United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 40)
Christina Reiss, Chief Judge
Plaintiff Judy Hiramoto alleges that in terminating her employment, Defendant Goddard College Corporation unlawfully retaliated against her and discriminated against her on the basis of her Japanese national origin in violation of the Vermont Fair Employment Practices Act ("VFEPA"), 21 V.S.A. § 495(a)(1). Pending before the court is Defendant's motion for summary judgment (Doc. 40), which Plaintiff opposes. After oral argument, the court took the motion under advisement on January 12, 2016.
Plaintiff is represented by Norman E. Watts, Jr., Esq. Defendant is represented by Jonathan D. Persky, Esq., Joseph P. McConnell, Esq., and Colin K. McNeil, Esq.
I. The Undisputed Facts.
A. The Role of Faculty Advisors.
Defendant is an educational institution that offers several low-residencyundergraduate and graduate programs, including a Masters of Fine Arts in Interdisciplinary Arts Program ("MFAIA Program"). Defendant's faculty is represented by the Goddard College Faculty Union ("GCFU"), an affiliate of the United Auto Workers. Defendant does not offer any tenured positions to its faculty.
For the first eight days of each semester, students and faculty interact in-person during an "intensive residency[.]" (Doc. 40-3 at 2, ¶ 2.) Students receive their faculty advisor assignments at this time and, with the assistance of their faculty advisors, develop study plans for the semester. Defendant considers students' preferences when making faculty advisor assignments, but also requires students in the MFAIA Program to work with at least three different faculty advisors throughout their five-semester course of studies.
For the remainder of each semester, students interact with their faculty advisors through online communications and postal mail. Five times per semester, students send their faculty advisors "packets" of materials that document their progress. Faculty advisors are expected to respond to students' packets promptly, in writing, and with tailored, detailed, and personal feedback. The exchange of packets and feedback is intended to facilitate a meaningful dialogue regarding students' performance.
Throughout each semester, MFAIA students are expected to demonstrate progress toward degree criteria. Faculty advisors submit narrative evaluations of their advisees at the end of each semester, noting whether the students progressed in the completion of degree criteria.
Prior to graduation, each student also receives an evaluation of their overall performance in the MFAIA Program. This evaluation is conducted by the faculty advisor supervising the student's final semester and an additional faculty advisor who reviews the student as a "second reader[.]" (Doc. 40-23 at 12.) As part of this evaluation, the faculty advisor and second reader consider the student's prior semester evaluations. Thereafter, "the faculty advisor and the second reader each prepare a final transcript statement which evaluates the student's graduate work as a whole[, ]... [and] along with the student's [self-evaluation], these two faculty evaluations replace the in-progress semester evaluations as the student's official transcript." Id.
B. The Evaluation of Faculty Advisors.
Faculty advisors report to Program Directors, who, in turn, report to the Chief Academic Officer and Academic Dean. Program Directors conduct formal evaluations of faculty advisors. The procedure, frequency, and criteria for conducting faculty advisor evaluations are determined in the collective bargaining process. Pursuant to Defendant's 2009-2012 collective bargaining agreement, as modified by a Side Letter Agreement signed in April 2011, newly hired faculty advisors receive one-year term appointments and annual evaluations. After three years of successful service, faculty advisors may obtain three-year term appointments based upon positive evaluations at the end of each three-year term. After nine years of service and a successful "comprehensive review, " faculty advisors may transition to five-year term appointments. An unsuccessful comprehensive review results in termination.
During the first nine years of employment, each faculty advisor evaluation is conducted by the Program Director and two peer reviewers. In advance of those evaluations, the faculty member is notified which peer reviewers will conduct the evaluation, and the faculty member has an opportunity to request different peer reviewers. It is unclear whether this permits a faculty member to hand-pick his or her peer reviewers.
During the first nine years of faculty employment, evaluators consider "the performance of the faculty member and the staffing, fiscal, programmatic and curricular needs of the College[.]" (Doc. 40-20 at 14.) Among other things, evaluators assess whether faculty advisors "[g]uide students in developing self-direction, while challenging them to further growth[, ].. . . [g]ive timely, appropriate, and individualized feedback to students, and consider feedback from them[, ]. . . [and] [e]valuate students fairly, submitting timely, thoughtful, and well-written narrative evaluations to students[.]" Id. at 8-9.
As part of their assessments, the peer reviewers submit written comments to the Program Director. The Program Director thereafter incorporates the peer reviewers' feedback into a final evaluation. In the final evaluation, the Program Director recommends whether the faculty advisor should be reappointed. The Chief Academic Officer, in turn, accepts or rejects the Program Director's recommendation.
During their ninth year of employment, faculty members undergo a comprehensive review, which is an "evaluation of a higher standard[.]" Id. at 15. The comprehensive review is conducted by a committee that includes the Program Director, a "vice chair, " and two peer reviewers. The 2009-2012 collective bargaining agreement describes the comprehensive review as follows:
The ninth year evaluation . .. include[s] all of the standard elements of faculty evaluations[, ]... but the breadth of the review will necessarily include all previous evaluations. Special emphasis will be given to the developmental issues raised in all previous evaluations, viewed as a whole. From this historical retrospective, a summary will be made describing the developmental trajectory the faculty member has followed to date, and a statement of future expectations for continued professional development will be crafted. While all faculty evaluations may include input from sources outside the College community, the ninth year evaluation must include documentation of the faculty member's professional work ... from peers and others ... who are outside the Goddard College community. Additionally, the ninth year evaluation should address faculty members' ongoing capacity to serve as senior leaders within their programs, the faculty membership, and the College[.]
Similar to the general evaluation procedure, in the comprehensive review process, the peer reviewers submit their comments to the Program Director, who drafts the final evaluation and recommends whether the faculty member should be reappointed or terminated. Prior to submission of the comprehensive review to the Chief Academic Officer, the Program Director is required to provide the faculty member with a copy of the final evaluation "for comment and feedback." (Doc. 40-27 at 5.) The Program Director then submits the final evaluation to the Chief Academic Officer, with a copy sent to the faculty member. In the event that the Program Director recommends that the faculty member not receive an appointment, the faculty member has the opportunity to appeal to the Chief Academic Officer within fourteen days of receiving a copy of the Program Director's recommendation. The Chief Academic Officer then decides whether to "require remediation specific to the basis of the appeal, or  accept the recommendation of the committee and act accordingly." Id. at 6. If the recommendation is adopted by the Chief Academic Officer, "[a]n unsuccessful comprehensive review [is] sufficient to terminate the faculty member's employment[, ] . . . regardless of the length of time that may remain on the existing appointment term." Id. at 5. The faculty member has the option of appealing the Chief Academic Officer's decision to the President if "the faculty member believe[s] the appeal process itself deviated substantially from the [specified] process[.]" Id. at 6.
C. Plaintiffs Employment, Evaluations, and Termination.
Plaintiff is a San Francisco resident who was born in Japan. She has a MFA degree, and has worked as an instructor and lecturer at several universities and colleges. Plaintiff was employed as a faculty advisor in Defendant's MFAIA Program from 2003-2011, during which time she was a member of the GCFU.
In 2004, Plaintiff received her first performance evaluation as a MFAIA faculty advisor. At that time, Danielle Boutet was the MFAIA Program Director, and she authored Plaintiffs 2004 evaluation. In that evaluation, Ms. Boutet described Plaintiff as an "amazing resource for her advisees" who "will often go out of her way to help a student[.]" (Doc. 40-15 at 2.) She noted that Plaintiff "takes her students' work and their learning very seriously, and seems to enjoy her work with them." Id. She identified Japanese art and culture as Plaintiffs particular areas of interest.
In July 2006, Plaintiff was again evaluated by Ms. Boutet, with Jacqueline Hayes and another faculty member serving as her peer reviewers. Both peer reviewers were Caucasian. In that evaluation, Ms. Boutet explained that "[Plaintiffs] peer evaluators underlined her professionalism and her scholarly knowledge, and expressed appreciation for the diversity that [Plaintiff] brings to the faculty: not only by her Japanese ancestry but through her intellectual approach, her academic values, a different teaching style, and so forth." (Doc. 40-16 at 2-3.) Ms. Boutet noted, however, that the peer reviewers observed Plaintiffs "lack of passionate engagement" with students' work and Plaintiffs frequent expressions of disappointment with students. Id. at 3. Ms. Boutet concluded that:
[t]here is no doubt that [Plaintiff] is a professional artist and a fine scholar. But she seems to have difficulty operating within an individualized and progressive education environment like the MFAIA, which puts its focus on the student's personal development[, ]... as opposed to meeting a teacher's expectations.... After three years [of] working with Goddard students, [Plaintiff] does not seem to have found an advising style that articulates in practice [the College's] unique educational philosophy.
Id. As a result of these concerns, Ms. Boutet decided to develop a training and supervision plan for Plaintiff, and determined that Plaintiff would undergo another evaluation the following year.
Plaintiff disagreed with the conclusions reached in the July 2006 evaluation, and requested that the evaluation be withdrawn and conducted by "multicultural" peer reviewers. (Doc. 40-5 at 15.) Plaintiff submitted this request because "[t]he multicultural faculty knew [her] better, and [the] chances of getting a positive evaluation [were] greater, obviously, " if the peer reviewers knew her. Id. Ms. Boutet agreed to conduct another evaluation and to assign Gale Jackson, an African-American faculty advisor, and Laiwan, a Chinese faculty advisor, as Plaintiffs peer reviewers.
In October 2006, Ms. Boutet submitted a revised evaluation of Plaintiff, incorporating feedback from her new peer reviewers. Ms. Boutet summarized the peer reviewers' comments, observing that they valued Plaintiffs diversity in her Japanese "ancestr[al]" background and her intellectual approach, and that "[Ms.] Jackson thinks highly of [Plaintiff s] teaching[.]" (Doc. 40-18 at 2.) Although the evaluation contained many positive findings, it identified two concerns regarding Plaintiffs work:
First, students are hesitant in requesting to work with [Plaintiff], which makes it sometimes difficult to make student assignments. Second, there is need for improvement in [Plaintiffs] responses to students from the [MFAIA] [Program's perspective, that of an individual, progressive and holistic response to students. Some written feedback to students lacked the depth and the complexity of graduate level work, and there was not the feeling of a genuine involvement in an engaged, personal dialogue with the student.
Id. at 3. Ms. Boutet concluded that Plaintiff would continue receiving peer mentorship from Laiwan, and that she would undergo another evaluation at the end of the 2006-07 academic year.
In the fall of 2008, Plaintiff underwent another evaluation, which was submitted on January 24, 2009. By that time, Ms. Boutet had resigned as Program Director and Ju- Pong Lin and Ms. Hayes were Co-Directors of the MFAIA Program. Ms. Lin conducted Plaintiffs evaluation and assigned two Caucasian faculty advisors, Rick Benjamin and Cynthia Ross, to submit peer reviews. Plaintiff was satisfied with her peer reviewers because she liked them personally and trusted them. The fall 2008 evaluation found that "[Plaintiff] is quite effective as an advisor and much appreciated by her advisees." (Doc. 49-27 at 2.) The evaluation contained several examples from both colleagues and students, praising Plaintiffs ability to encourage and relate to students. Ms. Lin concluded that Plaintiff "ha[d] served the [MFAIA] [P]rogram very well" and that she was "delighted to recommend her for reappointment." Id. at 4.
In March 2009, Ms. Lin and Ms. Hayes became aware of three students' complaints concerning Plaintiff. All three students questioned whether Plaintiff had fully read their submissions, and raised other issues regarding the care and quality of Plaintiff s feedback. On December 14, 2009, Ms. Lin sent a letter to Plaintiff, wherein she detailed the students' concerns. Ms. Lin observed that Plaintiff lacked "depth and attentiveness" in responding to those students' packets, but Ms. Lin also made clear that "the few student concerns that have surfaced over the last year are exceptions to the overall quality of [Plaintiff s] advising[.]" (Doc. 40-21 at 3, 6.) Ms. Lin concluded that Plaintiff would "carry a regular advising load of [seven] advisees next semester[, ]" rather than the increased advising load that she had been carrying, and that a Program Co-Director would review Plaintiffs packet responses before sending them to students. Id. at 6. Ms. Lin also stated that she was "not taking disciplinary action, " and that "th[e] letter [would] not go into [Plaintiffs] file." Id. at 6-7.
Plaintiff subsequently filed a grievance. In response, Defendant agreed that Plaintiff would not need to submit her packet responses for review. She, however, was expected to engage with the Co-Directors in professional development. Defendant also noted that "[f]or the semester about to ensue, [Plaintiff] will be assigned the contracted number of advisees unless enrollment or curricular needs indicate a need to request that she take on additional advisees[, ]" which she would be free to accept or decline. (Doc. 49-59 at 4.)
In 2011, Ms. Hayes, who had become the sole Program Director for the MFAIA Program, initiated Plaintiffs comprehensive review process. In January 2011, she presented Plaintiff with four potential peer reviewers: Erica Eaton, Peter Hocking, Kira Obolensky, and Ruth Wallen. Plaintiff did not express any preference among the four proposed peer reviewers, but advised that she did not want to work with any of them. At the time, Plaintiff believed that Mr. Hocking held racist views, but she did not express this opinion to Ms. Hayes. She did not want Ms. Obolensky or Ms. Wallen to conduct her peer review because she had limited interaction with them in the past, but it is unclear whether she presented this concern to Ms. Hayes. Plaintiff requested that Ms. Ross and Ms. Jackson serve as her peer reviewers instead. Ms. Hayes responded that Plaintiff needed to pick among the four individuals identified. Plaintiff decided that she "would work with Hocking and Eaton" but she was "not happy with it." (Doc. 49-19 at 6.) Later that day, Plaintiff initialed a form acknowledging that Ms. Eaton and Mr. Hocking would conduct her peer review. Lisa Weil was subsequently appointed as vice chair of Plaintiffs comprehensive review committee.
In March 2011, with the Side Letter Agreement not yet signed, faculty members debated whether to postpone for one semester the comprehensive reviews of seven faculty members, including Plaintiff. After those discussions and the signing of the Side Letter Agreement, Academic Vice President Marianne Reiff concluded that the comprehensive reviews would move forward as scheduled to honor the agreement reached between Defendant and the GCFU. On May 6, 2011, Jennifer Tripp Mead, the Executive Assistant to the Academic Vice President, distributed a template for the comprehensive reviews that ...