Bakewell v. Stephen F. Austin State University (975 F. Supp. 858, 1996)

MEMORANDUM OPINION

HEARTFIELD, District Judge.

1. The court bifurcated this case’s trial into liability and relief stages. Order, entered June 19, 1995 (granting motion'to bifurcate); see also Joint Supplement to Am. Joint Pre-Trial Order at 1-4. It now enters findings of fact and conclusions of law regarding the liability phase. See Fed. R.Civ.P. 52(a). In doing so, it adopts “[a]ny conclusion of law more properly characterized as a finding of fact ... as such” and “[a]ny finding of fact more properly characterized as a conclusion of law ... as such.” LaFleur v. Westridge Consultants, Inc., 844 F.Supp. 318, 320 (E.D.Tex.1994).

PRELIMINARY ISSUE: RELATIONSHIP BETWEEN TITLE VII & TITLE IX

2. This case involves charges of sex discrimination in employment. See, e.g., Am. Joint Final Pre-Trial Order at 2-3.

3. Five of the claims allege a violation of both Title VII of the Civil Rights Act of 1964 (Title VII) and Title IX of the Education Amendments of 1972 (Title IX). See Joint Supplement to Joint Final Pretrial Order at 1-2. Declaratory or injunctive relief is sought as to each of them. See Am. Joint Final Pre-Trial Order at 2-3,11-12. Injunc-tive relief

4. Title VII prohibits employers from “[failling] or refus[ing] to hire or ... [from] discharging] any individual, or otherwise discriminating] against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l).

5. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). It delineates “program or activity” and “program” as the following:

[A]ll operations of ... a college, university, or other postsecondary institution, or a public system of higher education ... any part of which is extended Federal financial assistance, except that such term does not include any operation of any entity which is controlled by a religious organization if the application of section 1681 of this title to such operation would not be consistent with the religious tenets of such organization.

Id. § 1687. The institution of higher education involved in this case, SFA, apparently comes within this definition. See Defs.’ Ex. 76A (Stephen F. Austin State University, University Fact Book 80 (1989)); Defs.’ Ex. 77B (Stephen F. Austin State University, University Fact Book 95, 100 (1994)).

6. “[Although] Title VII explicitly covers employment-related discrimination[,] Title IX has also been held to cover such discrimination.” Mabry v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d 311, 316 (10th Cir..), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987) (citing North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982)).

7. The United States Court of Appeals for the Fifth Circuit (Fifth Circuit) has determined that “Title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions.” Lakoski v. James, 66 F.3d 751, 753 (5th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3625 (U.S. Mar. 8, 1996) (No. 95-1439). It, however, has “limit[ed] [this] holding to individuals seeking money damages under Title IX directly or derivatively through [42 U.S.C.] § 1983 for employment practices for which Title VII provides a remedy” and has “expressed] no opinion whether Title VII excludes suits seeking only declaratory or injunctive relief.” Id.; see also Marcus v. St. Tammany Parish Sch. Bd., No. 95-3140, 1996 WL 304289, at *1 (E.D.La. June 5, 1996) (“Because plaintiffs have additionally-asked for injunctive relief under Title IX, Lakoski does not mandate dismissal of plaintiffs’ Title IX claims.”)

8. Defendants now argue that “the Fifth Circuit would likely extend its holding in Lakoski if specifically confronted with a case like this one, where only declaratory and injunctive relief under Title IX are at issue.” Post Trial Br. of Defs. SFA, et al. at 6. Based upon this proposition, they assert that Lako-ski’s teaching “foreclose^]” the Title IX claims presented in this suit. Id. at 58 n. 40.

9. Defendants seek to inject a new contested issue of law into this litigation. See generally United States District Court for the Eastern District of Texas, Civil Justice Expense and Delay Reduction Plan app. A (1995) [hereinafter Plan]. The court, therefore, must determine the propriety of modifying the amended joint final pre-trial order to include the fresh concern that defendants raise. See Phoenix Canada Oil Co. v. Texaco, Inc., 842 F.2d 1466, 1475-76 (3d Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 247 (1988); Daniels v. Board of Educ. of Ravenna City Sch., 805 F.2d 203, 210 (6th Cir.1986).

10. “An issue or theory not even implicitly included in [a] pretrial order is barred unless the order is later amended ‘to prevent manifest injustice.’” Hall v. State Farm Fire & Casualty Co., 937 F.2d 210, 212 (5th Cir.1991) (quoting Fed.R.Civ.P. 16(e)); cf. Trinity Carton Co. v. Falstaff Brewing Corp., 767 F.2d 184, 192 n. 13 (5th Cir.1985) (“Each party has an affirmative duty to allege at the pretrial conference all factual and legal bases upon which the party wishes to litigate the ease.”), cert. denied, 475 U.S. 1017, 106 S.Ct. 1202, 89 L.Ed.2d 315 (1986). In this case, neither the amended joint final pre-trial order nor any of its supplements even insinuate defendants’ present contention that Lakoski prescribes a finding that Title VII preempts the Title IX claims raised in this case. See Am. Joint Final Pre-Trial Order at 2-15; Joint Supplement to Joint Final Pretrial Order at 1-2; Joint Supplement to Am. Joint Pre-Trial Order at 1^4; Defs. Supplemental Issues of Fact and Law to Joint Pre-Trial Order at 1-2.

11. Defendants may believe that the announcement of Lakoski subsequent to this case’s trial creates a situation in which inclusion of their argument relating to that decision in the amended joint final pre-trial order must occur to prevent manifest injustice. Compare Order, entered Sept. 12, 1995 (approving the amended final joint pre-trial order, all of its supplements and a joint amended certification) with Lakoski, 66 F.3d at 751 (entered Oct. 3, 1995). That sequence of events, however, fails to dictate a modification of the amended joint final pre-trial order.

12. Although Lakoski represents the Fifth Circuit’s first discourse about the relationship between Title VII and Title IX, see Lakoski, 66 F.3d at 754, other courts previously have considered that doctrinal issue. Compare Howard v. Board of Educ. Sycamore Community Unit, 893 F.Supp. 808, 814-15 (N.D.Ill.1995) and Wedding v. University of Toledo, 862 F.Supp. 201 (N.D.Ohio 1994) and Storey v. Board of Regents of Univ. of Wis. Sys., 604 F.Supp. 1200 (W.D.Wis.1985) with Broussard v. Board of Trustees for State Colleges & Univs., 61 Fair Empl. Prac. Cas. (BNA) 710 (E.D.La.1993) and Paddio v. Board of Trustees, 61 Fair Empl. Prac. Cas. (BNA) 86 (E.D.La.1993) and Henschke v. New York Hospital-Cornell Medical Ctr., 821 F.Supp. 166, 171-73 (S.D.N.Y.1993). One appeals court, indeed, apparently has settled the question left unanswered by Lakoski that defendants now wish the court to address. See Preston v. Virginia, 941 F.2d 1207, 1991 WL 156224, at *3 (4th Cir.1991) (claims of employment discrimination brought under both Title VII and Title IX) (“We find that prospective equitable relief is precisely the type of remedy that furthers the goals intended by Title IX and that has been approved by prior decisions.”).

13. The contested issue of law that defendants now desire to introduce into this case, consequently, was discoverable prior to trial. Because of this circumstance, the court declines to incorporate that assertion into the amended joint final pretrial order. See Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 609 (5th Cir.1989) (a party “cannot ... claim ‘manifest injustice’ to modify the order in light of later-discovered but previously discoverable favorable evidence”); Trinity Carton, 767 F.2d at 192 n. 13 (“Even though amendment of the pretrial order may be allowed where no surprise or prejudice to the opposing party results, where, as here, the evidence and the issue were known .at the time of the original pretrial conference, amendments may generally be properly refused.”).

14. The court, therefore, proceeds to consider the merits of each of the Title IX claims presented in this case. Title VII jurisprudence guides this review. See, e.g., Preston v. Virginia ex rel. New River Community College, 31 F.3d 203, 206-7 (4th Cir.1994); Lipsett v. University of P.R., 864 F.2d 881, 896-97 (1st Cir.1988); Mabry, 813 F.2d at 316-18.

OVERVIEW OF SFA

Administrative Structure

15. Texas’ legislature and governor “vest[ ] legal control [over SFA] in a nine-member Board of Regents which is the final authority in all University affairs except for certain matters, specified by law.” Joint Ex. 502.

16. SFA’s president is “[t]he chief administrative officer of the University.” Id. He or she reports to the Board of Regents. Id.

17. SFA “is divided into four divisions: academic affairs, administrative and fiscal affairs, university advancement and university affairs. Each division is headed by a vice president who is responsible to the President for the operation of his [or her] division.” Id.

18. “The Vice President for Academic Affairs is ... responsible for guidance and supervision of the academic affairs of the University.” Id. His or her duties include making “[r]ecommend[ations] ... [on] merit increases, promotion, termination, and academic tenure for faculty/staff reporting to [him or her].” Joint Ex. 499A (1 Stephen F. Austin State University, Policy and Procedure Manual (Organization and Administration (Statements of Unit Functions))).

19. The following eight units comprise SFA’s Division of Academic Affairs: College of Applied Arts and Sciences; College of Business; College of Education; College of Fine Arts; College of Forestry; College of Liberal Arts; College of Sciences and Mathematics, and; Graduate School. See Joint Ex. 502. A dean oversees each college. Id. He or she is “responsible to the Vice President for Academic Affairs for the academic operation of [those] departments under [his or her] ... supervision.” Id. A dean’s duties include making “[r]ecommend[ations concerning] appointment, salary, tenure, promotion and termination of faculty.” Joint Ex. 499A (Statements of Unit Functions).

20. A department chair serves as “the chief administrator” for an academic department. Joint Ex. 502. Because of this role, he or she only dedicates part of his or her time to teaching. See Joint Ex. 499B (2 Stephen F. Austin State University, Policy and Procedure Manual (Personnel Services (Department Administration))).

21. A department chair’s responsibilities include making “[r]ecommend[ations concerning] appointment, salary, tenure, promotion and termination of faculty.” Joint Ex. 499A (Statements of Unit Functions). He or she also “[p]erforms ... faculty evaluation^].” Id. (same). These assessments focus on the following: teaching, scholarly activity and service. See Joint Ex. 499B (Personnel Services (Evaluation, Merit Pay, Promotion and Tenure)).

22. Non-tenured faculty members receive evaluation annually. Id. (same). “[A]ny faculty member applying or being nominated for merit pay ..., promotion, and/or tenure ... [must] be evaluated in the year of the appli-eation/nomination.” Id. (same).

23. The faculty evaluation process entails the following:

[T]he faculty member ... presents] to his/her academic departmental ] ehair-man[] a completed “Annual Report on Teaching, Scholarly/Creative Activities, and Service” report of his/her activities during the preceding year and any other pertinent information that may be requested. The faculty member then ... [is] interviewed by his/her departmental chairman[ ]. Following the interview, the chairman[ ] ... meet[s] with the ... dean to review the report and the information obtained in the interview, and the two ... submit an ‘Administrative Evaluation’ form to the Vice President for Academic Affairs for recommendation, if appropriate, to the President of the University.

Id. (same).

Tenure Policy

24. “Tenure means entitlement of a faculty member to continue his/her academic position unless dismissed for good cause.” Id. (Personnel Services (Tenure (footnote omitted))); see also Joint Ex. 502.

25. At SFA, the positions of instructor, assistant professor, associate professor and professor “are used for full-time appointments for a full academic year and are the only ones creditable toward tenure.” Joint Ex. 499B (Personnel Services (Academic Appointment Titles)). Instructor is the lowest of these academic ranks, while professor is the highest. See id. (same)

26. SFA’s tenure policy states the following:

With the exception of special appointments clearly limited to a brief association with the University and reappointments of retired faculty members on special conditions, all full-time appointments to the rank of instructor or a professorial rank are two kinds: probationary or tenured.

Appointments with tenure require that prior to the appointment, the appointee complete the procedure for acquiring tenure at this institution.

Probationary appointments may be for one year, or for other legally stated periods, subject to renewal. Beginning with full-time appointment to the rank of instructor or a professorial rank, the probationary period of a faculty member shall not exceed seven years at this institution, including within this period credit granted for appropriate full-time service in all institutions of higher education. This appointment is subject to the provision that when, after a term of probationary service of more than three years in one or more institutions of higher education, it may be agreed in writing that his/her appointment at [SFA] is for a probationary period of not more than four years (even though thereby the person’s total probationary period in the academic profession is extended beyond the maximum of seven years)....

Id. (Tenure (lettering, numbering and footnote omitted)).

27. A faculty member either is nominated or applies for tenure. Id. (Personnel Services (Tenure Awards)). The applicant or nominee is “responsible for developing and submitting to the department ehair[ ] a packet of supporting materials.” Id. (same)

28. The decisionmaking process regarding tenure nominations and applications entails the following:

Each “Promotion/Tenure Application,” including all supporting materials, ... [is] evaluated by all tenured faculty from the applicant/nominee’s department with regard to the candidate’s credentials, performance as a faculty member, and the programmatic needs of the department. Each tenured faculty member ... submit[s] a written recommendation to the department chair[] that the candidate be granted or not granted tenure, with supporting comments. (If there are no tenured members in the candidate’s department, this step [is] ... omitted.)

The chair[ ] of the candidate’s department evaluated] the packet of materials submitted by the candidate and ... forward[s] these materials, along with his/her recommendation with supporting comments and the recommendations of the tenured faculty of the department, to the dean....

Each appheation/nomination for tenure, including all supporting materials, ... [is] evaluated by a [college] tenure panel with regard to the candidate’s credentials and performance as a faculty member. The dean ... constitute^] the review panel. The panel consists] of one tenured member from each department in the [college]. The panel member from the department should not be the department chair[ ] unless there are no other tenured faculty in the department. Each panel member review[s] the supporting materials prepared by the candidate and ... submit[s] a recommendation to the dean ... that the candidate by [sic] granted or not granted tenure, with supporting comments.

The dean ... evaluated] the packet of materials submitted by the candidate and ... review[s] the recommendation of the department chair[], the recommendations of the tenured faculty of the candidate’s department, and the recommendations of the [college] panel as a basis for his/her recommendation to the Vice President for Academic Affairs. The dean’s recommendation that the candidate be granted or not granted tenure and supporting comments ... [are] submitted to the Vice President for Academic Affairs, along with the packet of materials prepared by the candidate and the recommendations generated at each preceding stage of the evaluation. The Vice President for Academic Affairs ... reviewfs] these materials and. recommendations and any other evidence deemed pertinent as a basis for his or her recommendation to the President of the University that the candidate be granted or not granted tenure. The Vice President for Academic Affairs ... submit[s] to the President ... his/ her recommendation, along with all supporting materials and the recommendations generated at each preceding stage of the evaluation.

The President ... review[s] these materials and recommendations and any other evidence deemed pertinent as a basis for his/her recommendation to the Board of Regents that the candidate be awarded tenure.

Tenure is awarded by action of the Board of Regents____

Id. (same); see also Joint Ex. 502.

Pay Policies & Practices

29. SFA annually enters into a new contract with each faculty member. See Joint Ex. 499B (Personnel Services (Compensation in Excess of Base Salary)).

30. A non-administrative faculty member’s contract covers the academic year, which begins on September 1 and ends on May 31. See id. (same); see also id. (Tenure).

31. A department chair’s contract covers a period longer than the academic year (e.g., 10 or 11 months). See Joint Ex. 499B (Personnel Services (Chairman Teaching Load)).

Initial Salary

32. A faculty member’s initial pay at SFA “is a market-determined figure based on [his/ her] ... qualifications (including initial rank and past performance) and what persons of similar qualifications are being paid at other institutions.” Joint Ex. 435 (Defs.’ Resp. to Pis.’ Second Set of Interrogs. on Class Issues (Memorandum from Fisher to Ashley of 4/14/94, at 2)).

33. Budgetary constraints sometimes limit the amount available to fund a faculty member’s starting salary. See, e.g., id. (same); Defs.’ Ex. 75 (comparison 24).

Promotion

34. Prior to 1978, SFA’s Recommendation for Promotion form apparently provided the only written disclosure of the criteria for elevation to a higher academic rank. See, e.g., Joint Ex. 130 (Sylvia McGrath’s personnel file (Recommendation for Promotion of 2/23/73)).

35. SFA enacted a written policy regarding academic promotion in 1978. See Joint Ex. 499B (Personnel Services (Academic Promotion)). That policy, which continues to govern, see id. (same), states the following:

In order to hold either of the upper two professional ranks, an individual is expected to have some previous teaching experience and to have held a lower rank. Ordinarily to be promoted to the rank of Associate Professor, an individual should have held the rank of Assistant Professor for at least five years. To be promoted to the rank of Professor, an individual should have held the rank of Associate Professor for at least five years.

Id. (same). It also outlines an application process for promotion that generally mirrors the one for tenure. Compare id. (same) with id. (Tenure Awards).

36. A salary increase accompanies promotion to a higher academic rank. Joint Ex. 435 (Memorandum from Fisher to Ashley of 4/14/94, at 2).

37. For the 1986-87 academic year, SFA made the following awards: $450 for promotion from instructor to assistant professor; $900 for promotion from assistant professor to associate professor and; $1350 for promotion from associate professor to professor. Defs.’ Ex. 74.

38. For 1987-88 academic year, SFA made the following awards: $750 for promotion from instructor to assistant professor; $1000 for promotion from assistant professor to associate professor and; $1250 for promotion from associate professor to professor. Id.

39. Between academic years 1988-89 and 1994-95, SFA made the following awards: $750 for promotion from instructor to assistant professor; $1000 for promotion from assistant professor to associate professor and; $1500 for promotion from associate professor to professor. Id.

Merit Pay Raises

40. “Three levels of merit pay [raises (merit) ] — departmental ], ... [college], and University — [are] available annually to qualified faculty members.” Joint Ex. 499B (Evaluation, Merit Pay, Promotion and Tenure).

41. Some academic years, faculty members receiving promotion are ineligible for any merit pay raise. See, e.g., Joint Ex. 435 (Memorandum from Gregory to Ashley of 4/6/94, at 2); Defs.’ Ex. 75 (comparison 29).

42. “Outstanding teaching, performance [sic] scholarly activity, and public service ... constitute the basis for awarding departmental[] [level] merit____ For each of those three categories, ... each department ]. identities] specific characteristics pertinent to its role within the University-wide mission and purpose.” Joint Ex. 499B (Evaluation, Merit Pay, Promotion and Tenure).

43. “Outstanding service to a [college], as well as meritorious teaching, performance/scholarly activity, and service, ... constitute the basis for awarding [college level] merit.... For each of those activities, ... the school ... identifies] specific characteristics pertinent to its role within the University-wide mission and purpose.” Id. (same).

44. “Outstanding service University-wide, as well as meritorious teaching, performance/scholarly activity, and service, ... constitute the basis for awarding University [level] merit.... For each of those activities, the Graduate Council ... identifies] specific characteristics pertinent to the University-wide mission and purpose.” Id. (same).

45. “A faculty member may apply or be nominated by a colleague or an administrator for any level or all levels of merit.” Id. (same). “To apply or to complete a nomination, a faculty member must submit to the appropriate administrator a completed ‘Annual Report on Teaching, Scholarly/Creative Activities, and Service’ report of his/her activities during the preceding year and any other pertinent information that may be requested.” Id. (same).

46. The decisionmaking process for departmental level merit applications and nominations entails the following:

The supporting documentation ... [is] reviewed by the [department] chair[ ] ... and, optionally by the departmental ] faculty, an elected panel of faculty members. Reeommendation[ ] by the chair[ ] [is] made to the academic dean for further recommendation to the Vice President for Academic Affairs. The Vice President ... make[s][sie] recommendation to the President for final approval.

Id. (same).

47. The decisionmaking process for college level merit applications and nominations involves the following:

The supporting documentation ... [is] reviewed by the academic dean and a panel of elected faculty members from each department[] within the [college] (the [College] Council may be utilized). Recommendation by the dean and the faculty panel ... [is] made to the Vice President for Academic Affairs. The Vice President ... make[s][sic] recommendation to the President for final approval.

Id. (same).

48. The decisionmaking process for university level merit applications and nominations entails the following: “The supporting documentation ... [was] ... reviewed by the Dean of the Graduate School and the Graduate Council. Recommendation by the Graduate Dean and Graduate Council [was] made to the Vice President for Academic Affairs. The Vice President ... [made a] recommendation to the President for final approval.” Id. (same).

49. Review of applications and nominations for merit occurs during the academic year subsequent to the academic year to which they relate. Merit pay raises become effective at the start of the academic year following that academic year. See, e.g., Defs.’ Ex. 75 (comparison 1).

50. For the 1986-87 academic year, no faculty member received a salary increase based on merit. Defs.’ Ex. 74.

51. Every salary increase based on a level of merit that was made between academic years 1987-88 and 1990-91 was worth $450. Id.

52. For the 1991-92 academic year, no faculty member received a salary increase based on merit. Id. Because of this circumstance, SFA officials decided to use the 1992-93 academic year appropriation for merit to fund not only awards effective beginning in academic year 1992-93, but also those authorized the prior academic year, which had gone unrealized. See id. They, however, limited the size of each level of merit to $225. Id.

53. For academic year 1993-94, departments and colleges received allocations for merit that they could distribute among recipients in varying amounts. Despite this more flexible system, some departments and colleges elected to grant $450 to every awardee. Cf. id. But cf. Defs.’ Ex. 75 (comparison 9).

54. For academic year 1994-95, no faculty member received a salary increase based on merit. Defs.’ Ex. 74.

Across-the-Board Salary Increases

55. Either the state or SFA can effect an across-the-board salary increase for SFA faculty members. See id.

56. For academic year 1983-84, faculty members received a 5 percent across-the-board salary increase. Id.

57. For academic year 1984-85, faculty members received a 3 percent across-the-board salary increase. Id.

58. For academic year 1985-86, faculty members received a 3 percent across-the-board salary increase. Id.

59. For academic year 1986-87, faculty members received no across-the-board salary increase. Id.

60. For academic year 1987-88, faculty members received a 4 percent aeross-the-board salary increase. Id. SFA identified this increase as one level of merit in faculty member contracts. Defs.’ Ex. 74; see also Joint Ex. 435 (Memorandum from Gaylord to Ashley of 4/8/94, at 3-5).

61. For academic year 1988-89, faculty members received a 7 percent across-the-board salary increase. Defs.’ Ex. 74. SFA identified this increase as one level of merit in faculty member contracts. Id.; see also Joint Ex. 435 (Memorandum from Gaylord to Ashley of 4/8/94, at 5-6).

62. For academic year 1989-90, SFA faculty members received a 4 percent across-the-board salary increase. Defs.’ Ex. 74. SFA identified this increase as one level of merit in faculty member contracts. Defs.’ Ex. 74; see also Joint Ex. 435 (Memorandum from Gaylord to Ashley of 4/8/94, at 7-8).

63. For academic year 1990-91, faculty members received no across-the-board salary increase. Defs.’ Ex. 74.

64. For academic year 1991-92, faculty members received a 2 percent across-the-board salary increase. Id.

65. For academic year 1992-93, faculty members received a 1 percent across-the-board salary increase. Id. They also were granted a $750 salary increase, which reflected a $1000 pay raise pro-rated over nine months. Joint Ex. 434; Defs.’ Ex. 74.

66. For academic year 1993-94, faculty members received a 3 percent across-the-board salary increase. Defs.’ Ex. 74.

67. For academic year 1994-95, faculty members received no across-the-board salary increase. Id.

68. At some point during the 1980s, SFA decided to deny across-the-board salary increases to those faculty members receiving terminal contracts.

69. Across-the-board salary increases perpetuate the disparity between the salaries of certain faculty members. See, e.g., Defs.’ Ex. 75 (comparison 28).

Salary Adjustments

70. SFA awards some faculty members increases in compensation called salary adjustments.

71. A salary adjustment represents a response to the following scenario:

[Ejxamination of faculty pay levels (usually by the department chair for members within his/her department) reveals that persons of similar rank, experience, and performance are not being paid similar pay rates. These differences do not arise intentionally but rather are a consequence of the way the pay system operates. When such an “inequity” is discovered, an “adjustment” is recommended by the department chair for the person being paid the lower amount.

Joint Ex. 435 (Memorandum from Fisher to Ashley of 4/14/94, at 3).

72. Budgetary constraints frequently limit the number of salary adjustments that SFA is able to dispense. See, e.g., Joint Ex. 6 (Ann Doyle-Anderson’s personnel file (Letter from Reese to Moses of 9/2/87)); Joint Ex. 435 (Memorandum from Gregory to Ashley of 4/6/94, at 2); Pis.’ Ex. 124.

Policies Concerning Leaves of Absence

73. SFA’s policy regarding leaves of absence for faculty members authorizes the granting of “a leave of absence, when departmental needs allow, for ... [hjealth, following the use of all accumulated sick leave, when it is demonstrated that at the end of the leave period the individual will be able to resume duties at SFA[].” Joint Ex. 499B (Personnel Services (Leave of Absence (indentation and numbering omitted))). It limits such leaves to no more than twelve months, id. (same), and makes the president responsible for disposing of all requests filed pursuant to it, see id. (same).

74. SFA’s policy regarding leaves of absence for classified employees permits the president to afford an unpaid leave of absence to any classified employee who has exhausted all of his or her accumulated paid leave. Joint Ex. 499B (Personnel Services (Leave of Absence)). It includes the following directive: “Pregnancies shall be treated as any other temporary disability. Each ease shall be evaluated on its own merit.” Id. (same).

75. SFA’s policy regarding extension of sick leave applies to all university personnel. See id. (Personnel Services (Extension of Sick Leave)). It states the following:

The President of the University may, under state law, make exceptions to the amount of sick leave an employee may take. Extensions of authorized sick leave will be approved on an individual basis following a review of the merits of each request. In general, extension of sick leave may be granted in an effort to allow University employees, who are experiencing extenuating circumstances due to illness, to resume productive employment. Among the factors to be considered in granting any extension of sick leave will be: the nature of the illness; a physician’s assessment of the employee’s condition; an assessment from the University department supervisor regarding the employee’s special needs; and the employee’s record of sick leave taken.

Id. (same).

Grievance Process for Probationary Faculty Members Failing to Receive Reappointment

76. SFA permits probationary faculty members “who ha[ve] been notified of non-reappointment ... [to] appeal [their]' non-reappointment only on the presentation of a prima facie case that constitutional guarantees or academic freedom were violated.” Joint Ex. 502.

77. Under this policy, a probationary faculty member receives a hearing with an advisory committee comprised of members of the University Grievance Panel. Id. When the advisory committee “finds probable cause that there was an abridgment of constitutional guarantees or academic freedom, [settlement] conferences between the faculty member and appropriate administrative officers of the University ... [are] scheduled.” Id. If the conciliation effort fails, then a hearing committee of the University Grievance Panel reviews the probationary faculty member’s case. Id. After doing so, it reports its decision and the basis for that determination in writing to the probationary faculty member and the president. Id. A “verbatim typewritten record of the hearing” accompanies this communication. Id.

78.This policy incorporates the following provisions of the grievance procedure for tenured faculty and probationary faculty with an unexpired appointment extending beyond the date of proposed dismissal:

If the Hearing Committee concludes that good cause for dismissal has not been established in the record and the President rejects the Committee’s conclusion, he [or she] will state his [or her] reason(s) for doing so in writing to the Committee and the faculty member. The President will provide a reasonable time for response before transmitting the ease to the Board of Regents.

When it is the President’s final judgment to recommend dismissal, he [or she] will transmit to the Board of Regents a verbatim typewritten copy of the record of the hearing, the report of the Hearing Committee, and his recommendation regarding dismissal. If the recommendation of the President for termination conflicts with the recommendation of the Hearing Committee, the Board of Regents will review the case based on the record of the hearing with the opportunity for argument by the principals or their representatives. If the recommendations of the President and the Hearing Committee are in accord, the Board of Regents may choose to limit its review to a review of the record of the hearing. Following the Board’s decision, the chair[] will communicate the decision in writing through the President of the University to the chair[] of the Hearing Committee and the faculty member.

Id. (numbering omitted). Despite this circumstance, SFA officials regard these passages as inapplicable to probationary faculty members who fail to receive reappointment. See Pis.’ Ex. 31; Pis.’ Ex. 33. This attitude arises from their belief that dismissal occurs only in those instances in which a faculty member is discharged prior to the expiration of his or her term of appointment. Pis.’ Ex. 31; Pis.’ Ex. 33.

Appearances Before the Board of Regents

79. SFA’s Board of Regents Rules and Regulations include the following provision:

The Chair[] of the Board of Regents or the President may invite individuals to appear before the Board or one of its committees for specific purposes. Other individuals wishing to appear before the Board shall file a written request with the President at least seven working days before the appropriate meeting. The written request shall include a statement of the purpose for which an appearance is requested, the nature of the information to be presented and the names of those who will speak to the Board. The President will submit the request to the Chair[] of the Board, who will grant the request, deny the request or provide for an appearance before an appropriate committee of the Board. The individual making the request shall be notified of the Chair[]’s decision by the President.

Joint Ex. 499B (General Regulations (Appearances Before the Board of Regents)).

HELENE BAKEWELL

Findings of Fact

80. Plaintiff, Helene Bakewell, received a Ph.D in clinical psychology from the University of Utah in 1972. Joint Ex. 496 (Helene Bakewell’s personnel file (excerpts) (Curriculum Vitae)).

81. Bakewell worked as an assistant professor in Department of Psychology at Washington State University between 1971 and 1973. Id. (same).

82. Bakewell served as an assistant professor in the Department of Psychology at the University of Northern Colorado between 1973 and 1975. Id. (same).

83. Between 1975 and 1977, Bakewell worked as the principal investigator on a federal research grant project. Id. (same). During this period, she also taught classes in psychology at the University Northern Colorado.

84. Bakewell served as an assistant professor in Department of Psychology at the University of Northern Colorado between 1977 and 1979. Id. (same).

85. In 1979 and 1980, Bakewell taught at the University Northern Colorado’s Center for Special and Advanced Programs. Id. (same).

86. Between 1980 and 1983, Bakewell worked as a mental health program representative in the Wyoming Department of Health and Human Services. Id. (same).

87. Bakewell became director of the Wyoming State Office of Mental Health and Social Services in 1983. Id. (same).

Employment History at SFA

88. In 1985, Bakewell ended her tenure as director of the Wyoming State Office of Mental Health and Social Services because her family had decided to move to Nacogdo-ches, Texas.

89. Prior Bakewell’s arrival in Nacogdo-ches, Heinz Gaylord, Chair of SFA’s Department of Psychology, invited her to meet with him to discuss the possibility of the department employing her.

90. In July, 1985, Bakewell contacted Gaylord. Gaylord offered her a part-time position. He stated that such a job suited a woman in her situation.

91. Bakewell declined this offer because she desired a tenure-track position. See generally supra ¶ 25.

92. In the spring of 1986, Bakewell saw an advertisement in a professional newsletter for a tenure-track position in SFA’s Department of Psychology. Cf. Joint Ex. 427 (Defs.’ Resp. to Pl.’s First Interrogs. (Ex. XVI (answer regarding the vacancy that Bakewell filed))). The university intended to pay the person taking this job a salary between $21,000 and $23,000. Id. (same).

93. Bakewell applied for the position. Joint Ex. 496 (Letter from Bakewell to Gay-lord of 5/7/86). During a conversation about it, Gaylord remarked that Bakewell’s background made her deserving of a salary above the amount advertised and of an appointment to the rank of associate professor. He, however, subsequently stated that he favored her being appointed as an assistant professor and receiving a salary within the announced range. He also expressed his intention to recommend awarding her two years credit toward tenure. Cf. id. (Recommendation for Appointment).

94. Unhappy with Gaylord’s offer, Bake-well appealed to the Dean of the School of Liberal Arts, James Reese, under whose purview the Department of Psychology fell. E.g., Joint Ex. 427 (Ex. I). Reese rejected her entreaty. First, he favored her working at SFA for three years prior to becoming eligible for tenure. Second, he stated that SFA lacked the financial resources to accommodate her preference.

95. On July 1, SFA proposed hiring Bakewell as an assistant professor and awarding her two years credit toward tenure. Joint Ex. 496 (Letter from Brophy to Bake-well of 7/1/86); cf. id. (Recommendation for Appointment). Bakewell’s dissatisfaction with this offer prompted her to meet with William Brophy, Interim Vice President for Academic Affairs. Brophy conceded that Bakewell’s credentials supported her being appointed as an associate professor. He, however, reported that budgetary constraints prevented him from placing her in such a position. Because of this circumstance, he suggested a compromise under which she would enter SFA as an assistant professor with three years credit toward tenure. On July 25, Bakewell agreed to this proposal. Joint Ex. 496 (Letter from Brophy to Bake-well of 7/21/86).

96. The 1986-87 academic year marked the beginning of Bakewell’s service at SFA. See id. (same). Her salary was $24,000. Id. (same).

97. SFA reappointed Bakewell for the 1987-88 academic year. Id. (Reappointment Notification of 8/26/87). Her pay rose to $24,960. Id. (same). This $960 increase reflected the 4 percent across-the-board salary increase awarded that year. See supra ¶ 60.

98. Based on her performance during the 1986-87 academic year, Gaylord recommended Bakewell for departmental and school level merit. Joint Ex. 496 (Administrative Evaluation for 1986-87). Brophy concurred. See id. (same). Bakewell subsequently was authorized for both levels of merit.

99. SFA reappointed Bakewell for the 1988-89 academic year. Id. (Reappointment Notification of 4/25/88). Her salary jumped to $27,157. Id. (same). This $2197 increase reflected the 7 percent across-the-board salary increase awarded that year and one level of merit. See supra ¶¶ 51, 61.

100. In October, 1988, Bakewell applied for departmental and school merit based upon the work she had done during the 1987-88 academic year. Joint Ex. 496 (Memorandum from Bakewell to Gaylord of 10/6/88). Gaylord declined to recommend her for these awards because of concern about the quality of her teaching. Id. (Administrative Evaluation for 1987-88). Bake-well’s request for merit ultimately was denied. See Id. (Reappointment Notification of 7/25/89).

101. During the 1988-89 academic year, Gaylord considered recommending Bakewell for a salary adjustment. Id. (Administrative Evaluation for 1987-88).

102. Bakewell received a terminal contract for the 1989-90 academic year because the Board of Regents had denied her application for tenure in April, 1988. See id. (Reappointment Notification of 7/25/89) (Letter from Reese to Bakewell of 5/8/89).

103. This contract included no salary adjustment. (Id. Reappointment Notification of 7/25/89).

104. Bakewell’s failure to receive tenure foreclosed her from receiving the 4 percent across-the-board salary increase awarded for the 1989-90 academic year. See supra ¶¶ 62, 68.

105. Bakewell’s salary for the 1989-90 academic year, consequently, remained $27,-157. See Joint Ex. 496 (Reappointment Notification of 7/25/89).

Tenure Candidacy

106. Bakewell filled a clinical psychologist vacancy in SFA’s Department of Psychology in 1986. See Joint Ex. 427 (Ex. XVI (answer regarding the vacancy that Bakewell filled)).

107. In the late 1970s, the Department of Psychology had established the following principles to guide the operation of its psychology clinic: open communication among faculty members about their activities and coverage of a variety of psychological methods in the clinical curriculum.

108. When Bakewell began her service at SFA, Gaylord encouraged her to maintain good communications with the other two members of the Department of Psychology working in the clinical area, Verna Barron and Raymond Eastman. He also told her that Barron and Eastman tended to make decisions informally.

109. Barron informed Bakewell of an understanding that all members of the clinical faculty could visit the clinical practicum for the department’s graduate program (practi-eum) whenever they desired.

110. During the spring semester of the 1986-87 academic year, Barron taught the practicum. She invited Bakewell to the course’s final session. Bakewell attended.

111. That same term, Gaylord announced Bakewell’s assignment to teach the practicum the next fall. Barron commented to Bakewell that she disagreed with this decision and intended to seek its reversal.

112. Barron’s statement reflected her belief that Bakewell lacked the qualifications to lead the practicum without supervision.

113. Bakewell apprised Gaylord of Barron’s view. The department chair responded that Bakewell was competent to teach the practicum without supervision. Bakewell informed Barron of that Gaylord considered her capable of leading the course.

114. In August, 1987, Bakewell received a letter from Reese stating that she was making satisfactory progress toward tenure. See Joint Ex. 496 (Reappointment Notification of 8/26/87 (“Letter No. 3 attached”)).

115. Prior to the fall semester of the 1987-88 academic year, Bakewell discovered that the graduate student assigned to assist her with the practicum, Donna Teafatiller, had never completed that course.- Bakewell asked Gaylord about this situation. Gaylord responded that he was under the impression that the department’s clinical training committee had selected Teafatiller to serve as the graduate assistant for the practicum. After learning from Bakewell that the committee had not done so, he surmised that Barron and Eastman had chosen Teafatiller and then had portrayed their decision to him as that of the committee. He indicated that similar situations had occurred previously.

116. Gaylord asked Bakewell to insure that the clinical training committee actually performed its duties in the future. Bakewell did not assume this responsibility because of worry about stirring resentment among her colleagues.

117. Before the first practicum meeting of the semester, Barron expressed to Bake-well a desire to present a case study during that session. Pis.’ Ex. 122. Because she worried that Barron really wanted to appear before the class to undermine her authority, Bakewell asked Barron to deposit the case study materials in the psychology clinic and reported that no ease study reviews would occur during the initial class session. Pis.’ Ex. 123. Barron complied with Bakewell’s request. She also refrained from attending the practicum meeting.

118. In March, 1988, Gaylord told Eastman of his intention to assign Bakewell to teach the practicum for the upcoming fall term. This comment prompted Eastman to declare that a need existed to discuss some problems with Bakewell’s instruction of that course the previous semester.

119. After learning about Eastman’s remark from Gaylord, Bakewell arranged a meeting with Barron, Eastman and Gaylord to review concerns about her conduct of the practicum. Joint Ex. 464. Prior to that session, Gaylord spoke with the four students whom had been enrolled in the practicum that Bakewell had taught. He also reviewed their respective evaluations of the course. Joint Ex. 431 (Gaylord’s list of major points of student feedback on Bakewell’s practicum supervision); Pis.’ Ex. 13 (Bakewell’s notes of 4/20/88 meeting).

120. Bakewell, Barron, Eastman and Gaylord gathered on April 18 and 20,1988, to discuss Bakewell’s practicum instruction. Joint Ex. 431 (Gaylord’s notes of 4/18/88 and 4/20/88 meetings).

121. Eastman stated that a practicum participant had criticized Bakewell for teaching only one theoretical approach. Id. (Gay-lord’s notes of 4/18/88 meeting); Pis.’ Ex. 13 (Bakewell’s notes of 4/18/88 meeting). He also expressed concern about a practicum member’s report that Bakewell had used a group therapy technique during class meetings. Pis.’ Ex. 13 (Bakewell’s notes of 4/18/88 meeting).

122. Barron voiced worry about the disclosure regarding Bakewell’s employment of a group therapy technique. See Joint Ex. 431 (Gaylord’s notes of 4/18/88 meeting); Pis.’ Ex. 13 (Bakewell’s notes of 4/18/88 meeting). She also admonished Bakewell for exercising too much supervision over practicum participants. See Joint Ex. 431 (Gay-lord’s notes of 4/18/88 meeting); Pis.’ Ex. 13 (Bakewell’s notes of 4/18/88 meeting). Finally, she complained that Bakewell had failed to stress personality assessment training sufficiently. See Joint Ex. 431 (Gaylord’s notes of 4/18/88 meeting); Pis.’ Ex. 13 (Bakewell’s notes of 4/18/88 meeting).

123. Bakewell revealed that she had telephoned the American Psychological Association (APA) about the manner in which the charges about her teaching were being addressed. Joint Ex. 431 (Gaylord’s notes of 4/20/88 meeting); Pis.’ Ex. 13 (Bakewell’s notes of 4/20/88 meeting). Eastman commented that this action epitomized Bake-well’s uncooperativeness. Pis.’ Ex. 13 (Bake-well’s notes on 4/20/88 meeting). He alluded to her rebuff of Barron’s request to attend the practicum’s first session as additional evidence of this attitude and groused about her failure to invite him to the class so that students could learn about his role as the psychology clinic director. Id. (same).

124. In response to Eastman’s concern about her focusing on just one theoretical approach, Bakewell stated that she had exposed students to a variety of methods. Id. (Bakewell’s notes of 4/18/88 and 4/20/88 meetings). She also maintained that, even if she had decided to concentrate on a single paradigm, academic freedom would have safeguarded such a choice. Id. (Bakewell’s notes of 4/20/88 meeting).

125. As to the allegation regarding the use of a group therapy technique, Bakewell related that she had employed the method in question only after receiving confirmation of its appropriateness from the APA. Id. (same).

126. Bakewell asserted that the degree to which she supervised practicum members was necessary because of their inexperience. Id. (same). She also declared that Barron’s complaint about this matter violated her academic freedom.

127. Bakewell replied to Barron’s criticism about the lack of emphasis on personality assessment training with the assertion that she had encouraged course participants to conduct personality assessments. Id. (same). She, moreover, contended that academic freedom protected her judgment about the extent to which she required students to conduct personality assessments. Id. (same). She underscored this point by observing that the Graduate School Bulletin’s description of the practicum made no mention of personality assessments and that no written policy required the performance of a particular number of personality assessments as part of the practicum. See id. (Bakewell’s notes of 4/20/88 meeting).

128. Gaylord reported that a complaint he had received about vague grading criteria for the practicum lacked merit.

129. At the conclusion of the April 20 meeting, everyone agreed to maintain better communication. E.g., Joint Ex. 431 (Gay-lord’s notes of 4/20/88 meeting).

130. Eastman stated that Bakewell had assuaged his concern about the practicum’s theoretical orientation. Id. (same).

131. Although Gaylord still harbored doubt about Bakewell’s group technique, he refrained from expressing this reservation because he hoped that the clinical faculty would resolve outstanding concerns regarding that matter. He, consequently, just told Bakewell that he had no worries about her practicum instruction. Pis.’ Ex. 13 (Bake-well’s notes of 4/20/88 meeting).

132. On April 25, Bakewell received a letter from Reese indicating that her progress toward tenure was satisfactory. See Joint Ex. 496 (Reappointment Notification of 4/25/88 (“Letter # 3 attached.”)).

133. Bakewell submitted an application for tenure and promotion to associate professor on October 6. See Joint Ex. 442 (Application for Tenure and Promotion (Memorandum from Bakewell to Gaylord of 10/6/88)). It included the following: her Texas psychologist’s license; her curriculum vitae; her 1987-88 Annual Report on Teaching, Scholar/Creative Activities, and Service; student evaluations from her courses; certificates of continuing education and; letters of recommendation from individuals with whom she had worked. Id. (application materials).

134. On October 18, Gaylord told Bake-well that her tenure and promotion applications were circulating. He also stated that he foresaw no problems with the review process. Finally, he expressed a desire to meet with Bakewell personally to discuss her faculty evaluation for the 1987-88 academic year.

135. In an October 19 memorandum regarding Bakewell to SFA’s president, William Johnson, Gaylord commented that “Bakewell has been, and I assume will continue to be, a conscientious and contributing member of ... [the psychology] department.” Pis.’ Ex. 100.

136. Each of the eight tenured faculty members in the Department of Psychology reviewed Bakewell’s application for tenure, as well as her request for promotion, during late October. See Joint Ex. 477.

137. Four of these persons, Bailey, Walter Bourbon, James Speer, and Wayne Wilson recommended granting tenure, while three of them, John Anson, Barron and Eastman, opposed such action. See id. The other tenured member of the department, Jerry Lackey, abstained.

138. None of the four faculty members who supported Bakewell’s tenure application provided an extensive explanation for his view. See id. In contrast, each of the three naysayers offered specific reasons for his or her position. See id.

139. Anson cited poor student evaluations for graduate courses “in certain critical areas, such as lecture style,” the apparent absence of any active research efforts or administrative accomplishments and unfamiliarity with Bakewell’s work as the bases for his opposition. Id.

140. After considering her personal experiences with Bakewell, conversations with students, and practicum records, Barron offered the following assessment:

Dr. Bakewell has many excellent qualities. She had adequate training experience and has sought to remedy her deficits as they affect graduate student supervision and teaching. We need her expertise for programmatic needs. Because of our programmatic needs, however, I do not recommend tenure. Clinical faculty, more than any other, must work cooperatively. I cannot trust any verbal exchange I have with her. Initial agreeableness turns to very different perception later. I cannot trust her clinical judgment. She has emphasized teaching form, but actual learning appears minimal in undergraduate classes. There was a failure in substance with graduate students. They did not learn/are not exposed to things of critical relevance and were not given feedback that would encourage their development of judgment. Poor judgment was employed to ask a 2nd year grad student to grade content reports of personality assessment, to have her (the student) make up and score quizes [sic] for other graduate students. In more than one class, allegations of bias were made relative to grading, based on student acquiescence; a student that challenged procedures was subject to harsher grading. Dr. Bakewell has not contributed to our clinical team in a cooperative manner, everything must be done her way. We need clinical faculty, but in many ways, she has made it more difficult to teach, not better. I cannot look forward to....

Id.

141. Eastman cited Bakewell’s lack of team-orientedness as the reason for his vote against her tenure application. Id.

142. On November 3, Gaylord told Bake-well that he planned to summarize the faculty recommendations on her tenure application by Thanksgiving and expected to discuss specific comments with her after she returned to SFA the following January.

143. Between November 17 and December 1, six members of the School of Liberal Arts faculty each assessed Bakewell’s application for tenure. See Joint Ex. 472. Although five of these persons recommended granting her tenure, only one of them ranked her the better of the two candidates from the ' school. See id.

144. On December 9, Gaylord met with Brophy, Dean of the School of Liberal Arts, about his evaluation of Bakewell for the 1987-88 academic year. See Joint Ex. 496 (Administrative Evaluation for 1987-88). This session came after he had endeavored to meet with Bakewell personally about his assessment. The following comment in his review reported this circumstance:

Dr. Bakewell has been on maternity leave and sick leave since the end of September 88 and due to complications with her pregnancy will not be returning until next semester. I have deferred my annual evaluation of Dr. Bakewell as long as possible to optimize an in person annual conference to discuss the previous years [sic] performance but realize now this is no longer workable and am instead mailing my evaluation to Dr. Bakewell for her comments/signature.

Id. (same).

145. Gaylord’s evaluation included the following:

[S]ome organizational and procedural problems in the Clinical Practicum course — Meetings with other faculty supervisors of the Clinical Practica and myself were held and lines of communication/expectations were developed.... Student evaluations of the undergraduate classes were again positive however the graduate course while positive overall indicated some organization problems and some student concerns over clearly communicating grading/evaluation criteria.

The graduate assistant for the laboratory assumed major responsibility for exam/ quiz preparation — this needs to be discussed.

Id. (same).

146. Gaylord expressly refrained from recommending Bakewell for merit. Id. (same). He, however, stated that he would consider her, as well as others in the Department of Psychology, for a salary adjustment. Id. (same).

147. Brophy concurred with Gaylord’s evaluation. Id.

148. Gaylord’s evaluation became part of Bakewell’s application for tenure and promotion. See supra ¶ 22.

149. On December 13, Gaylord advised against granting Bakewell tenure because of “insufficient support” in the Department of Psychology for her candidacy. Joint Ex. 478. He, specifically, pointed to the schism among the tenured faculty over her application. Id.

150. Although Gaylord simply reported the number of recommendations for and against Bakewell’s application, that circumstance had swayed him little. Rather, the opposition of Barron and Eastman, as well as problems with Bakewell’s graduate course instruction, had determined his recommendation.

151. Before reaching a decision on whether or not to endorse BakewelPs tenure candidacy, Gaylord had reviewed the following: individual psychology faculty recommendations on Bakewell’s tenure application; Bake-well’s annual reports on teaching, seholarly/creative activities, and service; student evaluations of courses that Bakewell had taught; his meetings with Bakewell; solicited and unsolicited comments from graduate students about Bakewell made over the course of her two years at SFA and; information from the department’s secretary about Bakewell’s activities. See Joint Ex. 431.

152. On December 14, Brophy recommended denying Bakewell tenure for two reasons. Joint Ex. 478. First, he observed the lack of a “consensus in favor of tenure in the Department of Psychology.” Id. Second, because Bakewell had failed to receive backing for promotion from either a majority of her tenured colleagues in the Department of Psychology or a majority of the members of the School of Liberal Arts panel, Joint Ex. 431 Gaylord’s vote tally (reporting only one tenured member of the Department of Psychology as supportive of Bakewell’s request for promotion); see Joint Ex. 472 (disclosing that the School of Liberal Arts panel had split evenly on Bakewell’s promotion application), he invoked his unwritten, personal policy of advising against an award of tenure to any person not securing “a favorable recommendation for promotion.” Id.

153. Although he failed to disclose it, Brophy also found problematic the absence of scholarly publications by Bakewell since her arrival at SFA.

154. Before making his recommendation, Brophy had reviewed all of the faculty recommendations concerning Bakewell’s candidacy. The views of Barron and Eastman had strongly influenced him.

155. On January 20, 1989, Bakewell wrote a letter to Brophy in which she challenged certain aspects of Gaylord’s evaluation of her performance during the 1987-88 academic year. Joint Ex. 452. She, specifically, protested the following: Gaylord’s reference to difficulties surrounding the praeti-eum; Gaylord’s failure to apprise her of criticisms about the practicum until after discussing them with students and other faculty members; Gaylord’s portrayal of the student evaluations for her courses; Gay-lord’s characterization of her grading criteria for the graduate personality assessment class that she had taught, and; Gaylord’s depiction of how her graduate assistant for the personality assessment course had been involved in the preparation of quizzes and examinations. Id.

156. Bakewell presented Gaylord with a copy of her letter to Brophy during a January 23 meeting about the evaluation.

157. On March 1, Reese, the Vice President for Academic Affairs, counseled against granting Bakewell tenure. Joint Ex. 478. He stated that, “[l]ike the Dean, the concerns raised by the divided vote in the department and the reservations of the chairman lead me to recommend against granting tenure.” Id. This position reflected a determination that personal and philosophical differences between Bakewell and her two clinical colleagues, Barron and Eastman, jeopardized the psychology clinic’s effective operation. Although he failed to state so expressly, Reese’s view also rested upon concern about the quality of Bakewell’s graduate course instruction.

158. Reese had discu