Dr. Keith Kull sued Kutztown University of Pennsylvania in federal court alleging that the university denied him tenure and fired him because he was male.  The collective bargaining agreement provided that tenure-track professors at Kutztown have a five-year probationary period, during which they are reviewed annually.  After the five-year probationary period is over, the faculty member may apply for tenure. If the university denies the tenure request, the faculty member will be terminated.  Faculty members were evaluated in three categories: continuing scholarly growth, services to the university and community, and effective teaching at fulfillment of professional responsibility.

Dr. Kull initially received positive reviews.  However, during the fourth year of the probationary period, his reviews deteriorated.  In particular, the tenure committee expressed concerns over his classroom work and demeanor, as well as student evaluations.  Those poor reviews increased in the fifth year.  Dr. Kull applied for tenure at the end of the probationary period, but was denied.

Dr. Kull filed suit alleging discrimination on the basis of his gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.  He alleged that the university granted tenure to three women who were less qualified.  Dr. Kull claimed that the women who were granted tenure had not been published as much as he had and were less qualified.

The District Court had instructed the jury that Kull had the burden of proving “his gender was a determinative factor in Kutztown University’s decision not to grant him tenure.”  The federal jury found in favor of the University, and Dr. Kull appealed to the Third Circuit Court of Appeals. His appeal was based on several factors.  One of those factors was that the District Court should have granted him a new trial, because the jury’s verdict against him is against the weight of the evidence.

The Third Circuit, in an opinion designated as “not precedential,” upheld the District Court’s decision.  The court noted that the women professors who had fewer publications than Dr. Kull made up for it in other areas, such as exceptional student evaluations.  It also noted that during a nine-year period, he was the only faculty member in his department to be denied tenure.  Four men and four women in his department were granted tenure during that time.  The court found that the jury’s verdict did not “shock the conscience” or “cry out to be overturned.”

Danielle Dietrich can be reached at ddietrich@tuckerlaw.com or on Twitter at @DLDietrich.