Emory plans to file a motion for summary judgment in the H. Erik Butler discrimination case later this month, meaning a judge will determine whether sufficient evidence exists for the case to move to a jury trial, the University said in a statement to the Wheel. Meanwhile, a court document reveals Emory’s denials of many claims presented in Butler’s complaint.
In Butler’s 21-page lawsuit, filed in December 2012, he alleges that administrators denied him tenure in 2010 on the basis of his Jewish religion and his American national origin. The University, however, maintains that Butler was not granted tenure because of “legitimate concerns over his disruptive and antagonistic behavior,” according to an April 2013 complaint response obtained by the Wheel.
All of the case’s depositions and the “discovery” phase — which is when one party obtains evidence from the opposing party or a third party — have been completed, the University said via its communications office.
Emory will be permitted to file a brief of up to 35 pages in support of its motion for summary judgment, after which Butler will be able to submit a response of the same length, according to a court document.
Butler, an American Jewish male, was a German Studies assistant professor starting during the 2004-2005 academic year. He took an unpaid leave in fall 2007 and a paid leave in 2009.
Prior to filing his lawsuit, Butler filed discrimination charges with the American Association of University Professors (AAUP) and the Equal Employment Opportunity Commission (EEOC), both of which have criticized the University’s actions and supported Butler’s allegations in letters to administrators, the Wheel reported last January.
In the response, Emory also denies that the EEOC conducted a “fair, thorough or impartial” investigation of Butler’s claims.
Discrimination vs. Lack of ‘Collegiality’
Before administrators reviewed Butler’s file, the Tenure and Promotion Committee of the College found “a record of service that is solid at departmental, university and professional levels,” and voted unanimously to recommend Butler for tenure, according to Butler’s lawsuit.
However, Butler’s lawsuit alleges that former Provost Earl Lewis and University President James W. Wagner ultimately denied Butler tenure because of German Studies Department Chair and Associate Professor Peter Höyng’s “bias” against Butler.
Butler’s lawsuit says Höyng “framed” his criticisms of Butler as a lack of “collegiality.” In August 2009, Butler informed Emory through a letter from his attorney that Höyng was using collegiality concerns as a “subterfuge for engaging in ethnic discrimination.”
But Emory maintains that Höyng’s concerns “were founded on good faith and honestly held beliefs regarding the damage Dr. Butler’s unprofessional behavior could cause the Department,” the response to the complaint says.
For example, the complaint response says, Butler “was frequently and openly dismissive of his colleagues and the Department [of German Studies] as a whole.”
The complaint response also claims that some female faculty members were “offended” by a poster on his office door “that students and faculty alike might find misogynistic.” He removed the poster after a complaint from a colleague, the response says.
Some of Butler’s other colleagues shared similar “collegiality” concerns as Höyng, according to the complaint response, but disagreed about the weight that Butler’s behavior should play in the tenure process.
According to the response, some of these faculty members noted that Butler’s “negative attitude” might have occurred after he felt he was “treated unfairly” in his Fourth Year Review for tenure, in which Höyng raised the issue of collegiality.
Other faculty members in the department disagreed about when this behavior began, the response says.
“All [faculty] members agreed that it was difficult to reconcile [Butler’s] dismissive criticism of the Department with his valuable contributions to it,” according to the Department’s recommendation letter for Butler, as quoted in the response.
Four faculty members ultimately rated Butler’s service as “satisfactory,” while two — one of whom included Höyng — rated his service “unsatisfactory,” according to court documents.
Still, Butler’s lawsuit claims that Höyng’s criticisms in his Fourth Year Review contradict from the positive evaluation of Butler he gave in 2006-2007. The complaint response says collegiality is a requirement for tenure at Emory as well as at many higher education institutions across the country.
Additional Claims and Responses
Moreover, the lawsuit says Butler’s research focused on “dark episodes” of Germany’s history as well as xenophobia, or a fear of foreigners, and also mentions that Höyng is a “native German and is not Jewish,” unlike Butler who is American and Jewish.
The complaint response acknowledges that Höyng was born in Germany but notes that he is a U.S. citizen. While Höyng is not Jewish, the response adds, he has “actively supported the development of German/Jewish studies in the Department.”
Therefore, Emory denies the lawsuit’s allegation that Höyng discriminated against Butler for the topics he researched, the document says.
Emory also says in the complaint response that the University does not have enough evidence to form an opinion about the allegation that Lewis, Emory’s former provost, “horrified” members of the Departmental Tenure Review Committee when he arranged a telephone conference with them to discuss Butler’s case. That claim is therefore denied. The lawsuit describes Lewis’ action as a “highly unusual and inappropriate step” in the tenure review process.
Butler and the EEOC
The EEOC aims to enforce federal employment discrimination laws, according to its website.
Before approaching the EEOC, Butler filed a discrimination complaint to Emory’s Office of Equal Opportunity Programs (EOP), which found no discrimination after an investigation, according to Butler’s lawsuit.
However, in a March 2012 letter to the University regarding the matter, Director of the EEOC’s Atlanta District Office Bernice Williams-Kimbrough wrote that there is “reasonable cause” to conclude that Butler was denied tenure for discriminatory reasons.
Though Butler’s lawsuit says he had filed a “timely charge” of discrimination with the EEOC, the complaint response claims that Butler failed to submit the charge within the appropriate timeframe.
According to the EEOC’s website, a charge must be filed within 180 calendar days from the day the discrimination occurred.
Additionally, the EEOC opposed the deposition of David Hendrickson, an EEOC investigator, on “numerous grounds,” according to a court document.
A judge ruled that Hendrickson would be required to answer questions about internal discussions he may have had with EEOC attorneys but not on “privileged information or issues,” according to a court order. His deposition was completed last month.
— By Jordan Friedman
Updated Feb. 4 at 12:38 a.m.
Follow Jordan Friedman on Twitter @jmfriedman8