United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. DISTRICT COURT JUDGE
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.
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.
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.
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.
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
(Compl. ¶ 18, ECF No. 2.)
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.)
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.
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.
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.
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.
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
(Id. ¶ 42.)
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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