Washington v. Trustees of the Cal. State University and Colleges

Filed 4/14/06 Washington v. Trustees of the Cal. State University and Colleges CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed.

I.

INTRODUCTION

Dr. Pat Washington filed a complaint against the Trustees of the California State University and Colleges (CSU) in which she alleged that CSU discriminated against her on the basis of race in denying her academic tenure at San Diego State University (SDSU), and retaliated against her for complaining about racial discrimination at SDSU.^[1] CSU filed a motion for summary judgment. The trial court granted CSU's motion for summary judgment and entered a final judgment in favor of CSU.

On appeal, Dr. Washington claims CSU is not entitled to summary judgment on either her direct employment discrimination claim or her retaliatory employment discrimination claim because she presented sufficient evidence with respect to each claim that would permit a trier of fact to find that CSU discriminated against her. We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

In 1996, Dr. Washington was hired as the first African-American tenure track faculty member of the Department of Women's Studies (Department) at SDSU. The Department has a total of approximately nine tenured and tenure track faculty members.

Soon after she was hired, Dr. Washington became co-chair of the Women of Color Caucus in the National Women's Studies Association (NWSA), a professional association for scholars in the area of women's studies. In that capacity, Dr. Washington became involved in several heated debates with Dr. Bonnie Zimmerman, who was a professor in the Department, a past president of the NWSA, and one of NWSA's top leaders.

In the Spring of 1999, Dr. Washington protested the Department's initial refusal to appoint a highly qualified Asian graduate student as a teaching assistant. In response to her protest, the Department's Chairperson, Dr. Susan Cayleff, criticized Dr. Washington for being "uncollegial" and "too fixated on the rules" in demanding that the same criteria be applied to all applicants for the teaching assistant position. In April 1999, Dr. Cayleff ordered Dr. Washington to undergo psychological counseling, but changed her order to a suggestion after Dr. Washington requested that Dr. Cayleff put the direction to seek counseling in writing.

In November 1999, Dr. Cayleff discouraged Dr. Washington from seeking funding to attend a conference in Belarus. In addition, Dr. Cayleff initially refused to provide Dr. Washington with customary departmental support to attend the conference, such as sending her books to the conference and providing teaching coverage for her classes while she was away. Dr. Cayleff eventually provided the support to Dr. Washington when a Caucasian professor from the Department announced that she would be attending the same conference.

On April 3, 2000, Dr. Cayleff accused Dr. Washington of attempting to sabotage a conference sponsored by the Department. Two days later, Dr. Cayleff changed Dr. Washington's fall teaching schedule and room assignments, and threatened to take away Dr. Washington's use of additional desired classrooms if she did not accept the changes to her schedule. Dr. Cayleff also accused Dr. Washington of making an administrative coordinator cry as a result of Dr. Washington's alleged rudeness, and threatening colleagues. In response to Dr. Cayleff's actions, Dr. Washington met with Paul Strand, Dean of the College of Arts and Letters at SDSU (Dean Strand). Dr. Washington requested that Dean Strand schedule a mediation involving members of the Department and Washington, to attempt to resolve antagonisms that had developed between Dr. Washington and her colleagues.

At the ensuing mediation, on May 15, 2000, professors Cayleff, Kathleen Jones, and Olivia Espin responded to Dr. Washington's expression of her concerns about racial discrimination by yelling at her. The three professors and Dr. Barbara Watson stated that they would no longer be willing to sit on any retention, tenure, and promotion (RTP) committees of which Dr Washington was the subject.^[3] Dr. Espin threatened to retire if she were required to sit on Dr. Washington's RTP committee. Professor Jones demanded that Dean Strand "do something" about Dr. Washington because she was not "going to put up with this shit." Dr. Cayleff stated that it was Dr. Washington's choice if she wished to stay in a department where no one spoke to her. In June 2000, Dean Strand sent Dr. Washington a letter in which he summarized some of her colleagues' concerns about her behavior, including their belief that she had "acted in a rude, selfish, and insensitive manner . . . ." Dean Strand stated in his letter, "It is my observation that these faculty have legitimate concerns, and I urge you to alter your behavior."

In the summer of 2000, professors Jones, Espin, and Watson were among the four professors from the Department appointed to Dr. Washington's annual RTP committee. On November 8, 2000, the RTP committee recommended, with reservation and not unanimously, that Dr. Washington be reappointed for a sixth year of employment at SDSU. The RTP committee's letter of recommendation noted concerns regarding Dr. Washington's performance in the areas of teaching and professional growth. On November 15, 2000, Dr. Cayleff recommended, "with grave reservations," that Dr. Washington be reappointed for a sixth year.

On November 27, 2000, Dr. Washington complained to the SDSU Chancellor's office regarding discrimination in the Department, making particular reference to the events that precipitated her 2000-2001 annual RTP evaluation. On March 22, 2001, Susan Moss, Director of the Office of Diversity and Equity,^[4] the investigator assigned to review Dr. Washington's complaint, determined that it was premature to comment on Dr. Washington's then pending reappointment review, but that Dr. Washington's other concerns did "not rise to an actionable level." In her report, Moss noted that Dr. Washington had asked for information regarding the criteria for tenure and that she had received "rather general" feedback in response to her request. Moss also stated that Dr. Washington's work environment was "not a very pleasant one."

On March 26, 2001, Dr. Washington filed a formal complaint with the human resources department for the California State University System in which she alleged that the RTP Committee's November 8, 2000 recommendation, Dr. Cayleff's November 15, 2000 recommendation, and Dr. Cayleff's handling of two student complaints against Dr. Washington reflected retaliation against Dr. Washington for her complaints of racial discrimination.

In May 2001, Dr. Washington was reappointed for a sixth year of employment. At the Spring 2001 graduation ceremony, Dr. Cayleff neglected to present Dr. Washington with an award she had been selected to receive.

In July 2001, Nancy J. Spieczny, the person SDSU hired to investigate Washington's March 2001 complaint, issued a report in which she concluded that Dr. Washington had not been retaliated against by either the RTP committee or Dr. Cayleff. However, in her report, Spieczny stated that Dr. Cayleff had been inconsistent in accusing Dr. Washington of grade inflation in various reappointment recommendation letters, Dr. Cayleff and Dr. Washington's relationship had deteriorated, Dr. Cayleff's assessment of the same article written by Dr. Washington had declined in successive reappointment recommendation letters, members of the 2000 RTP committee were angry about being accused of racial discrimination, members of Washington's 2000 RTP committee were not fully consistent in their recollection of whether the May 2000 mediation had been discussed in their deliberations regarding Washington's reappointment, and Dr. Cayleff's actions in subtly encouraging a student to pursue a complaint against Dr. Washington were "problematic."

Dr. Washington was evaluated for academic tenure during the 2001-2002 academic year. Applicants for tenure at SDSU are evaluated for teaching effectiveness, professional growth (i.e. scholarly contributions), and service to the university, through a tiered recommendation process akin to the reappointment process, described in footnote 3, ante. During the six-year period of Dr. Washington's employment at SDSU, the Department twice revised its procedures for awarding tenure. In 1996, when Dr. Washington was hired, the departmental procedures pertaining to tenure provided, "[A]t least two refereed scholarly publications since appointment to SDSU normally will be necessary for recommendation for tenure . . . ." In 1997, the departmental procedures were revised to state, "[A]lthough no hard and fast rule exists for the number of publications required, at least three refereed scholarly publications since appointment to SDSU normally will be necessary for recommendation for tenure . . . ." In 2001, the Department revised its procedures to state, "[N]o hard and fast rule exists for the number of publications required; instead a consistent record of refereed publications is expected. . . . The primary consideration in evaluating professional growth shall be publications based upon original research and contributing to the advancement of knowledge in women's studies."

Dr. Washington's tenure file contained, among other items, her reappointment evaluations for the years 1997 to 2001. Although each reappointment evaluation recommended reappointment, Dr. Washington's reappointment letters reflected concerns regarding her teaching effectiveness and the level and quality of her professional growth. For example, with respect to professional growth, her RTP reappointment evaluation in 1997 states that the committee, "notes your efforts in the area of professional growth but strongly suggests that you focus your attention on developing a research agenda." In 1998, Dr. Washington's RTP letter stated, "The Committee would like to encourage you to develop a coherent research program. It is not clear from the information presented to us if you have developed such a program." In 1999, after commending Dr. Washington on some recent publications, the RTP committee wrote, "the Committee is concerned about the limited number of publications since your appointment at SDSU." In 2000, the RTP committee wrote, "We add to the preceding reviews our continued concern that your progress has been minimally satisfactory," in the area of professional growth.

At the time of her tenure review, Dr. Washington had published two research-based, peer-reviewed articles. Both articles drew on research Dr. Washington had conducted while she completed her dissertation in 1993-1994, before her employment at SDSU. While at SDSU, Dr. Washington had a total of eight papers and articles accepted for publication.

Each level of review at SDSU recommended that Dr. Washington be denied academic tenure. The RTP committee that evaluated Dr. Washington for tenure ─ Professors Jones, Watson, Doreen Mattingly, and Bonnie Kime Scott ─ recommended against Dr. Washington receiving tenure. Dr. Cayleff also recommended against Dr. Washington receiving tenure. In addition, Dean Strand recommended against tenure for Dr. Washington, as did a College of Arts and Letters Personnel Committee, and the SDSU University Promotions and Tenure Review Panel. In May 2002, Provost Nancy Marlin denied Dr. Washington academic tenure on the ground that Dr. Washington's record in the area of professional growth was insufficient.

In July 2003, Dr. Washington filed a three count complaint against CSU in which she alleged: (1) racial employment discrimination; (2) retaliatory employment discrimination; and (3) unequal pay. In January 2005, CSU filed a motion for summary judgment, or in the alternative, summary adjudication of Dr. Washington's claims. In support of its motion, CSU lodged a declaration from Dr. Zimmerman, the Assistant Vice President for Faculty Affairs,^[5] Dr. Washington's reappointment and tenure recommendation letters from 1997 through 2002, SDSU's tenure policies, the Department's procedures for tenure as of April 2001, excerpts of Dr. Washington's deposition testimony, various investigative reports conducted by CSU regarding Dr. Washington's complaints of discrimination, an arbitrator's decision in favor of CSU on Dr. Washington's challenge to the denial of academic tenure on the ground that CSU failed to follow its internal procedures for the granting of tenure, and other items. In opposition to the motion, Dr. Washington lodged her own declaration, the Department's procedures for awarding tenure in 1996 and 1997, an Equal Employment Opportunity Commission (EEOC) "reasonable cause" letter, and a declaration from Dr. Helen Bannan comparing Dr. Washington's scholarly record with that of another professor who was granted tenure in the Department the year before Dr. Washington's tenure review, among other items.

In April 2005, the trial court granted CSU's motion for summary judgment. Shortly thereafter, the court entered judgment in favor of CSU. Dr. Washington timely appeals.

III.

DISCUSSION

The trial court properly granted CSU's motion for summary judgment

Dr. Washington contends CSU is not entitled to summary judgment on either her employment discrimination claim or her retaliatory employment discrimination claim.^[6]

A. Standard of review

Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) On appeal from a summary judgment, the reviewing court makes "'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]'" (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1143, quoting Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.)

B. CSU is entitled to summary judgment on Dr. Washington's claim of

employment discrimination

Dr. Washington claims the trial court erred in granting CSU summary judgment on her claim that CSU discriminated against her on the basis of race in denying her academic tenure.^[7]

1. General principles of law applicable to evaluating a disparate

treatment employment discrimination claim under California law

Government Code^[8] section 12940, subdivision (a) generally makes it illegal "[f]or an employer, because of the race . . . of any person . . . to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment."

In Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317 (Guz), the California Supreme Court explained that California courts have adopted the burden shifting framework first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) for resolving disparate treatment employment discrimination claims under California law:

"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.] In particular, California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.] [Fn. omitted.] [¶] This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Guz, supra, 24 Cal.4th at p. 354.)

The Guz court summarized the operation of the McDonnell Douglas test at trial as follows:

"At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. . . . [¶] The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.] [Fn. omitted.] [¶] If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. [Citation.]

"Accordingly, at this trial stage, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to 'raise [ ] a genuine issue of fact' and to 'justify a judgment for the [employer],' that its action was taken for a legitimate, nondiscriminatory reason. [Citations.]

"If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.] In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.]" (Guz, supra, 24 Cal.4th at pp. 355-356.)

The Guz court noted that there is a conflict among decisions in the Court of Appeal regarding the appropriate manner in which to apply the McDonnell Douglas framework under California law to an employer's motion for summary judgment pertaining to a claim of discrimination. (Guz, supra, 24 Cal.4th at p. 356.) Specifically, courts have differed with regard to whether a plaintiff is required to present evidence sufficient to demonstrate a prima facie case of discrimination in opposing a defendant's motion for summary judgment. (Id. at pp. 356-357.) Although the Guz court did not resolve this conflict, the court held that it is clear that if the defendant employer presents sufficient evidence of nondiscriminatory reasons, the employee must present evidence that would permit a trier of fact to find that intentional discrimination occurred. (Id. at p. 357.)

In applying the McDonnell Douglas framework, we begin by noting that CSU does not contend that Dr. Washington failed to present a prima facie case of racial discrimination. Similarly, Dr. Washington does not challenge the trial court's conclusion that CSU presented sufficient evidence of a nondiscriminatory reason for the denial of tenure, namely, an inadequate record in the area of professional growth. Accordingly, we assume for purposes of this decision that Dr. Washington has satisfied any applicable burden to present sufficient evidence of a prima facie case of discrimination, and that CSU has presented sufficient evidence of a nondiscriminatory reason for denying Dr. Washington tenure. We consider whether Dr. Washington has presented sufficient evidence to support a finding that CSU's proffered explanation for her tenure denial is a pretext for illegal discrimination.

2. Applicable law regarding employment discrimination in the denial

of academic tenure

In Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 661-662 (Clark), the court considered a university's claim that the record lacked substantial evidence to support a jury's verdict that a professor was denied tenure because of his race. In describing the quantum of proof applicable to the professor's claim, the Clark court stated:

"The employee need not show 'he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies . . . .' [Citation.] In other words, '[w]hile a complainant need not prove that racial animus was the sole motivation behind the challenged action, he must prove by a preponderance of the evidence that there was a "causal connection" between the employee's protected status and the adverse employment decision.' [Citation.]" (Clark, supra, 6 Cal.App.4th at p. 665.)

The Clark court also stated that because "[e]ach stage of the tenure review process is not compartmentalized" (Clark, supra, 6 Cal.App.4th at p. 669), the professor could prevail on his discrimination claim by proving discrimination at any level of the review process.

The Clark court held that the following evidence in that case constituted substantial evidence to support the jury's verdict: the chairman of the department misled the professor concerning publication requirements and gave him a discriminatory review, a fellow professor wrote a negative letter to a tenure review committee and made a racially based remark at a meeting at which the professor's tenure bid was discussed ("us white people have rights, too"), another professor made a racially discriminatory comment during the same meeting ("I don't know how I would feel working on a permanent base [sic] with a black man"), the university had never granted tenure to a minority professor, other scholars testified as to the excellence of the professor's work, the university granted tenure to other nonminority professors who had less substantial publishing records, and the university used changing, unwritten publication standards, to justify its denial of tenure. (Clark, supra, 6 Cal.App.4th at pp. 652, 668.) The Clark court also noted, "Our own computer-assisted research of tenure denial cases across the nation revealed none involving university professors who made such blatant remarks as in this case." (Id. at p. 670.)

In Slatkin, supra, 88 Cal.App.4th 1147, a professor sued a university, claiming that the university had refused to grant her tenure because of her religion. The trial court granted the university's motion for summary judgment, and the professor appealed. The Slatkin court stated that the university had introduced evidence that it had relied on legitimate nondiscriminatory reasons in denying the professor tenure, namely, that she was a poor teacher, uncooperative as a colleague, and unamenable to criticism. (Id. at p. 1156.) However, the court noted that the professor had presented evidence that the university's reliance on her "supposed professional weaknesses was pretextual." (Ibid.)

The Slatkin court recognized that "'[i]n an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.]' [Citation.]" (Slatkin, supra, 88 Cal.App.4th at p. 1158.) However, the Slatkin court concluded that such a finding could not be sustained given the facts of that case. The Slatkin court explained that it "question[ed]" whether the professor had introduced sufficient evidence to establish even a prima facie case of discrimination, and concluded that all of the evidence of pretext supported a finding that the professor was denied tenure because of "academic politics" surrounding her submission of a negative letter concerning another professor's bid for tenure in her department, and not a finding of illegal discrimination. (Id. at pp. 1157-1158.)

The Slatkin court noted that a "a personal grudge can constitute a 'legitimate, nondiscriminatory reason' for an adverse employment decision." (Slatkin, supra, 88 Cal.App.4th at p. 1157.) The Slatkin court went on to state that even if the university had violated its own policies by relying on the professor's lack of collegiality in denying her tenure, such a violation did not constitute evidence of discrimination. (Id. at p. 1158.) The Slatkin court concluded that there was insufficient evidence that the professor was denied tenure because of her religion, and affirmed the summary judgment:

"In summary, then, the evidence showed that the University denied Dr. Slatkin tenure for one of two reasons (or both): either (1) she did not deserve it, or (2) her colleagues could not forgive her for making negative comments about [her colleague]. There was no admissible evidence that the University actually denied Dr. Slatkin tenure based on anti-Semitic bias against her." (Id. at p. 1160.)

A number of courts have emphasized that courts should be wary of second-guessing legitimate academic judgments when considering discrimination claims in the context of tenure denials. For example, in University of Pennsylvania v. E.E.O.C. (1990) 493 U.S. 182, while the United States Supreme Court stated that "tenure determinations [are subject] to the same enforcement procedures applicable to other employment decisions" (id. at p. 190), the high court also cautioned courts to refrain from interfering with legitimate academic judgments:

"In keeping with Title VII's^[[9]] preservation of employers' remaining freedom of choice, [citation], courts have stressed the importance of avoiding second-guessing of legitimate academic judgments. This Court itself has cautioned that 'judges . . . asked to review the substance of a genuinely academic decision . . . should show great respect for the faculty's professional judgment.' [Citation.] Nothing we say today should be understood as a retreat from this principle of respect for legitimate academic decisionmaking." (Id. at pp. 198-199.)

Similarly, in McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1788-1789, in reversing a judgment granting a writ of administrative mandamus ordering a university to set aside its decision to deny a professor academic tenure, the Court of Appeal emphasized the appropriateness of judicial deference to the substance of academic judgments:

"Deficient scholarship is a legitimate reason for denying tenure. [Citation.] And obviously, evaluating the quality of McGill's scholarship is a subjective process. But it is far beyond the expertise of this, or any, court to evaluate the significance of McGill's research or writings in the area of probability theory or to judge the efficacy of his teaching. (See Zahorik v. Cornell University (2d Cir. 1984) 729 F.2d 85, 93 ['Courts, moreover, are understandably reluctant to review the merits of a tenure decision. [Citation.] Where the tenure file contains the conflicting views of specialized scholars, triers of fact cannot hope to master the academic field sufficiently to review the merits of such views and resolve the differences of scholarly opinion. Moreover, the level of achievement required for tenure will vary between universities and between departments within universities. Determination of the required level in a particular case is not a task for which judicial tribunals seem aptly suited. Finally, statements of peer judgments as to departmental needs, collegial relationships and individual merit may not be disregarded absent evidence that they are a facade for discrimination.']; citations.) The University may even have shown poor judgment in not granting McGill tenure. But nothing in the record suggests its decision was made for illegal or improper reasons. We cannot interfere with it."

3. Dr. Washington failed to present sufficient evidence that CSU's

denial of academic tenure on the ground of deficient scholarship was a

pretext for illegal discrimination

Dr. Washington claims the following factors are sufficient to create a triable issue of fact as to whether CSU denied her academic tenure because of her race:

(1) the absence of African-American tenure track faculty members in the Department for 30 years;

(2) the "history of racial conflict" in the NWSA and the roles of Dr. Washington and Dr. Zimmerman in that conflict;

(3) Dr. Washington's criticism of the Department's failure to hire an Asian graduate student as a teaching assistant and Dr. Cayleff's "hostile reaction" to that criticism;

(4) "disputes between Dr. Washington and faculty members in the [Department] over racial issues";

(5) hostility demonstrated against Dr. Washington by numerous professors in the Department;

(6) the "false denigration" of Dr. Washington's teaching effectiveness;

(7) criticisms of Dr. Washington's lack of "collegiality" after she criticized the Department for failing to appoint an Asian graduate student as a teaching assistant;

(8) the elimination of objective standards by which to assess Dr. Washington's "publication rate" just prior to her tenure evaluation;

(9) the Department's failure to assess Dr. Washington's publications in comparison to those of a Caucasian professor who received tenure in the Department the year before Dr. Washington; and

(10) the EEOC's "reasonable cause" finding on Dr. Washington's discrimination claim.

We consider the evidence to support each contention, and whether such evidence is either individually or cumulatively sufficient to create a triable issue of fact as to whether CSU denied Dr. Washington academic tenure because of her race.

The lack of other African-American tenure track professors within the Department does not constitute substantial evidence of discrimination. Although this evidence lacks relevance for several reasons, including the small sample size (Guz, supra, 24 Cal.4th at p. 367), most fundamentally, the statistic is not probative because Dr. Washington has presented no evidence regarding whether other qualified African-Americans applied for tenure in the Department and were denied those positions. (See Fallis v. Kerr-McGee Corp. (10th Cir. 1991) 944 F.2d 743, 746 ["[A] plaintiff's statistical evidence must focus on eliminating nondiscriminatory explanations for the disparate treatment by showing disparate treatment between comparable individuals"], cited in Guz, supra, 24 Cal.4th at p. 377.)

With regard to evidence pertaining to racial conflict in the NWSA, Dr. Washington submitted a declaration in which she stated:

"The [NWSA] is the professional association for scholars in the area of women's studies. The NWSA has a long and well-documented history of racial strife. Bonnie Zimmerman, a tenured full professor in the [Department] is a past president of NWSA and remains one its top leaders. Soon after being hired at [SDSU] I became a co-chair of the NWSA Women of Color Caucus. In that capacity I became involved in several heated debates with Professor Zimmerman, who attempted to disband the Women of Color Caucus. The Women of Color Caucus and its allies were able to pass resolutions regarding racism in women's studies and in NWSA. I wrote an article about these issues for the NWSA Journal."

Dr. Washington fails to explain how her vague accusations of "racial strife" within a professional association and her "heated debates" with Dr. Zimmerman had any impact on CSU's decision to deny her tenure. Dr. Zimmerman was not on Dr. Washington's departmental tenure review committee and Dr. Washington does not offer any other evidence that her actions within the NWSA had any effect on CSU's tenure decision.

With respect to the hiring of the Asian graduate student, in her declaration, Dr. Washington stated:

"During the spring 1999 semester, I protested the [Department's] initial refusal to appoint a highly qualified Asian graduate student as a teaching assistant. [¶] In response, Professor Susan Cayleff, Chair of the [Department] castigated me for being 'uncollegial' and 'too fixated on rules' requiring that the same criteria be applied to all applicants."

The declaration does not allege that the Department's refusal to hire the student was racially motivated. Further, even assuming the declaration implies such motivation, it would amount to a bare allegation that the Department considered discriminating against another person. The declaration is not relevant to establishing that CSU denied Dr. Washington tenure because of her race. In addition, there is no evidence in the record that criticisms of Dr. Washington lacking "collegiality," as reflected in her reappointment and tenure evaluation letters in 2000 and 2001, were based on Dr. Washington's protest of the Department's failing to initially appoint the Asian graduate student in 1999.

As to alleged "disputes . . . over racial issues" within the Department, although Dr. Washington presented evidence that she complained to her colleagues in the Department that she was being discriminated against on the basis of race, she failed to present any evidence of race based animus directed toward her.

Regarding hostility displayed toward her by her colleagues, Dr. Washington did present evidence that some of the professors who participated in her tenure review, including Dr. Cayleff and professors Jones and Watson, may have harbored feelings of personal animosity toward her. However, there was no evidence that any of the professors' animosity for Dr. Washington was based on race. Further, even assuming Dr. Cayleff, Dr. Jones, and Dr. Watson allowed feelings of animosity toward Dr. Washington to affect their evaluations of her in the tenure process, such evidence would not constitute evidence of race-based discrimination. (See Slatkin, supra, 88 Cal.App.4th at p. 1157.)

With respect to the purported "false denigration" of her teaching record, Dr. Washington presented no evidence to support this assertion. In the evidence she cites in her brief in support of this contention, Dr. Washington appears to suggest that because Provost Marlin's final decision to deny Dr. Washington tenure was based solely on her inadequate record of professional growth, all other criticisms of her teaching record in her tenure file were false. However, simply because Provost Marlin did not cite Dr. Washington's teaching record in denying her tenure does not mean that criticisms of Dr. Washington's effectiveness as a teacher, reflected in evaluations throughout her tenure file, were false.

As to the purported elimination of objective standards by which to assess Dr. Washington's "publication rate," Dr. Washington presented evidence that the Department changed its procedures for awarding tenure in 1997 and again in 2001. However, Dr. Washington presented no evidence that any of the changes were based on race or that they were designed to preclude her from receiving tenure.

Further, CSU presented undisputed evidence that Dr. Washington was warned throughout her career to improve her scholarly record in a manner consistent with the changes that were formally adopted in 2001. For example, in 1997, Dr. Washington's reappointment recommendation letters advised her to accelerate scholarly productivity and to develop an ongoing research agenda. In 1998, her RTP reappointment recommendation letter encouraged her to "develop and present a coherent research program." In 1999, she was told to develop "research based articles." In Dr. Washington's 1999 reappointment recommendation letter from Dean Strand, he specifically stated that he did not think her record of professional growth at that point warranted tenure. In 2000, Dr. Washington was warned that the Department "remain[ed] seriously concerned . . . with both the rate [at which she was] bringing new research to completion and its quality." In 2001, she was advised, "as in past years, we urge you to continue your efforts to publish rigorous, analytic, research-based articles in refereed journals." The Department's changing tenure standards do not constitute substantial evidence that CSU denied Dr. Washington tenure on the basis of race.^[10]

Regarding the Department's alleged failure to assess Dr. Washington's publications in comparison to those of a Caucasian professor, Dr. Doreen Mattingly, Dr. Washington submitted her own declaration and the declaration of Dr. Helen M. Bannan, a tenured Women's Studies professor at the University of Wisconsin, Oshkosh.^[11] In her declaration, Dr. Washington asserted:

"Dr. Mattingly was granted tenure, although her teaching evaluations were virtually identical to my teaching evaluations, and her record of professional development was no greater than mine. I believe that Dr. Mattingly's publications demonstrate, in quantity and quality, a lower level of compliance with the [Department's] criteria as compared with my own publications."

Dr. Bannan stated in her declaration that she had reviewed the publication dossiers of Dr. Mattingly and Dr. Washington as of the time the two were considered for tenure. Dr. Bannan provided a quantitative and qualitative assessment of the articles authored by the two, and concluded, "Based upon my review of the two dossiers and reading of the articles written by Dr. Mattingly and Dr. Washington at the time each was considered for tenure, my opinion is that the dossiers are equal in quality and that Dr. Mattingly and Dr. Washington each met the standards for tenure in the department."

The two declarations do not constitute substantial evidence that CSU denied Dr. Washington tenure on the basis of her race. Although both Dr. Washington and Dr. Bannan reviewed the publications of Drs. Washington and Mattingly, neither Dr. Washington nor Dr. Bannan declared that she had reviewed the entire tenure files of both Dr. Mattingly and Dr. Washington. CSU presented evidence that a professor's tenure file may include, among other items, previous reappointment letters, awards, commendations, student evaluations, course materials, in addition to five examples of professional growth in the form of published or accepted articles, seminars, or other speaking engagements. At most, the declarations reflect a "second-guessing of [a] legitimate academic judgment[]" (University of Pennsylvania v. E.E.O.C., supra, 493 U.S. at p. 199), rather than evidence that CSU denied tenure to Dr. Washington because of her race.

Finally, the EEOC "reasonable cause" letter does not create a triable issue of fact. In Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1283-1284 (Coleman), the court explained that EEOC "reasonable cause" letters have little probative value when they contain bare conclusions:

"The EEOC letter in this case stated simply that 'The Commission's investigation finds reasonable cause to believe that [Quaker] has violated the [ADEA]. The Commission further finds that employees over the age of 40, as a class, were laid off in violation of [ADEA].' It is impossible from this letter to know what facts the EEOC considered and how it analyzed them. Examining similarly conclusory EEOC letters, other circuits have concluded that when the letters only report 'bare conclusions,' they have little probative value. [Citations.] In previous cases, we have upheld summary judgment in cases in which the EEOC itself has brought suit. [Citation.] If the EEOC's suing is insufficient to create a genuine issue of material fact, then, a priori, a conclusory EEOC reasonable cause letter, at least by itself, does not create an issue of material fact."

In this case, Dr. Washington's EEOC letter states simply, "Examination of the evidence reveals reasonable cause to believe that [Dr. Washington's] claim of denial of tenure is true and that [CSU] discriminated against [Dr. Washington] on the basis of her race/sex combined and in retaliation for previous complaints." The letter does not set forth the basis of its conclusion or any other facts that would create a triable issue of fact. We agree with the analysis in Coleman, and conclude that Dr. Washington's EEOC letter does not create a triable issue of fact.

In summary, Dr. Washington failed to present evidence sufficient to permit a trier of fact to find that CSU denied her tenure because of her race. Accordingly, we conclude that CSU is entitled to summary judgment on Dr. Washington's claim of employment discrimination.

C. CSU is entitled to summary judgment on Dr. Washington's claim of

retaliatory employment discrimination

Dr. Washington claims the trial court erred in granting CSU summary judgment on her claim that CSU retaliated against her for complaining about racial discrimination at SDSU.

1. General principles of law applicable to a retaliatory employment

discrimination claim

Section 12940, subdivision (h) makes it an unlawful employment practice "[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Employment discrimination on the basis of race is among the forbidden practices referred to in section 12940, subdivision (h). (See § 12940, subd. (a).)

In Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 (Yanowitz), in reviewing a trial court's granting of a motion for summary judgment in favor of a defendant employer, the Supreme Court outlined the respective burdens applicable to a retaliation claim under section 12940, subdivision (h):

"Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation 'drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Yanowitz, supra, 36 Cal.4th at p. 1042.)

The Yanowitz court also stated, "[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim." (Yanowitz, supra, 36 Cal.4th at p. 1052.) Therefore, it is appropriate to consider a plaintiff's allegations of retaliatory conduct collectively. (Id. at p. 1056.)

2. Dr. Washington's allegations of retaliation

Dr. Washington contends she engaged in five acts of protected activity: (1) participating in disputes over racial issues in the NWSA with Dr. Zimmerman "soon after she was hired"; (2) protesting the Department's initial decision not to hire an Asian woman as a teaching assistant in April 1999; (3) raising concerns about racial discrimination during a May 2000 mediation between Dr. Washington and her colleagues in the Department; (4) complaining to the SDSU Chancellor's office in November 2000 about discrimination in the Department; and (5) filing a complaint in March 2001 with the human resources department alleging that her 2000 reappointment evaluations and the chairperson's handling of two student complaints against Dr. Washington reflected retaliation against her for raising complaints of racial discrimination.

Dr. Washington claims she suffered numerous adverse employment actions as a result of her protected activities. First, she contends that as a result of her 1999 protest regarding the Department's initial refusal to hire the Asian graduate student, Dr. Cayleff criticized Dr. Washington, demanded that she undergo counseling, refused to provide support for her to attend a conference in a foreign country, falsely accused her of sabotaging a conference, changed her teaching assignments, threatened to take away her use of desired classrooms, and failed to present her with an award she had earned. Second, Dr. Washington claims that as a result of her complaints of racial discrimination at the May 2000 mediation, her colleagues yelled at her, and then "evaluated her unfairly, or at least harshly." Third, as a result of all of her complaints of racial discrimination, CSU denied her tenure in May 2002. Dr. Washington contends this evidence demonstrates a "pattern of antagonism" and adverse actions following her complaints of discrimination in the Department.

3. The record does not contain evidence sufficient to create a triable issue

of fact as to whether CSU retaliated against Dr. Washington for

complaining about racial discrimination

We consider the evidence pertaining to Dr. Washington's contentions of retaliation both individually and cumulatively. To begin with, Dr. Washington failed to present any evidence that CSU retaliated against her for her participation in disputes over racial issues in the NWSA, a professional organization unaffiliated with CSU. Similarly, assuming for the sake of argument that Dr. Washington presented sufficient evidence that the Department initially refused to hire an Asian student for racially discriminatory reasons,^[12] and that Dr. Washington opposed the Department on this issue, she failed to present sufficient evidence that the Department took any adverse employment action in retaliation. In her statement of undisputed facts, Dr. Washington stated that Dr. Cayleff responded to Dr. Washington's protest over the initial refusal to hire the student by criticizing Dr. Washington. Dr. Washington also claimed that later that month, Dr. Cayleff "ordered" her to undergo counseling, but then changed that direction to a suggestion after Dr. Washington requested that the direction be put in writing. Neither of these actions materially affected the terms, conditions, or privileges of Dr. Washington's employment so as to be actionable. (See Yanowitz, supra, 36 Cal.4th at p. 1052.) The remainder of the actions alleged to have been taken by Dr. Cayleff all occurred in late 1999 (initially denying her support to attend a conference), early 2000 (accusing her of sabotaging a conference, changing her teaching assignments, and threatening to take away certain classrooms ), or 2001 (failing to give Dr. Washington an award she had earned). In view of the lack of a temporal nexus or any other evidence linking these actions to the dispute over the hiring of the Asian student, Dr. Washington failed to present evidence that "a causal link existed between the protected activity and the employer's action." (Yanowitz, supra, 36 Cal.4th at p. 1042.)

With respect to Dr. Washington's complaints about racial discrimination in May 2000, November 2000, and March 2001, Dr. Washington contends that she received unfair, or at least, harsh evaluations and that she ultimately was denied tenure in retaliation for her complaint.^[13] However, her November 2000 RTP committee and Chair reappointment letters and the tenure denial letters in 2001 merely reflect criticisms of Dr. Washington's scholarly record that existed prior to 2000. As discussed in detail in part III.B, ante, Dr. Washington was warned repeatedly throughout her career to improve her scholarly record. There was no marked change in the evaluations that were completed after her complaints of discrimination. Further, Dr. Washington was reappointed for an additional year of teaching in May 2001, after she complained about racial discrimination in May 2000, November 2000, and March 2001. Accordingly, we conclude that Dr. Washington failed to present sufficient evidence of a causal link between any protected activity and CSU's action to establish a prima facie case of retaliation. (Cf. Chen v. County of Orange (2002) 96 Cal.App.4th 926, 931 [concluding plaintiff failed to present sufficient evidence of causal connection between discrimination complaint and failure to promote where "there were obviously good and legitimate reasons not to promote her"]); compare with Yanowitz, supra, 36 Cal.4th at p. 1060 [holding "[m]onths of unwarranted and public criticism of a previously honored employee, an implied threat of termination, contacts with subordinates that only could have the effect of undermining a manager's effectiveness, and new regulation of the manner in which the [plaintiff] oversaw her territory" in the months following an employee's refusal to fire another employee on the ground that she was not sufficiently physically attractive, constituted evidence sufficient to create a triable issue of fact on employee's retaliation claim].)

Even assuming for the sake of argument that Dr. Washington presented sufficient evidence to establish a prima facie case of retaliation, CSU presented sufficient evidence of a legitimate, nonretaliatory reason for any adverse employment actions, namely Dr. Washington's deficient scholarly performance. Although Dr. Washington contends that this rationale is unworthy of belief for reasons we rejected in part III.C, ante, she provides no independent argument for why this is so. Therefore, even assuming for the sake of argument that Dr. Washington presented sufficient evidence of a prima facie case of retaliation, CSU is entitled to summary judgment given its presentation of an unrebutted nondiscriminatory rationale for its actions.

In summary, whether viewing Dr. Washington's evidence of retaliation individually or "collectively" (Yanowitz, supra, 36 Cal.4th at p. 1056), Dr. Washington failed to present a pattern of retaliatory behavior. Accordingly, we conclude CSU is entitled to summary judgment on Dr. Washington's retaliation claim.

IV.

DISPOSITION

The judgment is affirmed. CSU is entitled to costs on appeal.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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^[1] SDSU is operated by CSU.

^[2] In light of the procedural posture of this case, i.e., the trial court's granting of a motion for summary judgment, "we view the evidence in the light most favorable to the party opposing the motion . . . ." (Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1150 (Slatkin).)

^[3] Professors in the Department who are not tenured are evaluated annually for reappointment for the following year through a tiered evaluation process that includes evaluations by their peers in the Department (the RTP committee), the chairperson of the Department, the Dean of the College of Arts and Letters, a committee of professors from the SDSU College of Arts and Letters, and the Provost of SDSU. As part of this process, professors without tenure receive an annual written evaluation from the RTP committee.

^[4] It is not entirely clear from the record whether Ms. Moss worked for SDSU or CSU, but the distinction is not material for purposes of this appeal.

^[5] Dr. Zimmerman was formerly a member of the Department.

^[6] Dr. Washington does not contest the trial court's ruling granting CSU judgment on her equal pay claim.

^[7] Although Dr. Washington made numerous other allegations in her complaint in her cause of action for employment discrimination, the trial court's order granting summary judgment and Dr. Washington's appeal in this court on this claim focus exclusively on the issue whether CSU denied her tenure on the basi