CUENCA v. UNIVERSITY OF KANSAS, MYRON A. KAUTSCH and JAMES K. GENTRY

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT

COMES NOW the plaintiff, Michael R. Cuenca, pro se, and submits the following memorandum in support of his Plaintiff's Motion for Summary Judgment/Partial Summary Judgment. In support thereof, plaintiff alleges and states, as follows:

STATEMENT OF FACTS

1. Plaintiff asserts the facts stipulated in the parties' Final Pre-Trial Order (Docket 182) and the facts set forth below.

2. When plaintiff applied for and was found qualified for the position of Assistant Professor of Visual Communications, defendant University's School of Journalism sought administrative approval to offer the position to two candidates. The approved salary offer for the two candidates was identical. (Appendix A, paragraphs 25-27.)

3. After the white male candidate declined the offer of employment, Defendant Kautsch lowered the amount of salary offered to the plaintiff. (Id.)

4. Eleven days after his third request for relief from a discriminatory teaching overload, which he had copied to defendant Kautsch, plaintiff received notice from Kautsch that he was removing the plaintiff from the School's technology committee. (Appendix A, paragraph 45.)

5. After Plaintiff and defendant Kautsch met in Kautsch's office on Monday, December 11, 1995 to discuss plaintiff's written complaint of disparate treatment, Kautsch instituted immediate and extraordinary actions to terminate the plaintiff. Defendant Kautsch wrote to his own supervisor that the reason the plaintiff would be terminated "would be that the faculty member is making demands and stating expectations . . ." (Appendix A, paragraph 59.)

6. Defendant University's Provost (then called Vice Chancellor of Academic Affairs) was informed of Defendant Kautsch's extraordinary actions against the plaintiff as they were progressing in December, 1995, through letters written by both defendant Kautsch and the plaintiff. (Appendix A, paragraphs 54-59.)

7. Defendant University initiated neither disciplinary action against defendant Kautsch nor remedial action to restore the plaintiff.

8. In January 1996, defendant Kautsch placed the plaintiff under a "special review," the conditions of which violated plaintiff's rights under the First Amendment, Title VII, and the defendant University's own policies and procedures. (Appendix A, paragraph 67.)

9. In March of 1996, defendant Kautsch unilaterally promoted an employee of defendant's School of Journalism to a brand new position, that he called the Integrated Media Lab general manager. The responsibilities of this position were similar to plaintiff's job description and were within the plaintiff's qualifications. Defendant Kautsch rewarded the promoted employee with a 22% raise. (Appendix A, paragraphs 77.)

10. Kautsch violated University employment search policies by not advertising the position and not allowing plaintiff the opportunity to apply for the position. (Appendix A, paragraph 78.)

11. On May 6, 1996, plaintiff met with defendant University's Office of Equal Opportunity director, Maurice L. Bryan, to register a complaint of racial discrimination. (Appendix A, paragraphs 79.)

12. Ten days later, the plaintiff received an undeserved negative annual performance evaluation and it included an annual salary increase of $180, which the letter also said was the lowest raise of any faculty member in the School of Journalism. (Appendix A, paragraph 80.)

13. Defendant University's Professor Theodore P. Frederickson investigated the circumstances and connected the adverse employment action to the plaintiff's protected activity. (Appendix A, paragraphs 81-82.)

14. In May of 1996, defendant University of Kansas discriminated against the plaintiff by awarding him a salary increase that was the lowest of any tenure-track faculty member in the defendant University's School of Journalism. (Appendix A, paragraph 80.)

15. The plaintiff's salary increase was more than 5 standard deviations below the mean of the others of the defendant University's School of Journalism's tenure-track faculty. (Appendix A, paragraph 94.)

16. On June 3, 1996, plaintiff wrote Provost David E. Shulenburger a plea for help (Appendix A, paragraph 88.)

17. Provost Shulenburger took no action to restore the plaintiff, even though once again he had been asked directly by defendant Kautsch to approve a questionable plan obviously designed to terminate the plaintiff (Appendix A, paragraphs 83-87).

18. In the fall of 1996, plaintiff again sought help directly from Provost Shulenburger. (Appendix A, paragraph 106.)

19. After plaintiff's fall 1996 request to the Provost for remedial action, defendant University took no action to restore the plaintiff or protect his rights.

20. Plaintiff filed a formal complaint with the KHRC/EEOC in February 1997. Concurrently, the defendant's Office of Equal Opportunity initiated an investigation into the plaintiff's complaint of discrimination and retaliation. (Appendix A, paragraph 107.)

21. In June of 1997, the director of defendant University's Office of Equal Opportunity, Maurice L. Bryan, Jr., abruptly closed his office's internal investigation of the Plaintiff's complaint of illegal discrimination and retaliation. (Appendix A, paragraphs 111-112.)

22. Bryan testified that it is not the formal policy of his office to automatically suspend an investigation into an employee's allegations of discrimination. (Appendix A, paragraphs 114.)

23. Bryan testified that he undertook no investigation into the plaintiff's complaint, either prior to or after he suspended the investigation in June of 1997. (Appendix A, paragraphs 115.)

24. Bryan also testified that according to the defendant University's formal policies, when allegations of discrimination come to the attention of the administration it is the responsibility of the administration, "[t]o investigate the allegations and to take, and to take appropriate action as a result of that investigation." (Appendix A, paragraph 116.)

25. Bryan stated that he suspended the plaintiff's internal complaint specifically because he said the plaintiff ended the mediation of the external complaint. (Appendix A, paragraph 113.)

26. Plaintiff applied for the position of New Media Leader in October of 1997. The defendants determined the plaintiff to be qualified. The plaintiff was found to be one of only four qualified applicants, but was denied an interview. The remaining three candidates were interviewed and all were white males. Plaintiff was rejected for the position (Appendix A, paragraphs 126-135).

27. None of the candidates were offered the position the position remained open and defendant Gentry sought additional applicants from "persons of complainant's qualifications" (Appendix A, paragraphs 136-138).

28. Defendant Gentry took adverse employment action against the plaintiff by excluding the plaintiff from meetings of import to the plaintiff's fields of teaching, research and service either by not informing him of such meetings or by scheduling the meetings for times when the plaintiff could not attend because he was in class. (Appendix A, paragraphs 178-185.)

29. During the plaintiff's application for permanent tenure, defendant Gentry produced a fraudulent, false evaluation by hiding significant materials from decision makers and by misrepresenting the significance of the plaintiff's work. (Appendix A, paragraphs 141-189.)

30. During the period that the plaintiff's tenure dossier was being reviewed by the ultimate decision makers, the plaintiff's immediate supervisor, Theodore P. Frederickson, published an editorial on the front page of the University Daily Kansan, the student newspaper, attacking the plaintiff for his protected activities and for this lawsuit (Appendix A, paragraphs 200-205).

31. Statements in Frederickson's published editorial directly established that Frederickson was attacking the plaintiff for his protected activity (Appendix A, paragraphs 204-205), proving that this adverse employment action was motivated at least in part by an illegal motive.

32. During the plaintiff's application for permanent tenure, one decision maker directly expressed illegal discrimination against the plaintiff and said that the plaintiff's opposition to discrimination in the workplace was a valid reason for denying the plaintiff's tenure. (Appendix A, paragraphs 212-219.)

33. During the plaintiff's application for permanent tenure, one decision maker publicly and directly expressed that the plaintiff's opposition to discrimination in the workplace would have an "adverse impact" on the School of Journalism. (Appendix A, paragraphs 204-205.)

34. Neither the decision-making committees nor defendant University's Provost or Chancellor disclaimed or disavowed the statements of illegal discriminatory animus contained in the plaintiff's tenure dossier and published in defendants' daily student newspaper. (Appendix A, paragraphs 218-220.)

35. Plaintiff informed all of the decision makers of the evidence of the corruption of his tenure dossier and of the likelihood that the tenure review had been motivated by an illegitimate motive. (Appendix A, paragraphs 195-197.)

ADDITIONAL PROOF OF ILLEGAL MOTIVATION AND PATTERN-AND-PRACTICE

36. Rule 406 of the Federal Rules of Evidence states:

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Plaintiff adduces the following evidence of past discriminatory and retaliatory conduct, evidence of procedural and due process irregularities and inconsistencies during tenure review, and evidence of deliberate spoliation as evidence of a pattern-and-practice of discrimination, retaliation and deliberate indifference to the plight of minority employees in its workplace.

Direct Evidence of Previous Retaliatory Acts

37. A trial on the merits in the case of Aquilino v. University of Kansas, No. 00-3150 (10th Cir.) and No. 99-CV-2231-KHV (D. Kan.), resulted in a jury verdict of liability for illegal Title VII retaliation against defendant University of Kansas. Even though the verdict was vacated on technical grounds, the vacating decision stated:

At trial, KU stipulated that Dr. Aquilino engaged in protected activity, and on appeal it does not challenge the evidence showing the causal connection between Dr. Aquilino's protected activity and the allegedly adverse actions the university took against her.

Aquilino v. University of Kansas, 268 F.3d 930 (10th Cir. 2001). The appeal ruling in no way exonerated the defendants' conduct and the Court should be mindful of the defendants' proven and undenied retaliatory conduct.

38. In another case of a former faculty member who alleged due process violations and other violations of his civil rights against the defendant University of Kansas, the 10th Circuit Court of Appeals, ruling in the case of Tonkovich v. Kansas Board of Regents, 159 F.3d 504 (10th Cir. 1998), expressed concern about the conduct of the defendant University's administration, stating:

At the same time, we are certainly less than sanguine about some of the alleged actions taken by various University officials. In addition, the allegations of various violations of University policy cause us some discomfort.

This statement came in a ruling that otherwise went for the University in all respects. The fact that the Court nevertheless decided to make an issue of the conduct of these people is particularly significant in that light.

Direct Evidence of Procedural Irregularities, Denials of Due Process, and Retaliation

39. The report of the Kansas Conference of the American Association of University Professors (AAUP), prepared after March, 2000, interviews with faculty employed by defendant University of Kansas, detailed these conditions on the Lawrence campus that are contrary to AAUP's standards:

Violation of Academic Due Process procedures

Denial of access to personnel files
Undue influence by Administrators
Retaliatory Acts
Violations of Rules and Regulations/Handbook

Failure to follow procedures in a consistent manner
Apparent discrepancies between the procedures followed and the description outlined in the Faculty Handbook
Misuse of Student evaluation forms
Lack of Academic Community

An Apparent failure to follow up on complaints of unfair treatment
No meaningful response to complaints
Fear, intimidation and retaliation seems all to pervasive on this campus

Defendant University of Kansas declares in its faculty handbook that it complies with AAUP standards. (Appendix A, paragraphs 222-223.)

Direct Evidence of Previous and Ongoing Illegal Conduct

40. Defendant University of Kansas was found out-of-compliance with Executive Order 11246 by the U.S. Office of Federal Compliance Programs (OFCCP) in 1982. Defendant University of Kansas entered into a conciliation agreement with the OFCCP, in which they promised to remedy their lack of compliance. In a letter to the Vice Chancellor, University Directors, Deans, Directors and Chairpersons, then-Chancellor Gene Budig explained:

The OFCCP concluded that the University had not emphasized sufficiently the responsibilities that all administrators and supervisors have for the implementation of affirmative action and equal opportunity (see attachment.)

And:

We are instituting, consequently, a policy whereby the annual performance evaluation of each person with managerial and supervisory responsibility will include review of equal employment opportunity efforts and results.

(Appendix A, paragraph 236) Defendant University did not comply with this promise and had no such policy in effect during the employment of the plaintiff.

41. In 1995, the OFCCP once again found defendant University of Kansas out of compliance with Executive Order 11246. Defendant University was found to have "failed to address the underutilization of minorities and females, and the corrective action it will take to correct the underutilization, by job groups." (Appendix A, paragraphs 232-234.)

42. Prior to their on-site review of defendant University, the OFCCP informed defendant University that among other data, they would require records of:

c. Terminations. The regulations at 41 CFR 60-2.13(d) and (g) require an evaluation of the degree to which non-discrimination policy is carried out with respect to employee terminations. Also ee 60-2.25.

This analysis shall consist of, for each group or job title, the total number of employee terminations, as well as the number of minority group and the number of female terminations.

Please note that if you present terminations by job title, include the department and job group from which the person(s) terminated.

(Appendix A, exhibit 132, at fifth page, paragraph c.) The tenure process is an employment action that can and does result in termination, but the University does not track this employment action with regard to affected class.

43. Defendant University remains out of compliance with the tenets of Executive Order 11246 or their conciliation agreement with the OFCCP, because they deliberately do not produce records of their promotion and hiring employment actions per 41 C.F.R. 60-2.13(d) and (g), as directed by the OFCCP. (Appendix A, paragraph 243.)

44. Defendant has not complied with their OFCCP agreement to annually report on their previous year's Affirmative Action Plan. (Appendix A, paragraph 242.)

45. This evidence of defendant University's deliberate past and ongoing violation of EO 11246 is direct evidence of a continuing pattern-and-practice of discrimination against minority employees.

Evidence of Deliberate Indifference and Discriminatory Intent

46. In 1997, through a series of focus groups that involved a third of their minority faculty defendant University gathered anecdotal evidence that confirmed their minority faculty's concerns with their chances for retention. The transcripts of these sessions, a summary of the sessions and the final report on the sessions showed that among the minority faculty there was widespread dissatisfaction with the conditions of employment at the University. Defendant University's administration commissioned the focus groups and the resulting report, then attached a roster of participants and the complete transcript to the report so that they could avoid being compelled to release the report under the Kansas Open Records Act. (Appendix A, paragraph 97.)

Statistical Evidence of Discrimination

47. The U.S. Supreme Court has ruled that statistical evidence is probative of illegal discriminatory intent. The Tenth Circuit follows and has explained this ruling, saying:

statistics alone may be used to establish a prima facie case of racial discrimination in a disparate treatment case. Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977); International Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977); Weahkee v. Norton, 621 F.2d 1080, 1083 (10th Cir. 1980). The Supreme Court has also held that statistics may be used to prove that the employer's racially neutral reason for termination is purely pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Anderson v. City of Albuquerque, 690 F.2d 796, 802 (10th Cir. 1982). Even if United's contentions were true, McAlester's case does not rest solely on statistics but also rests upon individual instances of discriminatory treatment.

McAlester v. United Air Lines, 851 F.2d 1249, 1260 (10th Cir. 1988). Plaintiff adduces the following statistical evidence of illegal discriminatory intent.

48. At the University of Kansas, as of the fall semester of 2000, white males of all ranks made up 62.99% of the total faculty in the ranks of Assistant Professor to Full Professor. The percentage of all males other than white is only 9.31% of the Assistant to Full Professor ranks. (Appendix A, paragraph 228.)

49. Although Hispanics make up 7% of the population in Kansas, at KU Hispanics make up only 2.23% of the faculty (Appendix A, paragraph 231.)

50. Between the years 1981 and 2001, the retention rate of minority males was so low that there was actually a loss (-3.71%) from the rank of Assistant Professor to Associate Professor. During the same time period, the gain of white males was +12.93%. This proves that there is a wide disparity (16.64%) between the retention of minority males (-3.71%) and white males (+12.93%). (Appendix A, paragraph 229.)

51. Plaintiff would have been only the third minority faculty member ever tenured by the defendant University's School of Journalism.

52. Plaintiff was the first faculty member ever turned down for tenure in defendant University's School of Journalism.

53. Defendant Gentry has a verifiable record of past and ongoing discrimination against minority employees under his supervision, particularly Asian American and Hispanic males. (Appendix A, paragraphs 117-125.)

ARGUMENTS AND AUTHORITIES

54. Plaintiff brings this motion for summary judgment under Fed. R. Civ. P. 56(a), 56(c) and 56(d). Plaintiff seeks judgment as a matter of law. Plaintiff seeks a determination of liability against defendants for all or any of the claims and causes of action detailed herein. Plaintiff seeks a trial to determine damages and to resolve any material facts that remain in controversy.

55. Federal question subject matter jurisdiction is invoked by plaintiff with regard to his claims against KU pursuant to 28 U.S.C. § 1331 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000-3 et seq. ("Title VII") and 42 U.S.C. § 1981 and, with regard to plaintiff's claims against Kautsch and Gentry, pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §§ 1981 and 1983.

56. The established standards for proof of discrimination and of retaliation in Title VII cases were defined by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

57. The standards for proving discrimination have been explained by the Tenth Circuit:

Under the McDonnell Douglas framework, the plaintiff "must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." McDonnell Douglas, 411 U.S. at 802. Once the plaintiff has established a prima facie case, "the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for its employment action. See id. at 802. If the defendant makes this showing, the plaintiff must then show that the defendant's justification is pretextual. See id. at 804.

Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1226 (10th Cir. 2000).

58. Applying the U.S. Supreme Court's McDonnell Douglas framework, the Tenth Circuit has explained that a plaintiff establishes a prima facie case of illegal retaliation when he shows:

(1) protected opposition to discrimination or participation in a proceeding arising out of discrimination; (2) adverse action by the employer; and (3) a causal connection between the protected activity and the adverse action."

Jeffries v. State of Kansas, 147 F.3d 1220 (10th Cir. 1998).

59. Once the plaintiff establishes a prima facie case, a rebuttable presumption arises that there has been discrimination and/or retaliation. The burden of production shifts to the defendants to articulate a legitimate business reason for the apparent discriminatory act(s). If the defendants do not respond or cannot articulate a legitimate business reason, the plaintiff prevails. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1991).

60. However, the "pretext" phase of the McDonnell Douglas framework only applies in those Title VII cases wherein the plaintiff relies on circumstantial evidence that requires an inference by the trier. In the event plaintiff can produce direct evidence that either discrimination or retaliation motivated a business decision even in part, Section 107 of the 1991 Civil Rights Act, 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B) "provides that an unlawful employment practice is established whenever race, color, religion, sex, or national origin was a motivating factor, even though other factors also motivated the practice." EEOC Compliance Manual, Section 8, page 8-16 (emphasis added). At this point, the employer cannot escape liability; it can only limit the damages available to the plaintiff by proving that there was at least one legitimate business reason for its decision. Davey v. Lockheed Martin Corporation, 301 F.3d 1204, at 121 (10th Cir. 2002). See also Medlock v. Ortho Biotech, Inc., 164 F.3d 545 (10th Cir. 1999), cert. denied 1999 U.S. LEXIS 4948 (1999).

61. Section 107 overrode the U.S. Supreme Court's earlier decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that ordered that "when a plaintiff in a Title VII case proves that [his race or protected activity] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's [race or protected activity] into account." As of the passage of Section 107, the defendants can no longer avoid liability at this stage. They can only "limit the damages" as described in the paragraph above. (Medlock, at 553.)

62. As for the defendants' burden of persuasion after the plaintiff has established his prima facie case or adduced evidence that an employment act was motivated even in part by an illegitimate motive, the U.S. Supreme Court ruled in Price Waterhouse, (490 U.S. 228, at 246), that:

In our adversary system, where a party has the burden of proving a particular assertion and where that party is unable to meet its burden, we assume that that assertion is inaccurate. Thus, where an employer is unable to prove its claim that it would have made the same decision in the absence of discrimination, we are entitled to conclude that [race] did make a difference to the outcome.

And:

As these examples demonstrate, our assumption always has been that if an employer allows gender to affect its decision-making process, then it must carry the burden of justifying its ultimate decision.

(Id., at 248) In other words, the U.S. Supreme Court has ruled that the defendants must be able to prove that they took a specific action with legitimate, non-discriminatory reasons. Plaintiff presents in this Memorandum several instances wherein defendants are logically unable to prove that legitimate, non-discriminatory reasons motivated their decisions.

63. Also in Price Waterhouse (at 250), the Supreme Court ruled that once an employee shows that his discharge was based in part on an illegitimate motive, then:

[t]he employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing.

64. The reasons proffered by the defendants must be specific and clear (see Elmore v. Capstan, Inc., 58 F. 3d 525, at 530 (10th Cir. 1995) and must be legal:

Courts have occasionally found an employer's articulation of a reason insufficient when the reason is irrational on its face. See, e.g., Loyd v. Phillips Bros., 25 F.3d 518, 524 (7th Cir. 1994) (long-standing policy of considering only members of male-dominated branch of company for promotion where members of female-dominated branch were equally qualified was not a legitimate nondiscriminatory reason); EEOC v. Northwest Structural Components, 822 F. Supp. 1218, 1221 (M.D.N.C. 1993) (articulated reason that the employee was a "complainer" insufficient where the only specific evidence of complaining were her concerns about disparate treatment because she was a woman).

Flores v. Preferred Tech. Group, 182 F. 3d 512 (7th Cir. 1999).

65. Consequently, there are among the acts of the defendants for which no motives can be considered legitimate. For example, when defendant Gentry falsified the plaintiff's record to the decision makers (Appendix A, paragraphs 162-168), he committed fraud. There are no legitimate business reasons for fraud.

66. Nor is defendant University insulated by some sort of statutory or judicial protection from discriminatory acts occurring during a tenure review. In 1972, when Congress amended Title VII to include colleges and universities, "it did not indicate that employment discrimination in the educational context should be treated differently than other contexts." Title VII in the University: The Difference Academic Freedom Makes", 59 U.Chi.L.Rev. 1317, at 1330.

67. In fact, the U.S. Supreme Court has made it clear that universities do not enjoy any special exemption from scrutiny of their employment decisions-including tenure review:

When Title VII was enacted originally in 1964, it exempted an "educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution." § 702, 78 Stat. 255. Eight years later, Congress eliminated that specific exemption by enacting § 3 of the Equal Employment Opportunity Act of 1972, 86 Stat. 103. This extension of Title VII was Congress' considered response to the widespread and compelling problem of invidious discrimination in educational institutions. The House Report focused specifically on discrimination in higher education, including the lack of access for women and minorities to higher ranking (i. e., tenured) academic positions. See H. R. Rep. No. 92-238, pp. 19-20 (1971). Significantly, opponents of the extension claimed that enforcement of Title VII would weaken institutions of higher education by interfering with decisions to hire and promote faculty members. Petitioner therefore cannot seriously contend that Congress was oblivious to concerns of academic autonomy when it abandoned the exemption for educational institutions.

The effect of the elimination of this exemption was to expose tenure determinations to the same enforcement procedures applicable to other employment decisions.

University of Pennsylvania v. EEOC, 493 U.S. 182, at 189 (1990).

Significance of the Evidence of Defendants' Suppression of Material Evidence and Failure to Keep and Maintain Records

68. Defendants deliberately withheld material evidence of past discriminatory intent, specifically the defendant University's correspondence with the OFCCP, from this plaintiff and other previous plaintiffs who had brought civil rights lawsuits against the University.

69. Fed. R. Civ. P. 26(a)(1)(B), requires the disclosure of:

a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings;

70. Plaintiff's Title VII complaint and this lawsuit allege-with particularity-discrimination based on race. Hence, all evidence in the defendants' possession that would establish the discriminatory climate for minority employees in the defendants' workplace would be required by Rule 26(a), as would all evidence regarding the defendants' record of violations of federal civil rights laws and executive orders.

71. It is long settled law that when a party hides evidence, they do so out of the knowledge that the evidence would harm their position. The Court should infer that Defendants' failure to produce this information regarding their non-compliance with federal civil rights law is such an indication of Defendants' knowledge that the information would harm their case. In Dooley v. Altus Medical Corp., 1995 U.S. App. LEXIS 13492 (10th Cir. Okla. May 31, 1995), the 10th Circuit referred to the decision in Nationwide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214 (1st Cir. 1982), which says:

When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document's nonproduction or destruction as evidence that the party which has prevented production did so out of the well-founded fear that the contents would harm him.

72. Defendant University does not keep records of the ethnicity of applicants for promotion, in direct violation of 41 CFR 60-2.13(d) and (g), as detailed above. This deliberate failure to keep records required by federal civil rights laws is spoliation and precludes the defendants from offering any other statistical evidence to refute plaintiff's assertion of a pattern-and-practice of discrimination in their tenure reviews and the plaintiff "is entitled to the benefit of a presumption that the destroyed documents would have bolstered [his] case." Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418-1419, (10th Cir. 1987). (See also Durant v. Independent School District No. 16, 990 F.2d 560 (10th Cir. 1993), Zimmerman v. Associates First Capital Corp., 251 F.3d 376, 383 (2nd Cir. 2001), and Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2nd Cir. 2001).)

Significance of the Adoptive Admission of the Statements of Illegal Animus

73. Regarding adoptive admissions, the Tenth Circuit has ruled that:

when determining whether a party has manifested a belief in the truth of a document, the test is "whether the surrounding circumstances tie the possessor and the document together in some meaningful way." Id. (citations and internal quotation marks omitted). A document is sufficiently "tied" to the possessor "to the extent the adoptive party accepted and acted upon the evidence." Id.

Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, at 1268 (10th Cir. 1998) (citing Pilgrim v. Trustees of Tufts College, 118 F.3d 864 (1st Cir. 1997)). Consequently, the acceptance by Gentry and the University's administration and other decision makers of the statements of discriminatory and retaliatory animus made by Kautsch in 1995, Hoy in 1999, and Frederickson in 2000 amounted to adoptive admissions of those statements. Those illegal motivations then became the motivations of defendant University.

The Hostile Workplace
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Gentry)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Kautsch)

74. In that same case, the Tenth Circuit articulated the criteria for assessing a hostile workplace claim:

Hostile environment harassment occurs where a supervisor or co-worker's conduct unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive work environment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). To establish her claim, plaintiff must show both that the conduct to which she was subject was "severe or pervasive enough to create . . . an environment that a reasonable person would find hostile or abusive," and that she "subjectively perceived the environment to be abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993).

Wright-Simmons, at 1269. In the instant case, defendant Kautsch in 1995 initiated adverse employment actions that most definitely intimidated the plaintiff and interfered with his work performance (Appendix A, paragraphs 46-71). From that point in time, defendant University of Kansas at no time took action to remedy the hostility of Kautsch, and then of Gentry (Appendix A, paragraphs 142-189), of Frederickson (Appendix A, paragraphs 200-205), and of others toward the plaintiff in their workplace. Throughout the period of the plaintiff's employment with defendant University, there remained in the work environment of the plaintiff discernible hostility, harassment, intimidation, persecution, degradation, and exclusion, to a degree that cannot possibly be acceptable to any reasonable person.

75. Defendant University is liable for this hostility. The Tenth Circuit has ruled that:

we have identified three bases for holding an employer liable: (1) if the conduct violating Title VII occurred within the transgressor's scope of employment; (2) if the employer knew, or should have known about, the violation and failed to respond in a reasonable manner; or (3) if the transgressor acted with apparent authority or was aided in violating the statute by virtue of their agency relationship with the employer. See Bolden v. PRC, Inc., 43 F.3d 545, 551 n.1 (10th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 n.3 (10th Cir. 1993).

Wright-Simmons, at 1269. Defendants Kautsch, Gentry, and Frederickson were each acting under the authority of their positions with defendant University as plaintiff's supervisors. Defendant University was made aware of the hostility from December 1995 and many times subsequently. Defendant University "failed to respond in a reasonable manner" and is liable for the hostility.

The Tainted Tenure Review of the Plaintiff
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Gentry)

76. The Tenth Circuit articulated in Kenworth v. Conoco, Inc., 979 F. 2d 1462, at 1471 (10th Cir. 1992) (and cited in Medlock) that:

A plaintiff will be entitled to the burden-shifting analysis set out in Price Waterhouse upon presenting "evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged [discriminatory and/or retaliatory] attitude." Ostrowski v. Atlantic Mut. Ins. Cos., 968 F. 2d 171, 182 (2d Cir. 1992). Price Waterhouse is also applicable on the basis of circumstantial evidence arising from the sequence of events if the evidence is adequate to demonstrate that an improper factor was a substantial motivation in the challenged decision. Id. at 183.

The plaintiff in the instant case has adduced direct evidence of an illegitimate motive in the form of written statements by decisionmakers that establish animus against the plaintiff for his minority status, protected speech and activity were motivating factors in the decision to terminate him via tenure review, as well as in other employment actions (Appendix A, paragraphs 212-221). Hence, plaintiff has adduced evidence sufficient to establish liability. Defendants must now prove by a preponderance of evidence that they would have reached the same decisions absent the illegitimate motives, which would not protect them from liability, but only limit damages due the plaintiff.

77. Even if the defendants argue that the termination of the plaintiff is the issue and that they have proffered legitimate reasons for terminating the plaintiff under tenure review, the decision makers at the time of the decision were relying on false information, therefore none of them could have come to a justifiable negative decision.

78. The Supreme Court also ruled in Price Waterhouse that when presenting evidence to prove its legitimate reasons, "[a]n employer may not, in other words, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision." (Price Waterhouse, 490 U.S. at 252.) Because the defendants tainted the plaintiff's tenure review, no decision makers in the entire process could have known whether or not the plaintiff's record was deserving of an award of tenure. Hence, the defendants cannot produce a lawful motivation for the termination of the plaintiff via tenure review, which motivated them at the time of the decision. (See also Turnes v. AmSouth Bank, N.A., 36 F.3d 1057 (11th Cir. 1994) and Burdine, 450 U.S. 248.) The defendants cannot possibly adduce a legitimate, non-discriminatory or non-retaliatory motive for the decision to terminate the plaintiff via tenure review. Judgment should issue for the plaintiff and the Court should set a date for a trial to determine damages.

79. Nor do the decisions of the higher bodies in defendant University's decision-making chain provide legitimacy. In Price Waterhouse, 490 U.S. at 251, the U.S. Supreme Court described a collegial decision-making process that closely resembles that of defendant University's:

Price Waterhouse invited partners to submit comments; that some of the comments stemmed from sex stereotypes; that an important part of the Policy Board's decision on Hopkins was an assessment of the submitted comments; and that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations.

Plaintiff's proffered evidence establishes that defendant University's School of Journalism invited reviewers to submit written comments; that some of the written comments contained statements expressing discriminatory and retaliatory animus; that an important part of the J-School P&T Committee's, UCPT's, Provost's and Chancellor's decision on Cuenca was an assessment of the submitted comments; and that those decision makers in no way disclaimed reliance on the discrimination- and retaliation-linked evaluations-even though the plaintiff in the instant case pointed out to those higher bodies the inconsistencies and illegal motives, prior to their decisions.

80. Several Circuits have addressed this issue and in an ADEA case, the Seventh Circuit ruled that "An employer cannot escape responsibility for willful discrimination by multiple layers of paper review, when the facts upon which the reviewers rely have been filtered by a manager determined to purge the labor force of older workers." Gusman v. Unisys Corp., 986 F. 2d 1146 (7th Cir. 1993). The Eight Circuit has followed this principal (Kientzy v. McDonnell Douglas Corp., 990 F. 2d 1051 (8th Cir. 1993), as has the Sixth (Wells v. New Cherokee Corp. 58 F. 3d 233 (6th Cir. 1995). Gentry, Musser, and Shulenburger tainted the plaintiff's tenure review in this fashion and the subsequent reviews do not provide defendants a safe harbor from their misconduct.

81. Additionally, Justice O'Conner, in her Price Waterhouse concurrence wrote:

Particularly in the context of the professional world, where decisions are often made by collegial bodies on the basis of largely subjective criteria, requiring the plaintiff to prove that any one factor was the definitive cause of the decisionmakers' action may be tantamount to declaring Title VII inapplicable to such decisions. See, e.g. Fields v. Clark University, 817 F. 2d 931, 935-937 (CA1 1987) (where plaintiff produced "strong evidence" that sexist attitudes infected faculty tenure decision, burden properly shifted to defendant to show that it would have reached the same decision absent discrimination); Thompkins v. Morris Brown College, 752 F. 2d 558, 563 (CA11 1985) (direct evidence of discriminatory animus in decision to discharge college professor shifted burden of persuasion to defendant).

(Id., at 273.) The decision in Fields, cited by Justice O'Conner, stated:

The district court's finding that [retaliation or racial] discrimination "impermissibly infected" the decision not to grant [Cuenca] tenure appears to us to be the equivalent of a finding that [he] proved by direct evidence that discrimination was a motivating factor in the decision. This finding cannot be reconciled with the court's putting the burden on [Cuenca] to prove that [he] was entitled to tenure.

(Fields, at 937.)

82. It follows, then, that although this case involves a university professor terminated after tenure review, it does not revolve around the merits of the tenure decision. The causes of action in this case are actions taken by the defendants to discriminate against plaintiff and to retaliate against him for his protected speech and activity by taking specific actions that "impermissibly infected" his application for permanent tenure. Those actions were separate from the actual consideration of the plaintiff's tenure review. For example, when defendant Gentry lied in his review letter that the plaintiff didn't have refereed works (Appendix A, paragraphs 170-176), it was that act, not the eventual decision that came from it, that is the cause of action. The termination is merely the damage wrought by the wrongdoing. The evidence adduced by plaintiff herein regarding his qualification for tenure is proffered solely to prove that the decision to deny him tenure cannot be justified by any legitimate motive.

83. By assessing the plaintiff's tenure dossier, which included impermissible motives, and then failing to disavow or disclaim them, all of defendant University's decision makers acquiesced their acceptance and agreement with those statements.

84. The Supreme Court further stated that, "[c]ertainly a plausible-and one might say, inevitable-conclusion to draw from this set of circumstances is that the Policy Board in making its decision did in fact take into account all of the partners' comments, including the comments that were motivated by stereotypical notions about women's proper deportment." (Price Waterhouse, at 256. Emphasis added.) In the instant case, the J-School P&T Committee, the UCPT, the Provost and the Chancellor were the "Policy Board" and they did not disclaim or refute the discriminatory and retaliatory animus in the written comments of Hoy and Frederickson. Defendant University is liable for the decisions made at all levels of the review. Defendants cannot articulate legitimate non-discriminatory reasons for not disclaiming the discriminatory and retaliatory comments of some of the decision makers and not fully investigating the claims of the plaintiff that the review had been tainted. Judgment should issue for the plaintiff.

85. The decision makers' accepted statements of discriminatory and retaliatory animus prove both the causal connection between the plaintiff's protected activities and an illegitimate motive for the defendant University's decision to deny the plaintiff's request for permanent tenure. Plaintiff has thereby adduced direct evidence that his termination was motivated at least in part by an illegal motivation and liability is established.

86. Defendants cannot prove by a preponderance of evidence that they would have taken the same adverse action absent the illegitimate motive, because previous illegal action by defendant Gentry and others, taken to misrepresent the plaintiff's actual record, precluded the decision makers from basing the adverse employment action on a valid examination of the plaintiff's actual record. Consequently, defendants cannot articulate a legitimate, non-discriminatory business reason that actually motivated them at the time of the decision, precluding limitations on damages.

87. Alternatively, even when applying a strict McDonnell Douglas framework, plaintiff argues that he has established that he is a member of a protected class, he has established a prima facie case that he was a victim of discrimination and retaliatory adverse employment actions, and that the defendants cannot articulate legitimate business decisions for their actions. The defendants cannot answer and judgment should issue for the plaintiff and the Court should set a date for a trial to determine damages.

The "New Media Leader" Search
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Gentry)

88. Defendants discriminated against plaintiff by intentionally denying him the position of New Media Leader in the autumn of 1997 (Appendix A, paragaphs 127-138).

89. Quoting McDonnell Douglas in Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, (10th Cir. 2002), the Tenth Circuit explained that a prima facie case of discrimination is established:

by showing (i) that [plaintiff] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

The Tenth Circuit panel said these were the elements of the "archetypal discrimination case, an employer's discriminatory failure to hire a qualified employee." (Id.)

90. The plaintiff is a member of a protected class, which satisfies the first McDonnell Douglas criterion. The plaintiff applied for an open position and was found qualified, which satisfies the second criterion. The plaintiff was denied the position, which satisfies the third criterion. Defendants sought additional applicants from persons of complainant's qualifications, which satisfies the fourth criterion.

91. Hence, the Plaintiff's evidence of this prima facie case of discrimination conforms exactly to the U.S. Supreme Court's McDonnell Douglas criteria, and he has thereby established a prima facie case of discrimination against defendants University of Kansas and Gentry for this cause of action. The illegal discriminatory animus solicited and accepted by Gentry during the plaintiff's tenure review establishes the motive for this action, as well. Liability is established.

92. Because this discriminatory business decision was motivated by a discriminatory and retaliatory animus against the plaintiff for his KHRC/EEOC complaint and other protected activity up to and during the search, as expressed during the plaintiff's tenure review, the plaintiff has also established a prima facie case of retaliation against defendants University of Kansas and James K. Gentry in this cause of action and liability is established.

93. Defendants cannot articulate a legitimate business decision for this presumed discrimination and retaliation, precluding limitations on damages.

Discriminatory and Retaliatory Dismissal Proceedings Against Plaintiff
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Kautsch)

94. Defendant Kautsch's unauthorized non-reappointment action against the plaintiff in December 1995 (Appendix A, paragraphs 46-71), was an adverse employment action taken in direct retaliation for plaintiff's Title VII and First Amendment rights to freedom from discrimination in employment and from retaliation for protected activity and speech.

95. Kautsch' action was discriminatory in that no other faculty member had been subjected to similarly severe disciplinary action. Kautsch's expressed reason that the action was taken because the plaintiff was "making demands and stating expectations," directly connected Kautsch's action to the plaintiff's exercise of his rights under the First Amendment and Title VII, which proves that the plaintiff's protected activity was a motivating factor in this adverse employment action. Liability is established.

96. Defendants cannot prove by a preponderance of evidence that they would have taken the same adverse action absent the illegitimate motive, because the adverse employment action was undertaken exclusively in response to the plaintiff's protected speech and opposition to illegal discriminatory actions in the workplace and was not authorized by any University of Kansas policy or procedure, precluding limitations on damages.

The Deliberate Indifference of Defendant University of Kansas
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)

97. The Tenth Circuit has explained that the deliberate indifference of supervisory employees to the illegal acts of their subordinates establishes a de facto discriminatory and/or retaliatory policy:

Public officials with notice of misbehavior by their subordinates must not take actions which communicate that they encourage or condone such behavior. Stoneking, 882 F.2d at 729. Such conduct as failing to discipline or failing to safeguard against a known danger establishes an unwritten policy or custom for purposes of section 1983.

Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, at 1037 (10th Cir. 1993). The Tenth Circuit, in another case, also ruled:

Moreover, in the context of other civil rights legislation, conduct has been described as intentional when "'the policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the [challenged] policy, training, protocol, or custom.'" Ferguson v. City of Phoenix, 931 F. Supp. 688, 697 (D. Ariz. 1996) (construing Rehabilitation Act) (quoting Penney v. Town of Middleton, 888 F. Supp. 332, 340 (D.N.H. 1994). n8 See also Canton v. Harris, 489 U.S. 378, 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989).

Tyler v. City of Manhattan, 118 F.3d 1400, at 1405 (10th Cir. 1997).

98. Defendant University of Kansas established an unwritten policy of tolerance of violations of plaintiff's federally-protected rights by "failing to discipline or failing to safeguard against a known danger." (Gates, 996 F.2d 1035, at 1037.)

99. From December 1995 (Appendix A, paragraphs 54-76) and onward, defendant University's chief operating officer, Provost David E. Shulenburger and chief executive officer, Chancellor Robert E. Hemenway, were clearly aware that defendant Kautsch had asked their permission to terminate plaintiff in proceedings that they had subsequently refused to permit because they were outside the bounds of the defendant University's regulations and operating procedures. Kautsch's actions were clear and fair warning that he was capable of acting outside those regulations and procedures in regard to the plaintiff and that he was passionately determined to terminate the plaintiff. From that moment on, it was Provost Shulenburger's and Chancellor Hemenway's responsibility to take whatever action was necessary to protect the plaintiff from further violations of his rights and to protect him from additional illegally motivated adverse employment actions. From then on, it was their responsibility to supervise and scrutinize every employment action and decision involving the plaintiff, carefully verifying that there were no irregularities, inconsistencies, violations of University policies and procedures, or other evidence of illegal motivation.

100. Defendant University's deliberate indifference was evidenced in their refusal to investigate the claims of discrimination and retaliation made by the plaintiff from December 1995 through the present day.

101. Defendant University's deliberate indifference was evidenced in their refusal to protect the plaintiff from an intentionally tainted performance evaluation in the form of tenure review, even though plaintiff presented them with evidence of the tainting of the tenure review prior to their final decision (Appendix A, paragraphs 195-198).

102. Defendant University's administration has also exhibited this deliberate indifference to violations of Title VII and other civil rights law in their refusal to comply with EO 11246, as detailed above in paragraphs 40 through 45. Defendant University's failure to monitor their workforce for evidence of discrimination has established a custom of tolerance of discrimination in their workplace and evidences a pattern and practice of discrimination.

103. Defendant University's refusal to discipline managerial employees for violations of their subordinate's rights and a permissive attitude toward retaliation against employees has established a custom of tolerance of retaliation and evidences a pattern and practice of discrimination and retaliation.

104. Defendant University of Kansas' deliberate indifference to the actions against the plaintiff denied the plaintiff an equal opportunity and equal protection. Defendants cannot articulate a legitimate business reason for this disparate treatment and judgment should issue for the plaintiff.

105. Defendants are precluded from limiting damages due to plaintiff for this action because any reason proffered by defendants for their failure to initiate an investigation or to take remedial action fails to rise to the level of legitimacy because the University's policies and procedures provide for protection of employees against discrimination and retaliation. (Appendix A, paragraphs 6-8.)

106. The deliberate indifference of the defendant University's ultimate decision makers to the obvious evidence of illegal motivation in the plaintiff's tenure review dossier denied the plaintiff an equal opportunity, equal protection, and freedom from retaliation and adverse employment action. Defendants cannot articulate a legitimate motivation for this discriminatory and retaliatory adverse employment action and judgment should issue for the plaintiff.

107. Defendants' deliberate indifference is probative of a pattern and practice of discrimination and retaliation against the plaintiff.

108. Defendants' deliberate indifference is an ongoing violation of the plaintiff's Title VII and Fourteenth Amendment rights.

Defendant's Suspension of the Investigation of Plaintiff's Internal Complaint
(Title VII claim and 42 U.S.C. § 1981 claims against Defendant University of Kansas)

109. The U.S. EEOC, in its Compliance Manual, Section 8, (Appendix A, exhibit 143), advises that suspending an internal complaint investigation is an example of an adverse employment action. See also EEOC v. Board of Governors of State Colleges & Universities, 957 F.2d 424 (7th Cir.), cert. denied, 506 U.S. 906 (1992).

110. Defendant University's Director of Equal Opportunity Bryan's confirmation that he suspended the investigation of plaintiff's complaints of discrimination and retaliation because of failed mediation establishes the causal connection between the plaintiff's protected activity and the discriminatory and retaliatory termination of the internal investigation (Appendix A, paragraphs 107-116). Hence, this discriminatory and retaliatory adverse employment action is proven to have been motivated at least in part by illegal retaliation. Liability is established.

111. Defendants cannot prove by a preponderance of evidence that they would have taken the same adverse action absent the illegitimate motive, because it has been established to be outside the bounds of defendant University's policies and procedures and was not authorized by any legitimate business policy or procedure of the defendant University, precluding limitations on damages.

The False Evaluations of the Plaintiff
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Gentry)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Kautsch)

112. The false evaluations of the plaintiff, first produced by defendant Kautsch in May, 1996 (Appendix A, paragraphs 79-82), and then by defendant Gentry during the plaintiff's tenure review of November, 1999 (Appendix A, paragraphs 142-189), are adverse employment actions, as defined by the Tenth Circuit in Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998).

113. Evidence in the record proves that defendant Kautsch initiated an adverse employment action against plaintiff in the form of a false evaluation, within 10 days of the plaintiff's complaint of racially motivated discrimination. Frederickson connected the adverse employment action to the plaintiff's previous protected activity. Therefore, it has been proven that the adverse employment action was motivated at least in part by an illegitimate retaliatory motive. Liability is established.

114. Frederickson also established that the plaintiff's performance was better than the review reported, and Defendant Kautsch later raised the plaintiff's performance ratings, proving that the original performance review did not reflect the plaintiff's actual record. Hence, defendants cannot prove by a preponderance of evidence that they would have taken the same adverse action absent the illegitimate motive, because the adverse employment action did not reflect the plaintiff's actual performance record and was motivated exclusively by the plaintiff's protected speech and opposition to illegal discriminatory actions in the workplace. Limitations on damages due the plaintiff are thereby precluded.

115. During the plaintiff's tenure review, defendant Gentry fraudulently misrepresented the plaintiff's performance record and deliberately withheld significant evidence of the plaintiff's record from decision makers (Appendix A, paragraphs 142 to 189). Gentry included in the plaintiff's tenure dossier a letter that directly expressed illegal motivation for the decision to deny the plaintiff's tenure application(Appendix A, paragraphs 212 to 220). Liability is established.

116. Gentry's actions prevented the University from making a legitimate decision regarding the plaintiff's suitability for a grant of tenure. Therefore, defendants cannot prove by a preponderance ofevidence that they had a legitimate non-discriminatory reason for denying plaintiff's tenure, which motivated them at the time of the decision, precluding limitations on damages.

Defendant Kautsch's December 1995 "special review" of the Plaintiff
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Kautsch)

117. The evidence in the record proves that in December of 1995, defendant Kautsch took a discriminatory and retaliatory adverse employment action against the plaintiff in the form of an illegal performance review with conditions that violated the plaintiff's exercise of his First Amendment and Title VII rights, (Appendix A, paragraph 67) which proves that the plaintiff's protected activity was a motivating factor in the adverse employment action taken against the plaintiff. Liability is established.

118. This adverse employment action by defendant Kautsch was an action that was outside the defendant University's policies and procedures. Hence, defendants cannot prove by a preponderance of evidence that they would have taken the same adverse action absent the illegitimate motive, because the adverse employment action was not authorized by any legitimate business policy or procedure of the defendant University, precluding limitations on damages.

The "General Manager of the Integrated Media Lab" Search
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Kautsch)

119. Defendants discriminated against plaintiff by intentionally denying him even the opportunity to apply for the position of general manager of the Integrated Media Laboratory in the spring of 1996 (Appendix A, paragraphs 77-78).

120. Defendants cannot articulate a legitimate business reason for this apparent discrimination, because University policy expressly forbids such unilateral employment action (Appendix A, paragraph 78). Judgment should issue for the plaintiff.

Frederickson's Front Page Editorial
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)

121. The hostile front-page editorial by Professor Frederickson (Appendix A, paragraphs 200-205) is an actionable adverse employment action against defendant University, as explained by the Tenth Circuit in Gunnell:

We must next decide under what circumstances such co-worker hostility can be considered intentional retaliation on the part of the employer. We perceive at least three factual scenarios involving co-worker retaliatory harassment: (1) co-workers, without the knowledge of supervisory or management personnel, independently take it upon themselves to harass the plaintiff in retaliation for engaging in protected activity; (2) supervisory or management personnel know about and acquiesce in or condone the retaliatory harassment by the plaintiff's co-workers; and (3) supervisory or management personnel orchestrate the campaign of co-worker harassment. Gunnell, by advocating a "known or should have known" standard, would hold employers liable in each of the three scenarios. However, because harassment must be intentional on the part of the employer, we hold that an employer can only be liable for co-workers' retaliatory harassment where its supervisory or management personnel either (1) orchestrate the harassment or (2) know about the harassment and acquiesce in it in such a [**32] manner as to condone and encourage the co-workers' actions. See Knox, 93 F.3d at 1333-35 (in dicta, approving an instruction that would hold an employer liable for "retaliation . . . committed by co-workers with the knowledge and acquiescence of the employer.")

(Id., at 1265.) Defendant University's administration was aware of Frederickson's hostility toward the plaintiff because it appeared on the front page of the defendant University's student newspaper. Defendant University's administration acquiesced in Frederickson's hostility by refusing to disavow or disclaim the hostility by the plaintiff's supervisor.

122. Since the action by Frederickson was taken in response to plaintiff's protected speech and opposition to illegal discrimination, defendants cannot prove by a preponderance of evidence that they would have taken the same adverse action absent the illegitimate motive, because the action would not have occurred absent the plaintiff's protected activity, precluding limitations on damages.

Discriminatory and Retaliatory Application of Disciplinary Action Against Plaintiff
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas)
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Gentry)

123. In December, 1995 (Appendix A, paragraphs 46-71), and May, 1996 (Appendix A, paragraphs 79-87), defendant Kautsch took extreme action against the plaintiff that violated the University's policies and procedures (Appendix A, paragraphs 73-75). The defendant University's administration was aware of these actions. The defendant University's administration initiated no disciplinary action against Kautsch.

124. Throughout the summer and fall of 1999, defendant Gentry deliberately provided false information to the University (Appendix A, paragraph 142-189), in direct violation of defendant University's policies and procedures (Appendix A, paragraph 198). Plaintiff made defendant University's administration aware of these actions in February of 2000 (Appendix A, paragraph 197). The defendant University's administration initiated no disciplinary action against Gentry.

125. In March, 2000, the plaintiff was accused of violating University policy by rescheduling his classes to attend a civil rights trial in federal court (Appendix A, paragraphs 206-209). Defendant University initiated disciplinary action against the plaintiff.

126. Defendants' disciplinary action against the plaintiff in March 2000 was both discrimination, probative of disparate treatment of plaintiff compared with non-minority employees of the University, and a retaliatory adverse employment action.

127. Plaintiff has adduced evidence that defendants Kautsch and Gentry violated tenets of the University's code of conduct that authorized disciplinary measures up to and including termination and that they were not disciplined for those violations. Comparatively, plaintiff was disciplined for a lesser violation that did not rise to the level of an offense for which termination is authorized. The Tenth Circuit has ruled:

When comparing the relative treatment of similarly situated minority and non-minority employees, the comparison need not be based on identical violations of identical work rules; the violations need only be of "comparable seriousness." Id. (citing McAlester, 851 F.2d at 1261).

Elmore v. Capstan, 58 F.3d 525, at 530. The violations of defendants Kautsch and Gentry were comparable in that they were violations of the Faculty Code of Conduct, but they were actually much more serious in that they rose to a level of violation for which termination is authorized.

128. By initiating disciplinary action against the plaintiff and not against defendants Kautsch and Gentry, defendant University's administration subjected the plaintiff to disparate treatment.

129. By applying disciplinary action against plaintiff because of his opposition to defendants' discriminatory policies and actions, defendant University initiated a retaliatory adverse employment action against plaintiff.

130. Defendant University's Provost and Chancellor accepted without protest the statements of discriminatory and retaliatory animus in plaintiff's tenure dossier and published in their daily student newspaper, establishing acquiescence with those illegal motivations. Liability is established.

131. Defendant can articulate no legitimate business reason for the discrimination and/or retaliation against the plaintiff, precluding limitations on damages.

Discriminatory and Retaliatory Salary Increase of the Plaintiff
(Title VII and 42 U.S.C. § 1981 claims against Defendant University of Kansas),
(42 U.S.C. § 1981 and 42 U.S.C. § 1983 claims against Defendant Kautsch)

132. When, in May of 1996, defendant Kautsch gave the plaintiff the lowest salary increase of any other tenure-track faculty member (Appendix A, paragraphs 80 and 94), Kautsch violated the plaintiff's Title VII and Fourteenth Amendment rights.

133. Frederickson then connected the plaintiff's protected activity to the discriminatory salary increase and liability is thereby established.

134. Defendants cannot articulate a legitimate, non-discriminatory business reason for this violation, precluding limitations on damages.

Damages

135. The U.S. Supreme Court has stated that when fashioning remedies in Title VII cases, "the lower courts have the responsibility to provide the most complete relief possible, and must strive to make the victim whole by placing [him], as near as may be, in the situation [he] would have occupied had the wrong not been committed. "Title VII in the University: The Difference Academic Freedom Makes", 59 U.Chi.L.Rev. 1317, at 1326, citing the Civil Rights Act of 1991 § 102, and Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975).

136. The damage done to an educator who is denied tenure is particularly severe:

Most if not all tenure decisions are on an "up or out" basis -- if the educator is not granted tenure, she is in most cases given a one-year terminal contract. Most educators spend between four and seven years at a university before a tenure decision. Upon re-entering the job market, the educator who has been denied tenure will be older than most other candidates. In addition, a denial of tenure damages an educator's reputation and will greatly inhibit the individual's chances of receiving a teaching position at another university.

The Civil Rights Act of 1991 provides for compensatory and punitive damages for successful Title VII plaintiffs. Some might argue that courts should award such damages in lieu of reinstatement with tenure, especially if the University has shown itself to be hostile to the plaintiff due to race or gender. The damages available under Title VII, however, are paltry compared the earnings of a tenured faculty member during her career at a university. Backpay awards are limited by a duty to mitigate; compensatory and punitive damages allowed are limited by a $ 200,000 cap. Tenure, on the other hand, is a life contract. To refuse reinstatement due to hostility in the university would essentially amount to a triumph for discriminatory attitudes; those who wanted to keep out minorities or women will have prevailed. Moreover, if the plaintiff would be uncomfortable with reinstatement, she has the option of requesting alternative remedies.

Finally, and most importantly, no amount of money damages can substitute for the security that tenure provides an educator. Tenure insures the intellectual independence of educators; it allows them to teach, study and publish without the fear of arbitrary dismissal. A grant of tenure means that an educator may be dismissed only for adequate cause. A tenured educator at a public university has constitutionally protected property rights which cannot be eviscerated without due process of law. Even in private universities, in order to dismiss a tenured professor, the university must usually follow elaborate procedures, with the burden falling on the university to prove adequate cause. Furthermore, since the educators who are most in danger of being denied tenure on discriminatory grounds are also the most likely to research and publish in areas that challenge status quo predispositions, discriminatory tenure denials have external effects on the community at large, which suffers the loss of fresh ideas and perspectives. Insisting on money damages as the only remedy available to prevailing plaintiffs in tenure discrimination cases fails to address the public interest, which is better served by reinstatement with tenure where the plaintiff prefers that remedy.

The fair reconsideration remedy is also unlikely to vindicate the plaintiff's rights. First, the faculty and administrators who discriminated against the plaintiff the first time around may be the same ones making the court-ordered "nondiscriminatory" tenure decision. Because academic decisionmaking is so subjective, those with a race or sex bias might consciously or subconsciously devalue the work of a woman or minority member when re-evaluating her. The same subconscious devaluation may come into play by faculty or administrators unable to ignore the fact that the plaintiff is a successful Title VII complainant. Furthermore, faculty may well find it impossible to ignore changes in the school's financial situation, student enrollment, and the faculty hiring that may have occurred in the years since the inception of the suit. The likelihood of such difficulties makes a fair reconsideration of the tenure decision seem unlikely at best. The university may, of course, grant tenure to the plaintiff after a court-ordered reconsideration, either out of a desire to avoid further litigation, or out of an honest assessment of the plaintiff's qualifications. However, Title VII's "make whole" provision ought not require successful plaintiffs to go through the decisionmaking process a second time.

Id., at 1332.

137. Acts of retaliation against Title VII complainants in a workplace have been established as constituting irreparable harm. In Garcia v. Lawn, 805 F.2d 1400, 42 FEP 873 (9th Cir. 1986), the Ninth Circuit ruled:

This case, however, involves more than a claim of harm to the plaintiff and his family as the result of the termination. The claimed violation of the law in this case is retaliatory action for the exercise of Title VII rights, action which, if plaintiff is correct, will have a deleterious effect on the exercise of these rights by others.

That the chilling effect of retaliatory activity can constitute irreparable harm has been recognized by the Second Circuit. In Holt v. Continental Group, Inc., 708 F.2d at 91, it stated:

A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights. These risks may be found to constitute irreparable injury.

As a leading treatise has commented, "the courts will more readily grant [injunctive] relief where allegations of retaliation are involved, because such conduct is likely to cause irreparable harm to the public interest in enforcing the law by deterring others from filing charges." B. Schlei & P. Grossman, supra, at 1063. The harm is a continuing one so long as the retaliation remains in effect.

138. Plaintiff seeks an order from the Court for prospective relief to include the following conditions:

A. Immediate and permanent policy allowing opening of all tenure proceedings and materials to public scrutiny, upon request of employee.

B. Immediate and permanent policy allowing opening of all performance evaluation appeal proceedings and materials to public scrutiny, upon request of employee.

C. Immediate and permanent policy allowing opening of all disciplinary proceedings and materials to public scrutiny, upon request of employee.

D. Immediate establishment of specific, objective-based criteria for tenure review and performance evaluation in all units.

E. Immediate publication on paper of Faculty Handbook, distributed to all faculty.

F. Requirement for all new tenure-track hires to have clear, concise, binding contract specifying tenure requirements (as is required by AAUP).

G. Immediate appointment of a proctor to monitor all tenure reviews and other termination proceedings at the University of Kansas.

H. Immediate restructuring of Office of Equal Opportunity into two offices: Office of Equal Opportunity and Office of Affirmative Action.

I. Hiring of new Director of Equal Opportunity, approved by a court appointed proctor.

J. Hiring of new Director of Affirmative Action, approved by a court appointed proctor.

K. Reestablishment of faculty Affirmative Action committee, members approved by a court appointed proctor, charged to oversee all activities of the Offices of Affirmative Action/Equal Opportunity and to review all complaints to the Offices of Affirmative Action/Equal Opportunity, with authority to render the University's final, binding decisions.

L. Immediate restructuring to conform with all current AAUP Policy Documents and Reports and OFCCP guidelines not otherwise listed here.

M. Appropriate disciplinary action against David E. Shulenburger.

N. Appropriate disciplinary action against Myron A. Kautsch.

O. Appropriate disciplinary action against James K. Gentry.

P. Immediate reinstatement of Mike Cuenca to the faculty as a tenured associate professor in a unit of University of Kansas other than the School of Journalism, with indefinite designation as research faculty member.

Q. Immediate two-year paid leave of absence for Mike Cuenca, from date of reinstatement.

R. Retroactive raise of Mike Cuenca's salary to amount equal to percentage of raise given to Gary Hawke (22%), effective academic year 1996-1997 (including all benefits).

S. Retroactive raise of Mike Cuenca's salary to $75,000 annually (amount paid to successful "New Media Leader" applicant), effective academic year 1999-2000 (including all benefits).

T. Front pay and full benefits until normal retirement age (alternative to list items P and Q).

U. Full-page advertisements in the University Daily Kansan, Lawrence Journal-World, Topeka Capital-Journal, Wichita Eagle, KC Star, Chronicle of Higher Ed, Academe, and Editor & Publisher, consisting of a description of the corrective action described above and apologies to Mike Cuenca from Kautsch, Gentry and Frederickson.

V. All legal fees and costs.

139. Plaintiff seeks a trial to determine additional monetary damages:

W. Compensatory damages for his mental anguish, pain and suffering and other non-pecuniary losses;

X. Punitive damages against individual defendants Myron A. Kautsch and James K. Gentry, and

Y. Such other relief as the Court deems just and equitable.

WHEREFORE, the plaintiff, above-named, prays that the Court issue an order granting him summary judgment or partial summary judgment.

Respectfully submitted,

______________________________

MICHAEL R. CUENCA, pro se