were followed but the committee deems them "inadequate or inequitable."
Under grievant's position, the Board would have the same jurisdiction to
set aside a tenure decision, even though it was rendered after full
compliance with the applicable procedural rules, because the Board found
that the procedures were inadequate.
FN7. As noted above, the Board also ruled that it would not consider
alleged violations of Section 231.2, because the section was not cited in
the grievance complaint. The complaint did specifically cover these
allegations in count nos. 3 and 8, and in the latter cited to Section
270.5. In view of the Board's review of these allegations, despite its
waiver holding, we need not consider the waiver holding.
FN8. One of grievant's arguments does not fit in this category. Grievant
alleged that the chair mistakenly sought to help her by recommending that
tenure be awarded. In fact, under the rules in effect, she argues, the
recommendation prevented grievant from requesting the dean that the tenure
review be resubmitted to the history department, a specifically-available
remedy in case of an appeal. See Officer's Handbook, § 231.32. Grievant
never requested this relief until the university grievance process,
although it was explicitly available from the provost. See id. § 231.33.
In any event, we are not persuaded that the dean could not have requested
revoting if she had been asked.
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