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CAUSE NUMBER 2003-521,916 DAISY
Plaintiff
)
) vs.
)
) and
) SYSTEM,
Defendants 237th JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE COURT:
I. PARTIES A.
Defendants are Texas Tech University System and B.
Plaintiff is Daisy Hurst Floyd, Professor of Law at Texas Tech
University School of Law. Professor
Floyd has been a member of the law faculty since 1990, receiving tenure in
1994. She served as Associate Dean
for Academic Affairs for five and one-half years, until December, 2001, when
the events described below caused her constructive discharge from that
position. DISCOVERY LEVEL Plaintiff
seeks money damages aggregating in excess of $50,000.
Therefore, this case is governed by a Level 2 discovery plan. III. PRELIMINARY STATEMENT Plaintiff
brings suit to challenge discrimination, lack of integrity between stated and
actual processes, and intolerance of dissent at IV. FACTUAL BACKGROUND A.
The events leading to this action began on B.
On C. Dean Newton and Plaintiff met again the next morning to discuss how to respond to Dr. Schmidly’s stated intent to discriminate in a way that would protect the integrity of the dean search. Dean Newton strongly advised Plaintiff not to directly challenge or report Dr. Schmidly’s remark because doing so would ruin her career at Texas Tech. Plaintiff urged Dean Newton to not let Dr. Schmidly’s behavior go unchallenged. D. On the date that he resigned, Dean Newton recommended Professor James Eissinger for the interim dean appointment. Dean Newton has repeatedly said that he did not originally recommend Plaintiff for interim dean because he assumed that she intended to be a candidate for the permanent dean position and that he did not think that a candidate for permanent dean should serve as interim dean. E.
On December 4, 2001, Dr. Burns announced to the law school faculty and
staff, via memo, that Professor Eissinger had been appointed as interim dean,
thus passing over Plaintiff, who was then in her sixth year as the associate
academic dean, the second highest position at the law school.
Plaintiff was surprised to learn that the appointment had been made
because Dr. Burns had told the law faculty and staff in a meeting on F. Plaintiff learned much later—in October, 2002—that the failure to follow the announced process for appointing the interim dean was more egregious than she knew at the time of the appointment. Despite Dr. Burns’ November 20, 2001, announcement to faculty and staff of a two-week period for nominations, he actually recommended the appointment of Professor Eissinger on the morning of November 21. In a memo of that date to Dr. Schmidly, Dr. Burns states that Professor Eissinger is the “near unanimous” choice of the law school faculty and staff, which was inaccurate and ignored that Dr. Burns had expressly solicited input from the faculty and staff the day before. G. On November 26, 2001, the same date upon which Dr. Schmidly told Dean Newton that he would not appoint a “c..t” to be dean of the law school, Dr. Schmidly approved Dr. Burns’s recommendation and, in a memo to Dr. Smith, made the appointment of Professor Eissinger. Yet, Dr. Burns delayed the announcement of the appointment until December 4, in an apparent attempt to show that he had followed the process he announced. H. Dr. Burns has, to his credit, acknowledged his failure to follow the process he announced and has apologized to Plaintiff. In a letter to Plaintiff dated February 28, 2002, Dr. Burns stated: “I offer no excuses for my failure to follow the process I outlined. I cannot tell you why I failed to do my part and I deeply regret that.” I. Because of the evidence that the interim dean selection had resulted from discrimination, Plaintiff decided to resign as Associate Dean for Academic Affairs, effective the end of the fall, 2001, semester. She did so after extended reflection and with great regret. Plaintiff’s integrity would be compromised if she remained as associate dean: staying would sanction the university’s unfair and illegal conduct. J. The information that Plaintiff had at that time about the university’s conduct included, among other things, the following: Dean Newton’s telling her that she would not be appointed because of sexism; the report that Dr. Schmidly had stated that he would not appoint a “c..t” to be dean; a conversation on November 30, 2001, between Dr. Hall and Professors Myhra and Van Cleave of the law faculty, in which Dr. Hall acknowledged that the interim dean appointment had been impacted by sexism and that the announced process had not been followed; that Dr. Burns failed to follow the announced process for determining his recommendation for interim dean; and that Plaintiff had significantly more administrative experience than the other candidate. K. Plaintiff met with Professor Eissinger on December 6, 2001, to tell him that she intended to resign and submitted a letter to that effect on December 7, 2001. She did not at that time tell Professor Eissinger why she was resigning, out of respect for Professor Eissinger and a belief that he was not responsible for the discrimination in the appointment process. L. On December 7, 2001, Dr. Burns announced the members of the Dean Search Committee. Plaintiff was appointed to the committee, which was comprised of a diverse group of faculty, staff, students, other university employees, and alumni. M. Taking on the responsibility to deal with Dr. Schmidly’s reported intent to discriminate in the appointment of the law school dean and the threat presented to the integrity of the law school and the university, Plaintiff made an appointment to meet with Dr. Hall to discuss the matter. They met for approximately an hour, beginning at 10:00 a.m., on December 14, 2001. During that meeting, Dr. Hall did not indicate that she found the allegation of Dr. Schmidly’s remark implausible. She discussed her own experiences with sexism at the university, and told Plaintiff twice that “the women of the university would owe [Plaintiff] a debt of gratitude” for having the courage to come forward about Dr. Schmidly’s remark. Dr. Hall offered as an explanation for Dean Newton’s failure to confront Dr. Schmidly after he made the offensive remark that Dean Newton was probably aware that Dr. Schmidly had a volatile temper and that Dean Newton likely wanted to avoid invoking Dr. Schmidly’s temper. N. Dr. Hall and Plaintiff also discussed Plaintiff’s resignation as associate dean. Plaintiff gave Dr. Hall a copy of her resignation letter and told Dr. Hall that she resigned because she could not continue as associate dean after being told that she would not be interim dean because of discrimination, confirmed by the other events surrounding the selection, including the failure to follow the announced process. Dr. Hall indicated that she understood the reasons for Plaintiff’s resignation. O. Shortly after ending her meeting with Dr. Hall, Plaintiff received word that Dr. Schmidly requested to meet with her and others at 1:30 that afternoon in Dr. Schmidly’s office. That meeting began at approximately 1:45 p.m. and lasted approximately 1 hour. Present for the entire meeting were Dr. Schmidly, Dr. Burns, Dr. Hall, Ronald Phillips of General Counsel’s Office, Gene Binder, Professors Alison Myhra, Rachel Van Cleave, Vickie Sutton, and Plaintiff. Dean Newton attended the meeting for a very brief time after Plaintiff requested his presence. P. The meeting began by Dr. Schmidly’s asking Plaintiff to repeat the statement he allegedly made to Dean Newton. Dr. Schmidly adamantly denied making such a statement, calling it "a God-damned lie." Dr. Schmidly summarized the meeting between him and Dean Newton based on notes of that meeting that he had with him. Pointing to his notes, he said, "I have my notes of the meeting. I know what was said and what wasn’t said. That’s not in there.” Dr. Schmidly said that he would be a "damn fool" to have made such a remark, and that had he made the remark, he would remember it. Q. During the short time that Dean Newton was in the room, Dean Newton stated that at the close of his November 26 meeting with Dr. Schmidly, Dr. Schmidly said that he would not appoint "a mere educator or a woman" as Dean of the Law School. Dr. Schmidly again denied having made the statement; his response was “Bullshit. That’s a damn lie.” Each man stated that he would be willing to take a polygraph test. After a brief exchange between the two men, Dr. Schmidly told Dean Newton to leave the room, which he did. R. Plaintiff and the other law faculty present found Dr. Schmidly’s behavior during the meeting threatening and intimidating, including statements that Dr. Schmidly would "go after" anyone who "signed a witness statement" against him and that he was not “going to let anyone get away with this.” He also stated that one should "think twice" before repeating what Dean Newton had told Plaintiff. S. Plaintiff was sufficiently threatened by Dr. Schmidly’s words and conduct to retain counsel following the meeting. T. On December 16 and 19, 2001, Plaintiff met with Interim Dean Eissinger to discuss a course of action to address these events. Dean Eissinger advised Plaintiff that she may have claims under applicable discrimination law. Dean Eissinger told Plaintiff that he planned to ask for a written complaint to be made to Dr. Smith, to call for an independent investigation, to call for the removal of Drs. Schmidly and Burns from the dean appointment process, and to request a letter from Dr. Smith that the search process would be fair and that the recommendation of the search committee should go directly to Dr. Smith. U. Dean Eissinger told Plaintiff via email on January 4, 2002, that he had suggested that Drs. Schmidly and Burns be removed from the dean search process pending an investigation into “allegations of gender bias.” As of that date, Dean Eissinger stated that “there has been no formal rejection of that suggestion as far as I know.” The university undertook no independent investigation pursuant to Dean Eissinger’s urging. V. SPEAKING OUT, ATTEMPTS TO SILENCE, AND RETALIATION A. Following the December 14, 2001, meeting, Plaintiff spoke out about Dr. Schmidly’s reported intent to discriminate, the discrimination involved in the interim dean selection, pay disparities between men and women at the university, and an institutional climate that chills discussion of discrimination. University leaders, acting individually or in concert, have engaged in ongoing retaliation against and attempts to silence Plaintiff for raising issues of discrimination that continue to date. Plaintiff seeks redress for retaliation as well as for underlying acts of discrimination. B. On December 30, 2001, because she remained concerned about the fairness of the search process, Plaintiff requested a place on the agenda for the upcoming dean search committee meeting on January 8, 2002, to discuss this matter. Dean Gary Bell, Chair of the committee, agreed to her request. However, her request was met with significant opposition, including Dean Eissinger’s telling Plaintiff by email that it was not appropriate to discuss the matter with the search committee. C. Between January 2 and January 8, 2002, pressure was brought to bear on Dean Bell to prevent Plaintiff from speaking to the search committee about Dr. Schmidly’s reported remark and the concerns it raised. The university’s Vice-Chancellor and General Counsel called Dean Bell to say that Regent Brian Newby, a member of the search committee, was upset that Plaintiff sought to discuss these matters with the search committee. Dean Bell was inappropriately pressured to refuse to recognize Plaintiff at the January 8 meeting using the reason that the agenda for the meeting did not properly reflect the matter she intended to raise. The university’s General Counsel confirmed that he’d discussed the matter with Dr. Smith in a memo to Interim Dean Eissinger, stating that Dr. Smith was confident that the January 8 meeting would go forward without “rumor and hearsay.” D. Dean Bell, to his credit, permitted Plaintiff to speak and later protested to Dr. Burns the improper interference with faculty governance and academic freedom. Plaintiff is unaware of any action taken by the university to discourage such improper interference with its duly appointed committees or with faculty members’ rights to speak. E. When Plaintiff was allowed to speak at the January 8, 2002, meeting, she informed the committee of Dr. Schmidly’s reported remark, the December 14, 2001, meeting, and her ongoing concerns about the integrity of the dean search process. Each of the law professors present at the December 14 meeting verified Plaintiff’s account of that meeting and agreed that Dr. Schmidly’s conduct was threatening and intimidating. F. The search committee undertook thorough discussion and deliberation of the matter at the January 8 and subsequent meetings. Each member of the search committee had known both Dean Newton and Plaintiff before the search began, and was therefore able to assess the credibility of their statements in considering how to respond. The search committee, acting by consensus, agreed upon a process to protect the search. G. The special process included ranking of the finalists by the search committee. In the event that the committee’s first-ranked candidate was not selected, Drs. Schmidly and Burns would be required to meet with the committee and explain the reasons for failing to follow the search committee’s recommendation. The committee asked Dr. Schmidly to agree in writing to the process. It took weeks of negotiations with Dr. Burns and Dr. Schmidly before Dr. Schmidly provided the requested written agreement to the committee. H. Plaintiff’s fears of retaliation were realized on February 1, 2002, when she received her paycheck for the January pay period. Without notice to her, her salary had been reduced by $15,388.00. The pay reduction was ordered by the law school dean’s office, although signed by a member of the administrative staff rather than by the dean. Faculty pay reduction requires two signatures, and Dr. Hall also signed the authorization, which was dated January 7, 2002, the very day that unsuccessful attempts were made to prevent Plaintiff’s speaking to the search committee about Dr. Schmidly’s reported remark. I. The salary reduction represented the repayment of the administrative pay Plaintiff had earned during the Fall 2001 semester and the elimination of the spring administrative pay, apparently made because of her resignation as associate dean. The university’s position as to the repayment of fall pay was initially that it was a mistake, then that it was warranted (per a letter to Plaintiff from Dr. Smith dated April 10, 2002) and then that it was a mistake. As to the spring portion, the pay reduction was inconsistent with the way in which changes in administrative responsibilities were handled at the university and the law school in the past, resulting in Plaintiff’s being treated differently than similarly-situated males. It also ignored that Plaintiff had resigned because of discrimination, and was therefore constructively discharged as associate dean. J. After Plaintiff’s informal efforts to restore her pay were unsuccessful, she contacted General Counsel through her counsel. In a letter dated February 18, 2002, Plaintiff, through counsel, alleged that her salary had been wrongfully withheld as retaliation for speaking to the search committee about Dr. Schmidly’s reported remark. She also alleged that the interim dean appointment had been discriminatory, that she and other female faculty members were receiving lower salaries than similarly-situated male faculty members, and that the institutional climate at the university for women and minorities was poor. Plaintiff requested as relief that her pay cut be corrected and that Dr. Smith meet with her to discuss these matters, with particular emphasis on institutional issues. K. Dr. Smith agreed to meet with Plaintiff, and they met, without counsel, at Dr. Smith’s request, for approximately one hour on March 26, 2002. At the conclusion of that meeting, Dr. Smith promised to respond to Plaintiff’s concerns within the next one to two weeks. Plaintiff followed up with a letter to Dr. Smith dated March 28, 2002, in which she restated the matters of concern and her desire for a collaborative approach to resolving them. To date, Dr. Smith has failed to respond to Plaintiff about any of the issues raised, except for the pay reduction. In a letter dated April 10, 2002, he stated that the pay reduction was authorized under university rules. General Counsel later retracted that statement on Dr. Smith’s behalf, stating that it was in error, made without adequate investigation into the underlying facts. L. Plaintiff’s pay was eventually restored to her on June 6, 2002. M. The initial pay reduction and the failure to correct the wrongfully withheld pay were motivated at least in part by discrimination. VI. APPOINTMENT OF THE LAW SCHOOL DEAN AND ONGOING EFFORTS TO SILENCE AND COVER-UP A. Despite the extraordinary precautions undertaken by the search committee, Dr. Burns recommended, and Dr. Schmidly appointed, as dean, someone other than the Search Committee’s highly-qualified, first-ranked candidate. Dr. Schmidly’s appointment of General Walter Huffman as dean with tenure was approved by the Board of Regents. B. The appointment followed a contentious period of several weeks after the search committee’s recommendation of three finalists to Dr. Burns and Dr. Schmidly. During that period, minority and women members of the search committee were accused of acting in bad faith in the search process in order to support Plaintiff’s allegations of discrimination. Those accusations are false, and were prompted by Plaintiff’s speaking out about discrimination, including initiating efforts undertaken by the search committee as a whole to protect the law school and university from illegal discrimination in the dean search. C. Dr. Burns was urged to reject the search committee’s recommendation of its first-ranked candidate, who was highly qualified, solely because Plaintiff supported the candidate and because appointing a candidate supported by a person who had spoken out about Dr. Schmidly’s reported intent to discriminate and otherwise raised discrimination claims would be “a disservice” to the law school. D. Allowing the dean appointment to be affected by such concerns is direct retaliation against Plaintiff in that it disenfranchised her from her role in the search committee solely because she had raised issues of discrimination. E. The influence of this attitude is evidence of the lengths to which university leaders will go in silencing discussion of discrimination. Dr. Schmidly’s appointment of Dean Huffman was consistent with the university’s desire to silence such discussion. F. Regent Newby and Dr. Smith were aware of these influences on the dean appointment and did not take action to prevent retaliation against Plaintiff nor to insure that the dean appointment was free of improper influences. G. Regent Newby was actively involved in putting pressure on Dr. Burns and Dr. Schmidly to appoint a candidate who was not the first-ranked choice of the search committee. H. Plaintiff and five other members of the search committee—four tenured full professors of law, one attorney-alumnus, and a third-year law student--were sufficiently disturbed by the events surrounding the dean appointment that they lodged a protest with university leaders. I. In a memo dated June 4, 2002, the search committee members concluded by urging the appointment of the search committee’s first-ranked candidate: “The Law Dean Search Committee, made up of a diverse group of faculty, student, staff, alumni, and other relevant constituencies, worked hard, followed an announced, thorough, and fair process, and recommended as its first choice an extremely well-qualified candidate whose personal and professional experiences demonstrate a commitment to diversity. Yet, that candidate was not offered the position. Too often the University engages in a national search to fill senior administrative positions, only to hire the person already known to the central administration before the search began. Many who have served on search committees feel that they have been asked to devote precious time to make the selection of a preordained candidate seem as if it is not the result of a sham process. Not only do these searches result in hiring someone with a preexisting relationship with the University, but the person hired has been, almost without exception, a white male.”
J. The above memo was sent to Drs. Smith, Schmidly, and Burns, along with other university employees who have responsibility for the issues discussed in it. Yet, to date, no response to the memo, or even acknowledgement of it, has been received. This failure to respond is further evidence of the University’s attitude toward faculty, students, or staff who raise concerns about discrimination. Given the professional and personal accomplishments of the search committee members who wrote this memo, including their contributions to the law school and the university, the only basis for dismissing their concerns must be that they have raised issues of discrimination. K. The retaliation against Plaintiff for speaking has continued under Dean Huffman’s leadership. Dean Huffman has not only failed to be neutral about these issues since his becoming dean on August 1, 2002, but he has treated Plaintiff as an adversary. He was not present during most of the events that gave rise to Plaintiff’s initial concerns, but learned of those events second-hand from university officials during the interview process in the Spring of 2002. And, despite many opportunities to talk with Plaintiff about this matter, he did not. L. From the inception of his deanship, Dean Huffman has taken the position that he and Plaintiff are adversaries. When she asked to meet with him about these matters in early August, 2002, Dean Huffman stated that he “represents the institution” in this matter and therefore could not meet with Plaintiff without consultation with General Counsel. When Plaintiff renewed her request to meet, Dean Huffman consented, and they met for an hour on August 7, 2002. During that meeting, he told Plaintiff that, although he did not want to learn about the facts underlying her concerns, he did not believe that discrimination had occurred. M. The August 7, 2002, meeting was the only conversation Dean Huffman had with Plaintiff about these matters until January, 2003. Yet, throughout the fall semester, Dean Huffman, rather than acting as a neutral facilitator of resolution or leaving it to impartial parties to adjudicate Plaintiff’s concerns, has been her adversary, publicly and privately denigrating her concerns, mischaracterizing her actions, and attempting to marginalize her from her colleagues and students. N. Dean Huffman has made repeated public and private statements that he did not believe that discrimination had occurred, that Plaintiff’s claims were baseless, and that Plaintiff was harming the law school by continuing to seek resolution of her claims. He has violated the confidentiality provisions of processes she invoked to address discrimination in public and private discussions. O. Dean Huffman’s visible actions and attitudes against Plaintiff have chilled the discussion of issues related to discrimination and diversity by faculty, students, and staff within the law school and created a climate of fear. Dean Huffman has continually tried to drive a wedge between Plaintiff and her colleagues and has misrepresented that Plaintiff is the only one who has concerns about these matters. He has done so despite other faculty members having raised these issues with him and having received correspondence from many alumni asking him to address the issues raised by Plaintiff. He has ignored multiple student expressions of support for the issues Plaintiff has raised, including continuing to state that Plaintiff is acting in isolation, despite a march for diversity in which 150 students and others participated on November 14, 2002, after Plaintiff’s claims became known and the university’s record of appointments had been investigated. P. Dean Huffman has engaged in gender stereotyping in response to Plaintiff’s claims, stating that she is acting out of an irrational emotional reaction rather than in response to rational analysis of facts indicating discrimination. Q. These characterizations of Plaintiff’s actions have been attempts to denigrate her to her students, former students, colleagues, the legal community, and others, causing her personal and professional harm. Dean Huffman organized a meeting of faculty, as well as a meeting of the entire law school student body, on November 8, 2002, on a date when Plaintiff was out of town to speak at a professional conference and could not be present to hear or respond to what was said. The larger meeting lasted over an hour and was attended by in excess of 200 people, including law students, some of whom were able to attend because their professors cancelled class, and members of the press. That meeting was used by Dean Huffman to make the university’s legal arguments and to present its version of the relevant facts rather than to offer an opportunity for students to have their questions answered honestly by both sides. During that meeting, Dean Huffman acted as judge and jury over Plaintiff’s claims, repeatedly stating that her claims have no merit. R. After law students organized a march upon investigating Plaintiff’s claims and the University’s record regarding diversity, Dean Huffman invited Dr. Schmidly to the law school to answer questions about Plaintiff’s claims and related matters. That meeting was held on November 21, 2002, at a time when Plaintiff could not be present due to professional obligations. At that meeting, Dr. Schmidly stated that Plaintiff’s claims were baseless, mischaracterized her actions, and misrepresented facts, either knowingly or recklessly, to Plaintiff’s professional and personal harm. This meeting continued a pattern of public discussion and criticism of Plaintiff’s action, held at a time when she could not be present to hear or respond to what was said. S. In addition to the damage to her personal and professional reputation, Dean Huffman’s apparent antagonism toward Plaintiff has interfered with specific professional opportunities for her since he became Dean. Specifically, Plaintiff was not nominated by Dean Huffman as the Law School’s nominee for the Chancellor’s Excellence in Teaching Award in the fall of 2002 despite her qualifications and experience that made her likely to be a successful nominee and Dean Huffman’s knowledge that she had been a close second when nominated the previous year and that the law school had been encouraged to re-nominate her. Dean Huffman’s selection was made shortly after Plaintiff had complained about his failure to take her discrimination concerns seriously. T. Further, Dean Huffman’s antagonism toward Plaintiff likely interfered with her fair consideration for an endowed professorship for which she was nominated. Dean Huffman chaired the committee that selected the successful candidate, and he appointed two of the other four members of the committee. Given the repeated criticism of Plaintiff by Dean Huffman and the evidence of his malice towards her, she could not have received fair consideration for the professorship. U. Both the Chancellor’s Excellence in Teaching Award and the endowed professorship for which she was nominated are significant professional awards, and the failure to be given fair consideration for them has caused harm to Plaintiff’s professional opportunities. V. In October, 2002, after the university had received an open records request from the University Daily newspaper, Dean Huffman engaged a consultant regarding Dr. Schmidly’s reported discriminatory remark. In a memo dated October 9, 2002, Dean Huffman requested from Dr. Marcy that he be allowed to hire the consultant. Dr. Marcy approved the request. That memo makes it clear that the request was motivated in part by antagonism directed at Plaintiff for raising issues of discrimination and that the consultant was to refute Plaintiff’s claims rather than to get at the truth of what occurred. Dean Huffman announced to the faculty in an email dated Friday, October 18, 2002, that he had hired someone “not connected to the University” who would begin an investigation into the matter on the morning of Monday, October 21, 2002. Four tenured law faculty members, including Plaintiff, protested to Dean Huffman that the “investigation” he announced was not being undertaken in collaboration with Plaintiff and others who had raised concern, that the scope of the investigation was unclear, that the consultant hired was deeply connected to the university and knew many of the people involved, and that there was no protection offered to untenured faculty members or staff against possible retaliation as a result of speaking to the consultant. Dean Huffman has not to date acknowledged or answered those and other questions raised by the four faculty members. After the original consultant resigned because of the questions that had been raised, Dean Huffman hired a consultant employed by the same firm. W. The consultant’s “report” is a continuation of the university’s efforts to cover up Dr. Schmidly’s behavior. Had the consultant been truly neutral, her selection would have been made after consultation with Plaintiff and her counsel. Further, the consultant failed to fully investigate the matter, ignored compelling evidence, and reached a pre-ordained conclusion in a “report” dated December 19, 2002. The consultant’s investigation was not calculated to lead to the discovery of the truth as it omitted interviews with many relevant witnesses and was not otherwise undertaken in a fair and objective manner. X. The result of the consultant’s “report” is contained in a lengthy document delivered to Dean Huffman on December 19, 2002. It states that “Dean Newton is adamant that he heard Dr. Schmidly make the comment” and that Dean Eissinger believed that Dean Newton was telling the truth about Dr. Schmidly’s comment. Nonetheless, the report makes the astounding conclusion that Dean Newton was likely lying about Dr. Schmidly’s remark. This conclusion is based in part on the consultant’s statement that the word “c…t” is not in Dr. Schmidly’s vocabulary, after an investigation in which the only people interviewed were law school faculty who have spent very little time around Dr. Schmidly, Dean Newton--who is “adamant” that Dr. Schmidly used the word in question, and Drs. Schmidly, Burns, and Hall, who have strong motivation to protect Dr. Schmidly. Y. It is further evidence of the university’s bad faith that Dean Huffman and other university leaders would be willing to invest substantial resources into commissioning such a “report” to cover up Dr. Schmidly’s conduct and to scapegoat, attempt to marginalize, and retaliate against Plaintiff for speaking out about it. Especially egregious is the accusation against the former dean of engaging in a malicious lie to the detriment of the law school, the university, Plaintiff, and others. Dean Newton served the law school with distinction as dean for over sixteen years, during which time he was also elected President of the State Bar of Texas, was named one of Texas’s Most Influential Lawyers, and had the honor of the State Bar of Texas creating the W. Frank Newton Pro Bono Award, named after him in recognition of his lifelong efforts to bring legal services to the poor. Z. That the university is relying on disparaging Dean Newton as part of its defense is also made apparent in a letter to Plaintiff from Dr. Marcy, dated February 26, 2003. In reference to Dr. Schmidly’s remark, Dr. Marcy adopts the consultant’s conclusion that Dean Newton may have fabricated the statement about Dr. Schmidly and states that “I am so sorry that Frank took this opportunity to create a situation which has lead to such acrimony in the school of Law and between you and others.” AA. Further evidence that the consultant’s report is not reliable is that she is willing to offer an opinion on whether the interim dean appointment was the result of discrimination after stating that the scope of her investigation was not intended to include that issue. Her conclusion is based primarily on Dr. Burns’s assertion that he did not discriminate. VII. DISCRIMINATION IN SALARY Plaintiff’s salary is lower than that of similarly-qualified male law faculty because of illegal discrimination. Plaintiff brought this problem to the attention of university and law school administrators beginning in February, 2002. In response to this claim, the university purportedly hired a consultant to investigate salary equity at the university. University administrators have referred in public to this investigation in disputing Plaintiff’s claims, but they have never shown a copy of any such report to Plaintiff, nor have they offered any non-discriminatory reason that similarly-qualified male faculty are paid more than Plaintiff. VIII. PATTERN OF DISCRIMINATION A. Plaintiff will further show that the decanal appointments at the law school, in addition to being direct and overt acts of intentional discrimination, are a part of a pattern and practice of discrimination at the university in which the university’s public statements about the selection process are contradicted by the ways in which the appointments are actually made, just as the university’s statements about its commitment to diversity are contradicted by its record. B. Appointments at the level of provost, vice-presidents, interim deans and deans have disproportionately gone to white males. Between 1991 and 2001, all of the permanent deans appointed, of which there were at least fifteen, were white males. Under Dr. Schmidly’s leadership, eighteen senior administrative appointments at this level were made. Only three of those appointed were not white males. C. The pattern of searches and appointments is that, although search committees are usually involved in narrowing the candidates to a group of finalists, the successful appointee is then chosen by a single decision-maker, usually the President or Provost. There are no apparent safeguards in the selection of the successful candidate that ensure that subjective criteria are applied fairly and in a non-discriminatory manner. Many women and minority faculty members believe that opportunities for senior administrative positions are not open for women and people of color, and that their voices do not count in the final selection of successful candidates. D. Despite the resignations of Dr. Schmidly as President and Dr. Burns as Provost, the pattern of discrimination and intolerance of dissent continues. The University has neither acknowledged the need for improvement nor addressed the institutional factors that perpetuate the disparity between its public statements and its conduct. IX. NOTICE AND EFFORTS TO COLLABORATE A. From December 14, 2001, when Plaintiff raised her concerns about Dr. Schmidly in a meeting with Dr. Hall, Plaintiff has consistently made efforts to deal with these matters through university channels and to do so without embarrassment to university officials. She raised these issues initially with university administrators, then in the context of private communications in confidential search committee meetings. On February 18, 2002, Plaintiff detailed her concerns in a private letter from counsel to the university and urged constructive dialogue and collaborative resolution. She waited until only days before the expiration of a deadline for preserving her claims before filing a complaint with the Texas Human Rights Commission. Even after that, she continued to urge collaboration and invoked confidential processes for bringing in external agencies to assist in resolving these issues. Plaintiff did not publicly discuss her claims until October, 2002, almost a year after being told of Dr. Schmidly’s comment, and then only after she learned from a newspaper reporter that the university had disclosed over two hundred pages of documents concerning these issues and that the reporter was preparing to write a story. B. Despite Plaintiff’s many pleas for collaboration, the university has repeatedly either failed to respond, or has expressly refused. C. Following Plaintiff’s meetings with university administrators on December 14, 2001, and the February 18, 2002, letter, the university failed to make any credible investigation of Dr. Schmidly’s conduct, of the general lack of integrity of its appointment procedures, and of the climate of gender insensitivity and discrimination. Regent Newby was a member of the Law Dean Search Committee, knew that committee members took the risk of discrimination from Dr. Schmidly’s conduct sufficiently seriously to negotiate a detailed process to protect the integrity of the search, and he failed to insure that the process was followed. After Plaintiff met with Dr. Smith on March 26, 2002, Dr. Smith failed to take any action other than to continue to justify the improper reduction of her salary. D. From December 14, 2001, university leaders, acting collectively and individually, took no action to investigate Dr. Schmidly’s conduct, and what that conduct represented about the culture of the university. Nor did university leaders take any action to protect Plaintiff from efforts to silence her, from retaliation, and from harm to her professional opportunities and reputation. These failures occurred despite the fact that Dr. Schmidly was known to have a volatile temper, to be retaliatory, and to have a poor record of appointing and working with women. In contrast, Dean Newton had served with distinction as dean of the law school for over sixteen years, had been elected and served as President of the State Bar of Texas, and enjoyed a reputation for integrity and professionalism among his peers, both statewide and nationally. E. From the beginning, Plaintiff sought to handle these matters privately, feeling that collaboration would be fostered if the matter remained outside the glare of publicity. Plaintiff has repeatedly proposed mediation as a means of collaborative resolution of the issues she has raised, which the university has expressly rejected. Given the university’s refusal to take seriously these matters, Plaintiff has no choice but to seek resolution in this impartial forum, with trial by jury, which is hereby demanded. X. PREREQUISITES OF SUIT Plaintiff has filed a complaint with the Texas Commission on Human Rights and has received a “right to sue” letter. This suit is timely filed. XI. CAUSES OF ACTION Defendant’s conduct constitutes a violation of Sections 21.051, 21.055, and 21.125 of the Texas Labor Code. XII. Although Plaintiff’s primary aim is to change the culture of discrimination, intolerance of dissent, and lack of integrity at the university, Plaintiff recognizes that the law provides only money damages as a remedy. By seeking money damages, Plaintiff seeks to send a message to the university that it must take responsibility when it treats people unfairly and illegally, and that it must seriously address the issues she raises. Plaintiff is entitled to equitable relief under Section 21.258 of the Texas Labor Code, including back pay, compensation consisting of the difference between the amount she earned and the amount she would have earned as interim dean, and compensatory damages pursuant to Section 21.2585 of the Texas Labor Code, including future pecuniary losses, such as “front pay,” and damage to her reputation and employability. In addition, Plaintiff is entitled to recover her attorney fees and costs, including reasonable expert witness fees, pursuant to Section 21.259 of the Texas Labor Code. Plaintiff’s damages are in excess of the minimum jurisdictional amount of this court. PRAYER For all of the foregoing reasons, Plaintiff prays for damages, costs, attorney fees, expert fees, lawful pre-judgment interest and post-judgment interest, and general relief. Respectfully Submitted, PERLMUTTER & SCHUELKE, L.L.P. 111 Congress Avenue, Suite 1070 Austin, Texas 78701 Telephone: (512) 476-4944 Facsimile: (512) 476-6218 By: _______________________
MARK L. PERLMUTTER State Bar No. 15793700 C. BROOKS SCHUELKE State Bar No. 00794607 |