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Alozie v. Arizona Board of Regents

United States District Court, D. Arizona

January 7, 2020

Nicholas Alozie, Plaintiff,
v.
Arizona Board of Regents, et al., Defendants.

          ORDER

          Honorable Roslyn O Silver, Senior United States District Judge.

         Plaintiff Nicholas Alozie (“Alozie”) is a professor at Defendant Arizona State University, a public university which is governed by Defendant Arizona Board of Regents (collectively, “ASU”).[1] Alozie and three other candidates applied for the position of Dean of the College of Letters and Sciences and were interviewed. At his interview, Alozie handed the search committee, which was chaired by Defendant Marlene Tromp (“Tromp”), a written statement. Alozie and one other candidate were not granted second interviews. The two other candidates were granted second interviews, and one of those candidates was ultimately selected as the Dean of the College of Letters and Sciences. Alozie argues this outcome was based on his race and/or national origin, and in retaliation for his written statement. At present, Alozie has two Title VII claims against ASU: (1) race and/or national origin discrimination as to Alozie's nonselection as Dean and the decision not to grant him a second interview; and (2) retaliation as to the decision not to grant Alozie a second interview. Alozie also has a Section 1983 claim against Tromp in her personal capacity for a violation of the First Amendment. ASU and Tromp now move for summary judgment on each of these claims. For the reasons set forth below, ASU's motion will be granted in part and denied in part, and Tromp's motion will be granted.

         BACKGROUND

         Unless otherwise noted, the following facts are either undisputed or taken in the light most favorable to Alozie, the non-moving party.[2] Alozie is a professor at ASU, and has been the head of the Social Science Department at the Polytechnic campus since 2005. (Doc. 22 at 5.[3]) Prior to 2014, the Social Science Department was part of the School of Letters and Sciences (“SLS”), which was led by a Director, Dr. Frederick Corey, who also served as the Dean of University College. (Doc. 22 at 5; Doc. 137 at 2.) In early 2014, when Dr. Corey left his positions, Dr. Robert Page (“Page”), the ASU Provost, appointed Dr. Duane Roen (“Roen”), an English professor and the Assistant Vice Provost for University Academic Success Programs, to be the Interim Director of SLS and Interim Dean of University College. (Doc. 137 at 3; Doc. 146-1 at 6, 9.)

         In May 2014, Page decided to change the School of Letters and Sciences into the College of Letters and Sciences (“CLS”), which would be governed by a Dean rather than a Director. (Doc. 137 at 3-4; Doc. 22 at 6.) Roen's title accordingly changed to Interim Dean of CLS. (Doc. 137 at 5.) In July 2014, Roen addressed a group of faculty leaders in CLS. (Doc. 137 at 4.) The parties dispute the contents of Roen's statement. Alozie claims Roen announced that the University had agreed to give the Dean position to Roen but would announce a search to fill the position nevertheless; in other words, in Alozie's view Roen announced the outcome of the search was pre-determined. (Doc. 137 at 4-5; Doc. 141 at 9-10.) Roen claims he announced two things: first, the University was going to start the process for finding a permanent dean; and second, Roen believed that in light of prior appointments, there was a strong likelihood that he would be selected as the permanent dean. (Doc. 137 at 4-5; Doc. 137-1 at 5-6, 80.)

         On August 20, 2014, the faculty of CLS were emailed an announcement of the internal search for a permanent Dean and a request for nominations and volunteers to serve on the search committee. (Doc. 137 at 5; Doc. 137-1 at 102.) Dr. Barry Ritchie (“Ritchie”), the Vice Provost for Academic Personnel at the time, was the Provost's office liaison to the search committee. (Doc. 137 at 5; Doc. 137-1 at 102.) Tromp, the Dean of the New College of Interdisciplinary Arts and Sciences and Vice Provost of West Campus, was the chair of the search committee, which ultimately consisted of fourteen other people. (Doc. 137 at 5-6.) One member of the search committee was Patience Akpan-Obong, who worked under Alozie's direct supervision as a faculty member in his unit and who Alozie asked to serve on the committee. (Doc. 137 at 6.) Another member of the search committee was Oscar Jiminez-Castellanos, who was a representative of the faculty Senate, as required by ASU policy. (Doc. 137 at 6; Doc. 137-1 at 95; Doc. 141-1 at 102.)

         At ASU, decisions regarding the appointment of deans are made by the Provost (Page), subject to the approval of the President (Dr. Michael Crow (“Crow”)). (Doc. 137 at 1.) The search committee met on October 10, 2014, and Ritchie charged the committee to identify a small number of candidates and to provide a recommendation to Page and Crow. (Doc. 137 at 6; Doc. 141-1 at 104.) At the October 10, 2014 meeting, and via email after the meeting, the search committee discussed the qualifications for the CLS Dean position. (Doc. 137 at 7.) On October 22, 2014, the job announcement for the CLS Dean position was sent out by email. (Doc. 137 at 7.) The job announcement listed the responsibilities of the position, including “will provide academic and administrative leadership” and “must be committed to working with the provost, the other deans, faculty heads, and the faculty” of various programs on multiple campuses “to achieve university academic goals for excellence in research and learning, and to further goals for inclusion and impact.” (Doc. 137 at 7; Doc. 137-1 at 106.)

         The job announcement listed five required qualifications and four desired qualifications. (Doc. 137 at 7; Doc. 137-1 at 107.) Each candidate was required to be “a tenured full professor at Arizona State University” who “exhibit[ed] leadership and strategic vision” and had, among other qualifications, an “excellent record of scholarship, ” “demonstrated administrative skills, ” and a “commitment to ASU's values, goals, and mission.” (Doc. 137 at 7; Doc. 137-1 at 107.)

         The search committee received four applications for the position: Roen; Dr. Fabio Milner (“Milner”), a Professor of Mathematics and the Director of Mathematics for STEM Education; Dr. Joseph Carter (“Carter”), Associate Dean of ASU's W.P. Carey School of Business; and Alozie. (Doc. 137 at 8.) Roen and Carter are Caucasian; Milner is Latino; and Alozie is African-American, with Nigerian national origin. (Doc. 22 at 14; Doc. 141 at 17, 24; Doc. 141-1 at 24.) The search committee determined all four applicants met the required qualifications and invited them all for initial interviews. (Doc. 137 at 9.)

         On December 1, 2014, the search committee interviewed the four candidates. (Doc. 137 at 9.) The search committee prepared a set of approximately ten general interview questions, which were asked of all candidates, and two specific questions for each individual candidate. (Doc. 137 at 9; Doc. 137-2 at 9; Doc. 141-1 at 24.) Alozie brought a written statement to the interview that he planned on reading to the search committee; he said he wanted the written statement to be part of the process and handed out copies of the statement to members of the committee. (Doc. 137 at 9.) Tromp informed Alozie that, in the interest of treating all the candidates the same, Alozie's interview would be centered around the prepared questions. (Doc. 137 at 9; Doc. 137-1 at 10, 30; Doc. 141 at 19.) Thus, Alozie did not read his statement aloud. (Doc. 137-1 at 10.) The statement is five pages long and is entitled “Opening Statement to the Dean's Search Committee.” (Doc. 137-1 at 199-203.) The first few pages of the statement read as follows:

Good Afternoon:
Thank you for the invitation to meet with you. This is a very special day in the history of ASU, and I will tell you why.
In the 24 years I have been at ASU, I have worn two hats. The first hat is that of a faculty member working, just like everyone else, to build a career and to contribute to the well-being of students and the institution. The second hat is that of a community diversity leader helping to build an environment conducive for women and minority scholars to succeed at ASU. I would say I have been very successful at both.
The latter hat led me to the position of chairperson of the ASU Black Caucus, where only a few years back and among other issues, I worked with Milt Glick, our former provost, and other top ASU officials to close the “Revolving Door” of minority scholars leaving ASU as quickly as they arrived because they didn't think the environment was favorable enough to warrant their staying at ASU. The complaint among young minority faculty was that ASU was simply a stopover and for a rewarding career with advancement they had to move on to another university. They never saw ASU as a place to build a career.
The fact that as a homegrown product of ASU having advanced through the ranks at ASU to head a faculty unit for nine years continuously, I am sitting before you here today to compete for the position of Dean at ASU is historic. That is what makes this a very special day. Traditionally, ASU is one of those places where we scramble to get minority scholars from outside to apply for these kinds of positions. If Provost Glick were here today, he would be proud of this milestone for ASU, although there are not many colleges at the university where the same success can be observed.
Having said that, I must confess that the decision to apply for this position was a difficult one for me. The circumstances of my application may offend some people and may even lead to a blowback. This is why my application came in at the very last minute. I had to carefully consider the decision to indicate my interest in this position.
Indeed, the word in the College is that there is really no vacancy here, that this Dean's position has already been promised and that the university is simply going through the motions to dot its i's and cross its t's with this hiring process. Thus, I am expected, just like everyone else in the college, to back off and let the impending coronation take place.

(Doc. 137-1 at 199-201) (emphases added in bold). The remainder of the statement discusses Alozie's reasons for applying to the position (“I am well qualified for this position as per the stated requirements” and “I have devoted the better part of my adult life working to create a level playing field for women and minorities”); the nature of the Dean's position; Alozie's history at ASU; and a closing statement. (Doc. 137-1 at 201-203.)

         At the time of the December 1, 2014 interviews, Alozie thought the search process was a sham process. (Doc. 137 at 10.) Alozie based this thinking on his understanding of Roen's July 2014 statement to the CLS leadership group regarding Roen's eventual appointment as the permanent Dean. (Doc. 141 at 21; Doc. 137 at 4-5.)

         After the interviews, the search committee discussed each of the candidates and voted in favor of advancing Roen and Milner to the second round of interviews on campus. (Doc. 137 at 11.) The search committee also discussed Alozie's accusation in his written statement that “the word in the College is that there is really no vacancy here, that this Dean's position has already been promised and that the university is simply going through the motions to dot its i's and cross its t's with this hiring process.” (Doc. 137 at 11; Doc. 141 at 25.) In the course of the discussion, the evidence indicates that at least three members of the search committee felt that Alozie was attacking the integrity of the search committee. (Doc. 137-1 at 206, 218; Doc. 137-2 at 6.) A small minority of the committee, including Patience Akpan-Obong and Oscar Jimenez-Castellanos, supported inviting Alozie to a second interview, while the remaining members of the search committee did not, and the parties dispute whether the committee had reached a final decision on inviting Alozie to a second interview before the meeting adjourned. (Doc. 137 at 11-12; Doc. 141 at 23-25.) After the discussion, Tromp said she would speak with the Provost's office. (Doc. 137 at 12.)

         After the meeting adjourned, on December 1, 2014, at 6:17 p.m., Tromp sent Ritchie an email that said, “I have a quick (but thorny) question about the Dean search for you” and left a call-back number. (Doc. 137 at 12; Doc. 137-2 at 27.) Tromp wanted to talk to Ritchie about the concerns that had been raised and to ask him what the appropriate next steps would be, and to relate what happened at the committee meeting. (Doc. 137 at 13.) Tromp and Ritchie spoke by phone later that evening, and Tromp told Ritchie that Alozie had submitted an opening statement at his interview and made an allegation that the committee was biased, and Tromp was upset because she felt her integrity had been impugned. (Doc. 137 at 13.) It appears the “bias” at issue was Alozie's concern that Roen had already been selected for the position. (Doc. 137-1 at 72; Doc. 141 at 28.) That is, there is no indication that Tromp's concerns stemmed from Alozie's allegations regarding racial discrimination. Ritchie told Tromp that she should focus on her job as chair of the search committee, that the goal of the interview was to gather information relating to the decision to be made, and the committee had done that. (Doc. 137 at 13.) He also told her that the slate of candidates and the process seemed fine, and that there were other processes for the kind of concerns that Alozie raised. (Doc. 137 at 13.)

         The following morning, on December 2, 2014, Tromp sent Alozie an email thanking him for the time and energy he invested in the search process but informing him that the CLS Dean search committee “felt the college needed different leadership for its next phase of development.” (Doc. 137 at 13; Doc. 137-2 at 29.) Alozie understood he was no longer in the running for the CLS Dean position, and was shocked, surprised, and felt “some anger.” (Doc. 137 at 13; Doc. 137-1 at 12.) Tromp sent a similar email to Carter. (Doc. 137 at 13-14; Doc. 137-2 at 31.) But Tromp sent emails to Roen and Milner inviting them to move forward in the CLS Dean search process with campus interviews. (Doc. 137 at 14; Doc. 137-2 at 33, 35.)

         Members of the search committee served as hosts and moderators of the campus interviews, which took place on December 3 and 5, 2014, and involved directors and chairs, faculty and students. (Doc. 137 at 14.) On December 12, 2014, the search committee met and discussed the weaknesses and strengths of Roen and Milner, which Tromp summarized in a memo. (Doc. 137 at 14.) On December 13, 2014, Tromp sent Page an email saying she wanted to speak to him to share some things that did not belong in her report; the two spoke at commencement and Tromp expressed her belief that ASU would be best served by relaunching the search and conducting an external search. (Doc. 137 at 14; Doc. 137-1 at 29.) After the conversation with Page at commencement, Tromp had no further discussions regarding the Dean search with either Page or Crow. (Doc. 137 at 15.)

         On December 20, 2014, Tromp emailed Page her Dean Search Memo summarizing the strengths and weaknesses of Roen and Milner, noting “Dr. Milner seemed more likely to strive to achieve the college's goals by working through attention to faculty and faculty research and Dr. Roen through attention to students, ” and concluding that both were capable of doing the job. (Doc. 137 at 15; Doc. 137-2 at 39-42.) On January 14, 2015, Page offered Roen the position of Dean of CLS. (Doc. 137 at 15.)

         In March 2015, Alozie met with Erin Ellison, a senior Equal Opportunity consultant with ASU's Office of Equity and Inclusion. (Doc. 137-1 at 14; Doc. 141-2 at 5.) Ms. Ellison investigated, interviewing several members of the search committee, and issued a report to Searle on October 8, 2015 concluding that Alozie's statement “was not the primary reason why [Alozie] did not move onto the final interview.” (Doc. 141-1 at 27.) Alozie also filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) in August 2015. (Doc. 137 at 15.) The EEOC conducted an investigation and issued a determination on June 10, 2016 stating “Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that [ASU] is in compliance with the statutes.” (Doc. 137 at 15; Doc. 137-2 at 44.) Alozie timely filed his complaint in Arizona Superior Court, which was removed to this Court under 28 U.S.C. § 1441(a).

         After the Court dismissed certain claims and the parties stipulated to dismiss certain defendants and limit other claims, Alozie is still pursuing three claims: (1) ASU discriminated against Alozie due to his race and/or national origin by not granting Alozie a second interview and not selecting him for the position of Dean of CLS, in violation of Title VII; (2) ASU retaliated against Alozie for submitting his opening statement to the search committee by not granting Alozie a second interview, in violation of Title VII; and (3) Tromp retaliated against Alozie for submitting his opening statement to the search committee by not selecting Alozie for the position of Dean of CLS, in violation of the First Amendment. (Doc. 22; Doc. 117.)

         ASU seeks summary judgment on Alozie's Title VII claims, arguing Alozie lacks evidence that the refusal to offer a second interview or hire him as dean was based on his race or national origin, or as retaliation for his written statement. (Doc. 135.) Tromp seeks summary judgment on Alozie's First Amendment claim, arguing she is entitled to qualified immunity. (Doc. 136.)

         ANALYSIS

         I. Standard for Summary Judgment

         The moving party is entitled to summary judgment if the evidence, viewed in the light most favorable to the non-moving party, shows “there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004); Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). At summary judgment, the court cannot weigh the evidence nor make credibility determinations. Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1035 (9th Cir. 2005). The moving party initially bears the burden of proving the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321-25 (1986). To do so, “[t]he moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

         Regarding the evidence, the district court “need consider only the cited materials.” Fed. R. Civ. P 56(c)(3). Thus, “where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found” “[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact.” Wyatt Tech. Corp. v. Smithson, 345 Fed.Appx. 236, 239 (9th Cir. 2009) (quoting Carmen v. San Fran. Unified Sch. Dist., 237 F.3d 1026, 1031 ...


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