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Gupta v. Trustees of The California State University

California Court of Appeals, First District, Third Division

September 26, 2019

RASHMI GUPTA, Plaintiff and Respondent,

          City & County of San Francisco County Superior Court Trial Court No. CGC-15-544050. A. James Robertson II Trial Judge.

          Law Offices of Elizabeth F. McDonald, Aaron S. Gorfein for Plaintiff and Respondent.

          Grignon Law Firm, Anne Marie Grignon; Lynch and Shupe, John Shupe for Defendant and Appellant.

          PETROU, J.

         The Trustees of the California State University for San Francisco State University (SFSU) appeals from a judgment entered after a jury found SFSU retaliated against its professor, Dr. Rashmi Gupta[1], in denying her tenure and terminating her employment. SFSU contends the trial court erred in: (1) allowing Gupta to present evidence of a “comparator professor” without requiring her to show her qualifications were “clearly superior” to that professor’s qualifications; (2) refusing to give a special jury instruction regarding comparator evidence; and (3) “interven[ing] in the questioning of witnesses before the jury in a manner that favored [Gupta].” We reject SFSU’s contentions and affirm the judgment.[2]

         Factual and Procedural Background

         Gupta is an American woman of Indian national origin and ancestry. In 2006, SFSU hired her as a “tenure track assistant professor” in the School of Social Work, College of Health and Social Sciences. Each year, SFSU conducts a review and decides whether to retain the professor for another year. Typically, an assistant professor is hired to a six-year term and, during the sixth year, SFSU determines whether to promote the professor to associate professor and award lifetime tenure.

         In her first three semesters at SFSU, Gupta had some difficulty adjusting to her new job and received Student Evaluation of Teaching Effectiveness (SETE) scores that were lower than the department mean. Her second year review explained: “Dr. Gupta’s lower SETE scores may be attributed, in part, to the standards and expectations she sets for students. She gives students substantial assignments and demands results... One must commend her for holding firmly to the principles and standards she establishes for all courses, even if students complain about the rigors she presents.” The review praised Gupta for being “a valued contributing member of the social work faculty, ” for being “actively engaged in research, scholarship, and publication, ” and for “jump[ing] in” “[d]espite being a new faculty member” and “actively contribut[ing] to the campus and community.” Gupta made some adjustments to her teaching style, and in her third-year review, she received positive reviews from all three faculty members who conducted teaching performance evaluations. Her SETE scores began to improve and, each year, SFSU decided to retain her as an assistant professor.

         On November 9, 2009, Gupta and several other women of color in the School of Social Work wrote a letter to SFSU Provost Dr. Sue Rosser to request a meeting with Rosser and the Dean of Faculty Affairs, Dr. Wanda Lee, to discuss “faculty concerns in the School of Social Work” relating to “abus[e] of power and authority, excessive micromanagement, bullying, and the creation of a hostile work environment.” At a meeting attended by the complainants, Lee, and the Dean of the College of Health and Social Sciences, Dr. Don Taylor, the parties discussed problems they were having with the Director of the School of Social Work, Dr. Rita Takahashi.[3] The parties also discussed, more generally, their concerns about discrimination against people of color. SFSU instructed the complainants to work out their differences with Takahashi and to meet with Taylor again if their efforts were unsuccessful.

         Less than two months later, on January 5, 2010, Gupta received a fourth-year review that was critical of her performance in all three areas used to evaluate tenure-teaching effectiveness, professional achievement and growth, and contributions to campus and community. The review also criticized Gupta for several things, including purported defects in her syllabi, which turned out to be inaccurate. The review only briefly mentioned Gupta’s SETE scores, all of which were significantly better than the department mean, and made no positive comments regarding her scholarship despite the fact that she had published enough articles to meet the requirements of tenure.

         Shortly thereafter, Gupta sent emails to a colleague complaining that her workplace was hostile towards women of color and that Taylor and Takahashi were responsible for creating a hostile work environment. In March 2010, at a meeting held between Taylor and the School of Social Work faculty, Taylor became angry at Gupta for sending the emails and said, “I know about [the emails]” and “I’m going to get even with you.” Another professor who attended the meeting testified that Taylor was “red in the face” and pointing his finger at Gupta as he called her out. When Gupta responded that she “just saw it as part of bathroom conversation, ” Taylor responded that there are “consequences” to “those sort of conversations.” The professor testified that Taylor was “[l]oud and animated” as he made these statements and that the incident stood out because it was “not typically how I witnessed Dr. Taylor interact or behave.”

         During the 2010–2011 academic year-Gupta’s fifth year at SFSU-Gupta was eligible to request early tenure and received support from the departmental and campus wide tenure committees and the interim director of the School of Social Work. She submitted peer teaching evaluations and references from students and faculty members at SFSU and at other institutions. Taylor recommended denial of Gupta’s early tenure, stating she had not demonstrated “sustained progress” in the three areas used to evaluate tenure-teaching effectiveness, professional achievement and growth, and contributions to campus and community.

         Gupta filed a complaint with the Equal Employment Opportunity Commission (EEOC) identifying Taylor by name, and filed a federal lawsuit alleging SFSU denied her early tenure as a result of discrimination and retaliation. Gupta also grieved the denial of her tenure. The matter went to arbitration and an arbitrator ordered SFSU to review Gupta for tenure the following year. Gupta voluntarily dismissed her federal lawsuit.

         Gupta came up for regular tenure during the 2011–2012 academic year. Students praised her teaching, stating for example: “Gupta is one of the most knowledgeable professors in the Social Work program, and holds students to a high academic standard which I appreciate in a Masters level program... She holds students accountable which is not what other professors do here. Students described her teaching strengths: “She is a very organized Teacher”; “She is very helpful helping you understand a very difficult subject. I learned so much from her class.”; “Overall a very excellent teacher. I wish all of my teachers would have been like her. I am so glad I took her class. This institution is very lucky to have teachers like her”; “Great knowledge of the material, enthusiasm for class, easy to reach.”

         The departmental tenure committee described Gupta’s scholarship as “most impressive” and “reflective of a breadth of thinking, ability, and talent.” She had published 12 peer-reviewed articles, twice the number required by the department’s tenure policy, and had also co-authored book chapters and encyclopedia entries and authored or co-authored at least 30 conference papers. She was awarded a Fulbright research award in 2012. The committee stated: “This is a remarkable level of scholarship, especially for someone who has been called upon to teach an unusually heavy load of classes....” Gupta also submitted letters from current and former students, evidence of teaching in diverse areas, letters from external faculty She received universal support from her colleagues and departmental and campus wide tenure committees.

         Dr. Eileen Levy, Interim Director of the School of Social Work, “enthusiastically support[ed] the recommendation of the [tenure committee] to grant tenure and promotion” to Gupta. She commended Gupta for being “a competent and dedicated teacher” who has “clearly demonstrated excellence in the area of Teaching Effectiveness, ” for being “a productive and prolific scholar, ” and for contributing to the campus and community in noteworthy ways. Levy concluded: “Dr. Gupta’s contributions to the three areas of evaluation are significant, impactful and relevant, and well exceed the School’s... criteria for tenure and promotion.”

         Levy testified that Taylor was unhappy with her for recommending Gupta’s tenure. Taylor told Levy he was “not going to approve [Gupta] for tenure” because he “didn’t like [her] attitude” and “he really didn’t want people in the School of Social Work who were going to make the school look bad.”

         Levy recalled that Taylor previously retaliated against her (Levy) after Levy complained at an accreditation meeting that “there were issues in our School of Social Work regarding tenure and promotion of women of color and that... the negative decisions had impacted the students’ educational effectiveness.” Taylor became angry at Levy and “admonished” her for speaking out. He called Levy into his office, told him she had “betrayed” him, and said he could no longer work with her. When Levy responded that she felt they could continue working together and that she had only spoken the truth, Taylor became upset that she was “not being... complicit enough” and said, “ ‘You know I can reduce your numbers even further?’... ‘I can really take your numbers down’ in that tone of voice.” Levy testified: “And I said, ‘Are you threatening me?’ And I will never forget this conversation.” When Levy said to Taylor, “ ‘You are threatening me, ’ ” Taylor did not deny that he was, and “just stared” at Levy and “didn’t say anything. He just looked at me.”

         Taylor once again recommended against Gupta’s tenure. In criticizing Gupta’s teaching effectiveness, Taylor compared one of her SETE scores to the overall “College” mean rather than comparing it to the department mean as he was required to do. And even though SETE scores can vary depending on the difficulty of the classes taught, Taylor did not take the difficulty of the classes Gupta taught in evaluating her SETE scores. Taylor also did not give much weight to Gupta’s faculty classroom observation reports-all of which were highly positive-on the basis that they were written by colleagues within the department, and not by faculty in other departments, or people of higher rank. Taylor later acknowledged that tenure applicants are supposed to obtain classroom observation reports from colleagues within their own department, and that most, if not all, of the faculty members who provided Gupta’s reports were in fact of higher rank.

         The year after SFSU denied Gupta tenure, it granted tenure to Dr. J.H.[4], a professor in the School of Social Work who had not previously filed a complaint against SFSU. Gupta’s SETE scores were better than J.H.’s SETE scores and Gupta had more than double the minimum ...

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