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Bagley v. Yale University

United States District Court, D. Connecticut

June 15, 2016

CONSTANCE E. BAGLEY, Plaintiff,
v.
YALE UNIVERSITY, DOUGLAS RAE, EDWARD SNYDER, and ANDREW METRICK, individually, Defendants.

          RULING ON PLAINTIFF'S OMNIBUS MOTION CONCERNING DISCOVERY AND RELATED ISSUES

          CHARLES S. HAIGHT, JR. Senior United States District Judge

         Plaintiff has filed an Omnibus Motion [Doc. 172] which requests an order granting seven separate forms of relief, most related to pretrial discovery and related issues. Defendants oppose these requests almost in their entirety. The issues have been thoroughly briefed by counsel. This Ruling resolves them.

         The Ruling's discussion follows the order of the numbered paragraphs in the Omnibus Motion, which arrange and set forth Plaintiff's requests and demands. References to "Yale" refer to the University as an institution, or on occasion, it is a collective reference to all the Defendants. (1) and (2).Time Limit for Discovery Concerning Comparators; Identity of Comparators

         In a prior Ruling on discovery issues, reported at 2015 WL 8750901 (D.Conn. Dec. 14, 2015), the Court directed documentary discovery "with respect to those obvious comparators, the reappointment professors, " a group the Ruling defined as "the individuals who (a) were Professors in the Practice on the faculty of the Yale School of Management during the period 2008-2013 and (b) during that period, applied for reappointment to that rank and position." Id., at *9. In response to the request of Plaintiff's counsel for a clarification, the Court's Ruling on December 28, 2015 directed production of "the specified documents generated by SOM Professors in the Practice applying for or receiving reappointment at any time during the years of 2008 though 2013." Doc. 162, at 4.

         Plaintiff's present Omnibus Motion, in its first two numbered paragraphs, asks that the termination date for comparator discovery be extended beyond 2013. Doc. 172, at ¶¶ 1-2. Paragraph 1 asks for documents "generated by or relating to applications for reappointment and reappointments" of all SOM PiPs "whose reappointment process was either initiated or voted upon at any time during Professor Bagley's employment as a PIP, concluding in 2014." Paragraph 2 asks for discovery "of comparator documents on all SOM PiPs whose reappointment process was initiated in 2014 and voted upon during 2015, and for all PiPs whose reappointment was voted on in 2015, in 2016, and thereafter, up to the date of trial."

         To the extent that Plaintiff intends by these requests to expand the universe of "obvious comparators" beyond the temporal boundary of 2013 and into 2014, the application is without merit and will be rejected.

         As the discussion in the Court's earlier opinion, 2015 WL 8750901, makes clear, the phrase "obvious comparators" is intended to refer to faculty members with whom Bagley "was similarly situated in all material respects, " the requisite characteristic for a comparator in this sort of discrimination case. Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Before the year 2014 began, Yale had given Bagley final and unequivocal notice that her faculty employment was terminated. The earlier opinions recite that Bagley's appointment as a PiP began on July 1, 2008 and terminated on July 1, 2013. Dean Snyder sent Bagley a letter dated May 24, 2012, stating that she would not be reappointed. Following an internal SOM review, Snyder wrote Bagley a second letter, dated November 7, 2013, adhering to that decision. Further, "[i]n November 2013, Yale advised Bagley that there were no remaining avenues of internal review by which she could challenge the SOM's decision not to renew her faculty contract." 2014 WL 7370021, at *2. Bagley filed her complaint in this Court on December 20, 2013.

         Owing to the time consumed and efforts expended during Bagley's internal challenges to Yale's refusal to reappoint her, Bagley's employment was extended, for purposes of salary and benefits, through December 31, 2014. However, her ability to identify a faculty colleague "similarly situated in all material respects" came to an end not later than November 2013. It is one thing to be among several Professors in the Practice at the Yale School of Management applying for and hoping to receive reappointment: "Similarly situated" in rank on the faculty, sharing the "material respect" of hope that springs eternal in the human spirit - in this instance, for reappointment to a valued position. It is quite another thing to be in Bagley's situation as 2014 began: Her extended faculty employment beyond 2013 the bureaucratic and joyless by-product of rejection and contention, her hope for reappointment dashed. While Bagley was still listed as employed by Yale in 2014, during that year one can identify "obvious comparators" to her on the SOM faculty only by exalting form over substance. I adhere to the view that the universe of "obvious comparators" to Bagley is confined to the years 2008 - 2013.

         However, that does not end the present inquiry. The Court's December 2015 Ruling observed that once a discrimination case reaches the stage where the plaintiff must show that her employer's "proffered motive" for its adverse decision "is not worthy of belief, " then "evidence of a comparative sort is appropriate . . . . Obviously, comparative evidence is relevant in determining whether a motive is pretextual." 2015 WL 8750901, at *6 (citation omitted). On this theory of comparative evidence, a comparator is another employee to whom the circumstances of the "proffered motive" applied but was treated more favorably than the plaintiff, thereby supporting the inference that vis-à-vis the plaintiff the proffered motive was pretextual. Conceptually, that sort of comparator might not be found within the ranks of the reappointment PIPs I have characterized as "obvious comparators." One may think of these additional individuals as "potential" or "unrevealed" comparators.

         Further analysis of that issue in the prior opinion was not possible because, at that time, "the present record does not sufficiently reveal the reason or reasons Yale gave and presumably still gives for its decision not to reappoint Bagley." 2015 WL 8750901, at *8. In consequence, the Ruling directed Yale "to articulate in clear and specific language its explanation of legitimate nondiscriminatory reasons" for its employment decision not to reappoint Bagley, an expansion of the record necessary to enable the Court "to determine the proper boundaries of the discovery Bagley seeks to compel, " given the reality that the Court "cannot decide whether information is relevant to Bagley's claim that Yale's reason was pretextual without first knowing what that reason was." Id.

         The Court directed Yale to make its explanation in the form of an Offer of Proof, which would constitute its "proffered motive, " in the parlance of Title VII case law. Doc. 160. Yale complied by filing an eleven-page, twelve-paragraph document [Doc. 163]. The document is captioned "Defendants' Offer of Proof, " filed on behalf of Yale and the three individual Defendants (Rae, Snyder and Metrick), and recites at page 1 that the document is submitted "in order to articulate their explanation of the legitimate and nondiscriminatory reasons for the decision to not renew the plaintiff's appointment as a Professor in the Practice." Doc. 163, at 1.

         The Offer of Proof begins with a factual summary of the negotiations in 2007 and 2008 between Professor Bagley, then on the faculty of the Harvard School of Business, and then-Yale SOM Dean Podolny, which resulted in Yale's offer and Bagley's acceptance of a five-year term on the SOM faculty as a Professor in the Practice, the highest rank at SOM given to "non-ladder" faculty, a phrase I take to mean a teacher who at the time is neither seeking nor hoping for tenure. In 2008 the Board of Permanent Officers ("BPO") of the SOM, consisting of the School's tenured faculty members, voted in favor of Bagley's appointment. Id., ¶¶ 1-3.[1] Bagley began teaching at Yale in 2008.

         In September 2011 SOM Dean Snyder (who had succeeded Podolny) appointed a faculty committee to review Bagley's reappointment as a PiP, for which she had applied. According to the Offer of Proof, "[t]he criteria for the reappointment of PiPs are: scholarship, teaching, service to the University and need for the position." ¶ 11. On April 2, 2012, the reappointment committee delivered a report which was "favorable to [Bagley] in the areas of teaching, scholarship and service to the University, " but "did not address the issue of continued need for [Bagley] on the faculty, since that is an issue which is left to the BPO on a reappointment vote." ¶ 4. At a meeting on May 7, 2012, the majority of the BPO voted against Bagley's reappointment: nine faculty members against, six members in favor, three members abstaining. Dean Snyder stated that he would accept the BPO vote (which is regarded as a faculty recommendation, not binding on the Dean), and Bagley would not be reappointed. ¶¶ 5-6.

         Following Bagley's administrative objections and the protocol-required involvement of then-Yale Provost (now President) Peter Salovey, the BPO met again on October 21, 2013 to consider the renewal of Bagley's five-year appointment. Reappointment was again disapproved by a majority: sixteen faculty members against, two members in favor, two members abstaining. Dean Snyder again accepted that recommendation. ¶¶ 9-10.

         The Offer of Proof states that "[t]here was no single reason for members of the BPO to vote as they did"; "faculty members were not required to provide a reason for their positions"; and "[t]here were a number of reasons for individual members of the faculty to vote as they did, and not all faculty members agreed on all those reasons." ¶ 11. Notwithstanding those disclaimers, paragraph 11 of the Offer of Proof recites a number of reasons why faculty members voted against Bagley's reappointment. Certain specific comments are ascribed to "[so]me faculty members"; others are ascribed to five named Professors: Rae, Nalebuff, Bracken, Chevalier, and Oster.[2] Id. I will summarize those reasons (without intimating any view as to whether they are sound or justified):

* SOM should not have a full-time SOM faculty member teaching a course on Law and Management, as Bagley, a lawyer and former partner of a California law firm, had been doing as a PiP (co-teaching with Rae a course called "State & Society"). Legal perspectives required by business school students could be better furnished by a closer relationship with Yale Law School, or through elective courses taught by practicing lawyers.
* SOM should not have a full-time faculty member teaching in the area of Law and Management, such as the State & Society course or any other course, because "the focus on American legal process was not as important as when Dean Podolny served as the Dean, " and Bagley's initial appointment should be viewed as an experiment which had failed, which should not be continued.
* After a satisfactory start, Bagley's dedication to the School and the course she co-taught with Rae had waned, she began to miss State & Society course class sessions, she steered the course towards an excessively legalistic approach (as opposed to a balance between legal and political science concepts), and acted unprofessionally in allowing her teaching relationship with Rae to deteriorate to the extent that it impacted negatively upon students in the course.
* There were serious concerns about the rigor and accuracy of Bagley's scholarship, which spilled over into her teaching, and made her a less desirable faculty member for SOM.
* Negative evaluations of Bagley by students among the more than 300 who had taken the State & Society course in the spring of 2012 indicated that the course had drifted away from its origins in a way not for the best of the School, and Bagley had acted unprofessionally in permitting the deterioration of her relationship with Rae to destroy the course for the students.[3]

         The consequence of prior proceedings in this litigation is that Yale is committed to the reasons stated in its Offer of Proof as the "proffered motive" for its decision to deny Bagley reappointment. For purposes of delineating the proper boundaries of discovery, the subject of this Ruling, the salient feature of that proffered motive is that each of its components relates solely to perceived deficiencies in Bagley's performance as a teacher and scholar, viewed within the somewhat broader context of the questioned desirability of having any full-time SOM faculty member teach the kind of subject Bagley taught during her initial appointment.

         In these particular circumstances, it is difficult, no matter how one defines a "comparator, " to discern a ground for compelling discovery with respect to a PiP whose reappointment experiences (application for reappointment or deliberation and decision on the application) took place after 2013, the year when Yale's denial of Bagley's reappointment application became final under the University's protocols and Yale terminated her employment.

         Bagley's reply brief [Doc. 179] states at 2 that "several federal courts analyzing discovery requests in the context of discrimination cases have . . . allowed plaintiffs discovery for reasonable periods of time after their employment is terminated." The two cases the brief relies on most prominently, Bujnicki v. American Paving and Excavating, Inc., No. 99-CV-0646S, 2004 WL 1071736 (W.D.N.Y. Feb. 25, 2004), and Craig v. Exxon Corp., No. 97 C 8936, 1998 WL 850812 (N.D. Ill.Dec. 2, 1998), are readily distinguishable from the instant case.

         In Bujnicki, the Title VII plaintiff, the sole woman in a laborer training group established by the defendant paving company, alleged that she had been subjected to discriminatory treatment because she was a woman. The alleged disparate treatment consisted of a series of disagreeable and humiliating actions by a job supervisor. See n.4, infra. Plaintiff's unhappy and contentious employment with the paving company lasted only six weeks in 1998. She left the company in September of that year, allegedly having become ill as a result of the harsh and discriminatory treatment to which she was subjected. The decision Bagley's brief cites is that of the magistrate judge supervising discovery in Bujnicki, who inter alia directed the company to produce the personnel records of any employee who participated in the trainee program or was a minority "between September of 1996 and September of 2000." 2004 WL 1071736, at *3. The magistrate judge reasoned that the limitation of disclosure of records of individuals "who fall within these categories of employees to a period of two years preceding plaintiff's claims of discrimination and two years subsequent to plaintiff's claims of discrimination is more than sufficient for plaintiff to discover information relevant to her claim of disparate treatment." Id.[4]

         Craig is a decision by the magistrate judge supervising discovery in a case where the plaintiff claimed that "she was terminated from employment because of her pregnancy and/or because she would soon have needed a leave of absence." 1998 WL 850812, at *1. Plaintiff was terminated by Exxon, her employer, in September 1996. Disputes arose about time limitations on discovery plaintiff demanded with respect to the defendant employer's treatment of other employees. The magistrate judge, rejecting defendant's contention that no discovery should be allowed for the time subsequent to plaintiff's termination, reasoned that "the post-termination discovery sought is reasonably calculated to lead to discovery of admissible evidence. For example, if one day (or one month or one year) after Plaintiff's termination a non-pregnant employee of the Defendants had the same or worse attendance record as Plaintiff but was not discharged, that information could be relevant to the question of pretext." Id., at *3 (footnote omitted).

         The inherent nature and boundaries of cases like Bujnicki and Craig are quite different from those of the case at bar. The lone woman in a work gang complains that she was treated unfairly by being denied breaks, made to go out for coffee, and leered at. Another woman complains that she was treated unfairly by being discharged because she was pregnant. I do not mean to denigrate the gravity of those plaintiffs' charges or the wrongfulness of their employers' conduct if proven. However, the cases depend upon the evaluation of uncomplicated employer conduct in a relatively simple workplace, where comparators are easily identified and the factual issues are straightforward. The case at bar takes us from those everyday workplaces into the rarefied world of university academia, where the granting or denial of faculty appointments results from the interaction of subtle and nuanced institutional needs and personal qualifications, upon whose proper resolution tenured professors and ensconced deans may disagree (as demonstrated by the divided tenured faculty votes on Bagley's reappointment).

         Given these contrasting considerations, it does not follow from granting the plaintiffs in Bujnicki and Craig discovery about other employees for some time after plaintiffs' termination that Professor Bagley is entitled to discovery about other PiPs after her denial of reappointment. The surrounding facts are too different. The appraisal of each faculty appointment applicant is of necessity so personalized that it argues against a broad-form enlargement of the time for discovery.

         The briefs for Yale on the present motion remind me more than once that my earlier decisions drew the ending line for discovery in this area at the year 2013. Nonetheless, Yale's main brief [Doc. 176] says at 6: "If the court is inclined to allow any additional comparator discovery, however, it should be limited to the reappointment reviews of Professors Jeffrey Garten and Jeffrey Sonnenfeld, which were voted on in 2015." While trial judges should not indulge personal inclinations in deciding their cases, the adjective is not entirely inappropriate when one reflects that the fashioning of limits for discovery is entrusted to the judge's sound discretion. In the case at bar, Yale's agreement to full discovery of the post-2013 Garten and Sonnenfeld reappointments to the SOM faculty satisfies its obligations under the discovery rules on this particular aspect of the case.

         It remains to discuss under this heading additional bases for discovery Bagley puts forward in her Omnibus Motion at 3, where she says that

because her claims in this action are not limited to discrimination and retaliation, but also include breach of contract, interference, and misrepresentation based on Yale's failure to apply the standards set forth in her offer letter to her reappointment, Professor Bagley should also be allowed discovery concerning any SOM PiPs who are reviewed for or receive reappointment up to the date of trial.

Doc. 172, at 6. Bagley's reply brief argues at 4-5 that "reappointment materials post-dating Professor Bagley's employment as a Professor in the Practice are also relevant to Plaintiff's contract-related claims." Doc. 179, at 4-5. I understand the phrase "contract-related claims" to mean the previously identified claims for "interference" and "misrepresentation" as companions to the breach of contract claim. Plaintiff proffers these additional claims - breach of contract, interference and misrepresentation - as justifications, alternative to her discrimination and retaliation claims, for discovery into the appointment or reappointment of other SOM professors, after Bagley was terminated and up to the time of trial.

         Bagley's breach of contract claim cannot form the basis for such discovery. Her claim for breach of contract, against Yale only, is pleaded as Count Eight in the First Amended Complaint [Doc. 129]. That count alleges that Yale extended an offer of employment to Bagley, ¶ 173; Bagley accepted Yale's offer, ¶ 174; and "Yale and Professor Bagley accordingly entered into an express written contract concerning the terms and conditions of her employment" and "[t]hese terms were set forth in both the written offer letter Dated: behalf of Yale SOM by Deputy Dean Stanley Garstka and in the Yale Faculty Handbook." ¶ 175.

         The "written offer letter" referred to in these allegations is a two-page letter dated April 8, 2008 (which was preceded by negotiations between Bagley and Dean Podolny). The letter is on SOM stationery, signed by Deputy Dean Garstka and addressed to Bagley. The complaint's reference in Count Eight to the Yale Faculty Handbook in Count Eight apparently depends upon an earlier allegation in ¶ 34 of the complaint that "[a] copy of the Yale Faculty Handbook was incorporated by reference in the revised offer letter sent to Professor Bagley." The April 8, 2008 letter [Doc. 62-5] does not refer explicitly or by name to the Faculty Handbook. Presumably the complaint relies upon the following statements in the letter: "Under our rules governing such appointments you will be reviewed in the fourth year of this appointment for continuation as a Professor in the Practice of Law and Management. The review will be similar in process and use similar criteria to those of the review which led to this current appointment." Doc. 62-5, ¶ 1.

         Plaintiff's reasoning on this point is not entirely clear. I will assume for this discussion that, as Plaintiff's reply brief states, Yale amended the Faculty Handbook, after Bagley was denied reappointment, to add a programmatic need as a new criterion for reappointment: "new" in the sense that programmatic need was not a reappointment criterion when Bagley and Yale entered into their contract for Bagley's appointment in 2008.[5]

         Count Eight of the complaint concludes by alleging at ¶ 178: "Defendant Yale breached its express contract through its intentional, discriminatory, retaliatory and tortious acts."

         That "express contract" is the April 8, 2008 letter from SOM Dean Garstka to Bagley, containing the terms and conditions to which Bagley agreed.[6] The contract says what it says: no more, no less. Neither piety, nor wit, nor tears, [nor advocacy] can "cancel half a line" or "wash out a word of it, " The Rubaiat of Omar Khayyam, st. 71; nor can they add a word to it. Black's Law Dictionary (10th ed. 2014) at 225 defines "breach of contract" as:" Violation of a contractual obligation by failing to perform one's own promise, by repudiating it, or by interfering with another party's performance, " and adds: "It is a rule, generally accepted, that when a promisor fails in any respect to carry out an existing duty calling for a present, immediate performance under a contract, he is guilty of a breach of contract which furnishes a basis for a cause of action of some sort." (emphasis added, citation omitted). To succeed on her breach of contract claim, Bagley must show that Yale failed to perform a promise it made to Bagley in the express contract. That issue will be decided by the interaction between Bagley and Yale at the pertinent times, within the particular context of Bagley's application for reappointment to the SOM faculty, all viewed in the light of the terms and conditions of the contract between Bagley and Yale.

         If the Yale Faculty Handbook was a part of Bagley's contract with Yale, through incorporation by reference or ex proprio vigore, then one must conjure with the contention in Bagley's reply brief that "reappointment materials post-dating Professor Bagley's employment as a Professor in the Practice are also relevant to Plaintiff's contract-related claims." Doc. 179, at 4. That submission focuses particularly upon the statement in Yale's Offer of Proof, Doc. 163 at ¶ 11, that "[t]he criteria for reappointment of PiP's are: scholarship, teaching, service to the University and need for the position." Bagley's theory of the case is that "programmatic need was not included in the reappointment criteria set forth in her offer letter and contract, " and "[a]fter Professor Bagley's reappointment was denied, Yale amended its Faculty Handbook to include need as one of the criteria for reappointment." Doc. 179, at 4-5. In these circumstances, Plaintiff's reply brief contends, "reappointment documents that post-date Professor Bagley's termination are probative of the definition and standard for 'need, ' as the Defendants claim that term has been used in the context of PiP appointments." Id., at 5.

         This reasoning does not lay the foundation for the requested further discovery. On the breach of contract claim, the question is whether Yale amended, structured or manipulated the criteria for SOM faculty reappointment in a manner that violated a promise Yale made to Bagley in the contract between them. Yale's conduct with respect to other contracts for the appointment or reappointment of other individuals at later times is not a potential source of evidence relevant to Bagley's claim that Yale breached its contract with her.

         Bagley's reply brief also refers to the "contract-related" tort claims of "interference" and "misrepresentation." These generic terms find particular expression in Counts Eleven through Fourteen of the First Amended Complaint. Count Eleven, against Defendant Yale alone, is captioned "negligent/innocent misrepresentation" and purports to allege Yale committed both of these related but separate torts. The count focuses upon Yale's alleged representations to Bagley that the standards for her reappointment "would be performance-based, " with no representation that "her reappointment would in any way be contingent upon 'need, ' or other shifting criteria, " Doc. 129, 187, and alleges that Bagley was damaged by Yale's decision to terminate Bagley because of "factors not disclosed to Professor Bagley, namely, 'need.'" Id., ¶ 193.

         Under Connecticut law, the elements of a cause of action for innocent misrepresentation are "(1) a representation of material fact, (2) made for the purpose of inducing the [transaction in suit], (3) the representation is untrue, and (4) there is justifiable reliance on the representation by the defendant and (5) damages." Little Mountains Enters., Inc. v. Groom, 141 Conn.App. 804, 810 n. 4 (2013) (citation omitted).

         An action for negligent misrepresentation, one step further along the scale of increased wickedness, "requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Coopola Constr. Co., Inc. v. Hoffman Enters. Ltd. Partnership, 134 Conn.App. 203, 210 n. 4 (2012) (citation omitted).

         It is readily apparent that Bagley's misrepresentation claims against Yale depend solely and entirely upon the facts and circumstances surrounding her contract with Yale and the particular manner of its termination. Discovery with respect to other contracts involving other individuals after Yale terminated Bagley will not be allowed, because those facts are neither relevant to nor admissible in the case in suit, and are unlikely to lead to relevant and admissible evidence.

         Counts Twelve, Thirteen and Fourteen allege claims for tortious interference "with advantageous and/or contractual relations." They are against, respectively, Professor Rae (cast by Bagley in the role of a principal villain and architect of her denial of reappointment), Dean Snyder, and Deputy Dean Metrick. Each count alleges that Bagley enjoyed "advantageous and/or contractual relationships with . . . Yale, " Doc. 129, ¶¶ 195, 200, and 205, and that the individual in question (Rae, Snyder or Metrick) "intentionally and unjustifiably, and with ...


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