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Rowley v. Brigham Young University

United States District Court, D. Utah, Central Division

March 12, 2019




         Plaintiff Kristie Rowley brought this action against her former employer, Brigham Young University (BYU), and two former supervisors, for events stemming from her efforts to take parental leave. Dr. Rowley alleges that her then-supervisor, Dr. Renata Forste, prevented her from taking leave in violation of BYU policy. After an internal investigation faulted Dr. Forste for doing so, Dr. Forste retaliated against Dr. Rowley, and in the process sabotaged Dr. Rowley's efforts to gain tenure status. Dr. Rowley alleges pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, retaliation in violation of the Family and Medical Leave Act (FMLA), and pendent state law breach of contract claims.

         BYU, Dr. Forste, and Dr. Cardell Jacobson (collectively, “Defendants”) have moved to dismiss certain claims they argue fall outside the applicable statutes of limitations. Dr. Forste and Dr. Jacobson also move to dismiss the FMLA claims against them individually, on the grounds that they do not fall within the Act's definition of “employers.” For the reasons set forth below, the court grants in part and denies in part the Defendants' Motion to Dismiss.


         BYU hired Dr. Rowley as an assistant professor in the Department of Sociology, and she began teaching during the winter semester of the 2006-2007 school year. In the fall of 2007, BYU assigned her to a Continuing Faculty Status (CFS) position, BYU's equivalent of a tenure track.

         BYU requires that a faculty member complete six years of service in a CFS position to be eligible for tenure. During those six years, the faculty member must pass two formal reviews: the first occurs during the third year and the second occurs during the sixth year. The reviews include an assessment of the faculty member's performance and potential in three categories: citizenship, teaching, and scholarship.

         The six-year CFS period can be extended if the faculty member gives birth to or adopts a child and takes parental leave. BYU's policy reads, in relevant part:

When a full-time faculty member who has Continuing Faculty Stat[u]s (CFS), or is on-track for CFS, becomes the parent of a child, either by childbirth or by adoption of a child as defined by the Family Medical Leave Act (FMLA), that faculty member usually will qualify for a parental leave of one semester for the purpose of serving as the child's primary caregiver . . . . Parental leave is intended to be consistent with the rights afforded under the FMLA. If any faculty member is FMLA eligible, then any qualifying FMLA leave time shall be administered concurrently with parental and personal leaves . . . . The presumption is that a parental leave will result in a one-year extension of the CFS clock.

(Compl. ¶ 18, ECF No. 2.)

         To take parental leave, a faculty member must submit a “Request for Parental Leave” form for approval from his or her department chair, the Dean, and the Associate Academic Vice President. A faculty member can elect the semester to take parental leave-either “the semester in which the child is born” or “a subsequent semester that begins no later than six months after the birth . . . .” (Id. ¶ 20.) Moreover, BYU's policy provides that “[d]uring parental leave the faculty member shall be relieved of her or his normal duties, ” and need not teach, conduct research, or participate in committee work. (Id. ¶ 19.)

         Dr. Rowley's allegations of wrongdoing begin in June 2010. Dr. Rowley had just passed her third-year CFS review with exceptionally high marks in teaching and citizenship (though with some concerns in research). She had also become pregnant with her first child.

         In July or August of 2010, Dr. Rowley had a conversation with Dr. Forste, her department chair, about a plan for maternity leave. Dr. Forste did not tell Dr. Rowley about BYU's parental leave policy, her rights under the FMLA, or the presumptive one-year extension of her CFS period. Instead, Dr. Forste told Dr. Rowley to work directly with her to schedule leave. She told Dr. Rowley that she would “make certain that Dr. Rowley's status as a new parent was properly accommodated, ” and that BYU might deny an official request for leave. (Id. ¶ 26.) She also told Dr. Rowley that her CFS period would not be extended for a year.

         Dr. Rowley coordinated her maternity leave with Dr. Forste directly. By doing so, she missed many of the benefits of BYU's leave policy. Dr. Rowley did not receive a one-year extension of her CFS. Dr. Forste did not allow Dr. Rowley to choose which semester to take leave; instead, she arranged for Dr. Rowley to begin leave on February 25, 2011, two months before her child was born. And while BYU policy was to relieve Dr. Rowley of all her duties during leave, Dr. Forste only relieved Dr. Rowley of her teaching duties.

         In January 2011, BYU began a “unit review” of the Department of Sociology. A unit review is a periodic review process in which BYU faculty from other departments and outside reviewers “examine department policies and conduct interviews of departmental faculty and staff to identify weaknesses and propose changes in departmental operations.” (Compl. ¶ 35.) As part of the unit review, Professor Mary Anne Woodger interviewed Dr. Rowley. Noticing that Dr. Rowley was pregnant, Professor Woodger asked what Dr. Rowley thought of BYU's parental leave policy. Dr. Rowley responded that she appreciated the time from teaching, but was concerned about meeting her research and publication demands because her CFS “clock” was still running. Professor Woodger asked why she had not requested a one-year CFS extension pursuant to BYU policy. Dr. Rowley told her that she had worked with Dr. Forste to coordinate leave, and that Dr. Forste had represented “nothing could stop the CFS clock.” (Id. ¶ 39.)

         The resulting unit review report seemed to address how Dr. Forste had mishandled Dr. Rowley's parental leave request:

We . . . . recommend that the University's policy of a one-semester leave, with a stopped tenure clock, for a woman who gives birth, be made standard practice within the Department [of Sociology] . . . . As soon as possible, the faculty should cooperate in creating and adopting a governance document that will enable the department to be more transparent and consistent about its governance. More should be written down and documented about policies and procedures . . . . [such as] how to grant academic and maternity leaves.

(Id. ¶ 42.)

         Following the report, Dr. Rowley asked Dr. Forste for a one-year extension on her CFS clock and a semester of leave in which she would be relieved of all her duties, not just teaching. Dr. Forste, upset and angry for having been “called out” in the report, denied her request.

         Dr. Forste's demeanor towards Dr. Rowley changed. She became more critical of Dr. Rowley and began taking certain negative actions against her, a number of which are detailed in the complaint.

         In the fall of 2011, Dr. Rowley tried to schedule two meetings with Dr. Forste, one of which was to receive her annual review. Dr. Forste refused to meet, and told Dr. Rowley that the meetings were unnecessary.

         In May of 2011, Rice University offered Dr. Rowley a two-year visiting research position. Dr. Rowley applied for two years of paid research leave, but BYU only granted her one year of unpaid leave with a commensurate one-year CFS extension. Dr. Rowley approached Dr. Forste with concern that one year would be too short a time to effectively perform research. Dr. Forste assured Dr. Rowley that she would help facilitate a second year. Dr. Rowley took the visiting position, but Dr. Forste denied her request for a second year-even when Dr. Rowley secured funding from Rice to buy out her BYU contract, an arrangement that would have been financially lucrative for BYU. Because Dr. Rowley could not secure another year at Rice, her research suffered and she was unable to prepare articles, a key metric for approval of tenure.

         Dr. Rowley returned to BYU for the fall semester of 2012. Upon returning, Dr. Forste continued to undermine Dr. Rowley. She discouraged Dr. Rowley's participation in faculty meetings, openly and hostilely disagreed with Dr. Rowley's suggestions, gave Dr. Rowley less favorable teaching schedules and assignments, and, in contravention of BYU policy, denied Dr. Rowley a new mentor when her mentor retired. Additionally, Dr. Forste sent a critical email to Dr. Rowley stating that her research was insufficient, using an unwritten standard for the rate of publication that did not apply to other faculty. And she criticized Dr. Rowley to other senior faculty, including Dr. Jacobson.

         Dr. Forste stepped down from her role of department chair in April of 2012. In January of 2013, Dr. Jacobson became department chair and, in that role, continued to retaliate against Dr. Rowley. Dr. Rowley's allegations against Dr. Jacobson center on her application for tenure status.

         Dr. Rowley submitted her application for tenure status in 2014. On September 12, 2014, the Department of Sociology's tenure committee voted two to one in favor of granting her tenure, citing her excellent teaching record, collegiality, and positive reviews of her scholarship. Her application was then reviewed by a second committee of CFS faculty members, which included Dr. Jacobson and Dr. Forste. That committee voted three to six against granting her tenure. Dr. Forste voted against her, and told Dr. Jacobson of her vote, which she had cast anonymously.

         On October 2, 2014, following the two committee votes, Dr. Jacobson wrote a letter to Dr. Ben Ogles, the Dean of the College of Family, Home, and Social Sciences, recommending that Dr. Rowley not advance to tenure status. Dr. Jacobson based his recommendation on her scholarship. He determined that her publications were not sufficiently “sociological” in nature. He also determined that her rate of scholarship-the average number of articles Dr. Rowley published each year-was too low. While the Department of Sociology's written criteria required that a successful CFS candidate publish six to twelve articles over the course of their CFS period (Dr. Rowley had published eleven articles), Dr. Jacobson used his own unwritten standard that a tenure candidate publish between 1.4 and 2.1 articles per year. He calculated Dr. Rowley's publication rate as 1.25 articles per year, but he used time-periods of parental leave and a one-and-a-half year period before Dr. Rowley started her CFS-track position-that should have been excluded from her CFS clock.

         On December 8, 2014, Dr. Ogles wrote a letter to BYU's Associate Academic Vice President and Academic Vice President denying Dr. Rowley's CFS advancement, on the same grounds as Dr. Jacobson. On April 21, 2015, Dr. Rowley received a letter from the Academic Vice President recommending against her application for tenure status. The letter highlighted Dr. Jacobson's conclusions-“that Dr. Rowley had issues with her ‘publication productivity' and that she had a ‘lack of sociological focus.'” (Compl. ¶ 100.) BYU then removed Dr. Rowley from her CFS-track position and placed her in a temporary position.

         On July 22, 2015, Dr. Rowley appealed the Academic Vice President's recommendation to an independent panel. The panel affirmed the recommendation on February 8, 2017. BYU terminated her employment in August of 2017.

         Dr. Rowley filed the Complaint in this case on May 1, 2018. She alleges three causes of action solely against BYU: (1) breach of contract; (2) breach of a covenant of good faith and fair dealing; and (3) pregnancy discrimination in violation of Title VII of the Civil Rights Act. She also alleges a fourth cause of action for retaliation in violation of the Family ...

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