PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT
APPENDIX A—AFFIDAVIT OF MICHAEL R. CUENCA

1. I am the plaintiff in this case and I have personal knowledge of the facts and evidence set forth below.

2. In 1922, the publisher of the small-town Emporia, Kansas, Gazette, a man named William Allen White, wrote an editorial in which he staunchly defended the principle of freedom of speech. In that editorial, he wrote,

Whoever pleads for justice helps to keep the peace, and whoever tramples on the plea for justice temperately made in the name of peace only outrages peace and kills something fine in the heart of man . . .

White won a Pulitzer Prize for that editorial. The School of Journalism at the University of Kansas is named for White. The editorial holds an honored place at the School and is mounted in bronze on a wall inside the building.

3. The faculty of the William Allen White School of Journalism and Mass Communications at the University of Kansas, unanimously adopted a statement of values on November 7, 1997 (Exhibit 63), includes the value:

Free expression and conscientious, ethical journalism as cornerstones of a democratic society.

4. The First Amendment to the Constitution of the United States of America states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

5. Section C.2.e. of the Faculty Handbook of the University of Kansas, titled “Faculty Code of Rights, Responsibilities, and Conduct” (Exhibit 1) says:

1. Freedom of inquiry, expression, and assembly are guaranteed to all faculty members.

6. Faculty members are also protected by University policy from discriminatory acts. Article V of section C.2.e. of the Faculty Handbook, titled “Proscribed Conduct”, says:

Also proscribed is any form of sexual harassment or discrimination on the basis of sex, race, religion, age, national origin, disability, or sexual orientation.

7. The University’s official statement of equal opportunity says:

A university should help all individuals realize their potential. To this end, the University of Kansas at Lawrence commits itself to providing policies and programs that allow equal opportunity for employment, conditions of employment, services and participation in activities of the university regardless of race, religion, color, sex, disability, national origin, ancestry, sexual orientation, marital or parental status, and, to the extent specified by law, age, or veteran status. The university also commits itself to eliminating discrimination on any of these bases in all university activities. Any evidence of discriminatory practices shall be evaluated and acted upon promptly through the Equal Opportunity/ Affirmative Action grievance procedures. Acts of retaliation for participation in grievance procedures are prohibited.

8. The University’s policy prohibiting racial and ethnic harassment (Exhibit 61, second page, fifth paragraph) states:

Although confronting racial and ethnic harassment is difficult and takes courage, it is important. We must do all we can to eliminate this unwelcome behavior from the university community. We are all negatively affected by racial and ethnic discrimination and harassment.

9. I was born in Wichita, Kansas, in 1957. (Exhibit 2) My father, Guillermo Aguilar Cuenca, had emigrated from the Philippines after serving in the U.S. Navy after World War II. As are many Filipinos, we are Hispanic. My great grandfather, Bruno Cuenca, had emigrated from Mexico as an officer in the Guardia Civil, which was the Philippine colonial army during the Spanish occupation.

10. I’m now 45 years old. I first started getting paid to write for newspapers when I was 17. I had graduated from high school and was studying journalism at Butler County Community College. That first fall semester, the El Dorado Times hired me as a sports stringer to cover small-town high school football games. By the time I graduated from Butler County two years later, I had worked fulltime during the summers for the Times and its smaller papers, I had worked as a disk jockey on KOYY radio in El Dorado, and I had broadcast all of the football and basketball games of the Butler County teams as a play-by-play announcer and/or color commentator for KOYY.

11. So I’ve been a “multi-media” professional for 27 years now.

12. In those 27 years, I’ve learned that even when a minority man is hired, he still has a tremendously difficult time ever being allowed to make any intellectual decisions. Eventually, I became so frustrated with being assumed to be unintelligent that I applied for and was found qualified to join Mensa, the high I.Q. society, to at least prove to myself that I wasn’t as unintelligent as I was often treated. When I joined Mensa, I scored above the 99th percentile on two monitored intelligence tests. (Exhibit 47)

13. Because the traditionally intellectual side of journalism—the creative or verbal side—was usually closed to me, I often wound up on the production side, working with production technology. I worked with all of the early versions of electronic typesetters. I worked with the beginning of desktop publishing and electronic pre-press. I worked with radio and video production technology and photographic technology. The circumstances of discrimination gave me an expertise that has since proved invaluable.

14. Two years before I came to KU, I accepted a job at Mothering Magazine in Santa Fe, New Mexico. Mothering turned out to be the best job I ever had. From the moment I started, the publisher trusted me fully as a professional, even though I had never worked in magazine production before then. She allowed me to do my job the way I saw fit and her only concern was that I got her magazine out on time.

15. Right away I realized that I’d have to modernize the magazine’s production processes. It was 1992 and they were still pasting up the magazine mechanically. Most of us in advertising creative had been working with desktop publishing since 1984, when the Mac was introduced. But magazines and newspapers hadn’t yet made the switch. So within one quarterly production cycle I converted the magazine completely from conventional mechanical production to electronic pre-press. I was able to save her a great deal of money and save myself a lot of grunt work.

16. While I was there, I started writing columns for FOLIO magazine, which is the magazine for the magazine publishing industry. By the time I came to KU, I had written four of them, on budget, technology issues, and quality control. (I was ISO 9000 quality control certified in 1991.) One of the columns was picked among the Best of Folio Magazine and was published as a chapter in “The Handbook of Magazine Publishing.” Also by the time I came to KU, my photographic work had been honored in juried shows, I’d won a regional award in southern California for one of my video productions, and I’d had reporting and producing work aired on CNN.

17. Those were the best two years of my life and the best job I’d ever had. But my wife (now ex-wife) is a Lawrence native and wanted to come home.

18. I found out that the J-School at KU had a position open for technology coordinator of the University Daily Kansan. I applied for the job. But after the completion of that search, the chair of that search committee, Tom Eblen, called and told me that they were very interested in me, but that I’d probably not be interested in the job after they told me the salary range. When he told me the salary range, I agreed that I wasn’t interested. He said, “Good, because we have a teaching position open here we’d like you to apply for.”

19. In 1994, the School needed a faculty member with experience in technology-based journalism and they received administration approval to search for an Assistant Professor of Visual Communications. The approved job description read:

Teach newspaper design classes and lead development of new courses and laboratory opportunities for a multi-media curriculum, using computer technology to produce news, advertising and other forms of information in the form of text, graphics, and photography. Engage in research and creative activity related to design and multi-media technology. Perform service to the School, the University and academic and professional associations with an interest in development of multi-media technology. [Emphasis added.]

(Exhibit 3) The job description clearly stated that a focus on multi-media technology was planned for this position in terms of teaching, research, and service. The job sounded perfect for me and I applied.

20. During the search process, Tom and other faculty members I met told me that the School was desperate for a technology-oriented faculty member to help get the school going with what’s called “convergence”. That’s the convergence of all the different media into the modern electronic media that’s becoming so prevalent. It’s the combination of traditional journalism with the modern technology. Tom said that none of the other faculty could teach the design course that required a heavy emphasis on computer graphic design. He said that in the case that they didn’t find someone for the teaching position, there would be no one to teach that particular course. He and others repeatedly told me that there simply weren’t very many professionals in journalism who had the broad range of experience in all the various fields of journalism that I had.

21. Professor Theodore P. Frederickson was appointed chair of the search committee. What I’ve learned since then was that as a result of their search and interviews, Frederickson and his committee narrowed the field of candidates to two. In their recommendation to defendant Kautsch, comparing the two candidates, they stated that:

... Cuenca’s varied experience would better enable him to serve the future needs of the school, particularly in the area of multi-media.

(Exhibit 4.)

22. The search committee had clearly decided that I would be better suited for multi-media, which they had defined in their job description to be the focus of the position. As it turned out, though, they voted to offer the position to the other candidate, who was a white male.

23. In the pre-interview summary prepared for the search, I am listed as the only minority person who applied for the position (Exhibit 58). The pre-interview summary also contains the instruction: “[i]f an applicant has a Spanish surname, assume s/he is Hispanic.” (Id.) On my first day of work at the J-School, Dean Kautsch asked me if I’d be willing to start up a relationship with the Hispanic newspaper in Kansas City. (Exhibit 167, at page 137, line 2, through page 139, line 12.) Defendants were aware of my protected class status at all times during this search and my subsequent employment.

24. Apparently, the University’s Office of Affirmative Action (which was later changed to Office of Equal Opportunity) and the University’s Vice Chancellor of Academic Affairs David E. Shulenburger (the name of the position was later changed to Provost) accepted the decision of the School without complaint. Both the Office of Affirmative Action and the Provost were responsible for guaranteeing the integrity of the search and guaranteeing that there was no apparent discrimination. Apparently, they hadn’t bothered to read the search committee’s comments.

25. After the white male candidate declined the offer of employment, Dean Kautsch then offered me a salary that was $750 lower than what he had offered the white male candidate. The original salary had been approved for offering to either of us (Exhibit 5, second page).

26. In his deposition, Kautsch initially testified that the reason he lowered the salary before offering it to me was because “the budget was tightening up as we were negotiating.” (Exhibit 6, deposition of Kautsch, page 49, line 24.) A few minutes later, when asked if the budget had really changed in 9 days, he was not so sure:

Q. Okay. Is it your testimony that the 3,000 -- $37,500 you offered to Merrill Oliver by preliminary offer on May 17th was no longer available on May 26th?

A. It may have been – I can’t answer that. I don’t know what the situation was.

(Id., page 51, line 7.)

27. In any case, both the Provost and the Director of Equal Opportunity testified that the University provides “bridge” money to units that need extra salary incentive to hire minority faculty. (Exhibit 7, deposition of Shulenburger, page 56 lines 5-11; Exhibit 8, deposition of Bryan, page 36, lines 5-8)

28. Of course, I got the job anyway. However, the actions establish that Kautsch thought less of me than he had of the white male candidate, even though the search committee had said I was more qualified for the focus of the position.

29. What I soon found out was that he also really didn't seem to trust me. Soon after I started there, I wound up in a disagreement with the technology support person of the School over whether I should even be able to keep in my office the software disks and manuals for the software I used in my routine work. The implication was that I might somehow steal it or pirate it. From the very beginning, I perceived that Kautsch didn’t seem to accept me as a qualified professional and that I could do the job he had hired me for. Every time I tried to talk to him about technology he would make grand pronouncements about how important it all was. Then he’d complain about the budget. I kept trying to tell him that my career had been built on doing more with less, but he never seemed to hear me.

30. Even so, much of my time throughout my first few years was taken up helping my colleagues and their students with their own computer issues. I was often asked to come to the computer lab to help another professor get the printer to work, or something along those lines. The School’s new technology support person was only there part time and he was often unavailable when he was there.

31. Right off the bat, when I got there, I told the technology support person what kind of computer setup I’d need to do my job. He told me that he’d already ordered me a computer and that it was what everyone else was getting. The particular computers he had ordered for the teachers of writing and editing were fine for word processing, but I was working with digital images and designing. I needed something else. But neither he nor the dean would listen. I did what I could with what they gave me.

32. We all had low-resolution inkjet printers in our offices, which are also fine for word processing, but not very effective for design and imaging. I asked for a laser printer for my office, so that I wouldn’t have to run downstairs to the computer lab to proof my work. I was told by the dean’s assistant that I wasn’t going to get one because if I did get one, then everybody else would want one, too. I did what I could with what they gave me.

33. During that period I produced a full-page newspaper informational graphic commemorating the Battle of the Bulge in World War II (Exhibit 9). I also produced another full-page informational graphic for the 50th anniversary of the bombing of Hiroshima (Exhibit 10). I completed these projects on a computer that was not particularly suited to design work and I did it while having to get up and run downstairs and back to see proofs of my work as I worked. After that, I spent my own money to equip myself with the technology capacity to produce the online journalism innovations that I then started to receive recognition for.

34. I wasn’t the only person there who thought I wasn’t being allowed to fulfill my potential or to meet the expectations of my job description. In an email message he wrote after Kautsch’s resignation, Professor Frederickson said of my claims, “[y]our issues with him clearly have some validity. He did not involve you in the technology areas where your expertise is so valuable to the School. He did not treat you well. He was wrong.” (Exhibit 11.)

35. When I started teaching there, my office was next door to Frederickson. We got to know each other and became friends. We started socializing a lot outside of work. After my divorce, when we were both bachelors, we often cooked dinner for each other and went to concerts and other events together. Ted, Professor Rick Musser and Professor John Ginn became my closest friends on the faculty. The four of us would often gather at John’s house to shoot pool. None of them were fond of Kautsch as a dean. John was the one who came to me after the blowup between me and Kautsch to tell me that Kautsch was trying to fire me. The three of them, along with Associate Professor Sharon Bass, were the people who stood against the dean and his allies during that time. Ted and Rick were particularly opposed to Kautsch. When Kautsch had been hired for his first job at the J-School, Ted had been the second-ranked candidate, who didn’t get a job offer. Rick had chaired the review committee that had written a critical performance evaluation of Kautsch in 1991. The two of them desperately wanted Kautsch out of the job and made no effort to hide that fact from anyone. Ted was the one who jumped on the dean for what he tried to do to me at the end of the 1995-1996 school year. During a particularly rough time for me later in my time there, Rick gave me the cartoon parodies of bad bosses and how to deal with them that are attached as Exhibit 12. Rick frequently told me that he was convinced that Kautsch had “a personality disorder.”

36. When I started in 1994, it was Kautsch’s seventh year as dean. He had been a highly respected and popular teacher in the School of Journalism prior to becoming dean, but he had little management experience. In 1991, three years before I started teaching there, Kautsch was reviewed by a committee of the rest of the J-School faculty, who issued a report on their review in which they were highly critical of Kautsch (Exhibit13). Their review describes behavior that foreshadows events to come in my case and is helpful in understanding what happened to me. The review committee’s report was critical of the dean’s approach to management, saying that he “micro-manages” and was secretive, especially with the School’s resources:

Faculty have observed that it is ironic that in a School of Journalism even the most basic budget figures, though public information, are not shared.

And:

Sequence heads have no information about available resources or what funds, if any, they have to spend. The dean makes virtually every decision on expenditures down to light bulbs for enlargers and TV cameras.

And:

As far as possible, the dean should take steps to show that he trusts his colleagues by sharing resource information and including them in decisions about resource management.

The review contains criticisms of the dean for an apparent lack of collegiality:

For instance, faculty have observed that meetings with the faculty and faculty committees tend to be one-way communications—the dean speaks; faculty listen and are asked to vote. The dean needs to encourage an environment that fosters, rather than seems threatened by, robust exchange.

And:

Anything the dean could do to counteract a perception of isolation would be helpful. This perception could be overcome through being seen by and communicating directly with more faculty on [a] much more regular basis. Informal chats in faculty members’ offices and widening his regular circle of contacts would lead to a decreased perception of aloofness.

The report contains criticism of his approach to managing:

Internal observers note that there seems to be a strong sense of crisis management in all matters. The dean appears unwilling to delegate other tasks or responsibilities to his staff or the faculty. Faculty and staff consistently observe that requests are not acted on in a timely manner.

And:

The dean tries to do so much and do it so perfectly that his (and consequently the School’s) time management is too often in disarray.

And:

The dean should manage his work and time better. He should not be pulled out of his “working plan” by what he perceives as crises.

And most importantly to this case, the report exposes his reputation for retaliation:

More than a few faculty believe that to disagree or raise questions is to be marked as a “problem” and excluded from further contact.

37. In a written response to the review (Exhibit 14), Kautsch blamed the faculty themselves for many of their criticisms of him, which is also a pattern of his behavior. Responding to the review that was of him and his performance, he wrote:

Far too little is made of the nature of the demands of the School since 1987 and, especially, of the characteristics and conduct of the faculty itself over the last five years. [Emphasis added.] I am particularly intrigued by the absence of findings about the strengths and weaknesses of the sequence heads and of Faculty Committee members who have served since 1987. The performance of those groups has had tremendous influence on matters that were the focus of the committee’s report, including the dean’s “style.”

Of course, the composition of the dean’s review committee must have influenced the members’ view of their charge and their conduct of the review. For example, the committee membership included two faculty representatives who themselves currently are sequence heads, and one of them was chairman of the review committee while also heading my advisory group, the Faculty Committee. These two faculty representatives shared responsibility for a comprehensive assessment of administrative performance. Yet, by virtue of their positions in the School’s governance system, these two also bear significant responsibility for how the administration functions. They seem to have conflicting interests. Because of their role in School governance, they would not be inclined in their role as reviewers to hold themselves, or even the groups they represent, accountable for any part of administrative performance.

Perhaps such conflict of interest explains, at least in part, the committee’s questioning of my administrative “style” while failing to acknowledge how heavily sequence-head performance has influence the School administration since 1987.

38. The 1991 review of Kautsch and his defensive and attacking response to it show just how highly charged the J-School was, politically and philosophically, under Kautsch’s leadership. However, after the review was submitted to the administration, Kautsch was reappointed as dean for another five-year term. I was told that was because the Vice Chancellor of Academic Affairs had been dean of the J-School prior to Kautsch and was one of his benefactors. I didn’t know any of this when I first applied for and accepted the position there.

39. During the fall and spring semesters of 1995, then, Kautsch was under great pressure from both below and above. It was his last year before his second five-year review. A lot of the faculty resented the fact that the administration had reappointed Kautsch after they had made it clear how little they respected him as a manager. There was a lot of tension as his review approached. Many wanted him out, but they were afraid the administration might reappoint him again. The divisiveness in the school had increased; with the small group of Kautsch allies battling it out with the rest of the faculty. And now “a fairly large number” of faculty members were going over Kautsch’s head to complain about him directly to his supervisor, Provost David E. Shulenburger, as Shulenburger confirmed in his deposition (Exhibit158, deposition of Shulenburger, page 26, line 18, through page 29, line 22.) In that passage, Shulenburger also confirms that he was already having discussions with Kautsch about whether Kautsch should attempt to stay on as dean.

40. What I didn’t know then was that at that same time the University had also been found out of compliance with Executive Order 11246, which is the federal mandate that all entities receiving federal monies comply with federal civil rights law and take affirmative action to prevent discrimination in their workplaces. (Discussed in detail in paragraphs 233 and 234.) The University had entered into a conciliation agreement, through which they promised to better track their employment actions and address the obvious underutilization of minorities and women in their workforce.

41. Shortly before the beginning of the fall semester of 1995, a teaching commitment fell through, leaving one photojournalism course without a teacher. When I learned of the problem, I volunteered to assume responsibility for the course, even though I already was teaching a full load. Unfortunately, right away the extra load proved too cumbersome for me. Two of the courses, including the one I had volunteered to take over, were new to me, and the additional preparation and grading time was really weighing on me. And then in September, when I received the textbook request forms for the following semester, I saw that I was scheduled to resume teaching the same overload. The required semester course load for faculty members in the School of Journalism is three courses. (Exhibit 59, numbered pages 26-27, number 5.) I was teaching four courses.

42. So I asked my supervisor, who was Professor Bruce Swain at the time, to make sure to tell the dean that I wasn’t willing to volunteer to be reassigned to teach the overload in future semesters. I wrote him a note and said, “[a]t this load level, I don’t see how I can expect to adequately serve my students and keep up with the requirements of my research and professional activities.” And “[t]his severely restricts my time and the attention I can give my students and which I know is more than anyone else is asked to teach.” (Exhibit 15.)

43. I waited about a month, but when I got no response at all in that time, I again asked for relief on October 18. (Exhibit 16.) I copied this request to Kautsch. What I know now is that the next day, without responding directly to me at all, Kautsch wrote Bruce and Paul and said that:

My collection of such memos is practically large enough to require its own asbestos-lined file cabinet.

A number of colleagues have offered private opinions about the nature of the problem we must solve. Action clearly is needed.

(Exhibit 17.) In his deposition, Kautsch said that the “problem” he was referring to was my “anger and vehemence and complaints.” (Exhibit 18, deposition of Kautsch, page 268, lines 8-23.) In reality, as the preceding paragraph details, I had by that time written him two memos and copied exactly one memo to him regarding the course overload.

44. This assertion about my anger and vehemence was from a guy who I once saw get so angry in a meeting full of a bunch of professors that he jumped up, screamed at the group, tore a stack of papers in half and then stormed out of the room. This from a guy who was about to get so angry at me that he would then try to do everything he could to professionally destroy me and make sure my colleagues would never give me tenure. This from a guy who was known to abuse his authority to punish those who opposed him.

45. Finally, two months after my initial request for relief, I asked again on November 20 and again copied the request to defendant Kautsch. (Exhibit 19.) I didn’t get any definitive word on my teaching assignment for the next semester. But I did get removed from the technology committee. Eleven days after my third request for relief from the teaching overload, which I had copied to the dean, he sent me notice that he was removing me from the School’s technology committee. (Exhibit 20.) Me: the only member of the faculty at that time who had technology experience as a professional; the only member of the faculty whose job description included the word “computer”; and he’s taking me off the technology committee. I was stunned, but at that point I wasn’t surprised. He’d already made it clear that he wasn’t open to my advice and expertise. He just wanted me to shut up and remain invisible.

46. Finally, in early December of 1995, I got a call from the Dean’s office, requesting a meeting. I assumed that I might finally receive a response to my request for relief from the course overload. Instead, however, Kautsch avoided the subject of my course overload and instead subjected me to more complaints about the budget crunch and insults about my attitude. He ordered me to produce a self-evaluation, which he said he would then be able to use to show me just how different my opinion of my work was compared to what my colleagues thought of me. I asked him for an answer to my question about my teaching assignment, but he said he’d let me know.

47. I was fed up. In nearly twenty years of professional experience, I’d seen only one manager I believed was as incompetent and ineffective. Kautsch couldn’t even give me a straight answer to my simple question about whether or not I’d be expected to teach the overload again.

48. I wrote the self-evaluation (Exhibit 21), and I poured in three semesters of frustration, including my complaint of disparate treatment; that he was denying me the opportunity to succeed in the position for which he hired me and that he was giving opportunities and responsibilities that would have enabled me to succeed to other, less qualified personnel. My action was an action that wasn’t unusual in the School. Other faculty members frequently stood up to him on various issues. Many of them had organized to make sure that he wouldn’t be appointed to a second five-year term. Some of them were actually going straight to the administration about him. In his deposition, Kautsch even testified that there were no “conflicts” between us at that time, merely “disagreements and differences” and that “[Cuenca] just doesn’t stand out as one that I had differences of a certain sort on this different than anyone else” (Exhibit 164, deposition of Kautsch, page 139, line 13, through page 141, line 6).

49. But I was different. I was a minority man and I had crossed the line from an acceptable minority man to an impudent, uppity minority man. And just as being seen as uppity has cost many minority men their livelihoods and even their lives, I would find out how it felt to be “lynched” for having the gall to speak crosswise to the wrong man with power over you.

50. On Monday, December 11, 1995, I went to his office for a meeting to discuss the self evaluation. He was hot. He berated me for leaving the memo in his mailbox without putting it in an envelope. He told me that when he was an assistant professor he had worked a lot harder than me and that he could prove it quantitatively. He told me that when he was an assistant professor, he would never have spoken to his dean the way I spoke to him. For an hour, he chewed me up and down, insulting and degrading me every way he could. He dredged up all the dirt he could and all the insinuations of incompetence he could. He tried to convince me to believe his assessment that I was basically worthless.

51. I listened and then when he got through and dismissed me, I asked one more time if he was expecting me to teach the course overload again. He said something like “I’ll have to look into it.” I laughed. He got bright red, jumped up from his seat and hissed at me that I’d find out he “was not somebody to scoff at.” I got up quickly and left the room.

52. I went straight to my office. Frederickson was in his office next door. I walked in and he commented that I looked sick. I knew I was in trouble. Kautsch had been furious.

53. Ted grilled me about what happened. He told me to go sit down and immediately write myself a memo describing the meeting, as a legal protection. I told him that I had begun to think that Kautsch’s overly hostile attitude toward me was racially motivated. Then Ted got mad. He said that if I ever “played the race card”, that I’d lose what “little support” I had there at the School. (Frederickson confirms this in the email exchange attached as Exhibit 22, (fourth page,) and then lies about it in his deposition, Exhibit 112, page 78, line 10, through page 81, line 23). I accepted his advice and went into my office and wrote the memo to myself. (Exhibit 64.)

54. After the meeting, Kautsch instituted immediate and extraordinary actions to terminate me. Overnight, Kautsch called December 13 and December 15 meetings of the School of Journalism faculty committee to seek their endorsement of his plan to terminate me (Exhibit 23.) Also overnight, he contacted the administration and requested approval for his plan, saying, “I foresee no way to accommodate the faculty member.” (Exhibit 24.)

55. The next day, John Ginn came to my office and said that he didn’t know what I’d done, but that Kautsch was trying to fire me.

56. For the rest of the week, the entire School got caught up in the turmoil. Ted, Rick, John and Sharon said they’d go to the faculty committee meetings to see what they could do. They told me that he was telling the committee that he was aware that terminating a tenure-track faculty member was difficult but that he had approval from the Office of the General Counsel to classify me as a technological resource that could be removed from the budget for performance reasons. He confirmed that he had conferred with the administration prior to taking his actions with me in his January 4 memo to the Faculty Committee (Exhibit 62, third paragraph.)

57. John told me to do whatever I could to calm him down. He said that even if I don’t mean it that I had to apologize. He gave me a book on “managing your manager.” Under the extreme duress of the threat of losing my job, I wrote the apology and crossed my fingers. (Exhibit 25.)

58. It didn’t do any good. He didn’t let up. He put me through sheer hell for the entire week. I tried to reach the Office of Academic Affairs, but I got one message that I missed the return call and then they wouldn’t respond to my calls at all. I finally wrote a memo in response to Kautsch’s actions, detailing what had happened, and copied it to them. (Exhibit 26.)

59. Two days after his first request to the administration for approval of his plan, Kautsch wrote the Provost again and wrote that the reason he would state as the reason for my termination “would be that the faculty member is making demands and stating expectations . . .” (Exhibit 159.) He acknowledged with that statement that his action against me was motivated by a retaliatory response to my exercise of my First Amendment rights, my Title VII rights, and my rights as a faculty member at the University of Kansas.

60. I had to go to the University Archives to find a copy of the Faculty Handbook, which had not been published for many years. I discovered that the reason he was acting so frantically was because if he could get me approved for non-renewal of my contract by Friday, which was December 15, that I’d be terminated at the end of the next semester and that if he missed that deadline I’d have until the end of three more semesters. He wanted me out and he wanted me out NOW.

61. This action was particularly terrifying to me because I had just gone through a divorce and had a new agreed arrangement for shared residential custody of my son, who was only 4 at the time. Our agreement was that we’d raise him here in Lawrence. Suddenly, out of nowhere, there was a very real danger that that the security of that arrangement—and in my mind my son’s emotional well-being—was in serious jeopardy. There aren’t any other Universities for me to teach at in Lawrence, and there aren’t very many professional jobs in my field around here, either. And on top of that, being a minority male looking for work as a professional is no fun. That commitment to my son has motivated me throughout this long ordeal to fight for my rights and for my job.

62. The attempt to fire me at that time failed. But he didn’t let me know until right up until the end of the day that Friday. We had met that morning and he told me that he had not yet made up his mind about what he’d do. He told me that he was still conferring with the Faculty Committee and that he’d let me know by 5. I didn’t hear from him until almost right at 5. The whole time, I’m really sweating it, just as I had been all week. Now, I know how he was pushing for acceptance of his position with the administration and that he was likely waiting until the very last minute and still hoping that he’d succeed.

63. Section C.4.k. of the University of Kansas Handbook for Faculty and Staff, titled “Disciplinary Actions” (Exhibit 27), states:

Employees may be disciplined for reasons of inadequate performance, misconduct, violation of established policies and procedures, or cause. An employee will receive disciplinary action appropriate to the misconduct or other infractions committed, with consideration given to work history as well as the nature of the misconduct or infraction. Disciplinary action may include, but not be limited to, a warning, reassignment, reduction or elimination of merit salary increases for one or more years, administrative leave without pay, demotion, and dismissal.

For seriously inadequate performance or cause, the employee may be terminated at any time. In such case, the employee shall have the right to be informed in writing of the reason for action taken, shall have an opportunity to discuss the proposed action with the supervisor or designate, and may appeal the dismissal in accordance with the provisions of the "Conflict Resolution" section.

Problems of performance or conduct should be addressed in a timely manner, and when feasible, adequate time should be allotted for improvement to occur. Before any disciplinary action is taken, if possible the supervisor will first advise the employee of the misconduct or the inadequacy of his/her performance and will attempt to reach a solution to the problem. Whenever possible, problem resolution should entail a meeting between the employee and the supervisor. A summary of this meeting, including the agreement reached and the applicable time allotted for improvement, should be documented in writing and signed by both parties. Follow-up meetings between the employee and supervisor should occur to ensure that performance is improved or misconduct has not reoccurred.

When the instance of misconduct or poor job performance is determined to be of a severe nature, the reassignment, administrative leave without pay, demotion, or dismissal of an employee may occur in the absence of any prior discipline. In such case, the employee shall have the right to be informed in writing of the reason for the action taken and shall have an opportunity to discuss the proposal with the supervisor or a designate. Employees so disciplined will retain all applicable appeal rights.

64. If Kautsch had wanted to bring proceedings against me for termination for cause, he was required by section C.2.c.1. of the Faculty Handbook (Exhibit 28), to follow these steps:

(4) Termination for cause of a continuous appointment, or the dismissal for cause of a teacher previous to the expiration of a term appointment, shall, if possible, be considered by a faculty committee which will make recommendations to the administration. In all cases where the facts are in dispute, the accused teacher shall be informed before the hearing in writing of the charges against him and shall have the opportunity to be heard in his own defense by all bodies that pass judgment upon his case. He [sic] may have with him an advisor of his own choosing who may act as counsel. There shall be a full stenographic record of the hearing available to the parties concerned. In the hearing of charges of incompetence, the testimony should include that of teachers and other scholars, either from his own or from other institutions. Teachers on continuous appointment who are dismissed for reasons not involving moral turpitude shall receive their salaries for at least a year from the date of notification of dismissal whether or not they are continued in their duties at the institution.

He did not even attempt to follow these required steps. He didn’t notify me of any charges against me. He didn’t give me an opportunity to “be heard in [my] own defense”. He didn’t keep a full stenographic record.

65. Kautsch’s action was an extreme act of institutional violence that was not authorized in any way by the “established policies or procedures” of the University. Terminating a tenured or tenure-track faculty member for cause is rare and requires extreme grounds, such as moral turpitude. In fact, in his deposition, Kautsch testified that in his ten years as dean I was the only faculty member he tried to “nonreappoint” (Exhibit 164, at page 130, line 8, through page 132, line 14).

66. I had done nothing more than speak my mind. Even in the event that I had been wrong, Kautsch still had no right to retaliate so viciously. Ironically, the School of Journalism at the University of Kansas is named for William Allen White, who won a Pulitzer Prize after writing an editorial defending freedom of speech. Kautsch took extreme and very public measures that amounted to an attempt to professionally lynch me by stirring up a frenzy of negativity about me, involving the entire School of Journalism and the administration of the University. It would be those very people who would eventually determine my future during my tenure review. Kautsch’s actions planted in their minds the idea that I had done something so horrific that I was nearly terminated.

67. He wasn’t about to let up, either. On December 18, the Monday after our last meeting, Kautsch informed me that I was at that point and from then on working under the conditions of what Kautsch called a “special review” (Exhibit 168, last page, last sentence), which specifically required that I keep my mouth shut about any of my employment concerns, under threat of termination. In his letter informing the me of the new special terms of my employment, Kautsch said:

You are on notice to expect non-renewal of your appointment at the end of the 1996-97 academic year unless, between April 15 and May 15, 1996:

1) The review of your performance confirms that: a) you have, without equivocation, withdrawn the demands and expectations you stated . . .

(Exhibit 169, third paragraph.) He was telling me that I had to keep quiet or again be subject to one of his illegal non-reappointment actions.

68. None of this should have happened. No matter what had transpired between us in his office that day, he could have handled it without turning it into a major School-wide crisis, involving even the University’s administration. He could have screamed at me and let it go. He could have understood my frustrations and counseled me. Instead, he took my request as an ultimate impudent act and acted hastily and with tremendous rage.

69. Even though Kautsch had written in his response to the 1991 performance review that he had previously faced what he called “extraordinary personnel problems,” he had never taken such extreme action against a faculty member before (Exhibit 14, at third page, third paragraph). In that response, he also boasted that:

I put a very high priority on managing personnel problems with minimal disruption to the School and without jeopardizing the privacy and dignity of the individuals involved in sensitive matters. Although my work with personnel—from appointments to termination of appointments—gets not even a nod from the committee, I take considerable satisfaction in it. I think it more significant than any of the strengths attributed to me in the committee’s report.

What was different was that I was a minority man—who Kautsch had previously devalued compared to a less-qualified white male candidate during my hiring—and I had stood up to him. He did, in fact, “jeopardize” my “privacy and dignity.” And he did definitely create a major disruption for the School. In contrast, as that 1991 performance review evidenced, others had been standing up to him and opposing him and trying to get him fired. But they weren’t “lynched,” as I then was, simply for “making demands and stating expectations”. Kautsch’s extreme response was unlike anything he’d done to anyone else.

70. I later found a passage in a legal practice guide that helped me to understand it better. In section 7.01[3] of his book, “Representing Plaintiffs in Title VII Actions,” author Kent Spriggs explains the psychology of retaliation:

Racial or gender animus is an ongoing mind-set for those who are inclined to discriminate. It will probably be present in the heart of the supervisor from the time that the employee is assigned. It is a permanent way the supervisor views the employee in question. Retaliation is very different. When it is brought to the attention of the supervisor that the employee has filed a charge or commenced an in-house grievance, it may signal at a single moment in time a radical change in the supervisor’s perception of the employee. What was moderate gender or racial animus may escalate dramatically to an intense motivation to retaliate.

The psychology is clear. The supervisor may have viewed the employee as just another member of a group that the supervisor dislikes. In such a setting, the supervisor is in control. He is the supervisor and can discriminate or not as he chooses. He is, after all, in control.

When the charge is filed, the dynamics change materially. The victim is fighting back. The charge may be perceived as a profound challenge to the supervisor’s authority. For the first time, the supervisor’s discriminatory behavior may be subject to scrutiny by upper management. Upper management may share the supervisor’s views and, if so, the charge may constitute little threat. However, if the supervisor’s attitudes are not reflected in upper-level management, the discriminatory behavior may have placed the supervisor in jeopardy in a way to which he is unaccustomed. If so, he may back down. On the other hand, the supervisor may feel that if he can build a paper trail against the charging party, he can prove to his superiors that he was right all along and never was motivated by discriminatory animus.

(Exhibit 29.)

71. That passage explains a lot about what has happened to me. He had tolerated me until I stood up and crossed the line from docile to impudent. Motivated by his indignation over my impudence, he tried to incite a mob of faculty to do away with me. When that failed and I accused him of discriminatory and retaliatory conduct, he began to try to build a paper trail to prove I was wrong and bad and that he had been right and had not been motivated by discriminatory animus.

72. That was the beginning of hell for me. From then on, everything I wanted and needed became a struggle. I became one of those who were essentially “excommunicated,” as the dean’s performance review committee had described. He used everything he could find to undermine my respect in the classroom and among my colleagues. Even after he was himself later terminated, nothing got better for me because his replacement wrote me off as soon as he took over. I was never allowed to recover from what Kautsch had done. There was always the assumption that I had done something to deserve his extreme wrath. Even though these people all knew he was known to retaliate, none of them seemed to think that what he’d done to me was out of line enough that I should somehow be restored—or that he should be held responsible.

73. Section C.4.k. of the University of Kansas Handbook for Faculty and Staff (Exhibit 27), titled “Disciplinary Actions”, states:

Employees may be disciplined for reasons of inadequate performance, misconduct, violation of established policies and procedures, or cause.

74. Article V of section C.2.e. of the Faculty Handbook (Exhibit 1), titled “Proscribed Conduct”, lists these acts:

2. Violation of lawful published University regulations.

3. Knowingly furnishing false information to the University, or forging, altering, or misusing University documents or instruments of identification with intent to defraud.

4. Failure to respect the rights or academic freedom of students, staff or of other faculty members.

75. Kautsch had blatantly and obviously violated these “established policies and procedures” and “lawful published University regulations”. He had failed “to respect [my] rights or academic freedom.” He had stated in writing that he wanted to terminate me because I was “making demands and stating expectations,” which is clearly a violation of my academic freedom and right to freedom of expression. He could have, and should have, been disciplined for his action against me. But the administration, which was fully aware of what he was doing, took no action at all against him. They didn’t even initiate an investigation into his conduct. In light of their conciliation agreement with the OFCCP, I think it’s clear that they wanted to hush up this episode and make it go away.

76. As a result of the University administration’s inaction, Kautsch had no reason to believe that further actions against me would be harmful to him. As my frustration increased over the University’s nonplussed response to his continuing actions against me and I finally filed a formal complaint of discrimination and retaliation, then the administration, too, joined in on the “paper trail” parade. Ever since then they have done whatever they could to try to prove that I’m really worthless and that I somehow caused and/or deserved what had happened to me. That paper trail leads directly to my tenure review. From this moment on, I was “damaged” and would have no future in this workplace without remedial action by the administration. Instead of restoring me, though, they protected Kautsch and denied and hid their own mistakes—which they continue to do in defense of my charges against him and them.

77. Empowered by the administration’s deliberate indifference to his conduct, he didn’t back down and things got worse for me over the course of the next semester. During the next couple of months, Kautsch responded to my requests for more of the opportunities and responsibilities that would have allowed me to “lead” the development of the School’s “multimedia curriculum and laboratory opportunities,” by giving all of those opportunities and responsibilities to Gary Hawke, a white male, who was already a full-time employee of the School (Exhibit 30). He lumped all of the School’s labs into one entity he called the “Integrated Media Laboratory” and made Hawke the general manager.

78. Kautsch once again had violated University policies and procedures to deny me opportunity. I would have liked to have had the opportunity to apply for the director of the Integrated Media Laboratory, but I wasn’t given the opportunity. No one was given that opportunity. University hiring policy states:

The University generally expects units/affiliates to conduct external searches for all unclassified appointments, including appointments to visiting, temporary, and part-time positions. Internal searches may be conducted for certain types of appointments. However, all appointments must conform with equal opportunity and affirmative action guidelines for inclusion. Prior to initiating the recruitment process, you must obtain approval from your budget authority.

(Exhibit 31, second page.) Because University policy as stated above, requires “approval from your budget authority,” once again, the administration would have been clearly aware that Kautsch was violating University procedures—once again to violate the policies and procedures designed “for inclusion.” Once again, the administration took no action to stop him or take remedial action.

79. Finally on May 6, 1996—the end of that semester—I met with the University’s Director of Equal Opportunity, Maurice Bryan, to register a complaint of racial discrimination. Right off the bat, he frowned and said that I wasn’t the first person to make that complaint about Kautsch. But then he seemed really nonchalant about it. He didn’t ask me to fill out a form or to somehow record our conversation and meeting. He said that his preference was to try to work out these things informally and that he’d talk to the Provost about my concerns. He confirmed this approach in his deposition (Exhibit 32, deposition of Bryan, page 15, line 17, to page 21, line 3).

80. Ten days later, I got a letter that contained my annual performance review and notice of what my raise would be for the next year. My raise was to be $180. The letter also showed that my raise was the lowest of any faculty member because it listed the high and low raises and the low raise matched mine (Exhibit 33).

81. I took the evaluation to Frederickson, who had taken part in the meeting of the School’s Promotion & Tenure (P&T) Committee, during which Kautsch had asked them to vote on the performance of the tenure-track faculty members. Ted got pretty upset and said he’d look into it. He then wrote a letter of protest to the rest of the faculty (Exhibit 34), in which he wrote “[t]he carryover from [Cuenca’s] dispute with the dean hung over our meeting room like a cloud.” He went on to confirm what I had feared; that people would be prejudiced by Kautsch’s previous attack on me:

Those in other sequences might not know much about his teaching, research or service, but they certainly know that the dean talked seriously about not renewing [Cuenca’s] contract. But do they know that on the core issue of their bitter dispute, his teaching load, Mike Cuenca was correct and the dean was in error? I fear people spent too much time thinking about that dispute and not enough time thinking about his teaching, research and service.

And:

For our rankings, three bullet voters were directly responsible for shooting down the lowest ranked faculty member, giving that person the lowest possible score in every area. Because only 12 faculty members rated him, those three bullet voters made up a full 25 percent of those who evaluated him. Without those evaluations, his rating would obviously be much higher.

And:

I am perhaps the only faculty member who has seen the work of Mike Cuenca’s students, and it is impressive. In his Editing II class, I got to review the final projects of his students and came away thinking that he took them to far higher levels of sophistication in design than [omitted], [omitted] or anyone else who has taught a design class.

And:

And, I think he has a great deal to contribute, given his unique combination of skills in computers, visual communications and photography, and design. We would have great difficulty finding someone with his qualifications should we lose him. I think he is a human resource worth mentoring and developing.

82. Three days later, Frederickson also wrote directly to the dean (Exhibit 35). In this letter, he wrote:

Because we were not informed of the dean’s intended use of our ratings of probationary faculty, or aware of the unstated intentions of some colleagues to skew averages of ratings with across-the-board negative votes, it may be wise to put aside the results from the first round and try again.

Had I known how the numbers would be used, or that some faculty saw it as an up-down vote on retention rather than an honest attempt to evaluate teaching, research and service, my own ratings would certainly have been different. I have talked with several senior colleagues who feel the same way.

83. What Frederickson did not know at the time was that there was a specific reason for the dean’s rigged low evaluation of me. Kautsch was, at that same time, lobbying for approval of a plan by which he would terminate me by requesting termination of the lowest-ranked faculty member. On May 23, 1996, Kautsch wrote the Provost and said that he needed to free up a budget line to hire a technology specialist by issuing notice of non-reappointment to a tenure-track faculty appointee (Exhibit 36).

84. The next day, May 24, the Provost responded with a memo that said:

Mike [Kautsch], I am very uncomfortable with the approach you suggest, that is discussing with the School P&T Committee the idea of notifying a tenure-track faculty member of non-reappointment in order to obtain a position for a technical specialist. I believe these two problems—the need for a position and a faculty member who is not as promising as one might wish—should not be linked publicly as an issue for the P&T Committee to decide. [Emphasis added.]

(Exhibit 37.)

85. Four days later, on May 29, Kautsch responded:

My understanding was that non-reappointment is not uncommon at the University in circumstances such as ours. A unit may recommend non-reappointment to meet changing personnel needs. However, the unit then also should have a basis for selecting a tenure-track person for non-reappointment. The basis presumably may be weak performance ratings.

(Exhibit 38.)

86. Five days later, Kautsch wrote once again to lobby for permission to proceed with his plan (Exhibit 39).

87. The next day, the Provost and Kautsch met in person, a meeting that resulted in Kautsch’s resignation as dean of defendant University’s School of Journalism (Exhibit 40).

88. I didn’t know any of this when I wrote to the Provost on June 3, 1996, pleading for his help:

As a minority American, I’ve known more than my share of denied opportunity and I’m extremely sensitive to it, whether it’s a result of overt racism, subconscious racism, or just some individual’s incompetence.

And:

He may feel that all he has to do is just act as if I don’t exist, then I won’t have the benefit of the school’s technology resources as regards opportunities for service, creative projects, etc., which will negatively impact my efforts toward tenure. He may feel that in the very least it may frustrate me to the point that I’ll just leave on my own.

(Exhibit 41.) By this time, I was convinced that Kautsch’s extreme and unrelenting animus was related to my race and ethnicity. The complaints about him by the other faculty had increased and the tension in the workplace had increased. But again, I was the one he was going after. I also knew that my future in that workplace was seriously in jeopardy.

89. Once again, the administration was fully aware that Kautsch was acting outside of the bounds of his authority and violating established University policies and procedures. And once again, the administration took no action to discipline him or restore me.

90. Also at about that time, even as Frederickson was publicly attacking Kautsch for what he had done to me, Kautsch gave Frederickson a promotion and a raise (Exhibit 42).

91. A week or so later, the phone rang and it was the Provost calling me personally. He said that he had received my letter and that he understood my concerns. He asked me to wait to take any further action. His words were to the effect of: “in August, you’ll see that things will be better for everyone.” He had accepted Kautsch’s resignation, but had agreed to keep it secret until August. I didn’t know that, but I figured it was something like that. So I waited.

92. In the meantime, I continued to press for action to repair my bad evaluation. I exchanged several memos with Kautsch and Ted about it (Exhibit 43), but nothing happened. There was no new vote. Kautsch “graciously” rounded my bad evaluation scores up slightly, but that was it.

93. What I didn’t know then was that he had also given another employee a bad evaluation. But he had still given that other employee a much larger raise than he had given me (Exhibit 44) and then he actually did revise that other employee’s evaluation much higher than he had originally given him (Exhibit 45). That other employee was a white male. And once again, Kautsch’s action against me was more extreme and unrelenting.

94. In fact, one of the products of discovery was the stack of letters that included all of the evaluation notices for all of the faculty and staff of the J-School. Those letters show that the salary increase given to me was the lowest by far than any of the other tenure-track faculty members. And, particularly significantly, they also showed that the salary increase given to the only other minority male—who was tenured—was by far the lowest given any of the tenured faculty (Exhibit 46).

95. The official announcement of Kautsch’s resignation came at the first faculty meeting of the year, just prior to the beginning of the fall semester. Of course, there was no mention of any problems that had led up to his resignation. Shulenburger was there and made the usual pronouncements of what a great job Kautsch had done. He announced that Kautsch would stay on for another year, take a year off (with pay) and then become a law professor. A lot of people were relieved, but others were quite angry. Kautsch’s allies believed that he’d been victimized and that I was largely to blame. I believed that the administration was rewarding him for what he’d done to me by giving him a sinecure, while I was left out hanging in the wind. Here again was evidence that the administration did not care about Kautsch’s attacks on a minority faculty member in his School. They had evidence that he had acted outside his authority and violated University rules and violated my civil rights, but they took no action and didn’t investigate my complaints at all.

96. About this time, I began participating in the forums presented by the KU Coalition Against Discrimination, a group of faculty and students who regularly met and put together discussions of topics selected to help increase awareness of the problems with discrimination on campus. I regularly designed the posters for the group’s forums. During my time with this group, others who were on the Coalition included Director of Equal Opportunity Bryan, the dean of the School of Social Welfare, and other concerned faculty and students. As a member of the Coalition, I was among many other faculty members who were standing up against discrimination, but the others had not personally filed complaints of discrimination. Those other faculty members remained peacefully in their positions.

97. Late in 1996, I participated in one of a series of focus groups conducted by the University’s administration, during which minority faculty members were asked to comment on their experiences at the University and about their feelings regarding the climate for minority faculty. I described my own frustrations with the climate for minority people at the University and spoke critically of the University’s commitment to improving that poor climate. The University recorded these comments and had them transcribed. Later, they acknowledged that it was easy to identify those who spoke and what they said (Exhibit 48). After they completed the focus groups, had the transcriptions made and a formal report published, they attached a roster of the participants to the formal report, along with the transcripts, and then called it a “personnel” record that could be withheld even under a Kansas Open Records Act request. (Id.) (The University’s complete file of the Minority Focus Groups is attached as Appendix F.)

98. From then on, my awareness of discrimination began to increase dramatically. I was, of course, more interested because of the meltdown in the J-School. But it is also a relief to find that what is happening to you is not specific to you, because it helps you to understand that it’s not about you or something you’ve done. It’s a relief to learn that it’s about other people’s reactions to your ethnicity or other prejudice triggers. Unfortunately, though, it seems that our society acknowledges discrimination against certain groups of people, but doesn’t believe individuals from those groups when they say they are among those who are being discriminated against.

99. The next year, I volunteered for appointment on the University’s Affirmative Action Board, which was the faculty governance body that conducted reviews of complaints of discrimination and had the authority to make determinations of cause. However, Chancellor Hemenway had taken over by then and he was dismantling anything that had to do with “affirmative action”. He changed the name of the Office of Affirmative Action (Exhibit 49) and with the help of his EEO Director Maurice Bryan, he engineered the dissolution of the Affirmative Action Board (Exhibit 50). Consequently, the charges of the Affirmative Action board were watered down and the committee was merged with the University Senate Human Relations Committee (UHRC) (Exhibit 51). I was then appointed to the UHRC and served for a year. During that year we only had a few meetings, but we did make progress on a survey of attitudes on campus (Exhibit 52).

100. Again, I was on a committee that was engaging in protected activity and the other members of that committee—including Equal Opportunity Director Bryan—were not persecuted. The difference was that I had filed a complaint, unlike those others, and in the eyes of the administration, I had become a liability.

101. The following year, I was appointed as chair of the UHRC. I held that office for two years (Exhibit 53). During those two years, I was extremely disappointed by the attitudes of Bryan and other ex officio members of the committee appointed by the administration. Any time that I pushed for the committee to take action to conduct a study or review of the ethnic and/or gender makeup of the University’s workforce or of the policies and procedures that might be leading to discriminatory employment decisions, Bryan and others would argue against it. One of them argued that the committee should be the body that sings the praises of the University’s diversity effort, but without bothering to do any research to see if praise was warranted. Most of the meetings became arguments over what our charges actually were. By the end of the first year, only two of us even came to the meetings (Exhibit 54).

102. My experience as chair and my ongoing study of discrimination because of what was happening to me opened up a new avenue for me. I began seriously studying civil rights law and psychological and social discussions of discrimination and prejudice in our society. In the time since, I’ve become more and more involved in the civil rights battle, both on campus, in journalism academe, in academe in general, in the journalism industry, and in our society.

103. During the spring of 1999, I read a newspaper article about other faculty members who were also pressing federal and state discrimination lawsuits against the University (Exhibit 55). I contacted Dr. Cynthia Annett, another of the victimized KU faculty. In her case, her department chair had altered her tenure application and then used the forged document to charge her with academic misconduct. Her appeals for justice were also denied by the administration. She and her husband both had lawsuits against the University. Together with several other faculty members, we founded the Kansas University Sexism and Racism Victims Coalition. We met weekly for three years. During that time, we frequently spoke up individually and as a group about the problems we were witnessing on campus regarding discrimination and retaliation. I created a website for the group, which remains online at www.seekpeace.com/KUSRVC. On the website, we posted our legal filings and links to the EEOC, the OFCCP, and other support groups (Exhibit 56). We posted links to all of the newspaper articles about discrimination issues and our own letters to the editor, columns and other writings. We posted our status report (Appendix C) and the OFCCP group complaint.

104. The University apparently saw this organization as my own, or at least saw me as its leader, because a local newspaper reporter later told me that the University referred to the Coalition as “the Cuenca group” (Exhibit 150).

105. Many of the events and actions from this point on were considered, direct challenges I made to my colleagues and/or the University Administration to prove that they were in compliance with civil rights laws and University rules and regulations. I had “played the race card,” which Kautsch, Frederickson and others obviously took as an insult to their integrity and reputation, whether it might be true or not. The sensible approach by the administration would have been to not allow the employee’s grievance to be taken as an insult by Kautsch or others. The administration should have taken the complaint seriously, initiated the proper investigation, counseling and resolution, with all investigation and decisions made in good faith. They should have carefully monitored every employment action in which I was involved, for the rest of my time there. Instead, they more often proved that they were not in compliance with the dictates of civil rights law and their own policies and procedures. In fact, as you’ll see, they often acted as if they feared no accountability at all for acting outside the limitations of those workplace protections. I think this was largely due to the public record of success the University has had in avoiding liability or accountability for such violations, both in the state/federal agencies and in the courts.

106. In the fall of 1996, after my requests for relief from the bad evaluation were unsuccessful I once again sought help directly from Provost Shulenburger. I got an email back in which he replied, “Mike, I would be pleased to speak with you, but our polciy [sic] is that annual evaluation concerns are resolved at the school level.” (Exhibit 57.) Once again, I was hanging out there on my own. Once again, Shulenburger had been a central figure in another incident where Kautsch had gone outside the policies and procedures yet again. Shulenburger had argued with Kautsch about what Kautsch wanted to do to terminate me (see paragraph 54 to 59 above.) Shulenburger was aware, fully and completely, of what was going on. But he valued my concerns and me less than he valued Mike Kautsch’s reputation. He ignored the illegality of Kautsch’s actions, took no disciplinary action against him, initiated no remedial action and refused to investigate my complaint in good faith.

107. Finally, I contacted the EEOC and asked for the procedures to initiate an external complaint. They had me file with the KHRC, because they said it would likely be handled more quickly. I then filed a formal complaint with the KHRC/EEOC in February 1997. When I took it over to Maurice Bryan, he got mad and said I should have let him handle it. I told him that I had let him handle it. He asked if he could accept my complaint internally and initiate his own investigation. Of course, I agreed.

108. When mediation was scheduled for the KHRC complaint, I had hoped that maybe things would get resolved. But then the mediator started warning me that KU was stonewalling and putting strict limitations on where and how the mediation would take place. When it finally happened, I went alone to the mediation and KU sent Bryan and Assistant Provost Sandra Gautt, and their attorney, Associate General Counsel Rose Marino. They proceeded to tell me what became their mantra for the rest of this long battle: that I had misread my job description and that I didn’t understand the responsibilities of an assistant professor. In other words: “you’re stupid and confused.” You’ll see that they continued that refrain all the way through my tenure review.

109. These people—the administration—knew exactly what had happened both in December 1995 and June 1996. I had argued that—even at that point—there was little hope that I would have the opportunity to fulfill the responsibilities of my job or that I would have a fair and honest tenure review. I suggested that Kautsch and Shulenburger had agreed that Kautsch’s direct approach to terminating me was too public (as Shulenburger had said in Exhibit 37) and that they’d be able to get rid of me through tenure, if not sooner through constructive discharge. They knew Kautsch had taken extraordinary measures against me. But even then, the administration had no intention of making it right. In their eyes, I was the uppity minority; I was the worthless whiner; a troublemaker; I was victimizing poor Mike Kautsch by charging him with discrimination.

110. After the session, the mediator called and we talked about it. She told me that she didn’t have any hope that mediation would produce any results. So I agreed to end it.

111. I then got a letter from Maurice that said he was ending the internal investigation of my complaint (Exhibit 160).

112. Maurice’s job was the University’s Director of Equal Opportunity. It was his responsibility to protect employees from adverse employment actions in the workplace and his responsibility to know specifically what constitutes adverse employment actions. In his deposition, when my attorney asked him if he was aware that the EEOC considers halting an internal investigation to be an adverse employment action (Exhibit 143), he was stunned. He had no idea. He started backtracking and blurted out that he had suspended the investigation of my internal complaint after being told by defendants’ counsel to do so because I had caused the mediation of my external complaint to fail.

That process, the mediation process, failed at that point because -- connected to the failure of that mediation process, which Mike Cuenca pretty much ended that process, not me. It didn't seem that there was any place to go internally in terms of the complaint.

(Exhibit 65, deposition of Bryan, pages 70 through 76, at page 72, line 4-9.)

113. Maurice then testified that I had demanded tenure and that’s why they ended the investigation. When asked if he himself had heard me demand tenure in mediation, he replied, “I don’t recall that he demanded it there. I don’t remember.” When asked if I had ever demanded tenure in other conversations with him, he replied, “I don’t recall that he did it with me, no.” When asked who told him that I had demanded tenure, he replied: “Rose Marino” (defendants’ counsel). (Exhibit 66, deposition of Bryan, page 83, line 17, through page 84, line 4.)

114. He also testified that it is not the formal policy of his office to automatically suspend an investigation into an employee’s allegations of discrimination (Exhibit 65, at page 70, line 15, through page 71, line 6).

115. He also revealed under oath that he had actually never undertaken any investigation at all into my complaint, either prior to or after he suspended the investigation in June of 1997 (Exhibit 65, at page 72, line 18, through page 76, line 1).

116. In a deposition from another recent discrimination lawsuit against defendants, Bryan testified that according to the 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.” (Exhibit 67, deposition of Bryan, page 5, line 10, through page 6, line 2.)

117. When Jimmy Gentry was hired to take Kautsch’s place, I had some hope that finally things would get better. Gentry positions himself as a leader of efforts to increase diversity in the workplace. His resume (Exhibit 68), includes the statement:

Took strong steps to diversity faculty and student body. Minority enrollment increased 95 percent over four years.

He also champions electronic journalism and digital media. I thought things would start to improve.

118. But what I didn’t know was that he was also closely associated with Professor Susanne Shaw, who was one of Kautsch’s allies and about whom Ted and Rick frequently complained. Shaw is a full professor in the J-School and is one of the most powerful and influential people in journalism education, due both to her longevity in journalism and journalism education and to her current work as the person who presides over the accreditation of every journalism program in the nation.

119. Shaw and Gentry had worked together since the early 90s, both before and after his employment at KU (Exhibit 151, deposition of Cuenca, page 704, 1ine 16, through page 705, line 17). Gentry also listed her as one of his references when he applied to take Kautsch’s place (Exhibit 68, page 9). Gentry was aware that Shaw was one of the people who had supported Mike Kautsch’s attempt to terminate my contract, as he admitted in his deposition (Exhibit 87, deposition of Gentry, at page 140, line 23, through page 141, line 4, and page 143, line 8, through page 144, line 9).

120. I also didn’t know that all of his talk about diversity is merely bluster. His actual record in this regard is quite different. During the course of this lawsuit, I sought information about his record on diversity from the Office of Affirmative Action of the University of Nevada/Reno (his previous institution), the personnel office of the University of Nevada/Reno, and from the dean himself (Exhibit 69). Combined with what I knew about his record at KU, I found out that his actual record reflects no history at all of significant success in doing anything about diversity and it actually shows a clear pattern of discrimination and exclusion. I'm troubled by how easy it is for him—and others like him—to co-opt the rhetoric of civil rights to convince people to disregard the reality of their practices.

121. Here's what I discovered about him:

(1) While at the J-School, he has presided over the loss of all minorities other than African-Americans. The three Hispanic employees of the School have either resigned or been terminated. The School of Journalism employs no Asian Americans, Hispanics, or Native Americans.

(2) While dean of the Reynolds School of Journalism at the University of Nevada/Reno, which is in a state with a 25.2% minority population and a 12.7% Hispanic population, Gentry had no Hispanics, Asian Americans or Native Americans on his faculty or staff and only one African American male.

(3) Throughout his 8-year career as a dean, covering both his tenure at UNR and here at KU, Gentry has never hired, tenured, or promoted a Hispanic or Asian American teaching faculty member.

(4) Throughout his 8-year career as a dean, covering both his tenure at UNR and here at KU, Gentry has never hired for a full-time teaching position any minority of any ethnicity after an external search.

(5) After the retirement of our most senior minority faculty member, the dean moved one minority person (Gerry Cain) from a part-time teaching position to refill that "minority" line. In fact, Cain is the only minority person Gentry has ever hired for a full-time teaching position—in eight years.

(6) The only minority people he has hired from outside the School to full-time positions were both hired for the position of "Coordinator for Student Recruitment and Retention," which is a job the dean obviously identifies as a "minority" position. Between here and the University of Nevada/Reno he has hired only minorities for this position. In fact, this was the only position for which he hired a minority while at UNR. The three people he's hired for this position are the only minority people he's ever hired for full-time positions after external searches. However, not one of these minority people was an "unknown" entity. He had already worked with Paul Mitchell, and both of the people he hired here had references from within the J-School and were both recent grads.

(7) Going back from my termination to the fall of 1997—when he was new and promised to increase the diversity of the School—the number of minority people on the faculty and staff of the School of Journalism dropped from four full-time minorities and one half-time minority to only four full-time minorities.

122. Gentry often brags about what he accomplished at Reno in terms of increasing the enrollment of minority students. However, by the time he left there after being dean for five years, he had actually increased the number of minority undergraduate students in that school by only 12 students. In a state with a minority population of 25.2%, his school's minority student enrollment was 10% when he left. In fact, it was in a decline from 10.8% that started the year before he left and continued through to 1999, when it bottomed out at 8.7%—when the remaining faculty and staff was finally able to halt the losses. That pattern is illustrative of his failure to make the classroom and/or the workplace welcoming to minorities. (Id.)

123. As all this evidence shows, Gentry is a manager who pigeonholes minority people into jobs he considers to be their “place”. Gentry also only hires those minority people who are already “tested” by him or others as not being a problem; he has never hired for any position a minority he or someone around him didn't already know.

124. The very first time he ever had a chance to promote a minority (me), he personally tainted my tenure review and led the charge to downgrade and disregard my record. He solicited and obtained external reviews that dismissed my work while directly connecting their disapproval of me with my minority status and my complaints about my treatment. He wrote a letter filled with lies and misrepresentations, written to help justify his and the School’s dismissal of me and my work (Exhibit 70, discussed in detail in paragraphs below).

125. Gentry seems to see minority issues as black and white and that minority people have a specific place. All of this makes perfect sense when you examine his personal history. He was reared in Mississippi and likely went to segregated schools all through his early education. He chose to attend a segregated college, Millsaps College, which wasn’t integrated until after his junior year in 1965. Revealingly, he made an issue of his identification with the old South in a memo wherein he announced the appointment of the School’s new associate dean:

Her most valuable experience, however, could be that she is a member of the Lee family of Georgia. She tells me that the proportion of aberrant, difficult personalities in her family is inordinately high, even by Southern standards, which is, of course, excellent preparation [for] academic administration.

(Exhibit 121, last paragraph.)

126. My frustrations with Gentry began almost immediately after he took over from Kautsch. Initially, we exchanged some polite and courteous emails and memos (Exhibit 71). I had hoped that his tenure would mark the beginning of my chance to finally be allowed to play the leadership role I had been hired for. But he wasn’t thinking that way at all.

127. Soon, I got wind of his plan to hire what he called a “New Media Leader” (Exhibit 72). On July 18, 1997, I wrote him a letter that I copied to both the Provost and the Chancellor (Exhibit 73). In that letter addressing my concerns, detailing my qualifications and suggesting that no outside search need be conducted when someone with my qualifications was already in-house, I wrote:

As you should know, I was hired for the position I currently hold with the understanding that I would be filling just such a leadership role.

128. He responded:

I understand your interest in the position but I have not been told by anyone here (other than you) that you were hired to assume this role.

(Exhibit 74.) He had my job description, just as Mike Kautsch had, but he wasn’t prepared to have me be the highly visible point-person for the School in this important area.

129. In that message, he offered to come speak to me about it. We met in my office and I learned that things would definitely not improve for me. By that time, I had already begun to establish myself nationally in new media. In late 1995 I had produced a multimedia website that pushed the existing boundaries of what was going on in journalism online. I subsequently won a prestigious national award in a competition that had been judged by a jury of faculty of the Medill School of Journalism at Northwestern University. The Medill School is perennially ranked higher than KU’s J-School and its faculty was way ahead in terms of their understanding of new media (Exhibit 75). In their review of the site for the award, the peer-review committee said:

These kinds of storytelling techniques, combined with the best writing that travel journalists have to offer, will someday allow the creation of the ultimate travel Web site. And this example might be the one that leads somebody to create it.

(Exhibit 76, second paragraph.) In that earlier exchange of emails, I had sent Gentry the URLs for this site and another that I had created that showcased the potential journalistic use of a brand new online technology.

130. But when he came and sat down in my office, he told me that he had looked at my site about “the whales” (it was about sea lions), but that he had not been able to get the newer site to work for him. What this immediately told me about him was that 1) he had not looked at them at all since he didn’t even know what the first one was about, and 2) that he wasn’t technologically adept enough to even view the newer site. Perhaps these shortcomings would not have been critical, except that he was sitting there and dismissing my work as irrelevant, while not being qualified to assess it.

131. I continued to press him about the New Media Leader job, but he was adamantly opposed to me assuming that role. However, he graciously offered to allow me to apply for the position.

132. I applied for the job by the deadline. Then Gentry announced in a faculty meeting that they had decided to extend the search because they had not received enough applications.

133. I called Maurice Bryan and told him I wanted to talk to him about it. He invited me to lunch, where we talked at length about the search (Exhibit 65, deposition of Bryan, page 76, line 2, through page 79, line 18). He told me he could understand why the dean would want more candidates. Once again, he dismissed my concerns as being of no great consequence.

134. Gentry then went out and personally contacted other applicants who more closely fit the ethnic profile of the person he wanted in the job. They continued their search and then one day in December, he stopped me in the hall outside my office and told me that the search was over and that they had identified four qualified candidates (Exhibit 77). I was one of only four qualified candidates, I was a minority applicant, and I was already in-house, but they weren’t going to interview me, they were only going to interview the other three (who all happened to be white males.) (Exhibit 78, deposition of Gentry, page 43, line 12, through page 55, line 17.)

135. How stupid it was of them to find me qualified and then not even bother to interview me. Even if he had no intention of hiring me for the position, he could have at least made an effort to make it look like I was getting an equal opportunity. To this day the only reason I can think that he did it was because he was afraid that there would be those among the faculty who would decide I was the one for the job after all if I had gotten an interview. And, of course, I’m sure that the administration and their counsel had told him it would be okay. The Office of Equal Opportunity, after all, would have had to approve his decision—and they did (Exhibit 79).

136. Anyway, they brought in the other three guys and we interviewed them. Combined, the three of them had many fewer years of experience than I had. Only one of them had what could be considered multimedia experience. Apparently, I wasn’t the only one who questioned their qualifications for the job, because the School decided not to hire any of them. The job remains open to this day (Exhibit 78, at page 55, line 13, through line 15).

137. In a November 1997 email message (Exhibit 80), Gentry stated that the reason for not hiring me was because “I just don’t think you’re the person for the job.”

138. What Gentry then did after the faculty couldn’t agree on one of the interviewed applicants was to find private money and change the qualifications and the name of the position. The new set of qualifications precluded me from applying because they included current employment in the industry (Exhibit 81). Gentry then actually offered the position to one of the previous applicants for the New Media Leader job—one of the ones that the faculty had not approved for the position (Exhibit 82). That guy turned him down, but he found someone else and started him at nearly twice my salary (Exhibit 83).

139. In January of 1999, I finally served KU, Gentry, and Kautsch with the lawsuit papers. I had filed the lawsuit back in October to beat my statutory deadline, but I had held onto the papers until the last possible moment, still hoping that something might happen that would resolve all this and stop the madness. Nothing did, of course, so I proceeded with the lawsuit.

140. Within a week, Gentry gave me the results of a pre-tenure review that was anything but encouraging (Exhibit 84). I was only a few months from preparing my tenure review materials and he gave me a review that in no way said I was the least bit prepared for tenure. I had turned in the review materials in May of the previous year, but he didn’t respond until after I served him—8 full months. When he finally gave me this “pre”-tenure review, I was only six months from my first tenure application deadline. In this review, he once again downplayed my contributions to the School and to the industry. He completely ignored my awards and my published book. He even distorted the assessment of my colleagues, saying, “[w]hen asked if you had at least one major, the responses varied greatly as did the assessments when reviewers were asked to identify your major publications.” (Id., page 3, paragraph that begins: “Research/creative content”.) Since the answer to the question is either a yes or no, how can the responses vary “greatly”? Some said yes, then, based on his statement, but he avoids saying so. He also included negative comments that he said were from the faculty, but when I asked him to produce those comments, he said he’d thrown them away (Exhibit 85 and Exhibit 87, deposition of Gentry, page 105, lines 5 through 15).

141. Then in the evaluation for the year (Exhibit 100), he gave me scores for my teaching that were significantly lower than the teaching evaluation numbers indicated (Exhibit 87, deposition of Gentry, page 114, line 15, through page 136, line 19). But he also acknowledged the significance of my first book, saying, “[t]he committee feels that the ‘ACE Photoshop Exam Cram’ has potential to be a major but for P&T you will need to document that it meets the School’s ‘majors’ criteria for review/editorial process, stature of reviewers and original work.” (Exhibit 100, under heading “Research” on second page, and Exhibit 87, page 135, line 11 through line 20.)

142. Before I go on into the tenure review issues, it’s important to note that in the School of Journalism, a candidate for permanent tenure is required to have only one “major” research or creative publication. The School’s “Expectations and Criteria for Assessing Research and Creative Activity” (Exhibit 88, tenth page), states:

The record of an assistant professor who seeks promotion and tenure must include at least one major work.

143. In his deposition, Gentry confirmed his knowledge of this (Exhibit 87, at page 152, line 20).

144. Also, according to section C.2.c.4. of KU’s Faculty Handbook: “[t]he criteria for promotion and tenure have been and continue to be teaching, research, and service.” Those three criteria are the only three criteria allowed for assessing the tenure candidate (Exhibit 89).

145. The J-School has a history of dismal faculty scholarship. In the self-study prepared for their 1999 accreditation review, the J-School rationalized their poor record of scholarship:

Because of the three-course load, among other reasons, School of Journalism faculty have typically not been as productive as others in scholarly or creative activity.

(Exhibit 59, numbered page 27, third full paragraph.)

146. Although they were subsequently granted full accreditation, the only standard with which they were found out of compliance was faculty scholarship (Exhibit 90). In their report, the on-site accreditation review committee wrote:

Teaching and advising long have been the primary activities in the School. As a result, there has been “modest” faculty publication in either academic refereed publications in the field of journalism and communication or the first-level journals and trade publications in print, advertising, business communications, public relations and broadcasting. The [School’s] self-study makes no attempt to hide this fact and cites several initiatives targeted at remedying the situation.

147. The J-School’s self-study listed highlights of individual faculty publications. The on-site review committee made an issue of a few of the publications of faculty, including one of mine:

In addition, faculty authored articles or columns in publications such as the Associated Press Managing Editors News, American Journalism Review and News Photographer as well as in regional newspapers and magazines.

(Id.) I had been published in News Photographer the previous year (Exhibit 91). I was the only J-School faculty member to be published in News Photographer, so the committee was referring to my work.

148. In the paragraphs that follow, you’ll read a lot about “juried” and “refereed” works. That’s because if a work has been juried or refereed, it becomes synonymous with traditional scholarly work and the work is accorded significance as a major work. Gentry explained this in his deposition:

Q. Creative work is recognized in the tenure review process at the Journalism School at the University as a part of the research factor of the, of the evaluation, is that right?

A. Correct.

Q. So is it your point or was it your point in talking to Professor Cuenca that if creative work is to be used to support the research part of the evaluation, that it should be juried or peer evaluated?

A. That's right. In fact I mentioned that in the bottom of Page 3 which reiterates what I've been saying all along.

MS. MARINO: Of exhibit?

DEAN GENTRY: Of Exhibit No. 155.

A. You know, that's not the only way, but it's certainly one of the easier ways.

Q. (By Mr. Wisler) What are the other ways?

A. Well, you can have people say it's a cool site, but that doesn't carry as much weight as having peers review it and awarding it.

Q. Okay. In research, doing research you, you referred to earlier I think writing an article for one of the journalism quarterlies?

A. Correct.

Q. Is that peer reviewed?

A. Correct.

(Exhibit 103, deposition of Gentry, at page 93, line 21, through page 94, line 22.)

149. Gentry had told me this again in his pre-tenure review letter, which is the exhibit he refers to in that passage:

Your colleagues’ comments to you regarding majors are consistent with my previous conversations and notes where I have stated that it would be best to have juried pieces to establish that your works are majors. The School and University committees will require evidence to establish that “majors” are indeed majors.

(Exhibit 84, page 3, last paragraph.) Here he acknowledged both the significance level of juried and refereed work, and his knowledge that the decision makers would be looking for such work. He acknowledged that he had been telling me to get into the AEJMC web design competition to be in a juried, refereed competition.

150. I was able to confirm for myself the previous level of research and creative work accepted as “major” in successful tenure reviews. Before I prepared my pre-tenure review package, other faculty members who had recently been reviewed successfully for tenure were offering to let me see how they had prepared their own tenure applications. One of them, Associate Professor Carol Holstead, gave me her file to see how she’d put it together. I was particularly interested in seeing what she’d presented as major work, since I knew she wasn’t very productive in terms of research and creative activity. She had gone up for tenure during the 1995-1996 academic year (Exhibit 92). What I found out was that she had presented an eleven-page book chapter, a two page magazine column for FOLIO magazine (I’d written four before I was hired), a five-page book chapter and another five-page book chapter as her entire body of major research/creative works. She had succeeded in tenure review with no traditional peer-reviewed publications, no peer-reviewed awards, and no books. She hadn’t even produced a single major newspaper or magazine article.

151. I’m not suggesting that Holstead shouldn’t have earned tenure; I’m suggesting only that her work establishes a base line for the level of research and creative activity that has been acceptable to the School. I was comparing my work with the work presented by a colleague whose record of publications had been found sufficient for tenure, so that I could know where I stood. I had published one book and another was in press. I had won two national peer-reviewed awards. I had significant works in multiple media formats. I felt good about where I was and felt that I could be confident about success in my own tenure review. I should not then have been required or now be required to prove that I was the most productive or respected faculty member to go up for tenure. I should have only been required to prove that I was at least equal to the least productive and respected faculty member to have been previously tenured. I gave her back the materials and I didn’t make copies of them, but her resume confirms what work she had completed by 1996 (Exhibit 93).

152. As you read the following paragraphs, then, you’ll understand why Gentry was so determined to classify all of my work as worthless. Because even one major work was enough for me to meet the minimum qualification for tenure, he had to try to convince people to ignore my books, my awards, and all of my significant publications. Because in the past even simple non-refereed newspaper and magazine articles had been sufficient to gain tenure, he had to make sure no one acknowledged that fact or that I had such publications. To successfully make me out to be a completely worthless scholar and justify his disingenuous plan, he would have to resort to fraud. In doing so, he and the J-School also held me to a discriminatory higher standard.

153. The “me vs. them” sort of comparison I’ve had to do to establish the disparity in both the quantity and quality of our productivity is particularly distasteful to me. I’d rather leave them to their own business and personal motivation issues. But I’ve been forced to present their records and compare them to mine because their work is evidence of the standards and the levels of productivity that the School has previously accepted for tenure. For all of us, I wish we had never come to this place in this ordeal.

154. To prove the hypocrisy of their decision, I produced the analysis of their work compared to mine, attached as Appendix D. The analysis confirms that faculty scholarship has not been a strength of the KU J-School and that my level of productivity and recognition was much more substantial than any of those who would sit in judgment of my record. I discovered that I had produced almost half the number of external publications (41.5%) as the entire group of 16 combined. Some of the other highlights included:

Further, when you compare the significance of the work produced by the group of 16 with the work produced by Mike Cuenca, you see a stark contrast. 145 of the 352 works listed on the vitae of the group of 16—a full 41% of the total work of this group—are non-refereed presentations and internal publications. (See Chart 2.) During that same five-year period, only 4—less than 9%—of Mike Cuenca’s listed publications were presentations and internal publications. (See Chart 3.) If you take out the non-refereed presentations and internal publications of the group of 16, they produced a grand total of 103.5 external works—a per-capita output of 6.5 external publications for the five-year period. This means that Mike Cuenca alone produced more than six times the number of external publications produced per capita by the 16 faculty members of the 1999-2000 P&T Committee. (See Chart 4.) Mike Cuenca’s output of 41.5 external publications is equal to almost half of the total external publications of the group of 16. (See Chart 5.)

And:

• Mike Cuenca wrote 3.5 books and book manuscripts. The group of 16 wrote a total of 2.5. (See Chart 12.)

• Mike Cuenca edited one book. None of the group of 16 edited any books.

• Mike Cuenca designed one book. None of the group of 16 designed any books.

• Mike Cuenca produced two full-page newspaper features, including all design, illustration, and writing. The group of 16 produced a total of 5 newspaper articles.

• Mike Cuenca earned 5 national and international awards. The group of 16 earned a total of 1. (See Chart 13.)

• Mike Cuenca produced 7 websites and/or other multimedia presentations. The faculty members in the group of 16 did not produce even one. (See Chart 14.)

• The group of 16 published a total of 2.5 articles in the journals of the professional journalism organizations (journals such as Folio: The Magazine of Magazine Management, The Society of News Design’s Design, and the National Press Photographers’ Associations’ News Photographer.) Mike Cuenca published 2 articles in those journals.

• The group of 16 published a total of 15 articles and columns in consumer/trade magazines. Mike Cuenca alone published 12. (See Chart 15.)

(Appendix D.)

155. During the initial stages of the tenure review, Gentry was responsible for submitting examples of my work to several reviewers who were not employed by KU. He asked me to submit the names of potential reviewers, which he would use in selecting the reviewers. He asked me to submit five representative examples that he could send to these external reviewers, who were being asked to assess the significance of my work in terms of whether or not it was worthy of an award of tenure (Exhibit 94, second page, line with date “July 31”).

156. First, he accelerated the deadlines for my tenure application submissions. (Exhibit 94, handwritten changes.)

157. Gentry made sure that I was aware that I was not to select reviewers who were among my personal friends and professional associates. When I asked him if he intended to follow the same restrictions, he said that he would only limit himself in terms of “personal relationship.” (Exhibit 95, deposition of Cuenca, page 547, line 6, through page 549, line 23, and Exhibit 96, second paragraph.)

158. I turned over the names of four potential reviewers (Exhibit 96, at bulleted list) and five samples of my most significant work, including my first published book. (Id., second page, first full paragraph.)

159. Gentry selected the six reviewers. He chose only two of the four names I had given him and four of his own selection. Gentry testified under oath that he accepted suggestions for reviewers from Professor Shaw (Exhibit 87, deposition of Gentry, at page 147, line 22, through page 148, line 11), despite the fact that he was aware that Shaw was one of the people who had supported Mike Kautsch’s attempts to terminate me (Exhibit 87, deposition of Gentry, at page 140, line 23, through page 141, line 4, and page 143, line 8, through page 144, line 9).

160. In the testimony he gives on these pages, wherein he details his close association with Duncan McDonald (Exhibit 87, deposition of Gentry, at page 147, line 22, through page 148, line 11), Gentry doesn’t admit that McDonald was also the Chair of Shaw’s organization’s Accrediting Committee and that Gentry is also on that committee (Exhibit 97).

161. From among the hundreds of new media and visual communication journalism educators across the country who could have been truly independent reviewers, Gentry selected one who was at the time co-chair of Shaw’s ACEJMC/AEJMC Committee for the National Press Photographers Association, and who also dismissed my books even as he admitted that he had not seen them:

Cuenca has not shown that “Mastering Adobe InDesign” and “Scanner Solutions,” both copyrighted September 1999, will have a national audience of respected professional peers. I do not know if rigorous standards were met, or if the reviewers were widely respected, or if any of the other criteria were met. Since I have not seen these publications, I cannot judge for myself. Similar comments apply to “ACE Photoshop Exam Cram.”

(Exhibit 98, second page, first full paragraph); another who is a long-time associate of Shaw’s in the ACEJMC and who is on two boards with Gentry; and still another, who is a former colleague of Gentry’s and an associate of both Gentry and Shaw in the ACEJMC (Exhibit 87, at page 144, line 10, through page 149, line 3).

162. The reason that the reviewer had not seen any of my books was that Gentry removed the book I had given him as well as another significant work example and withheld them from the reviewers, substituting them with less significant work (Exhibit 88, ninth page). But he got busted when the letter from one of the reviewers, Dr. Joel Geske of Iowa State University (Exhibit 99, fourth paragraph), came back with this statement:

“What I find most disturbing in this equation is the material chosen by the committee to demonstrate these professional skills. Mr. Cuenca is the author or co-author of several books relating to design and visual communication. These are major works demonstrating a deep practical and teaching knowledge of the software and are published by respected third party publishers. Rather than concentrating on these substantial books, the committee has chosen to send a minor article on Java Snippets. Unfortunately, I needed to do some digging and go on-line to find more on these books. The process would have been easier for the reviewers and more fair to Professor Cuenca had these books or sample chapters been included in the package of materials (granted one is still in press.)”

163. Gentry then quickly sent some of the book chapters out with a note in which he wrote, “I apologize for failing to include copies of chapters from Professor Cuenca’s books.” (Exhibit 88, sixteenth page.) A week later he wrote the reviewers once again: “I am writing to ask you to send me a note stating that you received the book chapters and that your assessment of Mr. Cuenca has not changed.” (Exhibit 88, seventeenth page.)

164. When asked under oath in February of 2000 if my books had been sent to all of the external reviewers, Gentry lied, “Yes.” (Exhibit 87, deposition of Gentry, at page 151, line 16.)

165. In a letter that he included in the tenure dossier to explain the procedures he used for the external review, he explained it differently:

On Oct. 15 it was brought to my attention that we had failed to include any chapters from Mr. Cuenca’s books in the original packet.

(Exhibit 86, third page, second paragraph.)

166. Wait. Think about it: he had chosen the books himself. So how was it that on October 15 “it was brought to [his] attention”? He already knew, because he had made the selection himself, as he admitted in his deposition:

Q. What five samples did you send or what samples did you send the evaluators and you already said --

A. I don't know.

Q. How did you choose them?

A. Like I said, I thought they were representative samples.

Q. Did you discuss with Mike --

A. I did not. That's not normal process.

Q. Did you discuss it with anybody else which samples?

A. No.

Q. Did you send his books --

A. Yes.

Q. -- to each evaluator?

A. Yes.

Q. So there were two [books], right?

A. (Nods head up and down)

Q. So they got two books? Do you recall what else they got?

A. They got the samples. I don't recall which ones.

(Earlier in this exchange, Gentry details how he came up with