Milun v. Arizona Board of Regents, No. 2:2007cv01555 - Document 77 (D. Ariz. 2009)
Court Description: ORDER granting in part and denying in part 61 Motion for Summary Judgment. The Court will schedule a final pretrial conference by separate order. Signed by Judge David G Campbell on 4/2/2009.(NVO)
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Milun v. Arizona Board of Regents 1 Doc. 77 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kathryn A. Milun, a married woman, Plaintiff, 10 11 vs. 12 Arizona Board of Regents, a political subdivision of the State of Arizona, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-07-1555-PHX-DGC ORDER 15 16 Plaintiff Kathryn Milun filed a complaint against Defendant Arizona Board of Regents 17 asserting claims for unlawful employment discrimination and retaliation under Title VII of 18 the Civil Rights Act of 1964. Dkt. #1. Defendant has filed a motion for summary judgment. 19 Dkt. #61. The motion has been fully briefed. Dkt. ##64, 71. For reasons stated below, the 20 Court will grant the motion in part and deny it in part.1 21 I. Background. 22 Plaintiff worked as an assistant professor of anthropology at Rice University from 23 1991 until 2000. She obtained a doctorate degree in comparative literature and cultural 24 studies in 1993. Plaintiff revised her doctoral dissertation into a book manuscript entitled 25 26 27 28 1 Plaintiff’s request for oral argument is denied because the parties have had an opportunity to fully brief the issues and oral argument will not aid the Court’s decision. See, e.g., Lake at Las Vegas Investors Group, Inc. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991). Dockets.Justia.com 1 “Pathologies of Modern Space” (“Pathologies manuscript”). While at Rice, Plaintiff took 2 six weeks of maternity leave in 1994 and 1996. 3 In July 2000, Plaintiff began working as an assistant professor in the English and 4 justice studies departments of Arizona State University (“ASU”). Plaintiff was eligible to 5 be considered for promotion to associate professor with tenure no later than the 2005-2006 6 school year. Plaintiff was expected to meet the English department’s tenure requirements. 7 In order to be considered for tenure at ASU, English department faculty must have 8 high quality teaching and service and generally must have produced eight substantial 9 publications or a book and two other publications. ASU conducts two probationary reviews 10 during which retention decisions are made. In the second and fourth years of employment, 11 independent reviews about a faculty member’s progress toward tenure are made at the 12 following levels: the department personnel committee, the department chair, the dean’s 13 advisory committee, the college dean, and the university provost. The faculty member may 14 be retained with a regular contract, a conditional contract, or a terminal contract. ASU’s 15 president makes the final decision to grant or deny tenure after independent reviews by the 16 department personnel committee, the department chair, the dean’s advisory committee, the 17 college dean, the university promotion and tenure committee, and the university provost. 18 In November 2001, Plaintiff was awarded a regular contract for the 2002-2003 school 19 year. In September 2003, the English department personnel committee voted in favor of 20 renewing Plaintiff’s contract on the condition that she meet the submission deadlines for her 21 Pathologies manuscript and various articles listed in her fourth-year review packet, 22 participate in teaching workshops, and obtain a teaching mentor. The department chair 23 concurred with that recommendation. The dean’s advisory committee voted unanimously 24 to award Plaintiff a conditional contract requiring Plaintiff to publish her Pathologies 25 manuscript, publish at least four of the articles in progress, and demonstrate improvements 26 in the classroom. Dean David Young recommended that Plaintiff be awarded a terminal 27 contract. It was Dean Young’s opinion that the scholarly research and teaching records 28 indicated that Plaintiff was not making satisfactory progress toward tenure. Dean Young -2- 1 noted that Plaintiff’s “scholarly record is simply not sufficient to warrant recommending a 2 regular or conditional contract, especially for a faculty member who is ten years past her 3 Ph.D.” On November 25, 2003, Provost Milton Glick decided to give Plaintiff a terminal 4 contract for the 2004-2005 school year. 5 Plaintiff sought reconsideration of that decision and met with Associate Dean Simon 6 Peacock on December 9, 2003. In subsequent letters to Associate Dean Peacock, Plaintiff 7 noted Dean Young’s comment about Plaintiff being ten years past her Ph.D and questioned 8 how her maternity leaves at Rice University were being considered in the tenure review 9 process. On December 24, 2003, Provost Glick offered Plaintiff a conditional contract for 10 the 2004-2005 school year. On January 28, 2004, Dean Young sent Plaintiff a letter 11 outlining the terms of the contract. 12 On March 29, 2005, the dean’s advisory committee voted unanimously to award 13 Plaintiff a terminal contract. Dean Young agreed with that recommendation. On April 13, 14 2005, Provost Glick notified Plaintiff that she would receive a terminal contract for the 2005- 15 2006 school year. 16 In a letter dated June 7, 2005, Plaintiff was informed that she would be considered for 17 promotion and tenure during her terminal contract year. On September 27, 2005, the English 18 department’s personnel committee rendered a split vote (3-3) on whether Plaintiff should 19 receive tenure. Department Chair Neal Lester recommended that Plaintiff be denied tenure 20 and the dean’s advisory committee voted unanimously (9-0) in favor of that recommendation. 21 Dean Young and Provost Glick agreed. On March 3, 2006, the promotion and tenure 22 committee voted 6-4 in favor of granting Plaintiff tenure. On April 6, 2006, ASU President 23 Michael Crow denied Plaintiff tenure on the ground that her teaching and scholarly 24 production did not meet ASU’s standards of excellence. Plaintiff’s last date of employment 25 with ASU was July 1, 2006. 26 II. This Suit. 27 Plaintiff filed a charge of discrimination with the Equal Employment Opportunity 28 Commission (“EEOC”) alleging that she was denied tenure because of her sex and in -3- 1 retaliation for complaining about employment discrimination. The EEOC issued a 2 determination finding reasonable cause to believe that Defendant had violated Title VII. 3 Plaintiff was issued a right to sue letter on May 29, 2007. 4 Plaintiff commenced this action on August 17, 2007. Dkt. #1. Plaintiff alleges that 5 the conditional contract she was offered for the 2004-2005 school year (1) was 6 discriminatory because it imposed more stringent requirements than those imposed by ASU’s 7 own guidelines and on other members of the English department and (2) was in retaliation 8 for questioning how her maternity leave was being considered in the tenure review process. 9 Id. ¶¶ 9-14, 22. Plaintiff further alleges that the denial of a customary departure year 10 following the adverse tenure decision constitutes unlawful retaliation. Id. ¶ 23. 11 III. Summary Judgment Standard. 12 A party seeking summary judgment “always bears the initial responsibility of 13 informing the district court of the basis for its motion, and identifying those portions of 14 [the record] which it believes demonstrate the absence of a genuine issue of material fact.” 15 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is appropriate if the 16 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no 17 genuine issue as to any material fact and that the movant is entitled to judgment as a matter 18 of law.” Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the 19 suit will preclude the entry of summary judgment, and the disputed evidence must be “such 20 that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 21 Lobby, Inc., 477 U.S. 242, 248 (1986). 22 IV. Plaintiff’s Discrimination Claim. 23 A. Plaintiff has established a prima facie case of discrimination. 24 Under Title VII, an employer may not “discriminate against any individual with 25 respect to [her] compensation, terms, conditions, or privileges of employment” because of 26 her sex. 42 U.S.C. § 2000e-2(a)(1). Plaintiff carries the initial burden to establish a prima 27 facie case of sex discrimination by showing (1) that she belongs to a protected class, (2) that 28 she met objective tenure qualifications, (3) that she was denied tenure, and (4) that a male -4- 1 with similar qualifications was granted tenure. See Lynn v. Regents of the Univ. of Cal., 656 2 F.2d 1337, 1341, 1344 (9th Cir. 1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 3 802 (1973). 4 Defendant does not dispute the first and third elements of the prima facie case: that 5 Plaintiff belongs to a protected class and ultimately was denied tenure. No additional proof 6 is required on these elements. 7 Plaintiff has not established a prima facie case, Defendant contends, because Plaintiff 8 was not qualified for tenure and was actually treated more favorably than other tenure- 9 eligible faculty in the English department. Dkt. #61 at 8-10. Defendant argues that Plaintiff 10 was not qualified because at the time the tenure decision was made Plaintiff was still revising 11 her Pathologies manuscript and therefore had not published at least one book as required to 12 receive tenure. Id. at 8-9. Plaintiff has presented evidence that to attain tenure she was 13 required only to have a book in press and her Pathologies manuscript was under contract with 14 Routledge Press at the time of her tenure decision. Dkt. #65-7 at 2, 44; see Dkt. #62-7 at 2- 15 11, 32. Moreover, the promotion and tenure committee voted in favor of granting Plaintiff 16 tenure (Dkt. #62 ¶ 128), and members of the English department’s personnel committee 17 specifically found that Plaintiff had met the numerical publication requirement for tenure. 18 Dkt. #65-7 at 3, 7; see Dkt. #62-7 at 32-35, 53. 19 Defendant argues that Plaintiff was treated more favorably than other faculty because 20 she was allowed the unique privilege of being considered for tenure during her terminal 21 contract year. Dkt. #61 at 9-10. Plaintiff not only disputes that she was granted any special 22 privilege (Dkt. #65 ¶ 13), but has presented evidence showing that she was treated less 23 favorably than a male colleague during the tenure review process. Plaintiff’s conditional 24 contract for the 2004-2005 school year required that she (1) have her Pathologies manuscript 25 accepted for publication by December 31, 2004, (2) have at least four articles or book 26 chapters accepted for publication by January 15, 2005, and (3) complete her portion of a co- 27 authored book and submit it for publication by August 15, 2004. Dkt. #65-7 at 24; see Dkt. 28 #62-7 at 69-70. By contrast, the conditional contract of English assistant professor Peter -5- 1 Goggin required only that he have one book manuscript accepted for publication by 2 November 2005 and two submitted articles or book chapters by December 2005. Dkt. #72-2 3 at 23; see Dkt. #65-7 at 22. 4 “[U]nder the McDonnell Douglas framework, ‘the requisite degree of proof necessary 5 to establish a prima facie case for Title VII on summary judgment is minimal and does not 6 even need to rise to the level of a preponderance of the evidence.’” Villiarimo v. Aloha 7 Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (quoting Wallis v. J.R. Simplot Co., 8 26 F.3d 885, 889 (9th Cir. 1994)); see Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 9 (9th Cir. 1998). Indeed, “[t]he amount of evidence that must be produced in order to create 10 a prima facie case is ‘very little.’” Wallis, 26 F.3d at 889 (citation and internal alterations 11 omitted); see Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (“The burden 12 of establishing a prima facie case is not onerous.”). The Court finds that Plaintiff has 13 presented evidence sufficient to satisfy the low threshold required to establish a prima facie 14 case of sex discrimination. 15 B. Plaintiff has established a triable issue of fact. 16 “If the plaintiff establishes a prima facie case, the burden of production – but not 17 persuasion – then shifts to the employer to articulate some legitimate, nondiscriminatory 18 reason for the challenged action.” Villiarimo, 281 F.3d at 1062. Once the employer fulfills 19 this burden of production, the “presumption of unlawful discrimination ‘simply drops out of 20 the picture.’” Wallis, 26 F.3d at 889 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 21 507 (1993)). “This is true even though there has been no assessment of the credibility of [the 22 employer] at this stage.” Id. at 892 (citing Burdine, 450 U.S. at 254). Defendant asserts that 23 Plaintiff was denied tenure because her scholarly production at ASU was deficient and 24 students rated her a below average teacher. Dkt. #61 at 10-12. Defendant has sufficiently 25 articulated a legitimate, non-discriminatory reason for not granting Plaintiff tenure. See 26 Lynn, 656 F.2d at 1344. 27 If the employer sufficiently articulates a nondiscriminatory reason, the plaintiff “must 28 show that the articulated reason is pretextual ‘either directly by persuading the court that a -6- 1 discriminatory reason more likely motivated the employer or indirectly by showing that the 2 employer’s proffered explanation is unworthy of credence.’” Villiarimo, 281 F.3d at 1062 3 (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000)). To establish 4 pretext, Plaintiff asserts (1) that she was more qualified than Goggin and yet he was granted 5 tenure and she was not, and (2) Dean Young was biased against her because of her sex as 6 reflected by his comment that she was ten years past her Ph.D despite knowing that she had 7 taken maternity leave while at Rice University, the stringent conditional contract 8 requirements he imposed, and his negatively skewed recommendation that tenure be denied. 9 Dkt. ##64 at 5-17, 65-10 ¶ 64. Plaintiff argues that Dean Young’s discriminatory conduct 10 was an impediment to her receiving a fair tenure review at every level of the process. Dkt. 11 ##64 at 12-13, 65-10 ¶ 74; see Dkt. #1 ¶ 22. 12 Citing a case from the Seventh Circuit, Sun v. Board of Trustees of the University of 13 Illinois, 473 F.3d 799, 813 (7th Cir. 2007), Defendant contends that pretext is difficult to 14 show in academic tenure cases because the multiple, independent levels of review break the 15 connection between any possible discriminatory motive and the ultimate decision. Dkt. #61 16 at 13. This Circuit has made clear, however, that “discrimination at any stage of the 17 academic hiring or promotion process may infect the ultimate decision.” Lam v. Univ. of 18 Haw., 40 F.3d 1551, 1560 (9th Cir. 1994). A plaintiff “in a university discrimination case 19 need not prove intentional discrimination at every stage of the decision-making process; 20 impermissible bias at any point may be sufficient to sustain liability.” Id. 21 Construing the evidence in the light most favorable to Plaintiff, as the Court must on 22 summary judgment, see Anderson, 477 U.S. at 255, the Court concludes that Plaintiff has 23 established a triable issue as to whether Dean Young discriminated against her because of 24 her sex. Dean Young recommended that Plaintiff receive a terminal contract for the 2004- 25 2005 school year, stating that Plaintiff’s scholarly record was not sufficient to warrant 26 recommending a regular or conditional contract, “especially for a faculty member who is ten 27 years past her Ph.D.” Dkt. #62-6 at 70. Defendant asserts that at the time Dean Young made 28 that comment he had no knowledge of whether Plaintiff had taken maternity leave. Dkt. #62 -7- 1 ¶ 73. Plaintiff asserts that Dean Young should have been aware of the fact that she took 2 maternity leave at Rice University based on her curriculum vitae submitted during the fourth- 3 year review process. Dkt. #65 ¶ 73; see Dkt. #62-5 at 43-49. “‘[Q]uestions involving a 4 person’s state of mind are generally factual issues inappropriate for resolution by summary 5 judgment.’” Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 6 1999) (quoting Braxton-Secret v. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985)); see Consol. 7 Elec. Co. v. United States, 355 F.2d 437, 438 (9th Cir. 1966). Whether Dean Young was 8 aware of Plaintiff’s maternity leave when he recommended a terminal contract is a question 9 for the jury. 10 Plaintiff asserts that her terminal contract for the 2004-2005 school year was changed 11 to a conditional contract after she questioned whether her maternity leave was being counted 12 against her in the tenure review process. Dkt. #64 at 6-5; see Dkt. #62-6 at 74-75, 77. 13 Plaintiff argues that the conditional contract terms imposed on her by Dean Young are 14 discriminatory when compared to the conditional contract Goggin received. Dkt. #64 at 6-5. 15 The Court concludes that a jury reasonably could infer discriminatory intent on the part of 16 Dean Young. Plaintiff essentially was required to produce twice as much as Goggin. 17 Compare Dkt. #65-7 at 24 with Dkt. #72-2 at 23; see Harris v. Itzhaki, 183 F.3d 1043, 1051 18 (9th Cir. 1999) (“Issues of credibility, including questions of intent, should be left to the 19 jury.”). 20 An inference of discriminatory intent on the part of Dean Young is supported by his 21 apparent biased discussion of letters from outside reviewers who considered Plaintiff’s 22 scholarly work and candidacy for tenure. Plaintiff was considered by eight outside 23 reviewers. Five of them found Plaintiff to be a superior candidate, one recommended her as 24 a good candidate, and the other two provided no recommendation. Dkt. ##65-4, 65-5, 65-7 25 at 4-7. Positive comments by the outside reviewers include the following: “Few scholars 26 are of her formation or vision, and fewer still . . . are so eagerly generous with students and 27 peers”; Milun is a “complex and creative thinker, an erudite and sophisticated intellectual”; 28 Pathologies “is one of the most remarkable manuscripts written by a scholar under review -8- 1 for tenure that I have encountered during my many years as a university professor”; “Given 2 the quality of her word, Milun is virtually peerless”; Pathologies is “impressively executed 3 and uncompromising reading”; Milun’s work “exemplifies the very best of interdisciplinary 4 scholarship”; Milun is a “very original careful, and passionate scholar whose work crosses 5 the disciplinary boundaries in truly productive ways”; Milun “has the kind of intellectual 6 integrity, rigor, depth, breadth, and open curiosity that makes the academy vital.” Id. 7 Despite these glowing recommendations, Dean Young concluded that Plaintiff’s scholarly 8 work “received mixed reviews by the external reviewers,” noting that although “some praise 9 the originality of her work, others are critical of its quality.” Dkt. #62-7 at 53. The 10 promotion and tenure committee concluded that in considering the outside reviewers’ letters, 11 Dean Young “appears to have ignored the praise of [Plaintiff’s] book and to have selected 12 every negative statement about the book, a far smaller percentage of the content of the letters 13 than the positive comments.” Dkt. #65-7 at 4. A jury reasonably could agree with that 14 conclusion. Moreover, Plaintiff has presented evidence that Goggin ultimately was granted 15 tenure even though the recommendations of his outside reviewers do not appear as favorable 16 as those provided on behalf of Plaintiff. Compare Dkt. #65-7 at 2-8 with Dkt. #65-7 at 32- 17 38. 18 Given the multiple levels of administrative review Plaintiff received, her less than 19 favorable reviews by students, and the somewhat subjective nature of tenure decisions, the 20 Court finds this to be a close case. The Court concludes, however, that Plaintiff has 21 presented sufficient circumstantial evidence of discrimination to survive summary judgment. 22 The law of this Circuit is that “‘a plaintiff in an employment discrimination action need 23 produce very little evidence in order to overcome an employer’s motion for summary 24 judgment.’” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) 25 (quoting Chuang, 225 F.3d at 1124); see Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th 26 Cir. 1997). “This is because ‘the ultimate question is one that can only be resolved through 27 a searching inquiry – one that is most appropriately conducted by a factfinder, upon a full 28 record.’” Chuang, 225 F.3d at 1124 (quoting Schindrig v. Columbia Mach., Inc., 80 F.3d -9- 1 1406, 1410 (9th Cir. 1996)); see Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) 2 (“[B]ecause of the inherently factual nature of the inquiry, the plaintiff need produce very 3 little evidence of discriminatory motive to raise a genuine issue of fact.”); Lowe v. City of 4 Monrovia, 775 F.2d 998, 1009 (9th Cir. 1986) (once a prima facie case of discrimination is 5 made, “summary judgment for the defendant will ordinarily not be appropriate on any ground 6 relating to the merits because the crux of a Title VII dispute is the ‘elusive factual question 7 of intentional discrimination’”) (citation omitted); Miller v. Fairchild Indus., Inc., 797 F.2d 8 727, 732-33 (9th Cir. 1986) (an employer’s “true motivations are particularly difficult to 9 ascertain, thereby making such factual determinations generally unsuitable for disposition 10 at the summary judgment stage”) (citations omitted). The Court will deny Defendant’s 11 summary judgment motion with respect to Plaintiff’s discrimination claim. 12 Defendant asserts that Plaintiff’s students rated her a below-average teacher and she 13 legitimately could have been denied tenure on that basis alone. Dkt. #61 at 10-12. An 14 employer, however, does not escape liability under Title VII where “a protected 15 characteristic was a ‘motivating factor’ in an employment action, even if there were other 16 motives.” Costa v. Desert Palace, Inc., 299 F.3d 838, 848 (9th Cir. 2002). 17 V. Plaintiff’s Retaliation Claim. 18 Plaintiff claims that the conditional contract she was offered for the 2004-2005 school 19 year and the denial of a customary departure year following the tenure decision were adverse 20 actions taken in retaliation for questioning whether her maternity leave was being used 21 against her in the tenure review process. Dkt. #1 ¶¶ 9-14, 22-23; Dkt. #64 at 17. Title VII 22 “prohibits retaliation against an employee ‘because [she] has opposed any practice made an 23 unlawful employment practice’” by Title VII. Nelson v. Pima Cmty. College, 83 F.3d 1075, 24 1082 (9th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a)). To establish a prima facie case of 25 retaliation, a plaintiff must show (1) that she engaged in protected activity, (2) that she 26 suffered a materially adverse action, and (3) that there was a causal link between the 27 protected activity and the adverse action. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th 28 Cir. 2000); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). “Thereafter, - 10 - 1 the burden of production shifts to the employer to present legitimate reasons for the adverse 2 employment action.” Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). “Once 3 the employer carries this burden, plaintiff must demonstrate a genuine issue of material fact 4 as to whether the reason advanced by the employer was a pretext. Only then does the case 5 proceed beyond the summary judgment stage.” Id. (citation omitted). 6 Defendant concedes for purposes of its motion that Plaintiff’s complaints constitute 7 protected activity under Title VII. Dkt. #61 at 14. Defendant argues that it is entitled to 8 summary judgment on the grounds that Plaintiff was not subjected to a materially adverse 9 action, there is no causal link between Plaintiff’s complaints and the alleged retaliatory acts, 10 and ASU had legitimate reasons for the actions taken. Id. at 14-17. 11 Plaintiff does not address those arguments in her response. She instead contends that 12 summary judgment on her retaliation claim is not appropriate because the EEOC 13 determination letter found reasonable cause to believe she was a victim of retaliation. 14 Dkt. #64 at 17. Plaintiff “fails to point to a single case holding that a determination letter 15 from the EEOC is sufficient to create a genuine issue of material fact.” Mondero v. Salt 16 River Project, 400 F.3d 1207, 1215 (9th Cir. 2005). Plaintiff cites Plummer v. Western 17 International Hotels Co., 656 F.2d 502, 505 (9th Cir. 1981), for the proposition that an 18 EEOC determination letter may be a “highly probative evaluation” of an individual’s 19 complaint. Dkt. #64 at 8. “The fact that a determination from the EEOC is highly probative, 20 however, does not support [Plaintiff’s] contention that an EEOC determination letter is 21 somehow a free pass through summary judgment.” Mondero, 400 F.3d at 1215. Moreover, 22 Plaintiff’s EEOC letter contains only bare conclusions, and it is impossible to know from the 23 letter “what facts the EEOC considered and how it analyzed them.” Coleman v. Quaker Oats 24 Co., 232 F.3d 1271, 1284 (9th Cir. 2000). The letter therefore has “little probative value.” 25 Id. 26 Summary judgment is appropriate against a party who “fails to make a showing 27 sufficient to establish the existence of an element essential to that party’s case, and on which 28 that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Plaintiff has - 11 - 1 failed to demonstrate a triable issue on the elements of her retaliation claim. The Court will 2 therefore grant Defendant’s summary judgment motion with respect to that claim.2 3 IT IS ORDERED: 4 1. Defendant’s motion for summary judgment (Dkt. #61) is granted in part and denied in part as set forth in this order. 5 6 2. The Court will set a final pretrial conference by separate order. 7 DATED this 2nd day of April, 2009. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff notes that she has presented evidence showing that she was treated differently than Goggin during the tenure review process. Dkt. #64 at 17 n.11. While that evidence may be probative of discrimination, it does not show that Defendant retaliated against Plaintiff for complaining about the alleged discrimination. - 12 -
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