UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roslyn K. Chavda, Ph.D.

v. Civil No. 13-cv-078-LM Opinion No.

University System of the State of New Hampshire

O R D E R

In a case that has been removed from the Rockingham County

Superior Court, Roslyn Chavda, a former assistant professor at

the University of New Hampshire (“UNH”),1 has sued in four

counts, asserting claims captioned: (1) racial discrimination

(Count I); (2) gender discrimination (Count II); (3) status

retaliation (Count III); and (4) public policy (Count IV).

Counts I-III have been brought under both Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New

Hampshire’s Law Against Discrimination, N.H. Rev. Stat. Ann.

(“RSA”) ch. 354-A. The discrimination claims Chavda asserts in

Counts I and II are based upon allegations that she was

subjected to a hostile work environment and ultimately

discharged because of her race and gender. Count IV is a claim

for wrongful discharge, under the common law of New Hampshire.

1 In this order, the court uses the acronym “UNH” to refer both to the University of New Hampshire and to the defendant in this case, the University System of the State of New Hampshire. Before the court is defendant’s motion for summary judgment.

Plaintiff objects. For the reasons that follow, defendant’s

motion for summary judgment is granted.

Summary Judgment Standard

“Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law.” Ponte v. Steelcase Inc.,

(1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of

Corr.,

(1st Cir. 2010)); see also Fed. R. Civ.

P. 56(a). When ruling on a motion for summary judgment, the

court must “view[ ] the entire record ‘in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.’” Winslow v.

Aroostook Cnty.,

(1st Cir. 2013) (quoting Suarez

v. Pueblo Int’l, Inc.,

(1st Cir. 2000)).

“The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that

a trialworthy issue persists.” Sánchez-Rodríguez v. AT&T

Mobility P.R., Inc.,

(1st Cir. 2012) (quoting

Iverson v. City of Boston,

(1st Cir. 2006)).

Thus, “[c]onclusory allegations, improbable inferences, and

unsupported speculation, are insufficient to establish a genuine

2 dispute of fact.” Travers v. Flight Servs. & Sys., Inc.,

(1st Cir. 2013) (quoting Triangle Trading Co. v.

Robroy Indus., Inc.,

(1st Cir. 1999)). “Rather,

the party seeking to avoid summary judgment must be able to

point to specific, competent evidence to support his [or her]

claim.” Sánchez-Rodríguez,

(quoting Soto-Ocasio

v. Fed. Ex. Corp.,

(1st Cir. 1998)) (internal

quotation marks omitted).

Background

Roslyn Chavda is African American. From the fall semester

of 2006 through the spring semester of 2012, she was employed by

UNH as an assistant professor in the political science

department (“department”). Her primary teaching

responsibilities were in the department’s Master of Public

Administration (“MPA”) program, which was directed by Dr. Mel

Dubnick. He, in turn, had been a member of Chavda’s

dissertation committee in graduate school and was instrumental

in bringing Chavda and her husband to UNH.

When Chavda was hired, UNH was in the midst of a hiring

freeze. However, the department was able to get around the

freeze, and hire Chavda, because of her race and UNH’s ongoing

efforts to enhance racial diversity on campus. The role of

Chavda’s race in her hiring was mentioned at the meeting where

3 the faculty voted to hire her. When asked to explain what she

meant by calling her race a “reference point” for her colleagues

in the department, Chavda offered this clarification:

A. I think it [race] was an issue for most of them.

Q. Okay. Why do you think that?

A. I think – and again I have no evidence for this. I think my race set me apart from them, not from my perspective but from theirs. . . .

. . . .

A. I think it meant that they . . . gave me a little bit less support because I wasn’t exactly like them.

Q. Gave you a little less support. What do you [mean] . . .

A. At no point did they attempt . . . to . . . help me with teaching, help me with publishing, take me under their wing. I think they made me feel like an other. Now, was that because I was a black woman? Was that because I . . . was pregnant? Was that because – I don’t know. I have no idea, but I mean that’s what I think.

Def.’s Mem. of Law, Van Oot Aff., Ex. 1, Chavda Dep., Sept. 3,

2013 (doc. no. 10-16) 50:23–51:20. Later in her deposition, she

reiterated the point: “I think the entire time that I’ve been at

UNH, I had no idea how race factored into any of this. I had no

idea how gender factored into it.” Id. at 208:11-14.

When Chavda arrived on campus, she was pregnant with twins.

Her pregnancy resulted in complications for both Chavda and her

4 babies, including premature delivery. Those complications

forced Chavda out of the classroom for several weeks, and her

classes were covered by other faculty members, including her

husband. In the spring of 2007, Chavda had a conversation with

Dubnick concerning her pregnancy that she describes in the

following way:

Q. . . . [Y]ou told him [department chair Dr. Warren Brown] that you had just had a conversation with Mel Dubnick –

A. Uh-huh.

Q. – who told you that you had screwed everything up by getting pregnant?

A. Yep.

Q. And that everybody was pissed at you, and they were sure that you had done it on purpose.

A. Uh-huh.

Q. Is that right?

A. That’s correct.

Q. Okay. And then Mel told you that, quote, they had plans that they were not going to be able to fulfill because you were unable to do what you – what had been planned for you?

A. Uh-huh.

Q. Is that right?

A. Yes, that’s correct.

Chavda Dep. 90:11-91:5.

5 The terms of Chavda’s employment were governed by a

collective-bargaining agreement between the American Association

of University Professors and UNH. Generally speaking, that

agreement provided that non-tenured faculty members such as

Chavda: (1) worked under renewable one-year appointments; and

(2) were evaluated annually by their departments to assess their

progress on the path toward tenure.

Chavda’s appointment was renewed four times, based upon:

(1) evaluations and recommendations from the department’s

promotion and tenure committee (“P&T Committee”); and (2)

separate recommendations from the department’s chair. In April

of 2011, following the recommendations of both the P&T Committee

(by a 7-1 vote), and the department’s chair, UNH did not renew

Chavda’s appointment. Instead, it offered her a one-year

terminal contract for the 2011-2012 academic year, thus removing

her from the tenure track. The reasons given for that decision

were her uneven performance as a teacher and her failure to

publish a sufficient amount of peer-reviewed research. Chavda

concedes that her publication record was considerably weaker

than those of two other junior faculty members in the

department, both women, who received tenure at about the same

time she was removed from the tenure track. And, undisputed

evidence from student evaluations confirms that Chavda’s ratings

6 were consistently lower than those of other similarly situated

junior faculty members.2 In recognition of the difficulties

Chavda encountered during her first year at UNH, as a result of

her pregnancy, that year was not counted against her “tenure

clock,” which is the amount of time generally given to a junior

faculty member to compile a record of teaching, scholarship, and

service sufficient to merit an award of tenure.

Based upon the foregoing, Chavda sued in four counts,

asserting claims for race discrimination, gender discrimination,

retaliation, and wrongful discharge.

Discussion

In her surreply, Chavda concedes that UNH is entitled to

judgment as a matter of law on the retaliation claim she

asserted in Count III. Accordingly, the following discussion is

limited to Chavda’s discrimination claims (Counts I and II) and

her claim for wrongful discharge (Count IV).

2 Specifically, Chavda’s average score on the question used by the P&T Committee to evaluate teaching effectiveness was 3.98, while the two colleagues who were granted tenure had scores of 4.55 and 4.65, and another colleague, who, like Chavda, was recommended for removal from the tenure track, had an average score of 4.53. See Doc. No. 18-19, at DEF 002735.

7 A. Discrimination

Chavda asserts claims for race discrimination (Count I) and

gender discrimination (Count II) under both Title VII and RSA

354-A. “Because the New Hampshire Supreme Court relies on Title

VII cases to analyze claims under RSA 354-A, the court will

address [Chavda’s state and federal] claims together using the

Title VII standard.” Hubbard v. Tyco Intg. Cable Sys., Inc.,

(D.N.H. 2013) (quoting Hudson v. Dr.

Michael J. O’Connell’s Pain Care Ctr., Inc.,

(D.N.H. 2011)).

In Count I, Chavda states her race-discrimination claim

this way: “As a direct and proximate cause [sic] of her race,

Dr. Chavda was subjected to a hostile environment and,

ultimately, discharged.” Compl. (doc. no. 1-1) ¶ 26. She

states her gender-discrimination claim in a similar way. That

is, Chavda claims that animus based upon her race and gender

“created an attitude of hostility that, from the very outset of

her employment, doomed her efforts to succeed.” Pl.’s Mem. of

Law (doc. no. 12-1) 10. In her objection to summary judgment,

she describes that hostility as consisting of: (1) heightened

scrutiny of her performance; and (2) assessments of her student

evaluations that, in her view, unfairly failed to take into

account the fact that the students she taught in the MPA program

8 were more likely than other students to complain about their

professors due to their own academic deficiencies. The

principal forms of hostility she identifies in her deposition

are the failures of her senior colleagues to: (1) give her

advice on teaching; (2) invite her to write scholarly papers

with them; or (3) tell her about publication opportunities that

might be available to her. Her theory is that because the

workplace hostility that precluded her from satisfying the

requirements for earning tenure was based upon her race and

gender, her removal from the tenure track was an act of race and

gender discrimination. UNH is entitled to judgment as a matter

of law on Chavda’s discrimination claims.

1. Race Discrimination (Count I)

As Chavda concedes, this is not a case that involves any

acts of hostility that directly demonstrate race-based animus.

Rather, she argues that “[u]nlike a hostile environment where

racial epithets were hurled, or she was directly impugned due to

her childbirth, the academics exercised their bias in the

confines of the P&T Committee.” Pl.’s Mem. of Law (doc. no. 12-

1) 10. She elaborates: “[U]nlike the typical situation where

those creating the hostile atmosphere at least have the courage

to do so directly, these academics chose the cloistered

9 deliberations of the P&T Committee to hurl their venom, then

couch[ed] their ‘conclusions’ in the antiseptic verbiage of the

annual reviews, largely leaving Chavda to guess why her efforts

to improve were fruitless.” Id. at 12-13. That argument fails

for several reasons.

First, Chavda has provided no legal support for her theory

that a person can be harassed, for purposes of a hostile-work-

environment claim, by words or deeds of which she is entirely

unaware. And, as a practical matter, it would appear all but

impossible for Chavda to establish that race- or gender-based

conduct by the P&T Committee that was hidden from her “was both

objectively and subjectively offensive, such that a reasonable

person would find it hostile or abusive and [that she] in fact

did perceive it to be so,” Ponte,

(quoting

Forrest v. Brinker Int’l Payroll Co.,

(1st

Cir. 2007)), which is one of the elements of a hostile-work-

environment claim.

Second, Chavda has produced no evidence of any racial

animus on the part of any of her colleagues in the political

science department. She has produced evidence that her

colleagues knew that the only reason the department was able to

hire her was her race. But, she has not produced any evidence

that any member of the department was displeased by the

10 circumstances of Chavda’s hiring or harbored any animosity

toward African Americans specifically or people of color

generally. Although she refers to “venom” hurled by her

colleagues, the only venom of which she provides any evidence

consists of comments about her deficiencies in teaching,

scholarship, and interactions with colleagues in the department.

And, while she has produced evidence that several of her

colleagues harbored serious doubts about her competence long

before she was removed from the tenure track, none of those

internal P&T Committee communications give any indication that

her colleagues harbored racial animus. Rather, they tend to

mirror the “antiseptic verbiage of the annual reviews,” Pl.’s

Mem. of Law (doc. no 12-2) 13, that Chavda characterizes as

camouflage for racial animus.

Finally, no reasonable jury could be persuaded by Chavda’s

disparate-treatment argument based upon the manner in which the

P&T Committee treated her, as contrasted with the way it treated

three white colleagues who were in approximately the same

position on the tenure track. Of those three, the two who were

granted tenure had: (1) publication records that were “head and

shoulders better than [Chavda’s],” Chavda Dep. 222:5-6; and (2)

student evaluations that were substantially better than

Chavda’s, see Doc. No. 18-19, at DEF 002735-36.

11 Chavda’ third purported comparator, Andrew Smith, was not

granted tenure, which would appear to diminish his value as a

comparator in a disparate-treatment argument where the adverse

employment action was UNH’s decision to remove Chavda from the

tenure track. Chavda, however, identifies three differences in

the way she was treated vis-à-vis Smith.

First, she argues that while the P&T Committee recommended

that both she and Smith be removed from the tenure track, the

committee subjected her performance to more scrutiny than

Smith’s. Because both Chavda and Smith had similarly thin

records of scholarly research, and Smith, in fact, had stronger

student evaluations, Chavda’s differential-scrutiny argument

goes nowhere. She also argues that Smith was given extra time

at the end of his tenure clock, presumably to improve his record

of scholarship. But, it is undisputed that she herself was

given an extra year at the start of her tenure clock, so as not

to penalize her for her difficult first year.

Finally, Chavda notes that after Smith left the tenure

track, he continued to be employed by the political science

department as a part-time, non-tenure-track, affiliated

associate professor, and she was not. But, as to that bit of

disparate treatment, Chavda and Smith were not similarly

situated. Before and during his stint as a tenure-track

12 assistant professor (which was also part-time), Smith was the

director of the UNH Survey Center, and he continued in that

position after he left the tenure track. Given that fact,

Chavda and Smith were not situated similarly enough to turn

Smith’s appointment as an affiliated professor into evidence of

racial bias against Chavda. See Garcia v. Bristol-Myers Squibb

Co.,

(1st Cir. 2008) (“To successfully allege

disparate treatment, a plaintiff must show ‘that others

similarly situated to [her] in all relevant respects were

treated differently by the employer.’”) (quoting Koseris v.

Rhode Island,

(1st Cir. 2003)).

The bottom line is this. UNH is entitled to judgment as a

matter of law on the race-discrimination claim Chavda asserts in

Count I.

2. Gender Discrimination (Count II)

Count II stands on much the same footing as Count I. The

only real difference is the conversation in which MPA director

Mel Dubnick expressed his opinion that Chavda had “screwed

everything up by getting pregnant.” That comment is

insufficient, by a wide margin, to establish that Chavda’s

removal from the tenure track was a result of gender

discrimination. It was a single comment, made by a non-

13 decisionmaker,3 more than four years before the employment action

on which Chavda bases her gender-discrimination claim.

Moreover, while Chavda characterizes Dubnick’s comment as

expressing gender-based animus that took root at the very outset

of her employment and animated every evaluation of her

performance, that theory does not account for the fact that on

three separate occasions, prior to its 2011 recommendation

against renewing Chavda’s appointment, the P&T Committee voted

to recommend renewing Chavda’s appointment and keeping her on

the tenure track.

In sum, Chavda has failed to produce evidence from which a

reasonable jury could conclude that her removal from the tenure

track resulted from gender-based animus. Accordingly, UNH is

entitled to judgment as a matter of law on the gender-

discrimination claim Chavda asserts in Count II.

B. Wrongful Discharge (Count IV)

Count IV is Chavda’s claim for wrongful discharge. The New

Hampshire Supreme Court has recently described that cause of

action:

3 To clarify, Dubnick did have one vote on the eight-member P&T Committee, but the Committee’s recommendation was the first step in a process that involved multiple evaluations and recommendations before any actual decision was made.

14 The prevailing rule in New Hampshire is that, absent an agreement to the contrary, employment contracts are “at-will,” meaning that “both parties are free at any time to terminate the employment relationship, with or without cause.” Porter v. City of Manchester,

(2004) (quotation and brackets omitted). An exception to the “at-will” rule is that even at-will employees may pursue a cause of action in tort for wrongful discharge. See

at 37– 39. In order to succeed on a wrongful discharge claim, a plaintiff must establish two elements: (1) that the discharge was “motivated by bad faith, retaliation or malice”; and (2) that the plaintiff was discharged “for performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” Karch v. BayBank FSB,

(2002). “Although ordinarily the issue of whether a public policy exists is a question for the jury, at times the presence or absence of such a public policy is so clear that a court may rule on its existence as a matter of law, and take the question away from the jury.” Short v. School Admin. Unit 16,

(1992) (citation omitted).

Leeds v. BAE Sys.,

(2013).

The court begins by noting that in this case, Chavda had

accepted an appointment that specified the duration of her

employment, which calls into question her status as an at-will

employee. Thus, it is not at all clear that a cause of action

for wrongful discharge is even available to Chavda. Cf. Dillman

v. N.H. Coll.,

(2003) (holding that

reasonable jury could conclude that letter of appointment issued

by academic institution, that included a duration provision, was

an employment contract sufficient to support an action for

breach of contract when employee was discharged prior to

15 expiration of the term specified in the appointment). But,

because UNH does not raise this issue and, in fact, presumes

that Chavda was an employee at will, the court will make the

same presumption.

Count IV falters on the second element. In her complaint,

Chavda asserts that her “termination by UNH was a direct and

proximate result of her attempts to enforce academic standards

and thereby improve UNH’s MPA program, a policy encouraged by

the State of New Hampshire.” Compl. (doc. no. 1-1) ¶ 32. In an

interrogatory answer, Chavda had this to say about the sources

of the public policies underlying the second element of her

wrongful-discharge claim:

Public policy discourages penalizing performance based on dramatically disparate standards of evaluation.

Public policy encourages procreation and I suffered loss of standing and stature as a result of my . . . giving birth, which standing and [stature] could not be repaired, ultimately resulting in my discharge[.]

Def.’s Mem. of Law, Van Oot Aff., Ex. 1, Chavda Dep., Ex. 4

(doc. no. 10-16), at 22. In response to UNH’s argument that

“[t]he status . . . of being a female employee who has given

birth to a child, while protected by public policy (including

Title VII and RSA 354-A), is not an act by an employee that will

satisfy the ‘public policy’ prong of a wrongful termination

16 claim,” Def.’s Mem. of Law (doc. no. 10-1) 26, Chavda makes the

following argument:

Setting aside whether or not pregnancy is akin to sickness, disability and age, that is simply not Chavda’s claim. Rather, it was the act of giving birth, and the perceptions that she was not performing that flowed from that act, upon which she relies. The informality of the arrangements for class coverage, and her efforts to balance work, birth and premature twins because she was never told of the availability for maternity leave, . . . magnified the negative perception of this individual who was already faced with the Departmental knowledge that, but for her race, she would not have been hired.

Pl.’s Mem. of Law (doc. no. 12-1) 15;4 see also Pl.’s Surreply

(doc. no. 21) 6 (explaining that Chavda “claims that, as a

result of having given birth, she was perceived as failing to

adequately perform her job, which worked to her considerable

detriment and colored the perception of her performance

throughout her employment”).

There are several problems with Chavda’s argument. First,

despite having been asked to identify the sources of the public

policies underlying her claim, Chavda asserts that procreation

4 Based upon Chavda’s briefing, it is difficult to tell whether she has abandoned her reliance upon a public policy that “discourages penalizing performance based on dramatically disparate standards of evaluation.” Because the public-policy analysis applicable to a wrongful-discharge claim focusses on public-policy support for the actions or inactions of the plaintiff/employee, see Antonis v. Elecs. for Imaging, Inc., No. 07-cv-163-JL,

, at *3 (D.N.H. Nov. 25, 2008), whether public policy would support the manner in which UNH evaluated Chavda is irrelevant to her claim.

17 is an act encouraged by public policy, but offers no legal or

other support for that assertion. Even assuming that

procreation is an act supported by public policy, Chavda cannot

demonstrate that she was discharged for giving birth to her twin

children. On a purely temporal basis, no reasonable jury could

conclude that UNH removed her from the tenure track, in 2011,

because she gave birth in 2006. She was removed from the tenure

track, by all accounts, for her shortcomings in teaching and

scholarship. Moreover, Chavda does not even argue that those

shortcomings resulted from her having given birth. Rather, she

adds another link to the chain of causation, arguing that the

academic record that served as the basis for her removal from

the tenure track resulted, in one way or another, from negative

perceptions of her among her colleagues which, in turn, resulted

from her having given birth. That chain is far too long and far

too weak to support a claim for wrongful discharge that a

reasonable jury could resolve in Chavda’s favor.

Because Chavda cannot demonstrate that she was discharged

for giving birth, UNH is entitled to judgment as a matter of law

on the wrongful-discharge claim she asserts in Count IV.

18 Conclusion

For the reasons detailed above, UNH is entitled to judgment

as a matter of law on all three of Chavda’s claims. Thus, its

motion for summary judgment, document no. 10, is granted. The

clerk of the court shall enter judgment in accordance with this

order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

July 29, 2014

cc: Lawrence B. Gormley, Esq. Marth Van Oot, Esq.

19