Idit Dobbs-Weinstein, Plaintiff-Appellant/ Cross-Appellee v. Vanderbilt University, Defendant-Appellee

MOORE, Circuit Judge,

dissenting.

The majority holds that, even if Dean Venable discriminated against Professor Dobbs-Weinstein in declining to concur in the philosophy department’s tenure recommendation, Dobbs-Weinstein did not suffer an adverse employment action and may not recover under Title VII. This is so, the majority concludes, because Dobbs-Wein-stein ultimately received tenure and back pay after resorting to the University grievance process and filing suit. I disagree and respectfully dissent., I do not think that, as a matter of law, we can reject the assertion of an adverse employment action in this instance.

In January 1994 the Vanderbilt philosophy department voted to recommend that Dobbs-Weinstein be promoted to the tenured position of Associate Professor as of the conclusion of the 1993-94 academic year. In May 1994 Dean Venable declined to concur in this recommendation, and subsequently Dobbs-Weinstein was informed that her contract with the University would conclude on August 31, 1995. Although Vanderbilt ultimately granted Dobbs-Weinstein tenure and promotion, this did not occur until November 1995, well over a year after tenure otherwise *547would have been granted and several months after Dobbs-Weinstein’s contract terminated. As a result of the untimeliness of Vanderbilt’s internal review process (over a year passed between Dobbs-Weinstein’s filing of her grievance and the University’s ultimate action on that grievance) and the speed with which the expiration of her contract approached, Dobbs-Weinstein was forced to seek employment outside of the University, and the disclosure of Vanderbilt’s initial decision to deny tenure inevitably became known within the academic community. Dobbs-Weinstein has offered evidence indicating that her academic reputation and prospects were damaged thereby. Thus, in addition to seeking interest on the back pay provided by the University, Dobbs-Weinstein seeks to recover for the reputational damage and the emotional harm suffered as a result of Dean Venable’s alleged discriminatory action.

Dobbs-Weinstein has alleged compensa-ble injuries under Title VII. “The goal of Title VII is to ‘make persons whole for injuries suffered on account of unlawful employment discrimination.’ ” Suggs v. ServiceMaster Educ. Food Management, 72 F.3d 1228, 1233 (6th Cir.1996) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)). This court has recognized that in making a plaintiff whole it often will be appropriate to award prejudgment interest, see Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1170 (6th Cir.1996), amended, 97 F.3d 833 (6th Cir.1996), and damages for emotional harm. See, e.g., Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir.1996). Similarly, a successful Title VII plaintiff should be compensated for reputational damage especially when it impacts on her employment or her future employability and advancement.

Despite the prospect of compensable damages, however, the majority concludes that Dobbs-Weinstein did not suffer an adverse employment action that could entitle her to relief under Title VII. The existence of an adverse employment action clearly is an element of a prima facie case under Title VTI, but this court has not before addressed the scope of this requirement in similar circumstances. In Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir.1996), however, we held that a Title VII plaintiff must demonstrate a materially adverse change in the terms or conditions of employment to make out a prima facie case. In Kocsis we determined that the reassignment of an employee which entailed no decrease in pay or benefits and no material change in duties did not constitute a materially adverse employment action. See id. at 886-87. Dobbs-Weinstein, by contrast, was denied tenure and was informed that her employment at Vanderbilt would end at the end of the academic year. Although this decision ultimately was reversed, the termination of Dobbs-Weinstein’s employment was not stayed pending the outcome of a lengthy review process. In this circumstance, I would hold that Dobbs-Weinstein suffered a materially adverse change in the terms or conditions of her employment.

The majority cites a number of cases from outside the circuit to bolster its contention that Dobbs-Weinstein did not suffer an adverse employment action. However, I find all of these cases to be distinguishable and some to be supportive of Dobbs-Weinstein’s position. In Page v. Bolger, 645 F.2d 227, 233 (4th Cir.) (en banc), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981), the court reasoned that only “ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating” are covered by Title VII. The selection of a review committee that would make hiring or promotion decisions, the court concluded, was only an “interlocutory or mediate decision[ ]” that does not implicate Title VII. See id. In a situation in which an employee has been given notice of termination and the clock is running, however, I would not think that the existence of a grievance *548procedure automatically transforms the tenure denial into an interlocutory decision for the purposes of Title VII.

In Howze v. Virginia Polytechnic & State University, 901 F.Supp. 1091, 1096 (W.D.Va.1995), a tenure candidate initially was denied tenure but on internal university review “was ultimately awarded her promotion and tenure and given pay and rank increases at the same time as other promotees.” (Emphasis added.) Thus, it could be fairly said that the decision complained of had “no effect on the ultimate outcome” and that the Howze plaintiff, unlike Dobbs-Weinstein, did not suffer an adverse employment action. See id.

In Davis v. City University of New York, No. 94 CIV. 7277(SHS), 1996 WL 243256, at *8 (S.D.N.Y. May 9, 1996), the plaintiff alleged that the defendants had delayed and attempted to block her award of tenure and promotion. The court held that there was no material adverse employment action, but the opinion does not indicate whether the delay was serious, and the only adverse effect claimed by the plaintiff was anxiety. See id. at *9.

Finally, in Negussey v. Syracuse University, No. 95-CV-1827, 1997 WL 141679, at *6-12 (N.D.N.Y.1997), the court held that a nine-month delay in a grant of tenure did not constitute an adverse employment action. In its analysis, however, the Negussey court focused on whether the plaintiff had suffered any injuries in the course of the appeal process and concluded that he had not. See id. at *10-12. The court noted, however, that injury to professional reputation could constitute an adverse employment action for a university professor. See id. at *11. Dobbs-Weinstein, by contrast, has raised credible allegations of damage to professional reputation. Moreover, the eighteen-month interval between the initial denial of tenure and the ultimate award in Dobbs-Wein-stein’s case seems excessive. See id. at *12 (remedial action that is insufficiently prompt can constitute an independent, actionable harm under Title VII).

Unlike the majority, I am not concerned that permitting Dobbs-Weinstein to go forward with her action will encourage premature litigation concerning adverse initial employment decisions. As long as an employer’s appeal or grievance process operates in a timely fashion, the employee generally will not suffer a materially adverse action. This is particularly true if the employer refrains from terminating the employee in the interim, but, even if the employee is wrongfully terminated, voluntary reinstatement and provision of back pay will limit or possibly even obviate the recovery of compensatory damages. Moreover, the filing of this lawsuit may have been a factor in bringing closure to a lengthy internal review process. In such a situation, the litigation is necessary and should not be discouraged.

For the foregoing reasons, I respectfully dissent.