Full opinion text
MEMORANDUM AND ORDER VRATIL, District Judge. Karin Pagel Meiners, Ph.D. brings suit against her former employer, the University of Kansas, alleging that it retaliated against her on account of protected activity in violation of Title VII, 42 U.S.C. § 2000e et seq., and denied her due process of law in violation of 42 U.S.C. § 1983. The matter is before the Court on defendants’ Motion For Summary Judgment Against Plaintiff Pagel Meiners (Doc. #41) filed May 6, 2002 and Plaintiff’s Motion For Leave To File A Supplemental Memorandum In Opposition To Defendant’s [sic] Motion For Summary Judgment (Doc. # 50) filed July 19, 2002. For reasons stated below, the Court sustains both motions. Factual Background The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff. In August 1992, plaintiff signed a written notice of appointment and began working for the University of Kansas as a probationary tenure-track assistant professor for the academic year which ran from August 1992 to May 1993. In pertinent part, plaintiffs employment contract stated that “subject to all provisions of the laws of Kansas and of the regulations, policies, minutes and resolutions of the Board of Regents and of the University of Kansas,” the University offered plaintiff an appointment as Assistant Professor of Germanic Languages and Literature for the academic year beginning August 17, 1992. Exhibit 1 in Exhibits In Support Of Defendants’ Motion For Summary Judgment (“Defendants’ Exhibits ”) (Doe. # 43) filed May 6, 2002. The contract acknowledged that “in accordance with the regulations of the Board of Regents and of the University,” plaintiffs appointment could lead to review for permanent tenure. It stipulated that final tenure review and decision would occur no later than the sixth year of full time teaching and that tenure would accrue after seven years of full time teaching unless notice to the contrary was provided in accordance with University and Board of Regents regulations on advance notice of non-reappointment. Id. I. Policies Governing Tenure Robert Hemenway, Chancellor of the University, has the final decision whether to grant promotion and tenure. David Shulenburger, University Provost, oversees all matters relating to academic affairs. He is responsible for granting leave to tenure-track faculty members and independently recommends to the Chancellor whether promotion and tenure should be granted. Since 1993, the Chancellor has always followed Provost recommendations on those issues. The Kansas Board of Regents is the governing body of the University, which is subject to Board of Regents rules, regulations and policies, and which derives most of its authority from the Board of Regents. Since 1947, the Board of Regents has adopted written rules, regulations and policies which govern tenure. Faculty Handbook In 1992, when plaintiff received her initial appointment, the rules, regulations and policies on tenure were contained in the University’s Handbook For Faculty And Other Unclassified Staff (1990 ed.) (“Handbook ”). The Handbook contained tenure regulations which the Board of Regents had approved in 1947, based on the 1910 Statement of the American Association of University Professors (“1910 AAUP Statement ”), and amended in 1980, 1981 and 1982. The Handbook set forth the Board of Regents’ tenure regulation, which generally provided that “[ajfter the expiration of a probationary period, teachers ... should have permanent or continuous tenure, and their services should be terminated only for adequate cause,” and specifically provided that “[bjeginning with appointment to the rank of full-time instructor ... the probationary period should not exceed seven years, including within this period full-time service in all institutions of higher education.” Exhibit 4 in Defendants’ Exhibits (Doc. # 43) at 40-41. Additionally, the 1990 version of the Handbook, which was in effect when plaintiff received her initial appointment, stated that “[p]art-time service to the University in teaching, research, and administration does not count toward tenure.” Id. at 42. The Handbook was revised in 1997, and it again stated that “[p]art-time service to the University ... does not count toward tenure.” Exhibit 30 in Defendants’ Exhibits (Doc. # 43) at 61. The Handbook also contained Board of Regents rules, regulations and policies governing notice for the non-reappointment of faculty members. In relevant part, those policies provided that “[p]rior to the time that a faculty member attains continuous tenure, termination may be effected by administrative action, provided timely notice is given.” Exhibit 4 in Defendants’ Exhibits (Doc. # 43) at 43. In plaintiffs case, the University was required to send notice of non-reappointment at least twelve months before the expiration of her probationary period. Termination Procedure The Provost testified that consistent with AAUP guidelines, the University must decide at the end of a faculty member’s sixth year of full time service whether to terminate the employment relationship or grant tenure. He explained that the “six-year period of time gives you the opportunity to look at performance and make judgments about the future so that you don’t make a wrong decision when you move someone into a permanent faculty position.” Deposition Of David E. Shu-lenburger (Exhibit 5) in Plaintiff’s Appendix (Doc. #47) at 50:6-12. A tenured faculty member may only be terminated after a hearing. Policies On Interruption Of Probationary Period For Tenure-Track Faculty Effective April 24, 1997, the University adopted a written policy, on interruption of the probationary period for tenure-track faculty members. It generally provided that time on family and medical leave, nonscholarly leave without pay, and part time appointments might be excluded from the seven-year probationary period. The policy expressly stated that upon request, faculty on full time leave under the Family and Medical Leave Act for three consecutive months would receive an extension of the tenure clock for one year. In addition, the policy expressly stated that part time service did not count toward tenure. II. Plaintiffs FMLA Leave In Fall 1994 In August 1993, the State of Kansas had a policy which implemented the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, for all state employees. In March of 1994, plaintiff requested and received part time FMLA leave to care for her three-month old child. Plaintiffs leave consisted of a 40 per cent reduced work schedule from August 22 to December 8, 1994, which plaintiff covered by using 173.5 hours of paid sick leave and 62.9 hours of unpaid leave, for a total of 5.97 work weeks. The Provost testified that a faculty member on paid sick leave continues to be on full time service. In July 1994, after the University approved plaintiffs request for FMLA leave but before the leave commenced, plaintiff received an annual notice of continuing appointment for the 1994-95 academic year. Then-Chancellor Gene Budig signed the notice, which stated that plaintiffs appointment was “1.00 FTE.” Chancellor Hemenway testified that according to University custom and practice, the notice of continuing appointment will note if a faculty member is not on full time appointment for a given semester or year. On February 10, 1995, Dr. Keel wrote a letter to Shulenburger, who was then Vice Chancellor of Academic Affairs, stating that for FMLA leave plaintiff had been permitted to reduce her appointment by 60 per cent in the fall semester of 1994 but that she had resumed full time duties. The letter did not request an extension of the date for plaintiffs mandatory tenure review. On March 15,1995, however, Shu-lenburger notified plaintiff that her period of part time service did not count toward the seven-year probationary period and that the date of plaintiffs mandatory tenure review had been adjusted to reflect that change of status. Shulenburger specifically advised plaintiff that her review would occur no later than the 1998-1999 academic year. Shulenburger Letter (Exhibit 3) in Defendants’ Exhibits ■ (Doc. #43). III. Plaintiffs Reduced Appointment In Fall 1997 On March 3, 1997, plaintiff requested a 40 per cent reduction in her appointment for the fall semester of 1997 because of her husband’s death. She conferred with Dr. Keel and at that time she understood that “taking this reduction will automatically postpone the mandatory review by one year.” Pagel Letter (Exhibit 6) in Defendants’ Appendix (Doc. # 43). On March 28, 1997, the Provost approved plaintiffs request and again advised her that University regulations did not count part time service toward the probationary period. IV. Denial Of Plaintiffs Tenure And Request For Graduate Faculty Status In the spring of 1996, plaintiff received a pre-tenure review. During the 1999-2000 academic year, the University considered plaintiff for tenure and promotion to associate professor. It decided to deny tenure and promotion, however, and in March of 2000 plaintiff received a notice of non-reappointment and a terminal contract for the 2000-2001 academic year. In September 2000, plaintiff made a self-nomination for promotion and tenure, asking the University to rescind its notice of non-reappointment. As a result of her terminal contract, plaintiff was no longer eligible for membership on the graduate faculty. Plaintiff had one graduate student who was enrolled for the fall semester of 2000, however, and Dr. Keel requested that her graduate faculty status be extended through that semester. On October 26, 2000, the University approved this request. On September 26, 2000, plaintiff filed an administrative complaint with the Kansas Human Rights Commission (“KHRC”). Plaintiffs charge generally complained of her feeling that since her employment in May 1992, she had been subjected to continuous discrimination. Dr. Keel learned of plaintiffs charge in October 2000. On December 1, 2000, the Provost informed plaintiff that any further request to extend her graduate faculty status must originate with her department and receive the endorsement of the Dean of the College of Liberal Arts and Sciences. On January 2, 2001, plaintiff asked Dr. Keel to extend her graduate faculty status through the spring semester of 2001 so that she could continue work with her graduate student. Dr. Keel agreed to present plaintiffs request to the department’s Promotion and Tenure Committee, which consisted of himself and Professors Leonie Marx, Frank Baron and Ernst Dick. The committee unanimously decided not to endorse plaintiffs request, and on January 19, 2001, Dr. Keel advised her that as far as the department was concerned, the matter was closed. On January 4, 2001, plaintiff requested medical leave for the spring semester of 2001. Her physician had recommended that she take medical leave for the entire semester, but she requested 55 per cent leave because she did not think that she had sufficient sick leave to take a greater amount. On February 6, 2001, plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff alleged that (1) the University had denied her request for tenure and promotion on account of her sex and past opposition to discriminatory practices, and that (2) since that time, the University had engaged in a pattern of discrimination and retaliation, as evidenced by (a) its failure to properly handle her appeal of the decision on tenure and promotion; (b) its mishandling of her application for tenure and promotion; (c) its alteration of material terms of her employment; (d) its decision to remove her from graduate teaching status; and (e) its refusal to accept her doctor’s request for medical leave. In February or March 2001, plaintiff applied to the University Office of International Programs for a travel grant. According to Dr. Keel, plaintiff was not eligible for the grant because she no longer had graduate faculty status. In March of 2001, the University advised plaintiff that her notice of non-reappointment would not be rescinded. On April 24, 2001, the EEOC issued a “Dismissal and Notice of Rights” letter which stated that it had found no violation of any non-discrimination statute but advised plaintiff of her right to sue. On May 4, 2001, plaintiff wrote the Provost, alleging that the extensions of her probationary period in 1994 and 1997 involved administrative errors and that she was entitled to tenure. Specifically, plaintiff asserted that the University had erroneously extended her probationary period for one year, rather than one semester, on account of each one-semester leave of absence. Plaintiff calculated that with a one-year extension, her probationary period expired May 2000. Since she had not received notice of non-reappointment 12 months prior to that date, plaintiff asserted that she was entitled to tenure by default. In support of her position, plaintiff enclosed a letter dated April 26, 2001, which she had received from Dr. Martin Snyder, Associate Secretary of the AAUP, and a 1973 newspaper article which indicated that 11 faculty members at the University had received tenure in the spring of 1973 as a result of administrative error. In his letter to plaintiff, Dr. Snyder summarized his assessment of the situation by stating [b]y Association standards, you are completing the ninth year of full-time service at the University of Kansas and are, therefore, entitled to all the protections of tenure .... If the administration asserts that the tenure clock stops during a leave of absence, it is reasonable to argue that the two semesters should be added together to constitute one year of leave. In that ease, you would be in your eighth year of service and still entitled to the protections of tenure mentioned above. It does not seem to me reasonable that the [U]niversity should attempt to subtract two complete years from your full-time service and hold the position that you are now completing your seventh and final year of probation. Snyder Letter (Exhibit 18) in Plaintiffs Appendix (Doc. # 47). On May 18, 2001, the Provost sent plaintiff a letter which rejected her claim of tenure by default. Exhibit 22 in Defendants’ Appendix (Doc. # 43). His letter indicated that for each leave the University had added a year, rather than a semester, because the University had an annual schedule for promotion and tenure review and “[i]n order for your review to be conducted within the designated cycle, the adjusted date for your mandatory review reflected a fall year in response to your initial request [for leave].” Id. Regarding the newspaper article, the Provost referenced a report by his assistant, Jeanette Johnson, and advised that “there is no similarity between your circumstances and those that obtained in 1973.” Id. at 4. Plaintiff received eight annual notices of appointment from July 1992 through July 1999. Seven of them (all except the one for July 1997) indicate an appointment for 1.00 FTE. At his deposition, Chancellor Hemenway testified that “when you have had seven annual appointments at full-time status, then you have ended your probationary period.” Exhibit 3 in Plaintiffs Appendix (Doc. #43) at 11:23-25. According to Dr. Martin Snyder, the Associate Secretary of the AAUP, and Dr. Elmer Hoyer, former President of the Faculty Senate at Wichita State University and past president of the AAUP Kansas Conference, full time service should be calculated on a semester-by-semester rather than a year-by-year basis. The University terminated plaintiffs employment on May 19, 2001, at the end of her terminal contract. Plaintiff filed suit on July 20, 2001. Count I alleges that because she complained of discrimination and filed administrative complaints, defendants retaliated by removing her from the graduate faculty and denying her requests for reinstatement to the graduate faculty, in violation of Title VII, 42 U.S.C. § 2000e et seq. Count II alleges that because she complained of discrimination and filed administrative complaints, defendants retaliated by denying her request for tenure by default, thus terminating her relationship with the University, in violation of Title VII, 42 U.S.C. § 2000e et seq. Count III alleges that Hemenway and Shulenburger deprived her of due process under the Fourteenth Amendment and 42 U.S.C. § 1983. Defendants seek summary judgment on all claims. Defendants argue that they are entitled to summary judgment on plaintiffs retaliation claims (Counts I and II) because (1) removing her from the graduate faculty, denying her requests for reinstatement to the graduate faculty and denying her demand for tenure by default were not adverse employment actions which would support a claim of retaliation; (2) none of these actions, or plaintiffs termination, bear a causal connection to her protected activity; and (3) even if plaintiff can establish a prima facie case based on these claims, defendants had non-retaliatory reasons for their actions. Defendants also argue that they are entitled to summary judgment because any claim relating to the tenure clock extension in March 1997 is time-barred and plaintiff did not exhaust administrative remedies on any claim that she is entitled to tenure by default. Defendants further assert that they are entitled to summary judgment on plaintiffs Section 1983 claim because (1) the individual defendants are entitled to qualified immunity, (2) plaintiff did not have a property interest in her employment, and (3) plaintiff was not denied due process. Summary Judgment Standards Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505. The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City Of Watonga, Okla., 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the non-moving party to demonstrate that genuine issues remain for trial “as to those disposi-tive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on her pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241. The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party’s evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. “In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. Analysis I. Retaliation In Violation Of 42 U.S.C. § 2000e Counts I and II allege that because plaintiff filed administrative complaints of discrimination, defendants retaliated in violation of Title VII by removing her from the graduate faculty and denying her requests to be reinstated to the graduate faculty (Count I) and denying her requests for tenure by default and terminating her relationship with the University (Count II). Defendants also argue that they are entitled to summary judgment on Count II because any claim that defendants retaliated by denying plaintiff tenure by default is time-barred or plaintiff did not exhaust administrative remedies on that claim. Defendants also seek summary judgment on both retaliation claims because plaintiff cannot establish a prima facie case or show that their actions were pretexts for discrimination. A. Procedural Challenges Defendants argue that plaintiff cannot pursue a claim that they retaliated by denying her tenure by default because she did not timely file an administrative charge or exhaust administrative remedies on that claim. 1. Statute Of Limitations In Title VII actions, claims of discrimination under 42 U.S.C. § 2000e-5(e) must be filed with the EEOC or state agency within 300 days after an alleged act of discrimination. See Martinez v. Wyo., Dep’t Of Family Servs., 218 F.3d 1133, 1137 (10th Cir.2000) (citing Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993)). If plaintiff did not raise before the administrative agency every issue she now brings, any additional claim must be “reasonably related” to the claims that she did bring before the administrative agency. See Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir.1988). As noted above, plaintiff claims that because she engaged in protected activity, defendants denied her request for tenure by default. Defendants contend that the statute of limitations on this claim started to run on March 28, 1997, when the Provost sent plaintiff a letter which approved her request for a reduced appointment for the fall of 1997 and stated that her tenure review would occur in the 1999-2000 academic year instead of the 1998-99 academic year. In the alternative, defendants argue that the statute began to run in May 2000, at the conclusion of the seventh year of full time teaching, calculated on a semester-by-semester basis, when plaintiff alleges that she should have received tenure by default. Plaintiff contends that neither date is correct and that defendants’ retaliation and adverse employment action occurred on May 18, 2001—when the University denied her request for tenure by default. Count II alleges that because plaintiff engaged in protected activity on September 26, 2000 and February 6, 2001, defendants retaliated on May 18, 2001 by denying her request for tenure by default. The statute of limitations on that retaliation claim could not possibly run from March 28, 1997. Similarly, because the protected activity which serves as a predicate for Count II occurred after May 2000, the statute of limitations for retaliation could not run from May of 2000. In determining when an adverse employment action occurred, the Court looks to the time when the discriminatory acts occurred—in this case, the alleged retaliation. See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). The statute of limitations started to run on May 18, 2001 and plaintiffs retaliation claim as to tenure by default is not untimely. 2. Exhaustion Of Administrative Remedies Plaintiffs KHRC complaint of September 26, 2000 and plaintiffs EEOC complaint of February 6, 2001 did not mention the denial of tenure by default— either as the basis for a retaliation claim or as a substantive act of discrimination. Defendants therefore claim that they are entitled to summary judgment because plaintiff did not exhaust administrative remedies on any claim that they retaliated by denying her request for tenure by default. Plaintiff contends that exhaustion was not required because the retaliation claim was reasonably related to the administrative charges, in that the KHRC and EEOC charges caused defendants to retaliate by denying her claim for tenure by default. When adverse employment action is committed in retaliation for the filing of a charge of discrimination, plaintiff need not file an additional charge. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.1997). Defendants cite Dunegan v. City Of Council Grove, Kan., 77 F.Supp.2d 1192 (D.Kan.1999), to support their claim that charges of retaliation are not always reasonably related to other complaints in an EEOC charge. Indeed, that situation occurs when “a retaliatory act occurs prior to the filing of a charge and the employee fails to allege the retaliatory act or a retaliation claim in the subsequent charge.” Seymore, 111 F.3d at 799. Plaintiff alleges that defendants retaliated after she filed administrative charges, and her claims are not premised on retaliatory events that occurred before she filed her charges. Plaintiffs retaliation claim is reasonably related to her administrative charges, and defendants are not entitled to summary judgment on the theory that plaintiff failed to exhaust administrative remedies with respect to this retaliation claim. B. Plaintiffs Prima Facie Case Retaliation claims utilize the McDonnell Douglas burden-shifting methodology. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Shinwari v. Raytheon Aircraft Co., 215 F.3d 1337, 2000 WL 731782, at *8 (10th Cir. June 8, 2000); Smith v. Bd. Of Public Util., 38 F.Supp.2d 1272, 1285-1287 (D.Kan.1999); Benhardt v. Bd. Of County Comm’rs Of County Of Wyandotte, 9 F.Supp.2d 1252, 1261-63 (D.Kan.1998). Under the burden-shifting analysis, plaintiff first bears the burden of establishing a prima facie ease of discrimination. If she sets forth facts to establish a prima facie case, the burden shifts to defendants to rebut the presumption of discrimination by articulating a legitimate nondiscriminatory reason for the adverse employment decision. See Texas Dep’t. Of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); EEOC. v. Ackerman, 956 F.2d 944, 947 (10th Cir.1992). “At the summary judgment stage, it then becomes the plaintiffs burden to show that there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual — he. unworthy of belief.” Randle v. City Of Aurora, 69 F.3d 441, 451 (10th Cir.1995). If plaintiff makes out a prima facie case of discrimination and creates an issue of fact whether defendants’ reasons are pretextual, plaintiffs claim withstands summary judgment. See id. To state a prima facie case of retaliation under Title VII, plaintiff must show that (1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action contemporaneous with or subsequent to such opposition; and (3) a casual connection links the protected activity and the adverse employment action. See Penry v. Fed. Home Loan Bank Of Topeka, 155 F.3d 1257, 1263 (10th Cir.1998). Plaintiff can establish the causal connection by “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus v. United Tel. Of Kan., Inc., 683 F.2d 339, 343 (10th Cir.1982). Defendants concede that when plaintiff filed administrative complaints, she engaged in protected opposition to a Title VII violation. The first element of plaintiffs prima facie case is not in dispute. As to the second element, an adverse employment action is a tangible employment action that constitutes a significant change in employment status “such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Adverse employment actions are liberally defined, but the Court must analyze each alleged adverse action on a case-by-case basis after “examining the unique factors relevant to the situation at hand.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir.1998). Plaintiff alleges that because she filed administrative charges of discrimination, defendants removed her from the graduate faculty and denied her request for graduate faculty status for the 2000-2001 academic year (Count I), and denied her requests for tenure by default and terminated her relationship with the University (Count II). Defendants argue that as a matter of law, their actions (1) did not constitute adverse employment actions and (2) were not causally connected to her filing of administrative charges. 1. Adverse Employment Action a. Graduate Faculty Status In assessing whether denial of graduate faculty status constitutes an adverse employment action, the Court is guided by the Tenth Circuit ruling in Aquilino v. Univ. Of Kan., 268 F.3d 930 (10th Cir.2001). In Aquilino, plaintiff had been denied tenure and therefore had no right to be on a student dissertation committee or serve as a member of the graduate faculty. Id. at 934-35. Given her tenure situation, the Tenth Circuit found as a matter of law that plaintiffs removal from the graduate faculty and student dissertation committee did not constitute adverse employment actions. See id. (citing Sanchez, 164 F.3d at 532) (“we will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action”). It noted that the University’s actions had a de minimus effect on plaintiffs future employment opportunities, that they were normal incidents of the denial of tenure and that they merely altered her job responsibilities in the last months of her employment. Id. Plaintiff attempts to distinguish her case from Aquilino, arguing that she does not claim harm to future employment opportunities, but loss of eligibility for faculty travel grants. Plaintiff cites no evidence that with graduate faculty status, she was eligible for, and would have received, a travel grant. Furthermore, on these facts, loss of an opportunity to apply for a faculty travel grant does not constitute an adverse employment action. Indeed, denial of graduate faculty status and any corresponding ineligibility for faculty travel grants must be construed as normal incidents of the denial of tenure. This case is virtually indistinguishable from Aquilino, and defendants are entitled to summary judgment on Count I. The Court finds that as a matter of law, removing plaintiff from the graduate faculty and denying her request for an extension of graduate faculty status are not adverse employment actions. Therefore it does not consider whether these actions are causally connected to protected activity by plaintiff. b. Denial Of Tenure By Default Plaintiff argues that because she filed administrative charges of discrimination, defendants denied her tenure by default and terminated her employment with the University. Plaintiff contends that defendants’ refusal to rescind her notice of non-reappointment and to grant tenure by default is a significant change in her employment status which constitutes adverse action. Defendants claim that the denial of tenure by default had no effect on plaintiffs employment because she was already a terminal contract employee. Defendants cite Aquilino for the proposition that where merit-based tenure had been denied, denial of tenure by default is not a tangible employment action. In Aquilino, defendants had denied plaintiff merit-based tenure and later denied her requests for unpaid appointments as an ad hoc member of the graduate faculty and as an adjunct research associate with a university foundation. See 268 F.3d at 933. Plaintiff asserted that the later refusals constituted adverse employment actions since they harmed her future employment opportunities. Id. The Tenth Circuit disagreed, finding as a matter of law that they were normal incidents of the denial of tenure and, in the case of the ad hoc position, did not alter the terms and conditions of plaintiffs employment. Furthermore, plaintiff only relied on speculation and did not show that the denial of the research associate position, rather than the denial of tenure itself, harmed her future employment opportunities. Id. at 934-36. Although Aquilino is similar to the case at bar, the Court is not convinced that as a matter of law, the denial of tenure by default is qualitatively akin to the denial of an unpaid ad hoc graduate faculty position or an unpaid adjunct research associate position. In one sense, it is true that once the University denied plaintiffs bid for merit-based tenure, the denial of tenure by default did not make her worse off — she remained on a terminal contract. Failure to rescind an earlier employment decision does not typically give rise to another discrimination claim. See Haeberle v. Univ. Of Louisville, No. 01-44, 2002 WL 768316, at *1 (W.D.Ky. Apr.29, 2002) (refusal to reconsider tenure decision did not give rise to another discrimination claim); see also Nyhard v. U.A.W. Intern., 174 F.Supp.2d 1214, 1217 (D.Kan.2001). Therefore, if plaintiff were challenging defendants’ refusal to reconsider the merit-based tenure decision, that refusal would be a normal incident of the previous denial of tenure, and not a separate adverse employment action. In this case, however, plaintiff asserts that she was entitled to wora-merit-based tenure and that but for her protected activity, defendants would have disregarded the original tenure decision, rescinded her terminal contract, and granted her tenure by default. When the only acts of discrimination occur during the pendency of a tenure appeal and may have tainted the reconsideration'process, plaintiff may have a separate claim based on the reconsideration of her denial of tenure appeal. See Lim v. Trustees Of Ind. Univ., No. 99-0419, 2001 WL 1912634, at *27 (S.D.Ind. Dec.4, 2001). In this case, plaintiff alleges that defendants retaliated on account of protected activity which occurred after defendants’ decision on merit-based tenure. Furthermore, plaintiff seeks to vindicate a right to tenure which is not based on merit. Although defendants’ denial of tenure by default left plaintiff in no worse position than she already was in — on terminal contract with imminent termination—the denial of tenure by default is not a typical incident of the denial of merit-based tenure. On this record, the Court cannot find as a matter of law that defendants did not engage in adverse employment action when they denied plaintiffs request for tenure by default. A reasonable jury could find that irrespective of the merit of defendants’ original tenure decision, the decision to deny tenure by default was akin to a termination of plaintiffs employment. 2. Causal Connection The final element of plaintiffs prima facie case is a causal connection between her protected activity and defendants’ adverse employment action. Defendants contend that plaintiff has not shown a causal connection between the denial of tenure by default on May 18, 2001 and plaintiffs fifing of administrative charges on September 26, 2000 and February 6, 2001. Specifically, defendants contend that the time lapse between the fifing of plaintiffs last administrative charge and the denial of tenure by default (three and one half months) is insufficient to support a causal connection—particularly because plaintiff initiated the inquiry and thus controlled the- timing of the decision to deny her request for tenure by default. In support of her causal connection theory, plaintiff cites three pieces of evidence: (1) the temporal proximity between her protected activities of September 26, 2000 and February 6, 2001, and the adverse employment action of May 18, 2001; (2) a pattern of retaliatory conduct after she filed her first administrative charge on September 26, 2000, consisting of Dr. Keel’s refusal to endorse her request to extend her graduate faculty status on January 19, 2001 and defendants’ denial of tenure by default on May 18, 2001; and (3) the fact that defendants violated unwritten policies or practices regarding tenure by default. Plaintiff first relies on the temporal proximity between her KHRC and EEOC charges of September 26, 2000 and February 6, 2001, and the decision to deny her request for tenure by default on May 18, 2001. Unless the employer’s adverse action “is very closely connected in time to the protected conduct, the plaintiff will need to rely on additional evidence beyond mere temporal proximity to establish causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (citing Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir.1997)). On one hand, the Tenth Circuit has held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. See id. (citing Ramirez v. Okla. Dep’t Of Mental Health, 41 F.3d 584, 596 (10th Cir.1994)). On the other hand, it has held that a three-month period, standing alone, is insufficient. See id. (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997)). In this case, plaintiff relies on an eight month period between her KHRC charge and defendants’ decision to deny tenure by default and a three and one half month period between her EEOC charge and defendants’ decision to deny tenure by default. Based on Tenth Circuit precedent, these time periods by themselves are too long to sufficiently make a prima facie showing of causation. To establish a causal relationship between her protected activity and defendants’ denial of tenure by default on May 18, 2001, plaintiff next relies on a “pattern” of retaliatory conduct which began soon after she filed her KHRC charge of discrimination on September 26, 2000. The so-called “pattern” consists of two incidents: the denial of graduate faculty status on January 19, 2001 and the denial of tenure by default on May 18, 2001. The denial of tenure by default cannot logically be part of the pattern of retaliatory conduct which links plaintiffs protected activity to the denial of tenure by default. The Court therefore focuses on the University’s decision to deny plaintiff graduate faculty status on January . 19, 2001. Plaintiff can demonstrate a causal connection by demonstrating a pattern of retaliatory conduct that began soon after her protected activity and finally resulted in the denial of tenure by default. See Palmer v. Leawood S. Country Club, Inc., No. 97-2515, 1998 WL 724050, at *6 (D.Kan. Sept.9, 1998) (citing Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 329 (10th Cir.1996)). The graduate faculty decision, however, occurred almost four months after plaintiff filed her KHRC claim. It did not occur soon after plaintiffs protected activity. Moreover, this isolated decision does not evidence a pattern of retaliatory conduct. For purposes of establishing causation, plaintiff has not demonstrated a genuine issue of material fact with regard to a pattern of retaliatory conduct. Finally, plaintiff asserts that defendants violated unwritten policies or practices regarding tenure by default. Plaintiff refers solely to the fact that in 1973, the University granted tenure to 11 faculty members who had been hired under a five-year probationary period and did not receive timely notice of non-reappointment after the University switched to a seven-year probationary period. For obvious reasons, plaintiff is not similarly situated to any of these faculty members; the University did not lengthen the tenure track or otherwise change the tenure rules in any relevant respect during plaintiffs probationary period. Furthermore, the University’s treatment of these 11 faculty members reveals no unwritten policy or practice on the relevant issue in this case: whether less than full time teaching for one semester should extend the probationary period for one academic year or merely for one semester. Plaintiff cannot seriously contend that the University has an unwritten policy or practice of granting tenure by default in all cases which involve disputed probationary periods. Furthermore, it is not evident that “administrative errors,” rather than a change of policy, dictated the grant of tenure to the 11 faculty members in 1973. Most importantly, however, plaintiff has not explained how any violation of unwritten policy or practice reveals a causal relationship between her protected activity and defendants’ denial of tenure by default on May 18, 2001. Such a violation may be relevant to show pretext, but it does not establish a genuine issue of material fact with regard to causation. In summary, defendants are entitled to summary judgment because the record reveals no causal relationship between plaintiffs protected activity and defendants’ denial of her request for tenure by default. C. Legitimate Nondiscriminatory Reason/Pretext Even if plaintiff could establish a prima facie case, defendants are entitled to summary judgment because plaintiff has not offered sufficient evidence to establish that their proffered reason for denying her claim of tenure by default is pretextual. Defendants assert that they denied tenure by default because under their interpretation of University policies, plaintiff had not earned it. Defendants emphasize that in 1994 and 1997, plaintiff knew that the University had extended her tenure clock, yet she did not dispute either extension until the University had decided to deny her tenure based on merit. Defendants need not prove that their nondiscriminatory reason is true or litigate the merits of their reason; they only need to provide a nondiscriminatory reason that is specific and clear. See Palmer, 1998 WL 724050, at *6 (citing EEOC v. Flasher Co., Inc., 986 F.2d 1812, 1316 (10th Cir.1992)). Plaintiff concedes that if proven, defendants have a legitimate nondiscriminatory reason for their decision. In order to defeat defendants’ summary judgment motion, plaintiff must demonstrate a factual question whether defendants’ articulated reasons are a pretext for discrimination. The relevant inquiry is not whether defendants’ proffered reasons are correct, but whether defendants “honestly believed those reasons and acted in good faith upon those beliefs.” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.1999). When assessing a contention of pretext, the Court examines the facts as they appeared to the persons making the decision. See Doebele v. Sprint Corp., 157 F.Supp.2d 1191, 1216 (D.Kan.2001) (citing Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000) and Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir.1999) (manager’s perception of employee performance is relevant in determining pretext)). The Court may not second-guess the business judgment of the employer. See Simms v. Okla. ex rel. Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.1999). The relevant question is whether the reason articulated by the employer was the real reason for the challenged action. “While close temporal proximity between protected activity and an adverse employment action is a factor in determining pretext, that alone is not sufficient to raise a triable issue of fact.” Johnson v. Okla. ex rel. Univ. Of Okla. Bd. Of Regents, 229 F.3d 1163, 2000 WL 1114194, at *1 (10th Cir. Aug.7, 2000); see also Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260 (10th Cir.2001). A plaintiff typically makes a showing of pretext in one of three ways: (1) with evidence that defendant’s stated reason for the adverse employment action was false; (2) with evidence that defendant acted contrary to a written company policy; or (3) with evidence that defendant acted contrary to an unwritten policy or contrary to company practice. See Kendrick, 220 F.3d at 1230 (citations omitted). Plaintiffs pretext argument relies upon the three pieces of evidence that she listed earlier, in conjunction with her prima facie case: (1) temporal proximity between her discrimination charges of September 26, 2000 and February 6, 2001 and the denial of tenure by default on May 18, 2001; (2) a pattern of retaliatory conduct; and (3) evidence that in denying her tenure by default, defendants violated unwritten policies or practices. Plaintiff also claims that the stated reason is false because she is entitled to tenure by default under University policy. The Court re-examines this evidence in light of defendants’ proffered rationale for their actions. Timing alone can provide sufficient support for plaintiffs prima facie case, but it is not alone sufficient to make a showing of pretext. See Selenke, 248 F.3d at 1260; see also Powers v. Tweco Prods., Inc., 206 F.Supp.2d 1097, 1118 (D.Kan.2002). Plaintiff attempts to demonstrate pretext through proof of temporal proximity: a so-called pattern of discriminatory conduct that began soon after her protected activity and culminated in the denial of tenure by default. As noted above, plaintiffs only evidence of a “pattern” of retaliatory conduct is defendants’ refusal to extend her graduate faculty status on January 19, 2001—which occurred almost four months after plaintiff filed her KHRC charges on September 26, 2000 and four or five months before defendants denied her request for tenure by default on May 18, 2001. In another tenure case, plaintiff made a successful showing of pretext based on a pattern of retaliatory conduct which included heightened scrutiny and criticism, divergence from internal procedures, disparate treatment, adverse evaluation, negative tenure recommendation, denial of tenure, unequal rate of pay and finally termination from employment. See Lee v. N.M. State Univ. Bd. Of Regents, 102 F.Supp.2d 1265, 1277-78 (D.N.M.2000); see also O’Neal v. Ferguson Const. Co., 35 F.Supp.2d 832, 835 (D.N.M.1999) (pattern shown when defendant gradually started taking work away from plaintiff, asked plaintiff to wash vehicle in freezing weather and was hostile toward him); Palmer, 1998 WL 724050, at *6 (pattern shown where employer ignored plaintiffs work restrictions and ultimately terminated him); Marten v. Yellow Freight Sys., Inc., 993 F.Supp. 822, 827 (D.Kan.1998) (pattern shown where defendants withdrew administrative assistance and support and began keeping personal file on plaintiff, demoted plaintiff, asked others for negative record on plaintiff, tried to intimidate plaintiff into dropping claim, issued corrective action notice and terminated plaintiff). In this case, as noted above, plaintiff has not demonstrated a genuine issue of material fact with regard to temporal proximity or a “pattern” of retaliatory conduct. Two incidents, one of which includes the adverse action of which plaintiff complains, do not constitute a “pattern” of retaliatory conduct. See Ortiz v. W. Res., Inc., No. 98-4093-DES, 2000 WL 1473142, at *9 (D.Kan. Sep.3, 2000) (denial of promotion coupled with termination insufficient to show pattern of retaliatory conduct). Plaintiff next argues that defendants violated unwritten policies or practices by not granting her tenure by default when it was unclear whether her tenure clock had been properly set. In support of this argument, plaintiff claims that in 1973, the University granted tenure to 11 faculty members with disputed probationary periods. Plaintiff can show pretext through evidence that when making an adverse employment decision affecting her, defendants acted contrary to unwritten policy or contrary to University practice. See EEOC v. Kan. City S. Ry. Co., No. 99-2512, 2000 WL 1784138, at *4 (D.Kan. Nov.30, 2000). The problem, however, is that plaintiff has not shown that the University or the Board of Regents had an unwritten policy or custom which they failed to follow in her case. Plaintiff cites one incident, nearly 30 years earlier, in which the University granted tenure by default to 11 faculty members. The record contains no evidence that the University (or the faculty) regarded the events of 1973 to be precedent-setting or illustrative of established policy or practice. The record also contains no evidence that the University routinely granted tenure by default on account of administrative errors or disputes concerning the calculation of probationary periods for faculty. In fact, the record contains no evidence that the circumstances of either 1973 or 2001 involved administrative errors or miscalculations of probationary periods. Finally, plaintiff has not shown that she is entitled to the benefit of the policy or practice — even if it did exist and the record established the substance of the policy or practice. Plaintiffs final argument is that defendants’ rationale for denying tenure by default is false: that she had engaged in seven years of full time teaching service without timely notice of non-reappointment, and that defendants’ claim to the contrary is without merit. As noted above, defendants extended plaintiffs tenure clock on two occasions, for one year each time, as a result of plaintiffs FMLA leave in the fall semesters of 1994 and 1997. On each occasion, defendants’ informed plaintiff that her probationary period had been advanced by one year. Plaintiff made no contemporaneous objection to either extension. Defendants have cited evidence that they calculate full time service on an annual basis. Although plaintiff cites evidence that other parties calculate full time service on a semester-by-semester basis, she has cited no evidence that defendants calculate full time service on other than an annual basis, or that they have an unwritten custom or policy of using the semester method. Plaintiff does not claim that by calculating full time service on an annual basis, defendants have breached any formal or written policy, any contract of employment, any policy or regulation of the Kansas Board of Regents, or any Kansas state law. In other words, plaintiff has cited no evidence that defendants’ stated reason for denying her tenure by default — that the University calculates tenure on an annual basis and that by its calculations, plaintiff was not entitled to tenure — was pretextual. When assessing a claim of pretext the Court examines the facts as they appeared to the Chancellor and the Provost. Nothing in this record would cause a jury to discredit their understanding that the University calculates full time teaching on an annual basis. Even if their understanding were later determined to be incorrect, through litigation of this case, the record evidence would not support a finding of pretext in this case. Defendants are therefore entitled to summary judgment on Count II. II. Section 1983 Due Process Claim Count III charges that in their official capacities, the Chancellor and Provost violated the Fourteenth Amendment and Section 1983 by depriving plaintiff of employment without due process. Plaintiff seeks injunctive relief and a declaration that defendants have denied her constitutional rights and that she is entitled to reinstatement as a tenured faculty member. She also seeks back pay, economic damages and attorney’s fees and costs. Defendants argue that they are immune from suit because the Eleventh Amendment bars plaintiffs request for relief in the form of back pay, economic damages and attorney’s fees and costs. A. Eleventh Amendment Immunity As To Back Pay, Economic Damages and Declaratory Relief Defendants first argue that the Eleventh Amendment bars plaintiffs claims for back pay, economic damages and declaratory relief. Generally speaking, defendants are correct. Defendants are absolutely immune from damages for actions taken in their official capacities. See Gillette v. New Mexico Parole Bd., 42 Fed.Appx. 210, 2002 WL 1360384, at *1 (10th Cir. June 24, 2002). Furthermore, although the Eleventh Amendment does not prohibit a suit brought in federal court to prospectively enjoin a state official from violating federal law, see Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908), declaratory relief is not the type of remedy designed to prevent ongoing violations of federal law, and the Eleventh Amendment “does not permit judgments against state officers declaring that they violated federal law in the past.” See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). State officials such as the Chancellor and Provost may not be protected by Eleventh Amendment immunity on plaintiffs claim for prospective injunctive relief. See Seminole Tribe v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. 441. Therefore, unless plaintiffs claim for injunctive relief has merit and declaratory relief is ancillary to it, defendants are entitled to immunity from suit on plaintiffs Section 1983 claim for declaratory relief. Given the Court’s ruling on the merits of the case, issues of Eleventh Amendment immunity need not be further addressed. B. Validity Of Procedural Due Process Claim Defendants concede that the Eleventh Amendment does not bar plaintiffs claim for reinstatement, but they argue that plaintiff has not shown that they violated her right to procedural due process. The Court therefore considers whether plaintiff has stated a claim for violation of her constitutional right to procedural process. In order to prove a violation of procedural due process, plaintiff must show that (1) she possessed a protected property interest in continued employment such that due process protections were necessary, and (2) defendants deprived her of the appropriate level of due process. See Hatfield v. Bd. Of County Comm’rs, 52 F.3d 858, 862 (10th Cir.1995). In light of this framework, the Court turns to the threshold issue whether plaintiff possessed a protected property interest. Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Farthing v. City Of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. Of Regents Of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Historically, Kansas has followed the common law doctrine of employment-at-will. Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 537 (10th Cir.1995) (citations omitted). Under Kansas law, a public employee who is terminable at will does not possess a protected property interest. See Farthing, 39 F.3d at 1136 (citing Stoldt v. City Of Toronto, 234 Kan. 957, 964-65, 678 P.2d 153, 160 (1984)). Tenured professors, on the other hand, have a property interest in continued employment. See Tonkovich v. Kan. Bd. Of Regents, 159 F.3d 504, 517 (10th Cir.1998). The question is whether plaintiff earned tenure at the University. Plaintiff argues that she had a legitimate expectation of continued employment as a tenured faculty member based on an implied-in-fact contract of employment. In 1992, plaintiff signed a written notice of appointment which stated that her term of employment was “for the academic year (nine months),” that her appointment was subject to annual renewal, and that tenure would accrue “after 7 years of full-time teaching” absent timely notice to the contrary under University and Board of Regents regulations. Appointment Letter (Exhibit 1) in Defendants’ Exhibits (Doc. # 43). Plaintiff argues that she completed her seventh year of full time teaching in May of 2000 and, because she did not receive timely notice of non-reappointment in May of 1999, she became a tenured professor effective May of 2000. Defendants argue that plaintiff had not earned tenure under the contract and that she therefore possessed no property interest in her job. They agree that tenure would have accrued after seven years of full time teaching without timely notice of non-reappointment, but they assert that plaintiffs seventh year of full time teaching ended in May of 2001 and that they gave proper notice of non-reappointment in March of 2000. The crux of the disagreement is what constitutes seven years of full time teaching under plaintiffs appointment contract. Defendants assert that in accordance with University policy, only a complete academic year of full time teaching counts toward the seven year threshold. The University has an annual schedule for tenure review and promotion decisions and, if a faculty member teaches only one full time semester in an academic year, he or she has only taught part time during that year. To prevail, plaintiff must assert that a year of full time teaching means any two academic semesters, and indeed she argues that tenure accrues after any 14 semesters, the equivalent of seven years of full time teaching. The Court must examine plaintiffs contract to determine the meaning of a “year” of full time teaching. “In construing a contract, the intent of the parties is the primary question; meaning should be ascertained by examining the documents from all corners and by considering all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; and reasonable rather than unreasonable interpretations are favored.” Akandas, Inc. v. Klippel, 250 Kan. 458, 827 P.2d 37 (1992). When a contract is not ambiguous, the Court may not make another contract for the parties. Its function is to enforce the contract as made. See Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987). “A contract is ambiguous if it contains ‘provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language.’ ” Am. Maplan Corp. v. Heilmayr, 165 F.Supp.2d 1247, 1251-52 (D.Kan.2001) (quoting Simon v. Nat’l Farmers Org., Inc., 250 Kan. 676, 679-80, 829 P.2d 884 (Kan.1992)). Whether a contract’s terms are ambiguous is a question of law decided by the Court. See United States v. Mintz, 935 F.Supp. 1178, 1179 (D.Kan.1996). “Prior to a resort to extrinsic evidence, the instrument is to be interpreted from its four corners. That is to say, all the language used anywhere in the instrument should be taken into consideration.” First Nat’l Bank Of Olathe v. Clark, 226 Kan. 619, 602 P.2d 1299, 1303 (Kan.1979) (citations omitted). The 1992 appointment contract specified that the offered appointment was “for the academic year (nine months),” and that it was subject to annual review. Appoint- merit Letter (Exhibit 1) in Defendants’ Exhibits (Doc. # 43). The contract stipulates that “final tenure review ... will occur no later than the 6th year of full-time teaching .... Tenure will accrue after 7 years of full-time teaching ...” Id. The contract also stated that the appointment and annual review were subject to regulations of the University and the Board of Regents. Id. The 1990 version of the Handbook, which was in effect when plaintiff received her initial appointment, outlined the requirements for promotion and tenure. It stated that “[p]art-time service to the University in teaching, research, and administration does not count toward tenure.” Exhibit 4 in Defendants’ Exhibits (Doc. # 43) at 42. The Handbook, revised in 1997, again stated that “[p]art-time service to the University ... does not count toward tenure.” Exhibit 30 in Defendants’ Exhibits (Doc. # 43) at 61. “Contracts are to receive a reasonable construction to determine the intent of the parties at the time the contract was executed .... Construction of the contract is one that makes the contract fair, customary and such as prudent p