1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jennifer Swanson, No. CV-24-08077-PCT-SHD 10 Plaintiff, ORDER 11 v. 12 Arizona Board of Regents, 13 Defendant. 14 15 Pending before the Court is Defendant Arizona Board of Regents (“the Board”) 16 motion for summary judgment on Plaintiff Jennifer Swanson’s claims. (Doc. 37.) For the 17 following reasons, the Board’s motion will be granted. 18 I. FACTUAL BACKGROUND 19 Swanson was employed with Northern Arizona University (“NAU”) as a non-tenure 20 track (“NTT”) professor of Photography in its School of Communication. In May 2020, 21 during the COVID-19 pandemic, NAU declined to renew her employment contract for the 22 subsequent academic year. Swanson alleges that NAU did not renew her contract based 23 on her sex, in violation of Title VII of the Civil Rights Act of 1964. The following facts 24 are derived from the parties’ statement of facts and evidence, and are undisputed unless 25 otherwise noted. 26 A. NAU’s Structure and Funding 27 NAU is a public university composed of multiple colleges. (Doc. 37-2 at 3.) NAU’s 28 College of Social and Behavioral Sciences (“College”) includes the School of 1 Communication. (Id.) The School of Communication offers six programs: Creative Media 2 and Film, Communication Studies, Journalism, Photography, Strategic Communication, 3 and Visual Communication. (Id. at 5.) 4 During the relevant period, Karen Pugliesi served as Dean of the College. (Id. at 4.) 5 During Pugliesi’s tenure as Dean, the School of Communication had two Directors: Norm 6 Medoff, who was in place when Pugliesi started, and Brant Short, whose term entirely 7 overlapped with Pugliesi’s. (Id. at 5.) The School of Communication also had program 8 coordinators for each of its six programs. (Id. at 26.) Coordinators were typically selected 9 by their faculty peers in each program. (Id. at 27.) Director Short testified that coordinators 10 served as “reporter[s] and organizer[s],” assisting with course scheduling and 11 communicating program needs, including equipment and budget matters. (Id. at 27.) 12 Although coordinators participated in discussions regarding teaching assignments, 13 Director Short testified that they did not have independent authority to assign courses, and 14 that he retained responsibility for ensuring that teaching assignments fit within the overall 15 schedule. (See id.) 16 NAU is a tuition-dependent institution, deriving approximately eighty percent of its 17 operating funds from tuition and fees, and the remaining twenty percent from state 18 appropriations. (Id. at 11.) As a result, fluctuations in enrollment cause corresponding 19 fluctuations in funding. (Id.) 20 B. Swanson’s Employment at NAU 21 On August 24, 2015, Swanson began working for NAU as an NTT Lecturer in the 22 School of Communication. (Id. at 75.) As an NTT faculty member, Swanson was subject 23 to NAU’s Conditions of Faculty Service (the “Conditions”). (Id. at 53.) The Conditions 24 provide that NTT appointments carry no expectation of continued employment beyond the 25 end of the current appointment. (Id. at 53.) Swanson’s initial appointment letter also stated 26 that her appointment was eligible for renewal “contingent upon effective performance, the 27 continued availability of funds, and program needs.” (Id. at 75.) Swanson testified, 28 however, that when she was hired, then-Director Medoff advised her that so long as she 1 performed up to expectations, “you keep your job.” (Doc. 43-2 at 29–30.) NAU renewed 2 Swanson’s appointment four times—in 2016, 2017, 2018, and 2019. (Doc. 37-2 at 88, 90– 3 93.) During her employment, Director Short and Dean Pugliesi gave Swanson positive 4 performance evaluations. (Id. at 36.) 5 In her early years at NAU, Swanson taught courses in both the Photography and 6 Journalism programs. (Id. at 29, 52–53.) During her first year, NAU awarded her an 7 internal grant to support her dissertation work. (Id. at 57.) The Board alleges that by the 8 2018–2019 academic year (i.e., fall 2018, spring 2019), Swanson taught courses 9 exclusively within the Photography program. (Doc. 37 at 3; Doc. 37-2 at 44.) Swanson 10 disputes that characterization and contends that her service obligations extended beyond 11 the Photography program. (See Doc. 43 Plaintiff’s Separate Statement of Facts in 12 Opposition to Motion for Summary Judgment (“PSOF”) ¶ 16.) 13 In 2019, during her fifth year of teaching, NAU permitted Swanson to apply for a 14 promotion to Senior Lecturer—one year earlier than the standard timeline under the 15 Conditions. (Doc. 37-2 at 54.) Swanson testified that she negotiated this early eligibility 16 with then-Director Medoff at the time of her hire. (Id. at 55.) As part of the promotion 17 review process, Dean Pugliesi wrote: “I am pleased to inform you that I am endorsing your 18 request for promotion to the rank of Senior Lecturer effective academic year 2020-2021.” 19 (Id. at 123.) Director Short similarly wrote that he had reviewed Swanson’s application 20 and agreed with the faculty status committee’s recommendation and offered his 21 endorsement for Swanson’s promotion to Senior Lecturer. (Id. at 125.) Amy H.1, a 22 Photography faculty member, also wrote a letter supporting Swanson and stated that she is 23 “thankful [Swanson] is part of the photo faculty.” (Doc. 43-2 at 167.) The record reflects 24 that, but for the COVID-19 pandemic, this promotion would have become effective in the 25 2020–2021 academic year. (Doc. 37-2 at 119.) 26 Swanson took medical leave for the first half of the Spring 2020 semester and did 27 not teach during that period. (Doc. 37-2 at 66.) Because NAU was managing the COVID-
28 1 To protect the privacy of individuals referenced herein, the Court refers to non-party individuals by their first name and last initial only. 1 19 crisis, Director Short assigned her non-teaching projects upon her return, including 2 preparing marketing materials and developing safety guides for Photography courses. (Id. 3 at 39.) 4 C. COVID-19 and Budget Reductions 5 In March 2020, the COVID-19 pandemic prompted NAU to enter what Director 6 Short described as a “crisis time.” (Id. at 39.) Around spring break, NAU leadership met 7 to address the immediate ramifications of the pandemic, including how to manage the 8 approximately 10,000 students expected to return to campus. (Id. at 10, 39.) NAU 9 ultimately transitioned to online instruction for the remainder of the Spring 2020 semester. 10 (Id. at 11, 42.) 11 On April 9, 2020, Director Short emailed School of Communication faculty 12 informing them that COVID was impacting student enrollment. (Id. at 67–68, 98.) He 13 noted “a lot of uncertainties” about NAU’s path forward and cautioned that classes might 14 need to be combined, cancelled, or moved online. (Id. at 98.) By mid-April 2020, NAU 15 was forecasting up to a thirty-percent decrease in enrollment, and by late April, NAU was 16 preparing for significant budget cuts. (Id. at 10–11.) 17 On April 30, 2020, Director Short informed the School of Communication faculty 18 that NAU did not know how courses would be delivered in the fall, whether fully online 19 degree programs would be permitted, how many classes would be cancelled or reassigned, 20 or what staffing reductions might occur. (Id. at 133.) Around that time, Dean Pugliesi 21 instructed each program within the College to eliminate nonessential course offerings and 22 to plan for a twenty-five percent reduction in enrollment and thirty to thirty-five percent 23 reduction in courses for first-year students. (Id. at 12, 100–103.) Dean Pugliesi testified 24 that she led a comprehensive review of course schedules, faculty assignments, and potential 25 organizational changes prior to undertaking any faculty cuts. (Id. at 12.) Dean Pugliesi 26 testified that the review required compiling and analyzing a lot of data, and that that she 27 asked Associate Dean Dayle Hardy-Short “to work with each chair and director and 28 to . . . look at the data in gory detail.” (Id.) Swanson disputes that NAU followed this 1 process, but fails to rebut it with any evidence (and her response itself is poorly drafted and 2 somewhat incomprehensible). (PSOF ¶ 45 (“Admit that Pugliesi testified that this was part 3 of the process to determine how to cut staff in light of the budget crisis. Deny that this was 4 in fact NAU or CSBS followed this the process.”).) 5 Dean Pugliesi initially developed a budget reduction plan that did not impact 6 personnel. (Doc. 37-2 at 11.) That proposal was rejected because NAU required reductions 7 from the state-funded portion of the budget, more than ninety-five percent of which 8 consisted of employee salaries. (Id.) Dean Pugliesi then consulted with department chairs 9 and directors regarding potential personnel reductions, asking “[w]hat would be the areas 10 that we could reduce if we had to?” (See id. at 40.) 11 Based on information from chairs and directors, Dean Pugliesi developed multiple 12 budget reduction scenarios reflecting low, medium, and high levels of cuts. (Id. at 17.) 13 She first eliminated approved but unfilled positions. (Id. at 13–14.) She then reduced 14 college operational funding. (Id. at 14.) After those steps, she began the process of 15 selecting NTT faculty for non-renewal. (Id.) 16 According to Dean Pugliesi, her personnel decisions were guided by three criteria: 17 (1) immediate program needs; (2) long-term strategic impact; and (3) faculty performance. 18 (Id.) She testified that “immediate need” referred to the minimum faculty staffing 19 necessary to meet the consolidated course schedule. (Id.) She described “strategic impact” 20 as a faculty member’s long-term ability to advance academic programs, contribute to 21 experiential learning initiates, and support administrative or operational needs. (Id.) She 22 testified that the strategic impact assessment “happened mostly in dialogue and 23 conversations.” (Id. at 14.) With respect to performance, Dean Pugliesi testified that all 24 but one NTT faculty member had positive evaluations. (Id. at 14–15.) The male NTT 25 professor who did not receive positive evaluations was selected for non-renewal. (Id. at 26 17.) Swanson disputes that NAU applied these criteria to inform the non-renewal of NTT 27 faculty, except for the one faculty member who lacked a positive performance rating. 28 (PSOF ¶ 57.) 1 D. Selection of Swanson for Non-Renewal 2 With respect to Swanson’s non-renewal, Dean Pugliesi testified that she consulted 3 with department chairs, directors, and other NAU leadership to determine which NTT 4 faculty positions could be eliminated with the least harm to the institution. (Doc. 37-2 at 5 14–15.) She also worked with Director Short to determine program-level needs. (Id. at 6 40–41.) Director Short was not asked to identify specific faculty members for non- 7 renewal; rather, he identified programs that could sustain reductions. (Id.) Director Short 8 identified the Journalism and Photography programs as areas where a faculty line could 9 potentially be eliminated, citing declining enrollment in those programs. (Id. at 40.) 10 Swanson disputes that characterization and asserts that Photography enrollment had 11 increased in the years preceding 2020. (Doc. 43-2 at 17, 171.) 12 At the time of the 2020 reductions, the Photography program employed three NTT 13 faculty members: Swanson, Eric O., and Amy H. (Doc. 37-2 at 16.) Eric O. taught at NAU 14 since 2015 and served as Photography program coordinator for several years. (Id. at 105– 15 107; Doc. 46-1 at 26.) Amy H. began teaching at NAU in 2010 and previously served as 16 Photography coordinator. (Doc. 37-2 at 109–113; Doc. 46-1 at 26.) It is undisputed that 17 Amy H. was regarded as one of the strongest teachers in the School of Communication. 18 (Doc. 46-1 at 26; see PSOF ¶ 71.) 19 Dean Pugliesi made the final determinations regarding which NTT faculty members 20 would not be renewed. (Doc. 37-2 at 41.) Four faculty members in the School of 21 Communication were not renewed—three women and one man, including Swanson. (Id. 22 at 45.) When Dean Pugliesi provided Director Short with the list of individuals selected 23 for non-renewal, including Swanson, Director Short agreed with the selections and later 24 testified that they “ma[de] sense” to him. (Id.) Director Short also testified, however, that 25 he did not know why Swanson, specifically, had been selected for non-renewal. (Id. at 44.) 26 The Board contends that, in determining which NTT position to eliminate within 27 Photography, decisionmakers considered faculty roles, course coverage, and anticipated 28 programmatic impact. (See id. at 12, 41, 47.) Swanson disputes that those criteria were 1 applied in selecting her for non-renewal. (PSOF ¶¶ 73, 76.) 2 When asked about the gender composition of the non-renewals, Director Short 3 testified that it did not concern him because he was “focused on the impact on the school, 4 and . . . on the individuals in terms of what they were teaching and how we could move 5 forward.” (Doc. 37-2 at 45.) Similarly, Dean Pugliesi testified that she was not concerned 6 that more women than men were selected for non-renewal because she saw no evidence of 7 disparity or discrimination in the process. (Id. at 18.) Swanson disputes both of those 8 assessments. (PSOF ¶¶ 74–75.) 9 Swanson’s employment in the School of Communication ended on May 8, 2020. 10 (See Doc. 37-2 at 88.) 11 II. PROCEDURAL HISTORY 12 Swanson initiated administrative proceedings by filing a charge of discrimination 13 with the Equal Employment Opportunity Commission (“EEOC”) alleging sex, age, and 14 disability discrimination, as well as retaliation. (Doc. 1 at 2; Doc. 10 at 2.) On January 23, 15 2024, the EEOC issued its right to sue notice informing Swanson of her right to initiate a 16 lawsuit against the Board. (Doc. 1 at 2–3; Doc. 10 at 2.) 17 Swanson filed this action on April 22, 2024 alleging only sex discrimination and 18 retaliation. (Doc. 1.)2 On August 22, 2025, the Board filed its motion for summary 19 judgment. (Doc. 37.) Swanson responded, (Doc. 42), and the Board replied, (Doc. 46). 20 The parties did not request oral argument, and the Court does not believe oral argument is 21 necessary, so this motion is decided without holding a hearing. See LRCiv 7.2(f). 22 III. LEGAL STANDARD 23 “The court shall grant summary judgment if the movant shows that there is no 24 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 25 2 Swanson subsequently elected not to pursue her retaliation claim and moved to 26 dismiss that claim. (Doc. 30.) The Court denied the parties’ stipulation of dismissal because Federal Rule of Civil Procedure 41(a) does not permit dismissal of individual 27 claims. (Doc. 33 (citing Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 687–88 (9th Cir. 2005)).) Swanson has since confirmed that she does not intend to 28 pursue the retaliation claim. (See PSOF ¶ 4.) Accordingly, the Court will grant summary judgment in favor of the Board on Swanson’s abandoned retaliation claim. 1 of law.” Fed. R. Civ. P. 56(a). Not all factual disputes are material or genuine, however: 2 a “fact is ‘material’ only if it might affect the outcome of the case, and a dispute is ‘genuine’ 3 only if a reasonable trier of fact could resolve the issue in the non-movant’s favor.” Fresno 4 Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). Courts 5 “must view the evidence in the light most favorable to the nonmoving party and draw all 6 reasonable inference[s] in the nonmoving party’s favor.” Rookaird v. BNSF Ry. Co., 908 7 F.3d 451, 459 (9th Cir. 2018). “Summary judgment is improper where divergent ultimate 8 inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, 771 F.3d 9 at 1125 (internal quotation marks omitted). 10 At summary judgment, there are shifting burdens of production. A party moving 11 for summary judgment “bears the initial responsibility of informing the district court of the 12 basis for its motion, and identifying those portions of the pleadings, depositions, answers 13 to interrogatories, and admissions on file, together with the affidavits, if any, which it 14 believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 15 Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). “In order to carry 16 its burden of production, the moving party must either produce evidence negating an 17 essential element of the nonmoving party’s claim or defense or show that the nonmoving 18 party does not have enough evidence of an essential element to carry its ultimate burden of 19 persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th 20 Cir. 2000). 21 If the “moving party carries its burden of production, the nonmoving party must 22 produce evidence to support its claim or defense.” Id. at 1103. “If the nonmoving party 23 fails to produce enough evidence to create a genuine issue of material fact, the moving 24 party wins the motion for summary judgment.” Id. There is no issue for trial unless enough 25 evidence favors the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 26 (1986). “If the evidence is merely colorable or is not significantly probative, summary 27 judgment may be granted.” Id. at 249–50 (citations omitted). At bottom, the Court’s 28 “inquiry as to whether a genuine issue exists will be whether the evidence presented is such 1 that a jury applying that evidentiary standard could reasonably find for either the plaintiff 2 or the defendant.” Id. at 255. 3 IV. DISCUSSION 4 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on 5 the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a). 6 Disparate-treatment claims under Title VII “require the plaintiff to prove that the employer 7 acted with conscious intent to discriminate.” Costa v. Desert Palace, Inc., 299 F.3d 838, 8 854 (9th Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805–06 9 (1973)). In the absence of direct evidence of discrimination, the plaintiff may rely on the 10 burden-shifting framework of McDonnell Douglas Corp. v. Green to establish 11 discriminatory treatment. 411 U.S. at 802. 12 The Board contends that Swanson produced no direct evidence of discrimination 13 and thus the McDonnell Douglas test applies. (Doc. 37 at 10 (citing McDonnell Douglas, 14 411 U.S. at 802)). Swanson does not argue that she has direct evidence of discrimination, 15 and also relies on the burden-shifting test in McDonnell Douglas. (See Doc. 42 at 7–8.) 16 The Court agrees with the Board and will apply McDonnell Douglas because there is no 17 direct evidence of discrimination. 18 A. McDonnell Douglas Framework 19 Under the McDonnell Douglas burden-shifting framework for disparate treatment 20 cases, the plaintiff must first establish a prima facie case of discrimination. Hawn v. Exec. 21 Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010). To establish a prima facie case, a 22 plaintiff must show: “(1) that they are members of a protected class; (2) that they were 23 qualified for their positions and performing their jobs satisfactorily; (3) that they 24 experienced adverse employment actions; and (4) that similarly situated individuals outside 25 their protected class were treated more favorably, or other circumstances surrounding the 26 adverse employment action give rise to an inference of discrimination.” Id. at 1156 27 (cleaned up). “At the summary judgment stage, the requisite degree of proof necessary to 28 establish a prima facie case is minimal and does not even need to rise to the level of a 1 preponderance of the evidence.” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) 2 (cleaned up). 3 If a plaintiff establishes a prima facie case, “[t]he burden of production, but not 4 persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory 5 reason for the challenged action.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 6 1115, 1123–24 (9th Cir. 2000). If the employer meets this burden, the burden shifts back 7 to the plaintiff to “demonstrate that the proffered nondiscriminatory reason is merely a 8 pretext for discrimination.” Lyons, 307 F.3d at 1112. 9 At the summary judgment stage, the plaintiff does not have to prove that the 10 employer’s reason for firing them was pretext for discrimination, but the plaintiff must 11 introduce evidence sufficient to raise a genuine issue of material fact as to whether the 12 employer’s reason was pretextual. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th 13 Cir. 2000). To do this, the plaintiff must offer “specific, substantial evidence of pretext.” 14 Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994) (quoting Steckl v. Motorola, 15 703 F.2d 392, 393 (9th Cir. 1983)). “The plaintiff may show pretext either (1) by showing 16 that unlawful discrimination more likely motivated the employer, or (2) by showing that 17 the employer’s proffered explanation is unworthy of credence because it is inconsistent or 18 otherwise not believable.” Dominguez-Curry v. Nev. Transp. Dep’t., 424 F.3d 1027, 1037 19 (9th Cir. 2005) (citation omitted). 20 B. Step 1: Prima Facie Case 21 The Board does not dispute that Swanson can satisfy the first three elements of a 22 prima facie case under McDonnell Douglas: (1) that she is a member of a protected class, 23 (2) that she was qualified for her employment position; and (3) she experienced an adverse 24 employment action. (Doc. 37 at 11.) The Board contends, however, that Swanson cannot 25 satisfy the fourth prong of her prima facie case because she has not identified any similarly 26 situated employees outside her protected classes who were treated more favorably. (Id.) 27 28 1 1. Identification of Similarly Situated Non-Class Employees Treated More Favorably 2 Swanson identifies Eric O. and David H.—male NTT faculty in the School of 3 Communication whose contracts were renewed for the 2020 academic year—as similarly 4 situated individuals outside her protected class who were treated more favorably. The 5 record establishes that both Eric O. and David H. were retained for the 2020 academic year 6 while Swanson’s contract was not renewed, thereby satisfying the “more favorable 7 treatment” component at this stage. The remaining question is whether Eric O. and David 8 H. are similarly situated to Swanson in all material respects. 9 At the summary judgment stage, whether employees are similarly situated is 10 ordinarily a question of fact. Beck v. United Food & Com. Workers Union Local 99, 506 11 F.3d 874, 885 n.5 (9th Cir. 2007). “[I]ndividuals are similarly situated when they have 12 similar jobs and display similar conduct.” Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th 13 Cir. 2003). “The employees need not be identical; they must simply be similar ‘in all 14 material respects.’” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 15 2009) (quoting Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006)). “[W]hat facts are 16 material will vary depending on the case.” Hawn, 615 F.3d at 1157. 17 a. Eric O. 18 NAU contends that Eric O. is not similarly situated to Swanson because they held 19 different appointment titles and Eric O. had additional leadership and supervisory 20 responsibilities that Swanson did not. (Doc. 37 at 12–13.) NAU notes that Eric O. held 21 the title of Assistant Professor of Practice, while Swanson was a Lecturer, and these 22 positions fall within distinct appointment tracks with different qualifications and 23 expectations. (Id. at 12.) NAU further emphasizes that Eric O. served as Photography 24 program coordinator and exercised supervisory responsibilities that Swanson did not. (Id. 25 at 12–13.) 26 Swanson, in contrast, asserts that both she and Eric O. were NTT faculty in the 27 Photography program, reported to the same director, carried 80/20 teaching-service 28 workloads, and were hired through the same job posting and hiring process. (Doc. 42 at 1 9–10; see Doc. 43-2 at 7–8.) She also asserts that neither she nor Eric O. had a multi-year 2 appointment covering the 2020 academic year, so both were considered for nonrenewal, 3 and that NAU allegedly applied the same nonrenewal criteria to each of them. (Doc. 42 at 4 9; Doc. 37-2 at 16; see Doc. 43-2 at 161–62.) 5 Although Eric O. and Swanson held different appointment titles and Eric O. had 6 supervisory responsibilities that Swanson did not, a reasonable jury could find that these 7 differences do not preclude a finding that the two were similarly situated. See Belloni v. 8 Roman Catholic Archbishop of San Francisco, 2015 WL 106587, at *11 (N.D. Cal. 2015) 9 (“[T]he Ninth Circuit does not require that employees have the same position to be 10 similarly-situated.”). Swanson alleges that both she and Eric O. were NTT faculty in the 11 Photography program without multi-year appointments, reported to the same director, 12 carried similar teaching-service workloads, and were hired through the same process. In 13 light of these undisputed similarities, whether Eric O. and Swanson were similarly situated 14 presents a factual question for the jury. On this record, the Court cannot conclude as a 15 matter of law that Eric O. is not similarly situated to Swanson. 16 b. David H. 17 NAU argues David H. is not an appropriate comparator because (1) he worked 18 exclusively in the Journalism program while Swanson worked in the Photography 19 program; (2) his primary duty was to run the NAU student newspaper, which the Board 20 contends was very different from Swanson’s job duties; and (3) NAU had determined that 21 it needed to separately cut an NTT position in both the Journalism and Photography. (Doc. 22 37 at 11–12.) 23 Although David H. and Swanson worked in different programs, Swanson alleges 24 that both were NTT faculty within the School of Communication with one-year contracts 25 and were required to teach four classes per semester. (Doc. 43-2 at 9–10.) She also alleges 26 that she had previously received an assignment as an advisor to the NAU student 27 newspaper and had the capacity to teach classes in both the Photography and Journalism 28 programs. (Id. at 10.) 1 While NAU contends that cross-program comparisons are inappropriate due to 2 program-specific reductions, the record—viewed in Swanson’s favor—permits a 3 reasonable inference that the nonrenewal decision was made at the School of 4 Communication level based on criteria applied generally to NTT faculty. Director Short 5 testified that he identified the Journalism and Photography programs as areas where a 6 faculty line could potentially be eliminated due to declining enrollment. (Doc. 37-2 at 40.) 7 There is no evidence of a formal policy requiring the elimination of one faculty member 8 from each program. 9 Swanson has presented sufficient evidence that she and David H. were similarly 10 situated within the School of Communication, including that they had similar job duties 11 and displayed similar conduct. Belloni, 2015 WL 106587, at *11. In light of these alleged 12 similarities, whether David H. and Swanson were similarly situated presents a factual 13 question for the jury. 14 C. Step 2: Articulation of a Legitimate, Nondiscriminatory Reason for the 15 Board’s Actions Because Swanson produced evidence sufficient to establish a prima facie case under 16 McDonnell Douglas, “[t]he burden of production, but not persuasion, . . . shifts to [the 17 Board] to articulate some legitimate, nondiscriminatory reason for the challenged action.” 18 Chuang, 225 F.3d at 1123–24. The Board has satisfied this burden by explaining that 19 Swanson’s non-renewal was driven by the financial and operational impacts of the 20 COVID-19 pandemic. In response to anticipated decreases in enrollment and 21 corresponding budget shortfalls for the 2020 academic year, NAU implemented a plan to 22 reduce costs, including the reduction of NTT faculty positions. NAU contends that in 23 making renewal decisions, Dean Pugliesi was guided by three criteria: (1) short-term 24 institutional needs; (2) strategic impacting, i.e., long-term ability to advance NAU’s 25 programs; and (3) performance. (Doc. 37 at 2.)3 The Board asserts that the program 26
27 3 Although Swanson disputed that Dean Pugliesi considered these criteria, she relied only on the testimony of Director Short, who was not involved in identifying faculty who 28 would not be renewed, and did nothing to dispute that Dean Pugliesi made the non-renewal decision and relied on the stated criteria. (PSOF ¶ 47.) 1 directors and department leadership consulted and determined Swanson’s position could 2 be eliminated because the Photography program “had dwindling enrollment, excess 3 faculty, and functioned without her during the spring 2020 semester.” (Id.) 4 D. Step 3: Evidence That the Board’s Stated Reasons Are Pretextual 5 Because the Board has articulated legitimate, nondiscriminatory reasons for 6 Swanson’s non-renewal, the burden shifts back to Swanson to demonstrate that those 7 reasons are pretextual. Freyd v. Univ. of Or., 990 F.3d 1211, 1228 (9th Cir. 2021). Pretext 8 may be established either: (1) “directly, by showing that unlawful discrimination more 9 likely motivated the employer;” or (2) “indirectly, by showing that the employer’s 10 proffered explanation is unworthy of credence because it is internally inconsistent or 11 otherwise not believable.” Chuang, 225 F.3d at 1127 (quotation marks omitted). When 12 only circumstantial evidence of pretext is available, such evidence must be “specific” and 13 “substantial.” Wallis, 26 F.3d at 890; see also Godwin v. Hunt Wesson, Inc., 150 F.3d 14 1217, 1220 (9th Cir. 1998) (holding that a plaintiff “must produce evidence in addition to 15 that which was sufficient for her prima facie case in order to rebut the defendant’s showing” 16 of non-discriminatory purpose). 17 An employer’s disregard for its own company policies, or failure to follow its 18 normal practices, is evidence of pretext. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 19 1117 (9th Cir. 2011) (“A plaintiff may also raise a triable issue of pretext through evidence 20 that an employer’s deviation from established policy or practice worked to her 21 disadvantage.”); Diaz v. Eagle Produce, Ltd., 521 F.3d 1201, 1214 (9th Cir. 2008) (holding 22 that reasonable jurors could conclude that deviating from company policy “undermines the 23 credibility of the proffered explanations”). Additionally, “[a] showing that [the employer] 24 treated similarly situated employees outside [the plaintiff’s] protected class more favorably 25 would be probative of pretext.” Vasquez, 349 F.3d at 641. 26 1. Same Actor Inference 27 The Board asserts that “Swanson’s burden to establish pretext is particularly 28 challenging because the facts of this case give rise to the ‘same actor inference’ in [the 1 Board’s] favor.” (Doc. 37 at 14.) The Ninth Circuit has held that “where the same actor 2 is responsible for both the hiring and the firing of a discrimination plaintiff, and both 3 actions occur within a short period of time, a strong inference arises that there was no 4 discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270–71 (9th 5 Cir. 1996). The same-actor inference is based upon the principle that “an employer’s initial 6 willingness to hire the employee-plaintiff is strong evidence that the employer is not biased 7 against the protected class to which the employee belongs.” Coghlan v. Am. Seafoods Co. 8 LLC, 413 F.3d 1090, 1096 (9th Cir. 2005). The Ninth Circuit has also held that the same- 9 actor inference applies when, aside from hiring, the same actor promotes or takes other 10 favorable action toward the plaintiff. Id. at 1097. 11 The Board contends that Dean Pugliesi is entitled to the same-actor inference 12 because she both advocated for Swanson’s promotion to Senior Lecturer and later decided 13 not to renew her contract. (Doc. 37 at 14.) Swanson asserts that the inference does not 14 apply because the decision-makers for the two actions were not identical. (Doc. 42 at 13.) 15 It is unclear whether the same-actor inference applies here. Although Dean Pugliesi 16 participated in the promotion process and expressed strong support for Swanson’s 17 candidacy, the Board has not shown that she was the sole or final decision-maker with 18 respect to the promotion. See Plutt v. Safeway, Inc., 2006 WL 2091673, at *2 n.1 (D. Ariz. 19 2006) (finding that the same actor inference does not apply where the same actor was 20 involved in both decisions, but was not the final decision maker); but see Green v. Vilscack, 21 2024 WL 4124172, at *6 (D. Mont. 2024) (holding “the same person does not need to make 22 the adverse employment decision for the same actor inference to apply”). In any event, 23 whether the same actor inference applies need not be resolved because Swanson has failed 24 to adduce sufficient evidence that the Board’s reasons were pretextual. 25 2. Pretext 26 Swanson does not rely on direct evidence of discriminatory animus to allege the 27 Board’s reasons for the non-renewal of her contract are pretextual. (See Doc. 42 at 10– 28 12.) Instead, she contends that the Board’s stated reasons are unworthy of credence. (Id.) 1 Accordingly, the question is whether she has produced “specific” and “substantial” 2 circumstantial evidence from which a reasonable jury could conclude that the Board’s 3 articulated explanation was not the true reason for its decision. Wallis, 26 F.3d at 890. 4 The Court therefore examines each of Swanson’s asserted bases for pretext— 5 including her arguments regarding course reassignment, the treatment of under-enrolled 6 and elective classes, the evaluation of strategic contributions, and the selection process 7 itself—to determine whether, considered individually or collectively, they raise a genuine 8 dispute of material fact as to whether the Board’s proffered explanation was pretextual. 9 a. Alleged Failure to Consider Reassignment 10 Swanson first contends that NAU evaluated only whether her assigned courses 11 could be redistributed to other faculty but did not assess whether she could assume courses 12 assigned to David H. or Eric O. (Doc. 42 at 11.) She points to her prior teaching history 13 and asserts she was qualified to teach the courses those individuals ultimately taught during 14 the 2020 academic year. (Id.) 15 As an initial matter, Swanson does not present any evidence that NAU did not 16 consider whether she could teach other faculty’s courses. (PSOF ¶¶ P46–48). But even 17 accepting that Swanson was qualified to teach the courses assigned to David H. and Eric 18 O., this does not, without more, demonstrate pretext. The relevant inquiry is not whether 19 NAU could have performed its assessment differently, and thereby conclude that Swanson 20 should be retained, but rather whether the Board’s stated reasons for selecting Swanson— 21 reliance on institutional need and strategic considerations—were false. Swanson identifies 22 no policy requiring NAU to displace other NTT faculty to preserve her appointment, nor 23 does she present evidence that NAU deviated from such a policy when it instead reassigned 24 her courses to other faculty. 25 At most, Swanson’s argument reflects disagreement with NAU’s staffing judgment. 26 Such disagreement does not constitute evidence that the proffered explanation was false or 27 pretextual. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) 28 (holding “courts only require that an employer honestly believed its reason for its actions, 1 even if its reason is foolish or trivial or even baseless” (cleaned up)). 2 b. Retention of Under-Enrolled and Elective Courses 3 Swanson next contends that NAU asserted it would eliminate under-enrolled 4 courses and electives yet continued offering some such courses during the 2020 academic 5 year. (Doc. 42 at 11.) She points to other under-enrolled or elective courses offered by 6 retained faculty in the 2020 academic year, including those taught by alleged comparators 7 Eric O. and David H. (Id.) She argues this inconsistency suggests that she was selected 8 first and the justification supplied afterward. (Id.) 9 The record does not support that inference. First, this argument is based on an 10 incorrect premise—Swanson cites no evidence for the proposition that NAU asserted that 11 all under-enrolled or elective courses would be categorically eliminated. Indeed, Swanson 12 does not identify evidence that NAU adopted a mandatory rule requiring elimination of 13 every under-enrolled course, nor does she demonstrate that retained courses were 14 materially indistinguishable in enrollment, function, or strategic importance. 15 Second, Swanson conflates course elimination decisions with NTT position non- 16 renewals. These are two distinct determinations, and the only one pertinent here is the 17 latter. With respect to the non-renewals, Dean Pugliesi undertook a multifactor analysis 18 that considered course sequencing, programmatic necessity, and long-term strategic 19 impact, (see Doc. 37-2 at 14). Swanson does not demonstrate that these processes were 20 governed by identical criteria, nor does she show that the retention of certain courses 21 undermines the application of the three criteria used in evaluating her non-renewal. While 22 Swanson notes that some under-enrolled or elective courses continued to be offered in 23 academic year 2020, this does not provide evidence that her non-renewal was inconsistent 24 with the Dean’s articulated reasoning. 25 Because the Dean testified that NTT non-renewal decisions were based on short- 26 term institutional needs, long-term strategic impact and faculty performance, and not on 27 whether specific courses were eliminated or retained, there is no evidence of deviation from 28 NAU’s established criteria. Accordingly, the continued offering of some elective or under- 1 enrolled courses does not render the Board’s explanation internally inconsistent. See Earl, 2 658 F.3d at 1117. 3 c. Strategic Impact and Comparative Contributions 4 Swanson also argues that NAU’s stated reliance on long-term strategic impact was 5 pretextual, citing her record of contributions including modernizing the student newspaper, 6 creating a study abroad opportunity, updating courses with multimedia and experiential 7 elements, requiring student exhibitions, and applying technological expertise. (Doc. 42 at 8 12.) She asserts that “[t]here is no record of similar accomplishments by [Eric O. or David 9 H.], or even a comparison of their varying capacities to contribute to the advancement of 10 the Photography or Journalism programs over time.” (Id.) 11 Even crediting Swanson’s evidence of her accomplishments, the record reflects 12 competing assessments of the NTT faculty’s relative strengths and roles within the 13 program. The fact that Swanson believes her contributions were more significant does not 14 demonstrate that the Board’s evaluation of faculty in terms of their ability to advance 15 programs over time or to support long-term programmatic goals was dishonest. Courts 16 have held that an employee’s subjective evaluation of her own performance, without 17 additional evidence of discriminatory intent, is insufficient to raise a triable issue on 18 pretext. See Bradley, 104 F.3d at 270 (holding that “an employee’s subjective personal 19 judgments of her competence alone do not raise a genuine issue of material fact”). Nor 20 does the absence of written comparative documentation establish that no evaluation 21 occurred, particularly where testimony reflects that much of the “strategic impact” 22 assessment took place through dialogue and consultation among leadership. (Doc. 37-2 at 23 14.) 24 Accordingly, Swanson has not produced specific and substantial evidence from 25 which a reasonable jury could conclude that NAU’s explanation regarding strategic impact 26 was pretextual. 27 d. Lack of a Specific Explanation for Swanson’s Selection Finally, Swanson contends that NAU’s decision to not renew her was pretextual 28 1 because the university never explained why she was selected over other members in the 2 School of Communication. (Doc. 42 at 12.) She emphasizes that COVID-related staff 3 reductions, decreased enrollment, and anticipated budget constraints did not make her an 4 inevitable or necessary choice for non-renewal. (Id.) She asserts that “colleagues with 5 more limited academic and experiential breath—such as [Eric O. and David H.]—were 6 more obvious candidates for non-renewal under NAU’s own criteria.” (Id.) Swanson 7 further emphasized that Director Short testified he did not know why she, specifically, had 8 been selected for non-renewal, and she argues that NAU never articulated a clear reason 9 distinguishing her from the other faculty. (Id.) 10 The evidence, however, shows that Dean Pugliesi made the final personnel 11 determinations after consulting with program leadership regarding which programs could 12 sustain reductions. (Doc. 37-2 at 41.) Consistent with that structure, Director Short 13 testified that he was not asked to identify a specific individual for non-renewal. (Id. at 40– 14 41.) His lack of knowledge about the precise comparative calculus does not contradict the 15 Board’s articulated criteria nor does it demonstrate that the explanation was fabricated. 16 Additionally, Swanson’s argument that Eric O. and David H. were the more obvious 17 candidates rests entirely on her own deposition testimony and subjective assessment. See 18 Bradley, 104 F.3d at 270 (an employee’s subjective assessment of her own competence 19 does not create a triable issue). 20 Considered individually and collectively, Swanson’s evidence does not demonstrate 21 internal inconsistency, deviation from established policy, clearly superior qualifications, or 22 more favorable treatment of similarly situated male faculty. Each of her purported pretext 23 arguments relies on subjective assessments or minor perceived inconsistencies, none of 24 which undermine the legitimacy of the Board’s stated rationale. Accordingly, Swanson 25 has not produced specific and substantial evidence of pretext. No reasonable jury could 26 conclude on this record that the Board’s stated reasons were unworthy of credence or that 27 sex discrimination was the true basis for the non-renewal decision. As a result, the Board 28 is entitled to summary judgment. 1 Accordingly, 2 IT IS ORDERED that the Board’s motion for summary judgment (Doc. 37) is 3|| GRANTED. Summary judgment is entered in favor of the Board on all claims, including 4|| Swanson’s claims for sex discrimination and retaliation in violation of Title VII. 5 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 6 || accordingly and close this case. 7 Dated this 27th day of February, 2026. 8 9 / 10 / 11 ( 2 H le Sharad H. Desai 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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