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Kim v. Board of Trustees

United States District Court, N.D. Alabama, Northeastern Division

September 24, 2014

JEONGAH KIM, Plaintiff,


T. MICHAEL PUTNAM, Magistrate Judge.

This cause is before the court on the motion for summary judgment filed November 21, 2013, by the defendants. (Doc. 47). The motion was supported by a brief and evidentiary submission. (Docs. 48-54). Plaintiff filed an opposition to the motion, supported by evidence on December 31, 2014. (Docs. 59, 60). The defendants filed a brief in reply on January 13, 2014. (Doc. 62). Plaintiff, Jeongah Kim, an Asian female of Korean descent, alleges that her former employer, defendant Alabama Agricultural and Mechanical University ("A&M"), [1] discriminated against her on the basis of her race, gender, and/or national origin. She further asserts that after she complained of race and national origin discrimination, A&M retaliated against her by scrutinizing her requests for travel more closely than those of her colleagues. She also seeks redress for discrimination pursuant to 42 U.S.C. §§ 1981 and 1983. The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c); accordingly, the court enters this memorandum opinion.


Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex , 477 U.S. at 322-23. There is no requirement, however, "that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323.

Once the moving party has met his burden, Rule 56 "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions of file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting former Fed.R.Civ.P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex , 477 U.S. at 324. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

After the plaintiff has properly responded to a proper motion for summary judgment, the court must grant the motion if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. His guide is the same standard necessary to direct a verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52; see also Bill Johnson's Restaurants, Inc. v. N.L.R.B. , 461 U.S. 731, 745 n.11 (1983). However, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson , 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman , 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must "view the evidence presented through the prism of the substantive evidentiary burden, " so there must be sufficient evidence on which the jury could reasonably find for the plaintiff. Anderson , 477 U.S. at 254; Cottle v. Storer Communication, Inc. , 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson , 477 U.S. at 255. The non-movant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston , 848 F.2d 1534, 1540 n.12 (11th Cir. 1988).


Applying the above-referenced standards to the evidence in the record, the following facts appear to be undisputed, or, if disputed, are viewed in the light most favorable to the non-moving plaintiff.

Dr. Kim is an Asian female of Korean descent. Alabama A&M employed her as an assistant professor in the Department of Social Work from 2004 until 2012. Her appointment as an assistant professor was for a five-year probationary period, at the end of which her employment would end if she did not successfully obtain tenure. In August 2009, Dr. Kim received a letter from then Provost and Vice President for Academic Affairs Beverly C. Edmond (Kim Depo, Ex. 5, doc. 52, p. 125 of 153) informing her that her five-year probationary period would end during the 2009-2010 academic year and that she was required to apply for tenure. Dr. Kim applied for tenure and a promotion to associate professor in October 2009.

The processes for seeking tenure and promotion were (and are) set out in the Faculty/Administrative Staff Handbook promulgated by A&M in 2003. (Wims Aff. Ex. 1, docs. 49-1 & 50) (referred to hereafter as "Faculty Handbook, " with references to page numbers in the Handbook). Although similar, seeking tenure and applying for promotion are two distinct processes. A faculty member may apply for one or the other or both (Faculty Handbook, pp. 45-52), and Dr. Kim applied both for tenure and promotion. In the event a faculty member applies for both tenure and a promotion, the promotion decision is subject to and contingent upon the tenure decision. At page 49, the Faculty Handbook noted, "A faculty member may apply for tenure and promotion in the same academic year. However, the tenure application must be considered first. If tenure is denied, then the promotion will not be considered." Additionally, the Faculty Handbook stated, "If tenure is denied by the University, then the candidate is given one-year notice of termination of service."

In two separate letters dated July 1, 2010, Dr. Kim's first application for tenure and promotion was denied. (Kim Depo., Exs. 6 & 7, doc. 52). Each letter advised her that her promotion and tenure, respectively, were denied "based on your lack of scholarly work and productivity." ( Id. ) In the letter denying tenure, she was informed that the 2010-2011 academic year would be her terminal year. (Kim Depo., Ex. 7, doc. 52, p. 129 of 153). Pursuant to the procedures in the Faculty Handbook, Dr. Kim appealed both denials, and on September 8, 2010, Dr. Daniel Wims, informed her by letter that "the Promotion and Tenure Appeals Committee ha[d] recommended reversal of your denial for promotion to Associate Professor." Dr. Wims's letter went on to inform her that, notwithstanding the recommendation of the appeals committee, he had recommended to the president of the University that the denial be upheld and that the final decision was the president's. (Kim Depo. Ex. 8, doc. 52, p. 131 of 153). In a letter dated February 15, 2011, the A&M president, Dr. Hugine, accepted Dr. Wims's recommendation to deny the promotion, but he encouraged her to "resubmit your portfolio with any additional documentation of productivity that you now have for review by the committee." ( Id., Ex. 10, doc. 52, p. 133 of 153). Plaintiff was allowed to submit the additional information "in this cycle for review." A similar letter dated February 22, 2011, from Dr. Hugine also upheld the denial of her tenure application, but also encouraged her to resubmit the application with additional documentation of academic productivity "in this cycle for review."[2] ( Id., Ex. 11, doc. 52, p. 135 of 153).

Dr. Kim applied again for tenure and promotion during the 2010-2011 academic year. Her application was again denied. In a letter dated June 20, 2011, President Hugine advised that her tenure application was denied due to "your lack of peer reviewed, juried and/or refereed scholarly productivity in the discipline." It further advised her that the 2011-2012 academic year would be her terminal or last year of employment at A&M ( Id., Ex. 13, doc. 52, p. 139 pf 153), and she terminated her employment in May 2012.

Dr. Hugine has been the President of A&M since July 2009. Dr. Wims replaced Dr. Edmond as Provost and Vice President for Academic Affairs at A&M in April 2010.

In June 2003, A&M adopted the Faculty Handbook, which remained in effect at all times relevant to this action. (Doc. 54, Affi. Of Wims, Ex. 1, p. 47). The guidelines for applying for tenure and promotion are set forth in the handbook as follows:

4.4 Faculty Promotion and Tenure Criteria and Procedures

The American Association of University Professors (AAUP) states: "Tenure is a means to certain ends; specifically, (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence tenure, is indispensable to the success of an institution in fulfilling its obligations to its students and society." Alabama A & M University concurs with this statement.
Alabama A & M University is a leading teaching, research, and extension university in the region and in the nation. Tenure is granted to those faculty members who show evidence of substantial growth and future promise. Except in unusual circumstances, tenure will be granted only to persons with the terminal degree.
Promotion and Tenure Application Procedures:
The application for promotion or tenure may be initiated by the individual faculty member, unit supervisor, or dean of the school. The steps listed below should be followed:
A. An application for promotion and tenure shall be submitted using Promotion and Tenure Forms in Appendix B and guidelines listed in Section 4.3. Forms and guidelines may be requested from the department chairperson, dean of the school or Office of Academic Affairs.
B. Each year Academic Affairs will disseminate a time table for promotion and tenure procedures, so that faculty may comply. The application for promotion or tenure may be initiated at any point between the beginning of the fall semester and November 1st, at which time all promotion materials are due in the Office of Academic Affairs.
C. Applications are submitted first to the departmental chairperson who in turn submits them to the Departmental Review Committee. After review, evaluation and recommendation from the Departmental review committee, applications are submitted to the Dean of the School who in turn submits them to the School Review Committee. Upon completion by the school review committee, applications are submitted by the Dean of the School to the Office of Academic Affairs. The Office of Academic Affairs will not accept applications that have not followed the above established procedures and deadlines.
D. The office of Academic Affairs notifies candidates of the receipt of application and in turn submits the same to the Promotions and Tenure Committee by November 15th.
E. The Promotions and Tenure Committee shall complete its recommendations by February 15th and submit them to the Provost/Vice President for Academic Affairs who shall in turn make recommendations to the President by March 1st. Applicants are notified of the final decision upon review by the President by March 15th of the same year.

(Faculty Handbook, Doc. 50, pp. 47-48).

Faculty members may apply for tenure after serving a mandatory probationary period. Instructors have a probationary period of seven years, with a five-year period for assistant professors, a three-year period for associate professors, and a one-year period for full professors. ( Id. at 48). Faculty members may apply for tenure and promotion during the same academic year; however, the Handbook provides that tenure is considered first, and that "[i]f tenure is denied then the promotion will not be considered." ( ...

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