the next case on the calendar is baldwin v state university of new york good morning your honour's lindy korn from the law office of libby korn in buffalo new york i represent dr baldwin the plaintiffs in this matter and your honors this is a matter of a claim of sion dr baldwin in march of two thousand and eleven students came to her from dr roberts class in total there were for the record shows there were seven complaints of students that were inappropriate comments one student was called s t d charlie there were comments about physical parts of women about comments about acts of sex so she reported that your honor there that is in dispute there are genuine issues material issues that are in dispute and that is why this case should go to  told that you had she had to improve her scholarly production right again your honor of i would not say she was criticized i think that they're buying into the defense story she was told she was renewed several times indeed dr roberts in two thousand i believe was two thousand and nine said that she was well on her way that there was a major difference between renewing a non tenured  faculty members contract and a grant of lifetime appointment isn't there there is but if you look at the or any evidence in the record of anyone ever getting tenure on a publication record similar to  one i don't know the answer to that i do know that she meant by member at some significance the memorandum of understanding it was what was expected of her she met and that is a genuine issue of fact they were supposed to be there was supposed to be publications she had one in print one in press and one was actually accepted in a journal that has to do with health and wellness and science during the course of the consideration that's a publication record compiled over and let me say that she brought in grants not just the one grant that became an issue here but other grants and that was also can part of scholarship according to the procedure that  her scholarship was sufficient pursuant to the brockport standards and also by the memorandum of understanding she had a quarter in the book and a couple of pieces that were written by her contribution and one situation was twenty five percent and that was in the her or her it was in the in the journal of health promotion practices which apparently is or is a solid drum and that to address your the idea that a percentage there is there is evidence that first of all there's no criteria of looking at what the percentage of collaboration is in a scholarly journal there i believe that there was the external reviewer who was never dr roberts made his decision to to non renew and to terminate her before he considered the x turn al reviewers input and the extra reviewers plus the schools personnel committee found her unanimously voted that she was she had teaching she had scholarship and she had service  came after her decision that the school yes yes you're on the committee from the school natural social science is the faculty committee yes it is and they were charged with evaluating whether she should be  promoted if i understand correct if i understand the record correctly but not to make a recommendation about tenure is that accurate i believe that they were the promotion i believe they had both before them your honor but the point is that nowhere that raises an inference of bias and i think what's really important is the fact that there's a school committee that's unanimous that talks about these issues and yet the bad actor unanimous against in order in order for me to know your honor but i think when the chair who is we are saying there's inference of bias that a jury should decide when that chair is think that there's another he did your he would i believe that he was how did he would tell you he did not look into the complaints when dr baldwin told dr roberts himself and complained to dr severson the complaints of those students fear of being in an inappropriate setting those complaints of sexual inappropriate comments was never investigated and that's how he retaliated  your honors i'd also like to draw attention to the fact that you just address it maybe you were going on to address this but dean severances of us investigation into whether your client exaggerated her participation in  the grant and as i look at the record i think it's i think it's undisputed that he talked purposely talked your client he looked at it and you talk to other people that your client identified and he looked at e mails and other correspondence that your client gave him and came to the conclusion that she had exaggerated her participation and your honor but there was evidence put before him and indeed at the deposition there was a tape played and i would i would say to you that there's an inference of a bias that needs to go before a jury because there was number one this grant was was funded and approved in two thousand and six and these issues were raised roberts in two thousand and eleven went back to talk to this carol procrustes who was the teacher that dr baldwin actually collaborated with indeed if you look at the evidence the whole reason the grant was was given was had to do with school indexing which is dr baldwin's expertise this teacher in holland would never have known anything about this and the tape says we did it congratulations we got the grant there was evidence that was over looked at that a jury needs to look at to decide whether indeed there was any of over exaggeration in this issue and furthermore there's also testimony that of carol protest thought it was strange that in two thousand and eleven they were coming back to speak to her why would that be strange isn't this one where she's up for tenure is right when you start to look at somebodies record new series one well carol probe is was a teacher who the grant had been issued in two thousand and six she hadn't spoken to two two had nothing to do it at the two thousand and eleven with with dr baldwin and all of these issues have been raised in two thousand and six so if there's testimony that she thought it was strange but the point i wanted to raise of him i see my time is up and i have not completely yes the point is that there's also a discrepancy on my client complaint and yet she's told by the vice president of human resources that she they knowledge her complaint in this december sixth e mail and then they say to her but you have to complain to this office of equity and diversity so there's even a question of whether or not there's an acknowledgment of a complaint and then they say well we can't do anything because you didn't complain to this specific office these are serious issues retail ie asian cost my client who did perform it and teaching scholarship and service and i ask you to consider the record and let us go to a trial may please the court and i just a few points your honour's i think this boils down to my friend on the other side and to a dispute about the role of the two thousand and nine memorandum of understanding which she accurately cites as the central standard as the plaintiff's scholarship in this case the m o u does not lay out a set of conditions the fulfillment of which automatically entitle entitled her to tenure because of the scholarship or anything else it lays out a series of necessary but by no means sufficient conditions really more like guidelines by which her scholarship should be judged and if you look and i think your honors were emphasizing professor roberts is well reasoned letter in the record of page two sixty t wo sixty one it's also run down in our brief states brief pages ten through twelve you can see a meticulous application of all the criteria in the m o u not just the number of publications but the type of journal  her author contribution the substance of the article and the like and there's simply not anything on the face of that letter that would give anyone the impression that this was anything other than an honest belief in the deficiency of i think i was not making myself clear the m o you sets the standard in this case by which plaintiff's scholarship should be considered but the stand oh you sense is not a set of sufficient conditions it absolutely your honor but i just want to make clear about the state's position on this i'm not even sure it makes sense to talking about the fall falling below the m o u i'm not sure the m o u is something that can be fallen below or above it lays out a set of guidelines that are holistically applied in this case by professor roberts at his stage of the review by dean c recent history age of the review and the like what you're saying is the the m a u which is that appendix it forty one doesn't say you need one article really need three articles or you need two and a half articles it says that scholarship can be documented by a variety of means presentations grant proposals textbooks and so on the best record of research accomplishment includes peer reviewed products in particular publications in peer reviewed journals will be expected so it's just saying in general this is how you look at the scholarship you evaluate all of these factors it doesn't set some minimum sufficient or minimum necessary requirements in terms of quantity that's exactly right your honor and professor roberts and the other individuals from the state looking at these factors apply them thoughtfully we think correctly but as far as a retaliation under title nine case goes the question is not whether they were right or wrong in my opinion or the panel's opinion the question is whether they were done free from bias right and also the chair and he is the one who then by default becomes the committee of tenured faculty in her department even though he is the person that she complained about that's true because but he made this point to professor baldwin in advance of the tenure consideration there's an e mail exchange back and forth you don't have the record site handy right now there's an e mail exchange back and forth and he tells professor baldwin this he says that departmental bylaws say exactly what your honor just said and there's no record of any sort of objection on professor baldwin's part unless there are any further questions there is temporal proximity between the t concerns she relayed to him in that spring and in the taking it up at the ten your file in the file and your adversary relies on that and says that it did also that her concerns about what was happening in the classroom were communicated to the next step in the tenure process and and she says there was no action on on her complaints and he was the second stage of her tenure process it was the second stage of her tenure process that there's no record actually showing what he did or didn't do in terms of investigation on the complaints that plaintiff reported about the students but what there is a record of ind itself is again a consideration of all these factors focusing on b issue of whether or the extent to which professor baldwin collaborated on the grant whether her curriculum detail was accurately represented or not and his thoughtful conclusion along those lines in fact is another legitimate nondiscriminatory reason separate and independent one supporting the college's determination college made this point in its motion for summary judgment in its memorandum the memorandum plaintiff said nothing about it this record obviously didn't rely on that particular reason but in her opening brief in her only brief submitted in this case there wasn't a word as far as i could see about d m c vs resolution  issue but in our view that presents a separate and independent basis for fermat's so that makes the case stronger from the state's point of view is there any evidence in the record of who is the de facto decision maker at buffalo of the border regions or somebody at that level officially approves the tenured appointment but is it is it the provost who's the the key decision making maker here or the department or the what how does that work at this place is there any record on the there is i it's a page i believe two sixteen of the record there's a list of everyone who signed off on all of the actions that that took place in dr baldwin's tenure review the provost is the second to last line of review but strictly speaking the final action is by the president of the university and does the faculty committee that reviews the file are they charged just with the permission question are they also charged with making a recommendation about ten years what they're like given that they're charged only with making the promotion question with making the promotion a valuation but it is true that as a practical matter the criteria that they consider are similar  identical to the tenure criteria which is why we think it's sufficient that even this body even this body that said that she was qualified for promotion and even after her third article came in they even found her to quote have a relative lack of publications which was the factor that in our view ended up being legitimately determine it i don't understand this distinction between and promotion and tenure on the very page that you cite  t to sixteen with the list of recommendations and the action of the president there's no line for anyone to say grant tenure the question is does your term expire or is a promotion recommended or do not recommend for motion and the faculty committee recommends promotion would that not entail tenure under the operation of law argument is not one i'm for milieu with that hasn't been made on the other side but as you see the university of buffalo does it there's two components to what is colloquially called tenure is promotion which is a title change from assistant professor to associate and is a continuing appointment as opposed to a term to term or newel sophia radically it is the rare case your honor but theoretically one could be an associate professor at the university of buffalo but still on a term to term appointment as  a continuing with nobody but nobody on this entire page checks some box that's called give tenure or do not give tenure the boxes are promotion recommended do not recommend if it's true the fact we comedians slightly different set of boxes it just says promotion or are no promotion while there are continuing appointment renewal of term expiration of term boxes for the other folks exactly continuing appointment i think might be what your honor is thinking of as close as to what is colloquially in university of buffalo parlance called tenure they usually do go together but if you but there is no one absolutely is that's what continuing appointment means on the box and it's as if you were asked to make a recommendation about whether an applicant should get a continuing appointment that means you were being asked whether they should get continuing appointment means tenure it means what we think of colloquially as tenure that's not i guess the term that buffalo's state officially uses they use these twin concepts of continuing appointment versus term appointment and then title assistant associate professor at cetera but what's thought of what the parties have been discussing in this case as tenure is in this case can tip the perp a combination of continuing appointment plus the accompanying tag and is that an inference that we make from eight to sixteen because continuing appointment or expiration of term is not a set of choices offered to the faculty committee or is it is there some testimony by somebody in the record that the faculty committee is not concerned with questions of tenure was far as i understand that's not disputed and i believe if you look at the faculties they are not at that strictly speaking their purview is only the the title change as opposed to the whether to convert a term appointment continuing appointment i believe that their letter itself which is i don't have a cite handy but i believe that the letter of the school y committee itself indicates that only promotion as opposed to tenure is being considered but i don't want to leave your honors with the wrong impression as a practical matter they are considering much of the same criteria in making this formally different determination their recommendation is passed along that's right into the protest into the president that's right and considered not as an official recommendation  tenure because of course that's not what it is but considered for what it is namely an evaluation of the factors that happen to be very similar if not identical to those required for the continuing appointment consideration with their further questions thank you thank you both he will take it under submission