IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
H. ERIK BUTLER, § § Plaintiff, § § v. § CIVIL ACTION NO. § 1:13-cv-00151-TCB-LTW EMORY UNIVERSITY, § § Defendant. § §
DEFENDANT EMORY UNIVERSITY’S ANSWER AND DEFENSES TO PLAINTIFF’S FIRST AMENDED COMPLAINT
Defendant Emory University (“Defendant”, “Emory” or the “University”), respectfully submits its Answer and Defenses to the First Amended Complaint for Violation of the Civil
Rights Act of 1964 and for Breach of Contract (the “First Amended Complaint”) filed by
Plaintiff H. Erik Butler in the above-referenced action.
ANSWERS
Emory responds to the allegations contained in the numbered paragraphs of the First
Amended Complaint as follows:
1.
Answering the allegations of Paragraph 1of the First Amended Complaint, Emory admits
that Plaintiff purports to bring this action seeking damages and equitable relief pursuant to Title
VII and for breach of contract. Emory denies, however, that any such claims exist or that
Plaintiff is entitled to any relief whatsoever. Dr. Butler did not earn tenure at Emory because of
legitimate concerns over his disruptive and antagonistic behavior in the Department of German
Studies (the “Department”). Except as expressly admitted or otherwise stated herein, Emory
denies each and every allegation of Paragraph 1 of the First Amended Complaint.
2.
Answering the allegations contained in Paragraph 2 of the First Amended Complaint,
Emory admits that this Court (the United States District Court for the Northern District of
Georgia) has subject matter jurisdiction over Plaintiff’s federal Title VII claims and
supplemental jurisdiction over Plaintiff’s state breach of contract claims.
3.
Emory admits the allegations contained in Paragraph 3 of the First Amended Complaint.
4.
Answering the allegations contained in Paragraph 4 of the First Amended Complaint,
Emory admits that Plaintiff exhausted his administrative remedies with respect to his religious
and national origin discrimination claims (involving the denial of tenure only) by filing a timely
charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”).
However, Emory denies that Plaintiff exhausted his administrative remedies with respect to his
retaliation claim and denies that he filed a timely charge of discrimination with the EEOC
asserting a retaliation claim. Emory admits that the EEOC issued a determination that there is
reasonable cause to conclude that Plaintiff was discriminated against due to his religion, national origin, and in retaliation for engaging in activities protected by Title VII but denies there was in fact such reasonable cause and denies that the EEOC conducted a fair, thorough, or impartial investigation. Emory further admits that conciliation attempts failed, the EEOC issued Plaintiff a
Notice of Right to Sue, and Plaintiff filed this action within 90 days thereof. Except as expressly
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admitted or otherwise stated herein, Emory denies each and every allegation of Paragraph 4 of the First Amended Complaint.
5.
Answering the allegations contained in Paragraph 5 of the First Amended Complaint,
Emory states that it is without information or knowledge sufficient to form a belief as to the truth of the allegation that Plaintiff is Jewish, and such allegation is therefore denied. Emory admits that Plaintiff is an American male. Emory further admits that Plaintiff was an employee of
Emory from 2004 through the end of the Spring semester in 2011, though during portions of that period he was on an unpaid leave that he requested. Except as expressly admitted or otherwise stated herein, Emory denies each and every allegation of Paragraph 5 of the First Amended
Complaint.
6.
Answering the allegations contained in Paragraph 6 of the First Amended Complaint,
Emory admits that it is a private Nonprofit Corporation. Emory admits that it has in excess of
500 full and part time employees, that this Court has jurisdiction over it, and that it was properly served with the First Amended Complaint.
7.
Answering the allegations contained in Paragraph 7 of the First Amended Complaint,
Emory admits that it hired Plaintiff for the academic year 2004-2005 as a tenure track Assistant
Professor in the Department and that Plaintiff accepted this employment by letter dated February
14, 2004. Emory denies that Plaintiff had an employment contract or that he had any contractual or other right to renewal of his appointment. Emory further admits that both Plaintiff and
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Professor James Melton were the only American-born tenure track professors in the Department at the time of Plaintiff’s hiring since two other American-born professors in the Department had recently retired, and the remaining tenure-track members were German-born. Emory is without information or knowledge sufficient to form a belief as to the truth of the allegation that Plaintiff is Jewish, and such allegation is therefore denied. Except as expressly admitted or otherwise stated herein, Emory denies each and every allegation of Paragraph 7 of the First Amended
Complaint.
8.
Emory denies the allegations contained in Paragraph 8 of the First Amended Complaint.
9.
Answering the allegations contained in Paragraph 9 of the First Amended Complaint,
Emory admits that Plaintiff received annual evaluations by the Department Chair in accordance with policies of the University and also its College of Arts and Sciences and that such policies require evaluation in the areas of teaching, research, and service. Except as expressly admitted or otherwise stated herein, Emory denies each and every allegation of Paragraph 9 of the First
Amended Complaint.
10.
Emory admits the allegations contained in Paragraph 10 of the First Amended Complaint but notes that the quoted language constitutes selected excerpts of the document and that the document as a whole speaks for itself.
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11.
Emory admits the allegations contained in Paragraph 11 of the First Amended Complaint
but notes that the quoted language constitutes selected excerpts of the documents and the
documents as a whole speak for themselves.
12.
Answering the allegations contained in Paragraph 12 of the First Amended Complaint,
Emory admits that for the academic year 2006-2007, Dr. Höyng was the Department Chair and
that he noted in Dr. Butler’s annual evaluation that there had been a “serious complaint by one student.” Specifically, the student, who required emergency surgery to save the function of his injured right hand, emailed Dr. Butler to alert him of his expected absence. In response, Dr.
Butler wrote that the student would need to complete the appropriate paperwork and ended his email sarcastically, writing: “enjoy the pain.” When the student returned from surgery the next week, he met with Dr. Butler to get the assignments he had missed. According to the six-page complaint letter sent by the student’s father to Emory’s President: “Less than a week out of major surgery this German professor, H. Erik Butler PhD., blasted, belittled, and berated him, saying many insulting things including that ‘I have to deal with someone like you every semester,’ and that you are ‘always asking for special needs.’” Near tears, the student met with a member of Emory’s Office of Disability Services (“ODS”) who telephoned Dr. Butler to help resolve the situation. Following that conversation, the ODS employee called Dr. Höyng to report that Dr. Butler had been rude and unprofessional to her. Having been alerted to these complaints, and in an effort to help Dr. Butler, Dr. Höyng privately counseled Dr. Butler that such behavior could jeopardize Dr. Butler’s tenure prospects. Rather than accept the counseling
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or try to remedy the situation, Dr. Butler reacted to Dr. Höyng in a loud and agitated manner that
Dr. Höyng found completely inappropriate. In an email to the student involved, Dr. Butler offered no apology. To the contrary, Dr. Butler denied any impropriety and suggested the student was at fault, writing: “Of course, it is my concern to make allowances for disabilities.
Thus, the problem seems to lie elsewhere.” Because neither the student, his father, nor the ODS employee believed Dr. Butler capable of treating the student fairly after this episode, the student requested and received a medical withdrawal from the class. Emory admits that, despite this incident, Dr. Höyng tried to help Dr. Butler on his tenure track, rating Dr. Butler as “meets all expectations” in teaching and “exceptional” in research and service, with an overall rating of
“exceptional.” Emory further admits that Dr. Höyng wrote in his annual review letter to Dean
Levenduski: “Dr. Butler is more than meeting all the research expectations of a young scholar on tenure-track. In fact, Dr. Butler promises to rise to national and international recognition.”
Emory notes that the quoted language constitutes selected excerpts of the documents, and the documents as a whole speak for themselves. Emory further notes that Dr. Höyng consistently rated Dr. Butler’s research very highly, and the quality and content of his research were not the reason for Dr. Höyng’s eventual decision to vote against tenure. There are three separate components to a tenure evaluation: research, teaching, and service, and a successful candidate for tenure must satisfy all three requirements. Under Emory’s policies, “service” expressly
“includes displaying a collegial spirit of cooperation and avoidance of disruptive behavior.”
Except as expressly admitted or otherwise stated herein, Emory denies each and every allegation of Paragraph 12 of the First Amended Complaint.
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13.
Answering the allegations contained in Paragraph 13 of the First Amended Complaint,
Emory admits that Dr. Butler’s annual review for the academic year 2006-2007 was sent to Dean
Levenduski in May 2007 and that Dr. Butler requested and was granted an unpaid leave of absence for the 2007-2008 academic year for personal reasons but denies that he was not an employee of Emory during his leave. Emory admits that Dr. Butler was on unpaid leave from
Emory for the Fall Semester of the 2007-2008 academic year and that he returned to teach in the
Spring of 2008. Except as expressly admitted or otherwise stated herein, Emory denies each and
every allegation of Paragraph 13 of the First Amended Complaint.
14.
Emory denies the allegations contained in paragraph 14 of the First Amended Complaint.
Emory further states that Dr. Höyng’s concerns regarding Dr. Butler’s collegiality were founded
on good faith and honestly held beliefs regarding the damage Dr. Butler’s unprofessional
behavior could cause the Department (including its faculty, staff, and students) and that many of
his colleagues (both tenured and non-tenured) shared such concerns.
15.
Answering the allegations contained in Paragraph 15 of the First Amended Complaint,
Emory admits that Dr. Butler, like several of the Department’s faculty members, has focused
some of his research on Nazi Germany and on enduring xenophobia in Germany. Emory further
admits that Dr. Höyng was born in Germany but notes that he is a United States citizen. Emory admits that Dr. Höyng is not Jewish but notes that he has actively supported the development of
German/Jewish studies in the Department, his own published work has focused on the
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Holocaust, he oversaw the hiring of a Yiddish teacher who is an observant Jew, and he is a member of the Tam Institute for Jewish Studies at Emory. Except as expressly admitted or otherwise stated herein, Emory denies the allegations contained in paragraph 15 of the First
Amended Complaint.
16.
Emory admits the allegations contained in Paragraph 16 of the First Amended Complaint.
17.
Emory admits the allegations contained in Paragraph 17 of the First Amended Complaint, with the exception of the allegation that Dr. Butler was “only briefly on the Emory campus” between the time of his third and fourth year reviews, which Emory denies.
18.
Emory admits the allegations contained in Paragraph 18 of the First Amended Complaint but notes that the quoted language constitutes selected excerpts of the documents and the documents as a whole speak for themselves.
19.
Answering the allegations contained in Paragraph 19 of the First Amended Complaint,
Emory admits Dr. Butler’s fourth year review states in part that “as in regard to his overall research record, his overall commitment and teaching record are undoubtedly strong.” Emory notes that the quoted language constitutes selected excerpts of the document and the document as a whole speaks for itself. Except as expressly admitted or otherwise stated herein, Emory denies the allegations contained in paragraph 19 of the First Amended Complaint.
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20.
Answering the allegations contained in Paragraph 20 of the First Amended Complaint,
Emory admits that Dr. Butler’s fourth year review states in part that “[w]hile the Review
Committee welcomes Dr. Butler’s manner of speaking frankly and forthrightly on issues related
to the Department, it is at the same time distressed that his frankness and outspoken style veers in
directions that can be detrimental to the spirit of the Department.” Emory notes that the quoted
language constitutes selected excerpts of the document and the document as a whole speaks for
itself. Except as expressly admitted or otherwise stated herein, Emory denies the allegations
contained in paragraph 20 of the First Amended Complaint.
21.
Answering the allegations contained in Paragraph 21 of the First Amended Complaint,
Emory admits that Dr. Butler’s fourth year review states in part that “[i]t is a matter of serious
concern to the Chair, that Dr. Butler more than once during the past year violated the principal of collegiality as outlined in Emory’s Tenure and Promotion Principles and Procedures.” Emory further notes that the fourth year review goes on to quote from its Tenure and Promotion
Principles and Procedures: “The idea of ‘service’ includes displaying a collegial spirit of cooperation and avoidance of disruptive behavior.” Emory further notes that collegiality is a requirement for tenure not only at Emory, but at many colleges and universities across the country given the recognized importance of civility and cooperation to issues such as departmental curriculum and program philosophy. Passionate disagreement is welcomed, but demeaning, rude, and degrading behavior is not. Emory avers that the fourth year review states in part: “One example of such behavior was deriding a junior colleague during a formal
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departmental meeting for her research and teaching” and further admits that the formal
departmental meeting minutes did not document Dr. Butler’s rude remarks. Emory states that
Dr. Butler openly and inappropriately chastised and belittled this colleague in communications
with faculty, staff, and student workers. Emory further states that Dr. Butler was frequently and
openly dismissive of his colleagues and the Department as a whole. Because of this, the fourth
year review counseled Dr. Butler that “he has to develop a larger degree of diplomacy and tact, and transform his frequent attitude of curmudgeon and at times even anger into constructive criticism which would benefit the entire Department.” Emory admits that the fourth year review states in part that “[f]our members of the Review Committee recommend Dr. Butler for continuation, and one member abstains.” Emory notes that the quoted language constitutes selected excerpts of the document and the document as a whole speaks for itself. Except as expressly admitted or otherwise stated herein, Emory denies the allegations contained in paragraph 21 of the First Amended Complaint.
22.
Emory denies the allegations contained in Paragraph 22 of the First Amended Complaint.
23.
Answering the allegations contained in Paragraph 23 of the First Amended Complaint,
Emory admits that Dr. Butler disagreed with the criticisms contained in the fourth year review.
Emory denies that Dr. Butler complained at the time that such criticisms had anything to do with
his religion or national original. Emory further denies that Dr. Höyng was aware of Dr. Butler’s
religion or that his religion and/or national origin played any role whatsoever in the fourth year
review or in Dr. Höyng’s concerns regarding Dr. Butler’s level of collegiality. Emory notes that
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of the last two members of the Department to have received tenure (both with Dr. Höyng’s support), one is of Jewish ancestry and has devoted a portion of her published work to her family’s persecution during the Holocaust (Dr. Caroline Schaumann) and the other is American- born (Dr. Hiram Maxim). Emory further notes that Dr. Höyng is a member of the Tam Institute for Jewish Studies at Emory, German-Jewish culture and literature is a focus of his academic research and teaching, he helped shape the Department’s new vision statement to include
German-Jewish studies as an area of focus, and he oversaw the hiring of a Yiddish teacher known to be an observant Jew at the time of her hiring. Except as expressly admitted or otherwise stated herein, Emory denies the allegations contained in paragraph 23 of the First
Amended Complaint.
24.
Answering the allegations contained in Paragraph 24 of the First Amended Complaint,
Emory admits that the Tenure and Promotion Committee considered Dr. Butler’s fourth year review, and in its recommendation letter to Dean Paul, wrote in part: “The Tenure and
Promotion Committee agrees with the assessments of the Review Committee and the two outside reviewers that Butler’s research profile is excellent.” Emory further admits that the Tenure and
Promotion Committee recommendation letter also states in part that Dr. Butler’s teaching is
“undoubtedly strong.” Emory further admits that the recommendation letter states in part that the Tenure and Promotion Committee “has insufficient evidence to evaluate” the collegiality issues raised in the fourth year review but notes that the Tenure and Promotion Committee wrote that “[t]he Chair is correct to cite the final sentence of the paragraph on service, in the ‘Statement of Principles Used for Appointment, Promotion, and Tenure in Emory College,’ which clearly
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states that ‘the idea of ‘service’ includes displaying a collegial spirit of cooperation and
avoidance of disruptive behavior.’” Emory also notes that the Tenure and Promotion Committee
stated: “we would urge Dr. Butler to work with his department to address the issue of collegiality, since this is a crucial criterion of service, which if not met will make it difficult to secure a rating of satisfactory at the time of the promotion review.” Emory admits that the
recommendation letter states in part: “the Tenure and Promotion Committee unanimously votes
for the continuation of his appointment as Assistant Professor.” Emory notes that the quoted
language constitutes selected excerpts of the document and the document as a whole speaks for
itself. Except as expressly admitted or otherwise stated herein, Emory denies the allegations
contained in paragraph 24 of the First Amended Complaint.
25.
Answering the allegations contained in Paragraph 25 of the First Amended Complaint,
Emory admits that Dr. Höyng was on leave during the 2008-2009 academic year, that Dr. Maxim
served as interim Chair during that year, and that Dr. Höyng resumed his position as Chair
during the 2009-2010 academic year. Emory further admits that Dr. Maxim’s annual evaluation
rated Dr. Butler as “exceptional” in research, teaching, and service and gave an overall rating of
“exceptional”. Emory further admits that Dr. Maxim’s evaluation stated that Dr. Butler’s
“professional conduct in carrying out these different responsibilities was productive and
appropriate” and that he forwarded this evaluation to Dean Levenduski in support of his
recommendation that Dr. Butler’s appointment be renewed.” Emory denies, however, any
implication that Dr. Maxim had no concerns regarding Dr. Butler’s collegiality or his behavior’s
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debilitating effect on the Department. Except as expressly admitted or otherwise stated herein,
Emory denies the allegations contained in paragraph 25 of the First Amended Complaint.
26.
Answering the allegations contained in Paragraph 26 of the First Amended Complaint,
Emory admits that Dr. Butler was scheduled for his tenure review in the academic year 2009-
2010, that Dr. Höyng was the Department Chair during that time, and that a failure to achieve
tenure would mean that his appointment would expire after the Spring 2011 semester. Emory
admits that Dr. Butler requested a deferral of his tenure evaluation based on a mistaken belief
that his prior partial leave warranted such deferral and that Dean Levenduski denied this request.
Emory denies that this type of request is routinely granted and denies that the circumstances of
his request were similar to those whose requests were granted. Emory further states that Dr.
Butler was offered the opportunity to have another faculty member preside over his tenure
review, but he declined this offer. Except as expressly admitted or otherwise stated herein,
Emory denies the allegations contained in paragraph 26 of the First Amended Complaint.
27.
Answering the allegations contained in Paragraph 27 of the First Amended Complaint,
Emory admits that on August 3, 2009 -- nearly a year and a half after the fourth year review --
Dr. Butler’s attorney sent Emory’s General Counsel’s office a letter accusing the Department of
“ethnic discrimination” based on Dr. Butler’s being “ethnically part Jewish.” Emory notes that
this letter was sent during a time when Dr. Höyng had been on leave for the entire academic year
and had had no communication with Dr. Butler, Dr. Butler was having difficulty finding a
publisher for his most recent work, Dr. Butler’s request to have his tenure clock stopped had
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been denied, and Dr. Butler was seeking to have that decision reversed. Dr. Butler’s attorney did
not want an investigation regarding Dr. Butler’s allegations of discrimination and in fact
suggested that the claimed discrimination would no longer be an issue if Dr. Butler’s request to
have his tenure clock stopped (a decision in which Dr. Höyng was not even involved) were
granted. Emory admits that the letter contains the language quoted in Paragraph 27 of the First
Amended Complaint, but states that Paragraph 27 fails to quote important language making clear
that the request to have Dr. Butler’s tenure clock stopped was based on his (mistaken) belief that he was entitled to it since an earlier leave was cut short and not based on the alleged discrimination. Emory further notes that at the request of Dr. Butler’s attorney, neither the
Department nor the individuals involved in the later tenure review were informed of this letter prior to the tenure decision. Except as expressly admitted or otherwise stated herein, Emory denies the allegations contained in paragraph 27 of the First Amended Complaint.
28.
Emory admits the allegations contained in Paragraph 28 of the First Amended Complaint, with the exception of the allegation that “Dr. Butler had feared” that Dr. Höyng would preside over the Departmental Tenure Review Committee. Emory notes that Dean Levenduski offered
Dr. Butler the option of selecting another faculty member to fill this role, and Dr. Butler declined this offer.
29.
Emory admits the allegations contained in Paragraph 29 of the First Amended Complaint.
30.
Answering the allegations contained in Paragraph 30 of the First Amended Complaint,
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Emory admits that five of the six members of the Departmental Tenure Review Committee rated
Dr. Butler’s teaching as “very good” and that one rated his teaching as “good”. Emory denies
that Dr. Höyng rated his teaching as “good”. Emory admits that the Department’s
recommendation states in part that “[t]he discussion of Dr. Butler’s teaching brought up
comments on his collegial behavior that some felt interfered with matters of teaching,
particularly because we are a relatively small Department that mainly serves Emory’s
undergraduate student body”, but denies any implication that Dr. Höyng was the only faculty
member to express this view or that such discussion violates any policy of the University or
Emory College. Except as expressly admitted or otherwise stated herein, Emory denies the
allegations contained in paragraph 30 of the First Amended Complaint.
31.
Answering the allegations contained in Paragraph 31 of the First Amended Complaint,
Emory states that the Department’s tenure recommendation, which was signed (whether in
person or electronically) by all tenured faculty members of the Department, notes Dr. Butler’s positive contributions toward service and then continues: “This de facto constructive participation stands in an odd contrast to what a number of colleagues see as a disengaged and often dismissive attitude toward the Department. For instance, he accused the Department of bigotry, chauvinism, and racism in e-mails to the Interim Chair. With the current Chair, he does not engage in any communication. He also expressed his low opinion of the Department on more than one occasion at departmental meetings, and some members were approached by several well-respected colleagues on compass and at national conferences who were dismayed by
Dr. Butler’s open disrespect for the Department. Through such remarks and actions, Dr. Butler
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has alienated a significant number of departmental colleagues, including non-voting faculty members, which, for a relatively small Department such as ours, has had a deeply unsettling effect. Recently, for example, some female faculty members were offended by an office hour poster on his office door that students and faculty alike might find misogynistic. He removed the sign after a complaint by one of his colleagues. Regrettably, his behavior has made it very difficult for many of his colleagues to work with him.” Emory states that the office hours poster referenced in the Departmental recommendation showed a woman posed provocatively in
WWII-era German military garb, holding a whip, with a German legend that translates: “To the enemy the sword, to the friend the sheath.” The German word for “sheath” is also a colloquial word for a woman’s vagina. When confronted by a non-voting female faculty member about the poster, who stated she was offended by it and asked if Dr. Butler would hang it inside his office rather than on the outside door, Dr. Butler told her to report it to Dr. Höyng if she found the poster problematic. Emory further denies that the Departmental recommendation recounted
“Dr. Butler’s attitude as perceived by Associate Professor Höyng” and notes that all tenured faculty members signed (whether electronically or in person) the recommendation letter and agreed that Dr. Butler had collegiality problems but simply differed in the weight such behavior should be accorded. Emory admits that the letter states: “Some members pointed out that Dr.
Butler’s negative attitude might be in large part due to his perception that he was treated unfairly in his Fourth-Year Review and argued that the chronology of the record indicates that the bulk of his derogatory comments came after his Fourth-Year Review. These colleagues expressed the belief that his behavior will improve once he is a tenured member of the Department. Others did not share this belief. All members agreed that it was difficult to reconcile his dismissive
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criticism of the Department with his valuable contributions to it.” Emory admits that four
members of the Department rated his service as “satisfactory”, while Dr. Höyng and Dr.
Schaumann rated it “unsatisfactory”. Except as expressly admitted or otherwise stated herein,
Emory denies the allegations contained in paragraph 31 of the First Amended Complaint.
32.
Emory admits the allegations contained in Paragraph 32 of the First Amended Complaint.
33.
Answering the allegations contained in Paragraph 33 of the First Amended Complaint,
Emory admits that the Tenure and Promotion Committee’s recommendation to Dean Paul
contains in part the quoted language but states that the recommendation relating to service
concluded: “The Tenure and Promotion Committee does not have an adequate basis for judging
the degree of collegiality and collaboration of the candidate in the context of the German Studies
Department. After some discussion, and resting our decision finally on the record of service as
reported on the CV and in the Service Statement, the Tenure and Promotion Committee voted
unanimously to rate Dr. Butler’s service record as satisfactory.” Emory admits that the Tenure
and Promotion Committee voted unanimously to recommend to the Dean of Emory College that
Dr. Butler be granted tenure. Except as expressly admitted or otherwise stated herein, Emory
denies the allegations contained in paragraph 33 of the First Amended Complaint.
34.
Answering the allegations contained in Paragraph 34 of the First Amended Complaint,
Emory admits that Dean Paul recommended to President Wagner and Provost Lewis that Dr.
Butler should be awarded tenure, that Dean Paul’s recommendation letter is dated within one
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week of the Department’s recommendation letter, and that it contains the quoted language.
Emory notes that the quoted language constitutes selected excerpts of the document and that the
document as a whole speaks for itself. Except as expressly admitted or otherwise stated herein,
Emory denies the allegations contained in paragraph 34 of the First Amended Complaint.
35.
Answering the allegations contained in Paragraph 35 of the First Amended Complaint,
Emory admits that Provost Lewis was concerned about the collegiality issues raised in the
Departmental recommendation letter and that he arranged to speak by telephone to the tenured
members of the Department who were present. Emory further admits that President Wagner
approved Provost Lewis’ decision that Dr. Butler not receive tenure. Emory is without
information or knowledge sufficient to form a belief as to the truth of the allegation that some
members of the Departmental Tenure Review Committee were “horrified” by the process and
objected to it, and such allegation is therefore denied. Emory is also without information or
knowledge sufficient to form a belief as to the truth of the allegation regarding the memories of unnamed professors may be, and they are therefore denied. Except as expressly admitted or otherwise stated herein, Emory denies the allegations contained in paragraph 35 of the First
Amended Complaint.
36.
Answering the allegations contained in Paragraph 36 of the First Amended Complaint,
Emory admits that Dr. Butler sought an appeal of the negative tenure decision and that Emory
initially denied this appeal because the University’s policies provide an appeal procedure for
cases in which a negative tenure decision arises at the Department level or at the Dean’s level,
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but not at the Provost’s level. Nevertheless, Emory ultimately decided to grant Dr. Butler an
opportunity to appeal whether his review process complied with applicable procedural requirements. Emory admits that the appeal did not consider the merits of Dr. Butler’s application for tenure or any claims of bias or discrimination. Emory admits that Dr. Butler’s appeal was denied. Emory further states that Dr. Butler’s conduct following his unsuccessful application for tenure was such that he would not have been eligible for continued employment with the University in any event. Except as expressly admitted or otherwise stated herein,
Emory denies the allegations contained in paragraph 36 of the First Amended Complaint.
37.
Answering the allegations contained in Paragraph 37 of the First Amended Complaint,
Emory admits that Dr. Butler filed a Complaint with Emory’s Office of Equal Opportunity
Programs (“EOP”) after his tenure application was denied and that after a thorough investigation, the EOP found no discrimination. Except as expressly admitted or otherwise stated herein,
Emory denies the allegations contained in paragraph 37 of the First Amended Complaint.
38.
Answering the allegations contained in Paragraph 38 of the First Amended Complaint,
Emory denies that it had a contract of employment with Dr. Butler and states that his employment ended August 31, 2011. Emory states that it is without information or knowledge sufficient to form a belief as to the truth of the remaining allegations of Paragraph 38 of the First
Amended Complaint, and they are therefore denied.
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39.
By this reference, Emory’s answers to the preceding paragraphs are incorporated as if fully set forth herein.
40.
Emory denies the allegations contained in Paragraph 40 of the First Amended Complaint.
41.
Emory denies the allegations contained in Paragraph 41 of the First Amended Complaint.
42.
Emory denies the allegations contained in Paragraph 42 of the First Amended Complaint.
43.
By this reference, Emory’s answers to the preceding paragraphs are incorporated as if fully set forth herein.
44.
Emory denies the allegations contained in Paragraph 44 of the First Amended Complaint.
45.
Emory denies the allegations contained in Paragraph 45 of the First Amended Complaint.
46.
Emory denies the allegations contained in Paragraph 46 of the First Amended Complaint.
Emory states that no response is required to the “WHEREFORE” section of the First
Amended Complaint, but to the extent any such response is required, Emory denies the allegations and denies that Dr. Butler is entitled to any relief whatsoever.
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DEFENSES
First Defense
Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitations.
Second Defense
Plaintiff’s claims are barred in part for failure of a condition precedent to suit, compliance with the administrative prerequisites to maintaining a claim under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (“Title VII”).
Third Defense
To the extent Plaintiff’s claims in this lawsuit differ from or exceed the scope of the
Charge of Discrimination he filed against Defendant with the EEOC, then they fail to state a
claim upon which relief can be granted.
Fourth Defense
To the extent Plaintiff’s claims under Title VII are based on or arise out of events alleged
to have occurred more than 180 days before he filed a Charge of Discrimination with the EEOC,
they are barred as untimely.
Fifth Defense
Plaintiff’s contract claims fail, in whole or in part, because there was no offer,
acceptance, consideration, or other requirements for a valid contract.
Sixth Defense
To the extent Plaintiff is claiming a contract with Defendant for greater than one year,
Plaintiff’s contract claims fail based on the statute of frauds.
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Seventh Defense
To the extent Plaintiff is claiming breach of an annual contract with Defendant, Plaintiff’s
contract claims fail based on accord and satisfaction.
Eighth Defense
To the extent Plaintiff has failed to mitigate any alleged damages, such damages must be
reduced.
Ninth Defense
Plaintiff’s damages, if any, must be reduced by the amount of any benefits received from
collateral sources.
Tenth Defense
Any damages allegedly sustained by Plaintiff are the result of his own acts and omissions and are not proximately caused by Defendant.
Eleventh Defense
Even if Plaintiff’s termination was based on a factor protected by Title VII, which
Defendant firmly denies, Plaintiff would still not be entitled to any damages since his
termination would have been warranted based on after acquired evidence.
Twelfth Defense
Defendant breached no duties toward Plaintiff and is therefore not liable to him.
Thirteenth Defense
Plaintiff’s claims are barred because Plaintiff has suffered no injury or damage arising
from any conduct, act, or omission of Defendant. To the extent that Plaintiff has been injured at
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all, such injury and sufferance has resulted from Plaintiff’s own actions, or the actions of another person or entity.
Fourteenth Defense
Plaintiff’s claim for punitive damages is barred because Defendant at all relevant times engaged in good faith efforts to comply with Title VII and to prevent unlawful discrimination and retaliation in the workplace.
Fifteenth Defense
Defendant reserves the right to raise additional defenses as may be discovered during the course of these proceedings.
WHEREFORE, Defendant prays that:
(a) Plaintiff’s First Amended Complaint be dismissed with prejudice;
(b) Judgment be entered in favor of Defendant and against Plaintiff on each of the claims alleged in the First Amended Complaint;
(c) Defendant be awarded its costs and reasonable attorneys’ fees incurred in defending this action; and
(d) Defendant be granted such other and further relief to which it may be entitled.
Dated: April 2, 2013
Respectfully submitted, /s/ Michael W. Johnston Michael W. Johnston Georgia Bar No. 396720 Email: [email protected] Rebecca Cole Moore Email: [email protected] Georgia Bar No. 177309 KING & SPALDING LLP
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1180 Peachtree Street, NE Atlanta, Georgia 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100
Attorneys for Defendant EMORY UNIVERSITY
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
H. ERIK BUTLER, § § Plaintiff, § § v. § CIVIL ACTION NO. § 1:13-cv-00151-TCB-LTW EMORY UNIVERSITY, § § Defendant. § §
CERTIFICATE OF SERVICE
I hereby certify that on April 2, 2013, I electronically filed DEFENDANT EMORY
UNIVERSITY’S ANSWER AND DEFENSES TO PLAINTIFF’S FIRST AMENDED
COMPLAINT with the Clerk of the Court using the ECF system, which will automatically send
a copy of this notice to the attorney of record listed below:
Patrick W. McKee McKee & Mitchell, LLC 19 Spring Street Newnan, GA 30326
/s/ Michael W. Johnston Michael W. Johnston