Robert W. Halliman v. Austin Peay State University

12/13/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 10, 2024 Session

ROBERT W. HALLIMAN v. AUSTIN PEAY STATE UNIVERSITY

Appeal from the Chancery Court for Montgomery County

No. MCCHCVCD-19-39 Ben Dean, Chancellor

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No. M2023-01326-COA-R3-CV

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This is an action for violation of the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-

21-101 to -1004 (“THRA”). The plaintiff, an associate professor at a state university,

applied for promotion to the rank of full professor. While his application was under review,

the plaintiff filed an age discrimination charge against the university with the Equal

Employment Opportunity Commission (“EEOC”). A short time later, the university denied

the plaintiff’s promotion based on his alleged lack of high-quality scholarship. The trial

court dismissed the action at the summary judgment stage, reasoning that the plaintiff had

not produced evidence to rebut the university’s stated reason for denying his promotion.

This appeal followed. The plaintiff contends that the trial court erred because there was

evidence that the university’s administration knowingly violated university policy by

reevaluating the merits of the plaintiff’s peer-reviewed scholarship. We affirm the trial

court’s judgment in all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and JEFFREY USMAN, JJ., joined.

Joe Weyant, Nashville, Tennessee, for the appellant, Robert W. Halliman.

Jonathan Skrmetti, Attorney General and Reporter; J. Matthew Rice, Solicitor General; and

Jeffrey B. Cadle, Assistant Attorney General, for the appellee, Austin Peay State

University.

OPINION

FACTS AND PROCEDURAL HISTORY

Austin Peay State University (“APSU”) is a public university located in Clarksville,

Tennessee. Dr. Robert W. Halliman (“Plaintiff”) is an associate professor in the

Department of Leadership and Organization Administration at APSU’s College of

Behavioral and Health Sciences.

In June 2018, Plaintiff applied for a promotion to the rank of professor, and in

August 2018, Plaintiff filed a charge of discrimination with the EEOC related to a prior

adverse employment action taken by APSU.

Per APSU policy, Plaintiff’s application for promotion was reviewed at the

department, college, and university level. In September 2018, Plaintiff received positive

recommendations from his department’s promotion committee and chair. In October 2018,

Plaintiff received a positive recommendation from his college’s promotion committee as

well as the college’s interim dean.

At the university level, APSU’s provost, Dr. Rex Gandy, asked other APSU faculty

members to re-evaluate the quality of Plaintiff’s already peer-reviewed papers. The

feedback was universally negative. Based on this and his own review, Dr. Gandy concluded

that Plaintiff’s scholarship did not meet the rigorous quality standards that APSU expects

from candidates for the terminal rank of professor. Accordingly, Dr. Gandy recommended

a denial of Plaintiff’s application.

Plaintiff then exercised his right to appeal Dr. Gandy’s decision to the University

Tenure and Promotion Appeals Board. The Appeals Board agreed that Plaintiff’s

scholarship “appear[ed] to be substandard” and did not “meet the level of scholarship that

is normally expected from an associate professor.” Nonetheless, the Board concluded that

Plaintiff’s papers met his department’s published criteria for promotion because the papers

had been “accepted by peer reviewed journals” and “went through the peer reviewed

process.”

Plaintiff’s application then went to the ultimate decision maker, APSU President

Dr. Alisa White. After speaking with Dr. Gandy and reviewing some of Plaintiff’s

scholarship, Dr. White concurred with Dr. Gandy’s assessment. Thus, in December 2018,

Dr. White informed Plaintiff that she was denying his application.

Plaintiff commenced this action in December 2019 by filing a complaint against

APSU for breach of contract, age discrimination, and retaliation. Plaintiff asserted, inter

alia, that he “met all requirements for a promotion” and that his EEOC charge “was a

substantial or motivating factor in APSU’s refusal to promote [him] to the position of full

Professor.” Plaintiff alleged that Dr. Gandy’s substantive review of Plaintiff’s peer-

reviewed scholarship constituted a violation of APSU’s promotion policies. According to

Plaintiff, those policies did not allow “reviewers’ opinions of a candidate’s scholarship to

override evidence of peer-reviewed publications.”

After answering the complaint, APSU moved to dismiss Plaintiff’s breach of

contract claim on the ground that the trial court lacked subject matter jurisdiction. APSU

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reasoned that Plaintiff’s contract claim fell within the exclusive jurisdiction of the

Tennessee Claims Commission under Tennessee Code Annotated § 9-8-307(a)(L). The

trial court agreed, granted APSU’s motion, and dismissed the contract claim.

Meanwhile, the parties deposed Dr. White, Dr. Gandy, and Plaintiff. Dr. White

testified that the evaluation process for faculty promotions included subjective and

objective components. She explained that the quantity of a faculty member’s scholarship

was one sign of achievement but that she also looks “for a certain level of quality.” In

Plaintiff’s case, Dr. White said she based her decision on her own review of Plaintiff’s

work as well as the recommendation of Dr. Gandy.

For his part, Dr. Gandy confirmed that he was in charge of maintaining APSU’s

policies and was “pretty familiar” with them, particularly the promotion policies. Like Dr.

White, Dr. Gandy testified that APSU’s promotion policies require consideration of a

candidate’s scholarship “as objectively as possible,” along with a review of the department

and college-level recommendations. Dr. Gandy maintained that, to meet APSU’s standard

for research and scholarship, peer-reviewed scholarship had to be “significant” and “high

quality.”

Dr. Gandy testified that, in Plaintiff’s case, his evaluation was based on several

factors, including the reputation of the publishing entities and the content of the papers. Dr.

Gandy described Plaintiff’s papers as scoring a “1 out of 10” and said that he could not

determine whether one of Plaintiff’s papers was peer-reviewed because the organization

that published it was no longer in existence.

In contrast, Plaintiff testified that there were “clear statements in policy that say

evidence of peer review is evidence of high-quality scholarship.” But Plaintiff conceded

that not all peer-reviewed articles are high quality and that determining whether a

publication met APSU standards would require some subjective evaluation of factors such

as the reputation of the publisher. In particular, Plaintiff agreed that an additional level of

review might be necessary if the publication outlet had “a bad reputation.”

In June 2023, APSU moved for summary judgment on Plaintiff’s remaining claims.

APSU argued, inter alia, that it had produced evidence of a legitimate, nondiscriminatory

reason for denying Plaintiff’s application and that Plaintiff had not produced evidence to

show this reason was a pretext for discrimination or retaliation. In response, Plaintiff

maintained that he met all published standards for promotion to full professor and that Dr.

Gandy and Dr. White’s stated reasons for denying the promotion were “not supported by

University Policy whatsoever.”

After a hearing, the trial court granted APSU’s motion and dismissed Plaintiff’s

remaining claims for violation of the THRA. The court held that Plaintiff had not

established a prima facie case of age discrimination because there was no evidence that

“other employees of similar qualifications who were not members of the protected class

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received promotions.” And regarding both the age discrimination and retaliation claims,

the court found Plaintiff failed to present evidence capable of showing that APSU’s

purported reason for denying Plaintiff’s application was pretextual.

This appeal followed.

ANALYSIS

As an initial matter, we have concluded that Plaintiff waived his appeal of the trial

court’s dismissal of his breach of contract and age discrimination claims.

First, as APSU points out, the trial court dismissed Plaintiff’s age discrimination

claim on two independent grounds. The court held (1) that Plaintiff failed to make a prima

facie case of discrimination and, even if he did, (2) that Plaintiff failed to show APSU’s

proffered reason for denying the promotion was pretextual. Plaintiff has not challenged the

court’s first holding. Consequently, we must affirm the dismissal of Plaintiff’s age

discrimination claim. See Buckley v. Elephant Sanctuary in Tennessee, Inc., 639 S.W.3d

38, 55 (Tenn. Ct. App. 2021). (“[W]here a trial court provides more than one separate and

independent ground for its judgment and a party fails to appeal one or more of the

independent grounds, we must affirm the judgment of the trial court on the ground that was

not challenged on appeal.”).

Second, in his appellate brief, Plaintiff failed to develop a legal argument on why

the trial court had subject matter jurisdiction over his contract claim. Plaintiff cites one

unpublished case, Roberson v. University of Tennessee, No. C.A. 754, 1988 WL 74236

(Tenn. Ct. App. July 19, 1988), and one memorandum opinion. We note that, under

Tennessee Court of Appeals Rule 10, memorandum opinions “shall not be cited or relied

on for any reason in any unrelated case.” Thus, the only reliable authority cited by Plaintiff

is Roberson.

In Roberson, we held that the Tennessee Claims Commission Act did not deprive a

trial court of jurisdiction to adjudicate a THRA claim because “the more specific

comprehensive legislation addressing the special subject matter of human rights and

discrimination was intended to survive the more general language of the Claims Act.” Id.

at *3. Thus, Roberson stands for the proposition that THRA claims are exempt from the

Claims Commission’s “exclusive jurisdiction” over contract claims against the State of

Tennessee. See Tenn. Code Ann. § 9-8-307(a)(1), (a)(1)(L).

But the issue raised by Plaintiff in this appeal is whether a trial court has jurisdiction

over contract claims against the State when those claims arise from the same operative

facts as a contemporaneously filed THRA claim. Plaintiff has not, however, developed a

cognizable argument on this point. “It is not the role of the courts, trial or appellate, to

research or construct a litigant’s case or arguments for him or her, and where a party fails

to develop an argument in support of his or her contention or merely constructs a skeletal

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argument, the issue is waived.” Sneed v. Bd. of Pro. Resp. of Supreme Ct., 301 S.W.3d 603,

615 (Tenn. 2010).

For these reasons, we conclude that the only viable issue raised by Plaintiff on

appeal relates to Plaintiff’s retaliation claim. In particular, the dispositive issue is whether

Plaintiff’s evidence at the summary judgment stage created a genuine issue of material fact

on whether APSU’s purported reason for denying his promotion was a pretext for unlawful

retaliation.

This court “review[s] a trial court’s decision on a motion for summary judgment de

novo, with no presumption of correctness.” Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, we must “make a fresh

determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied.” See id. We must “view the evidence in the light most

favorable to the nonmoving party and must draw all reasonable inferences in that party’s

favor.” Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). Summary judgment is

appropriate when “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn.

R. Civ. P. 56.04; Rye, 477 S.W.3d at 251.

The THRA gives a civil cause of action to “[a]ny person injured by any act in

violation of [the Act].” Tenn. Code Ann. § 4-21-311(a). Relevant here, it is a violation of

the THRA to retaliate against a person “because such person has opposed a practice

declared discriminatory by this chapter or because such person has made a charge, filed a

complaint, testified, assisted or participated in any manner in any investigation, proceeding

or hearing under this chapter.” Id. § 4-21-301(a)(1). All THRA claims are governed by the

burden-shifting procedures in Tennessee Code Annotated § 4-21-311, which state:

In any civil cause of action alleging a violation of this chapter or of § 8-50-

103, the plaintiff shall have the burden of establishing a prima facie case of

intentional discrimination or retaliation. If the plaintiff satisfies this burden,

the burden shall then be on the defendant to produce evidence that one (1) or

more legitimate, nondiscriminatory reasons existed for the challenged

employment action. . . . If the defendant produces such evidence, the

presumption of discrimination or retaliation raised by the plaintiff’s prima

facie case is rebutted, and the burden shifts to the plaintiff to demonstrate

that the reason given by the defendant was not the true reason for the

challenged employment action and that the stated reason was a pretext for

illegal discrimination or retaliation.

Tenn. Code Ann. § 4-21-311(e). This procedure applies “at all stages of the proceedings,

including motions for summary judgment.” Id.

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Here, we are concerned only with whether Plaintiff satisfied his burden at the

summary judgment stage to produce prima facie evidence that the reason given by APSU

“was not the true reason for the challenged employment action and that the stated reason

was a pretext for illegal . . . retaliation.” See id. In other words, the issue is whether Plaintiff

presented “evidence demonstrating that the articulated reason is pretextual and that the

defendant’s action was actually motivated by a desire to retaliate against the employee.”

Allen v. McPhee, 240 S.W.3d 803, 821 (Tenn. 2007), abrogated on other grounds by

Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010).

A plaintiff need not refute “every piece of evidence supporting [the d]efendant’s

reasons for [the adverse employment action].” Templeton v. Macon Cnty., 576 S.W.3d 691,

706 (Tenn. Ct. App. 2018). Instead, “[w]hat is important is whether the inconsistencies,

contradictions, and other independent evidence create a credibility issue that a trier of fact

must resolve. Id. (citing Frame v. Davidson Transit Org., 194 S.W.3d 429, 441 (Tenn. Ct.

App. 2005)). “At the summary judgment phase, the plaintiff need only ‘present some

evidence, whether direct or circumstantial, which is sufficient to create a genuine issue of

material fact as to the motivations of the defendant.’” Id. (quoting Dennis v. White Way

Cleaners, L.P., 119 S.W.3d 688, 694 (Tenn. Ct. App. 2003)). As our Supreme Court has

observed,

Circumstantial evidence that is pertinent and probative on the issue

of . . . retaliatory intent includes, but is not limited to, (1) the temporal

proximity of the adverse action to the complaint; (2) a pattern of workplace

antagonism after a complaint; (3) an employer’s failure to adhere to

established company policy in dealing with the employee; (4) discriminatory

treatment when compared to similarly situated employees; (5) evidence of a

good work history and high or solid performance evaluations of the

employee; (6) sudden and marked changes in an employee’s performance

evaluations after the exercise of the employee’s protected rights; and (7)

evidence tending to show that the employer’s stated reason for [the adverse

employment action] was false.

Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 29–30 (Tenn. 2011) (citations omitted).

“Once the employer’s stated justification for the decision has been eliminated,

‘discrimination may well be the most likely alternative explanation, especially since the

employer is in the best position to put forth the actual reason for its decision.’” Goree v.

United Parcel Serv., Inc., 490 S.W.3d 413, 433 (Tenn. Ct. App. 2015) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097 (2000)). And “[i]f the only reason an

employer offers for its decision is a lie, ‘the inference that the real reason was a forbidden

one . . . may rationally be drawn.’” Id. (quoting Versa v. Pol’y Stud., Inc., 45 S.W.3d 575,

582 (Tenn. Ct. App. 2000)).

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Here, the trial court held that APSU presented evidence of a legitimate reason for

denying Plaintiff’s promotion by producing the deposition testimony of Dr. White and Dr.

Gandy. Each said that Plaintiff’s scholarship failed to meet the standard for promotion set

by APSU’s policies.

Plaintiff contends that he produced circumstantial evidence from which a rational

finder-of-fact could conclude that APSU’s reason was pretextual by showing (1) that his

application received positive reviews at all levels before reaching Dr. Gandy; (2) that Dr.

Gandy and Dr. White had intimate knowledge of APSU’s promotion policies; and (3) that

Dr. Gandy and Dr. White nonetheless violated the policies by evaluating the substance of

Plaintiff’s peer-reviewed scholarship. In other words, Plaintiff alleges that APSU failed “to

adhere to established company policy.” See Sykes, 343 S.W.3d at 29.

Resolving this issue requires us to interpret and construe APSU’s policies and

procedures. We interpret university policies using the same rules of construction generally

applicable to contracts. See Pack v. Freed-Hardeman Univ., No. W2021-00311-COA-R3-

CV, 2023 WL 2207390, at *3 (Tenn. Ct. App. Feb. 24, 2023).

Plaintiff contends that “APSU policy repeatedly states that the standard for quality

of publications is to publish in peer-reviewed journals, or other peer-reviewed media” and

that “[n]owhere in APSU policy does it allow a promotion reviewer’s subjective

assessment of the quality of a candidate’s peer-reviewed published articles to override the

independent peer review.” According to Plaintiff, “Objectivity is the requirement of the

policy.” We respectfully disagree.

Academic promotion at APSU is governed by three documents: (1) APSU Policy

2:063, “Policy on Academic Promotion” (“the Promotion Policy”); (2) APSU Policy 1:025,

“Policy on Academic Tenure” (“the Tenure Policy”); and (3) APSU’s “Tenure and

Procedures and Guidelines” (“the Tenure Guidelines”).1 These documents identify three

areas in which each candidate is evaluated: “Academic Assignment,” “Scholarly and

1

Plaintiff also contends that he met the requirements for promotion because he met his

department’s separate criteria for scholarly achievement. APSU’s Promotion Policy requires each

department to develop its own promotion guidelines and states that those guidelines cannot be less

restrictive than the university-wide guidelines. According to Plaintiff, his department’s guidelines required

faculty members to have at least two scholarly works published in two peer-reviewed outlets over the last

five years. Our review of this argument, however, is precluded by the fact that no copy of the department

policy appears in the record. Plaintiff’s citation leads to APSU’s university-wide Tenure Policy. Regardless,

Plaintiff represents that the quality standard for scholarship is the same under the department and university

policies.

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Creative Achievement,” and “Professional Contributions and Activities.” Plaintiff’s

application was denied on the sole ground of inadequate scholarly achievement.

The Promotion Policy describes “[t]he minimum rank qualifications . . . for

promotion in academic rank.” Subject to some exceptions not applicable here, to reach the

rank of professor, faculty must have, inter alia, “[d]ocumented evidence of sustained high

quality professional productivity.” (Emphasis added). This evidence may include

“evidence of . . . superior scholarly and creative achievement.” (Emphasis added).

Similarly, the Tenure Policy states in relevant part as follows:

A candidate for [promotion]2 must present evidence of his/her research,

scholarship and/or creative activities when he/she applies . . . . Such

evidence should cite books, journal articles, monographs, creative activities,

performances, or exhibitions that have undergone appropriate peer review.

Research publications in refereed journals or media of similar quality are

considered reliable indicators of research/scholarly ability. . . . Books

published by reputable firms and articles in refereed journals, reviewed by

recognized scholars, are more significant than those that are not subjected

to such rigorous examination. It should be emphasized that quality is more

important than quantity.

. . .

Research and scholarly and creative activities are important to the

University’s role in society. Clear evidence of the quality of work shall be

a part of every evaluation, including evaluations from Deans and

directors supervising special programs in which the faculty member

participates.

(Emphasis in original omitted) (emphasis added). And like the Tenure Policy, the Tenure

Guidelines emphasize that “[c]lear evidence of the quality of work shall be part of every

evaluation.” (Emphasis added).

We conclude that the plain language of APSU’s promotion policies contemplates

that a subjective assessment of scholarly work is appropriate and may be necessary to

determine whether a candidate’s work meets the “high quality” standard necessary for

promotion to the terminal rank of professor. While peer-reviewed work is defined as

“evidence” of scholarly achievement, the policies do not state that peer review is an

uncontestable proxy for quality.

2

The Tenure Policy uses the word “tenure” but states that these provisions also apply to promotion

evaluations.

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For this reason, we conclude that the quality of Plaintiff’s peer-reviewed scholarship

was not exempt from further review by APSU administrators during the review process.

Accordingly, Plaintiff failed to produce evidence that Dr. Gandy and Dr. White violated

APSU’s academic promotion policies. Without this evidence, Plaintiff’s theory of

retaliatory intent fails.

For this reason, we affirm the trial court summary judgment on Plaintiff’s THRA

retaliation claim.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against the appellant, Robert W. Halliman.

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FRANK G. CLEMENT JR., P.J., M.S.

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