Judge: Christian R. Gullon, Case: 22STCV40905, Date: 2024-08-27 Tentative Ruling

Case Number: 22STCV40905    Hearing Date: August 27, 2024    Dept: O

Tentative Ruling

Plaintiff’s MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF’S DEMAND FOR PRODUCTION OF DOCUMENTS – SET ONE is CONTINUED pending supplemental briefing re: specific issue of whether Plaintiff’s RETALIATION COA predicated upon FEHA (for reporting Kent Badger) warrants disclosure of the documents used in her tenure review. As explained below, any allegations of discrimination based upon a medical condition are unsupported by the evidence and thus insufficient to compel disclosure. Regardless of the outcome, the court will not impose monetary sanctions because (i) the parties engaged in numerous good faith efforts in informally resolving the matters and (ii) the parties have a fundamental disagreement on the law controlling the production of internal tenure review documents.

Background

This is an employment action. Plaintiff NIKKI SHIPLEY alleges the following against the University of La Verne: Plaintiff was an assistant professor at the school. In one instance, Plaintiff reported a professor for his alleged sexual harassment, to which the professor responded by threatening and harassing Plaintiff. The dean did not investigate the matter despite Plaintiff reporting it. The other incident involved Plaintiff reporting an employee for unprofessional behavior; this employee and another worked on a paper with Plaintiff. However, because of the reporting, the employees requested to be removed from the paper, resulting in a plagiarism accusation by the dean against Plaintiff. Ultimately, Plaintiff was denied tenure and promotion. Due to stress and anxiety, Plaintiff took a medical leave of absence, but upon her return, she was terminated.

On December 29, 2022, Plaintiff filed suit asserting the following four (14) causes of action:

On April 14, 2023, Defendant filed its answer.

On November 30, 2023, the case was transferred to the Pomona Courthouse South. 

On June 5, 2024, the parties attended an IDC; the issues remain unresolved.

On July 8, 2024, Plaintiff filed the instant motion.[1]

On August 14, 2024, Defendant filed its opposition.

On August 20, 2024, Plaintiff filed her reply.

Discussion

At issue are RFPs of documents Nos. 33 and 34 which demand communications and documents related to the University’s internal peer-review process by which it evaluated Plaintiff’s tenure application. The University objects on the predominant grounds that the “request[s] seek[] documents reflecting the mental process of peer reviewers, committee members who reviewed Plaintiff’s candidacy for tenure or related grievances, if any.” (See Plaintiff’s Separate Statement (SS), Defendant’s Responses.) Plaintiff does not deny the “area of autonomy” awarded to universities that prevents the disclosure of the tenure review process but argues that the relevant cases also “make an express exception…for cases involving ‘discrimination.’” (Plaintiff’s SS p. 3:18-21.)[2]

According to the Code of Civil Procedure section 2031.310 subdivision (b)(1), a motion for an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by demand.” Inherent in this determination, is whether the discovery is relevant to the subject matter involved in the pending action. (Greyhound Corp. v. Superior Court In and For Merced County (1961) 56 Cal.2d 355.) With that, the court turns to the pleading and the parties’ arguments to craft a timeline that demonstrates the incident(s) at issue.

-    Plaintiff started in 2014. “Plaintiff’s responsibilities as an assistant professor included teaching courses and participating in and publishing educational research for Defendants and DOES 1 – 100, and each of them.” (Complaint P18.)

-    In 2015, Plaintiff reported a co-worker, Kent Badger, to human resources for sexual harassment of a student. After Badger disparaged Plaintiff, she made complaints to Dean Helou, who dismissed the complaints.

-    Plaintiff reported threatening and harassing emails, from who she thinks was Kent, to the police; no date of this report is provided. 

-    In 2017, the department chair began removing classes from Plaintiff’s teaching course load with no justification.[3] 

-    Since 2014 she received positive reviews, but in 2019, she received a negative performance review.

-    In 2019, Plaintiff, Kelly Nikes-Yokum (another professor), and Ning Tao (a graduate student) discussed Plaintiff’s need to publish papers for her tenure portfolio and that Plaintiff would take the lead on the project that she, Kelly Niles-Yokum and a student named Ning Tao had worked on together previously and turn it into a publishable paper. (P31.) Upon return from the trip where the foregoing was discussed, Plaintiff reported her colleague’s (Kelly Nikes-Yokum (“Kelly”) unprofessional behavior (e.g. drinking) that was exhibited during the trip to Defendants.

-    In September 2019, Plaintiff sought additional time to submit her tenure portfolio, but the Dean denied her request. 

-    After learning of the report, Kelly wanted her name removed from the paper, as did Tao. Plaintiff removed their names but moved forward with publishing the paper (due early October 2019) or else she would put her tenure at risk. Shortly thereafter, she was accused of plagiarism.

-    In December 2019, she was denied tenure.

-    In 2021, after attempts to return from industrial medical leave, she was terminated. 

“Based on the foregoing discussion of facts it is clear that Plaintiff has alleged disability discrimination….” (SS p. 5:11-16, emphasis added.) But the facts do not support that contention. The following is the excerpt from Plaintiff’s deposition which is discussing the August 2019 meeting between Plaintiff and the dean:

Q.· ·Okay.· And what did you say during that meeting? A.· ·I told him that I wanted to withdraw from my · ·tenure, what would it take to do that?· My tenure - ·applying for my tenure, that I wasn't ready, that I felt ·physically ill, and it was keeping me from getting my portfolio in order and everything done. Q.· ·Okay.· Did you -·A.· ·And that I didn't want to look bad.· So what ·would be the answer.· And I knew that he had done it with ·another professor in the past. ·Q.· ·Okay.· And when you say "withdraw from my ·tenure," what did you mean? ·A.· ·I mean that I had been given a letter saying ··we're going to put you up for tenure; do you accept it? ·And I was saying, No, I would like to delay it.· And... ·with good reason.· But he said it wasn't good enough. ·· ·Q.· ·When did he say it wasn't good enough? · ·A.· ·In the meeting.· He said no·Q.· ·Okay. ··A.· ·I'm sorry.· I won't stop the procedure. ·· · ·Q.· ·Okay.  ·A.· ·I've never done it before and I'm not going to · ·start now. Q.· ·That's what Dean Helou said? · ·A.· ·Uh-huh. · · ·Q.· ·Okay.· And that's after you told him you weren't· ·ready, that you felt physically ill and that's why you couldn't get your dossier together? · ·A.· ·Yes. · · ·Q.· ·Okay.· Did you describe what you -- did you use· ·the phrase "physically ill"? · · · ·A.· ·Yes. · · ·Q.· ·Okay.· Did you describe at all what that illness A.· ·He didn't ask, and I didn't tell. · ·Q.· ·Okay.· Did you explain how your physical illness· ·was preventing you from preparing your tenure dossier ·A.· ·Yes· · ·Q.· ·What did you say? · ·A.· ·I said that I was physically ill and that this ·was only making me feel worse and that I thought it was ·· ·-- was only fair for me -- I mean, I thought I was doing · ·a good thing by saying, I need to step down right now.  I · ·mean, it's a good all-around thing for all of us.· And he  ·disagreed with me. (Ex. 25, emphasis added.)

Effectively, what Plaintiff told the Dean was that she was not feeling well; not that she has Lupus and that because of her medical condition she cannot proceed with work; she never disclosed her disability or medical condition until AFTER she learned that the Dean and the College Tenure Review Committee recommended against granting her tenure. (Opp. p. 6:3-4.) Thus, absent discrimination, which is the necessary condition Plaintiff argues allows for the exception to such disclosure,[4] the holding of Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1726 applies:[5] “Because de novo review by lay juries of the merits of tenure candidacies will severely impact these freedoms, we hold that, absent discrimination, judicial review of tenure decisions in California is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action.” (See also Ibid, at fn. 9 {“Corin suggests that litigation of his claims will not require disclosure of confidential information. Corin admits, however, that the mental processes of his peer reviewers, the committee members who reviewed his candidacy, and the grievance committee members are relevant to all of his claims. The identities of Corin's peer reviewers and their candid views and opinions expressed during the tenure review process are protected by the constitutional right to privacy. (See Scharf v. Regents of University of California (1991) 234 Cal.App.3d 1393, 1408–1409, 286 Cal.Rptr. 227.) Allowing this privacy right to be threatened by the specter of civil discovery would, in our opinion, be fatal to the proper functioning of this review process.”].)

Notwithstanding discrimination, Plaintiff argues that her retaliation claims are sufficient grounds to compel disclosure. (See Reply. p. 7 [Header ‘D’].) Defendant disagrees on the grounds that “Plaintiff has not demonstrated good cause for production because her allegation of retaliation fails to connect a protected activity to her tenure review.” (Opp. p. 13:11-13, emphasis added.) But Plaintiff may have provided some circumstantial evidence to support a connection.

Plaintiff alleges that Dean Helou had a strong interest and motive to retaliate against Plaintiff because of Plaintiff’s repeated and ongoing complaints about Kent Badger that Dean Helou was forced to continually cover up and minimize. (Reply p. 9.)[6] “Plaintiff has also alleged and established that Dean Helou communicated with the tenure committee during deliberations and commented on the merits of Plaintiff’s application to members of the committee (Gleason Dec. ISO Motion, ¶26, Ex. 26, ULV 4423) and this is circumstantial evidence Helou’s retaliatory intent toward Plaintiff’s protected reporting activity[7] was directly communicated to the tenure committee, and/or that the committee relied upon information from Helou tainted by his retaliatory intent toward Plaintiff’s protected reporting activity.” (Reply pp. 9-10, emphasis added.)

The court turns to Exhibit 26, ULV 4423, which is a document entitled ‘Faculty Personnel Committee Ballot.’ (Ex. 26, p. 280 of 303 of PDF.) The form states that “Dr. Shipley does not meet the requirements in the area of scholarship. Very little progress after year review. Does not have a tier 2 journal article as required by the College. The 2 articles submitted appear to be in non-approved journals. College committee and Dean indicate also., these do not meet the requirements. No indication of a clear scholarship agenda moving forward, not follow through from 3' year review.” (emphasis added.) Accordingly, it does appear that the Dean did communicate with the tenure committee.

That said, as acknowledged by both parties, California abides by a balancing test: balancing the interests in disclosure of particular academic employees against a university's interest in confidentiality. (See e.g., Scharf v. Regents of University of California (1991) 234 Cal.App.3d 1393, 1408; see also Kahn v. Superior Court (1987) 188 Cal.App.3d 752, 770 [“We are required to balance these competing interests carefully. In our view the scales tip in favor of nondisclosure. The ordinary yardstick for discoverability, i.e., that the information sought may lead to relevant evidence, is not applicable when compelled disclosure would intrude on constitutionally protected areas. The complaint in this case made no claim of discrimination on the basis of sex, religion, age, or any other ground.”], emphasis added.)

Here as the Reply raised many arguments and cited to new cases, the court continues the matter for supplemental briefing regarding the specific issue of whether Plaintiff’s retaliation COA predicated upon FEHA warrants disclosure of the documents used in her tenure review.

Conclusion

Based on the foregoing, the hearing is continued pending supplemental briefing.[8]