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Atuahene v. South Dakota State University

June 4, 2009


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Frank Atuahene, brought a complaint against South Dakota State University (SDSU), alleging that he was discriminated against based on his race and national origin, in violation of Title VII of the Civil Rights Act of 1964. Docket 32. SDSU moves for summary judgment. Docket 47. Additionally, SDSU moves to strike Atuahene's second response to SDSU's motion for summary judgment, Docket 65, which Atuahene opposes. Docket 67. Atuahene has also requested an extension of the discovery deadlines. Docket 68. For the reasons stated below, SDSU's motion for summary judgment is granted, SDSU's motion to strike is denied, and Atuahene's motion to extend discovery deadlines is denied as moot.


The relevant facts, viewed in the light most favorable to Atuahene, the nonmoving party, are as follows*fn1 Atuahene is of African descent and was born in Ghana, Africa. Atuahene was hired by SDSU on August 15, 2003, as an assistant professor in the Construction Management Program of the Department of Engineering Technology and Management. The job notice for his position stated that SDSU's Department of Engineering Technology and Management was seeking professors to "[t]each courses for the Construction Management program." Docket 51-2. In a letter to Atuahene dated April 3, 2003, which discussed SDSU's hiring of Atuahene, Dr. Darrell DeBoer, acting head of the College of Engineering, stated that "[b]ased on your qualifications, I will recommend that you receive two (2) years of service toward tenure. This is subject to Board of Regents approval." Docket 51-3; Docket 61-15. Atuahene's nine-month appointment began August 15, 2003, and ended May 15, 2004. The appointment was a tenure-track position and was subject to annual renewal. The offer letter also stated an intention to provide summer salary support for one or two months during the summer of 2004, contingent upon current funding levels.

Atuahene's workload consisted of 15 work units per semester, or 30 work units during a 9-month, 2-semester appointment. In the fall 2003 semester, Atuahene's workload consisted of 8 units of teaching, 6.5 units of research, and.5 units of advising. At that time, professors Pat Pannell and Wayne Haug, two white professors, were responsible for advising more students than Atuahene and received 1 unit of credit for advising. Docket 61, page 2. During the fall semester, Atuahene taught one section each of the following courses: GE 121, Engineering Graphics; CM 374, Construction Equipment and Methods; and CM 400, Risk Management and Safety. Docket 51-5.

Pursuant to SDSU's policy, Atuahene and Dr. Teresa Hall, Dean of the Department of Engineering Technology and Management, completed a professional staff evaluation (PSE) reviewing the faculty's performance in the previous year and setting goals for the future. PSEs are completed not based on an academic year, but based on a calendar year, and Atuahene's PSE for 2003 was completed on March 10, 2004. Docket 52-2. The PSE includes a section completed by the faculty member discussing his expectations and contributions in the areas of teaching/advising, research/scholarship, and service. See id. at 3-6. The faculty member is also to state major performance objectives for the next evaluation period. Id. at 6-7. The PSE also includes a section to be completed by the immediate administrative supervisor, which Dr. Hall completed. Id. at 8.

In her portion of the PSE, Hall noted that Atuahene had achieved the level of performance "reasonably expected in an Assistant Professor in the area of teaching and advising with like tenure status and comparable professional responsibilities and resources," and she stated that student evaluations were "positive." Id. In the area of research and scholarship, Hall stated that "it is not possible to assess his contributions" at this time because Atuahene had been at SDSU for only one semester. Hall went on to determine that Atuahene's service performance matched the reasonable expectations of someone with his tenure status and professional responsibilities. In summary, Hall stated that Atuahene "is making steady progress in teaching, advising, research and service that is consistent with the tenure and promotion performance standards for an Assistant Professor in the Department of Engineering Technology and Management." Id. at 9.

In the spring 2004 semester, Atuahene was responsible for teaching one section each of the following courses: GE 121, Engineering Graphics; CM 320, Construction Soil Materials; and CM 332, Building Systems. That semester, Atuahene was assigned to 9.67 units of teaching,.63 units advising, and 4.7 units of research and scholarship. When a large number of incoming first-year students required the addition of more sections of GE 121, Atuahene was assigned to another section. GE 121 is an introductory general engineering course with students from a combination of engineering programs, not an advanced course or one specifically in the Construction Management program.

As such, the court concludes based on Atuahene's allegations that the prestige of teaching this course is minimal. SDSU contends that Atuahene was assigned the additional section of GE 121 because he was the only instructor who was available to teach the course on Monday and Wednesday afternoons, it would require minimal preparation, his student evaluations reflected that his teaching effectiveness was higher in that course than the other courses he had taught, and it would only overload his teaching by one work unit, which could be accommodated the next semester by additional release time. Atuahene describes this assignment as equivalent to being a teacher's assistant to Norm Chandler, a "non-tenure track instructor with a Bachelor's degree." Docket 61, page 8. Although Atuahene originally told Hall that he would not teach the additional GE 121 section, he later retracted this refusal. Norm Nusz Chandler and Jerry DeWald also taught two sections each of GE 121, and Atuahene states that the GE 121 instructors other than him were from outside the Construction Management program and were adjunct professors who only taught GE 121. Pat Pannell and David Wahlstrom, both tenure-track white men, were not assigned to teach GE 121 during Atuahene's years at SDSU.

On April 14, 2004, Hall observed Atuahene's CM 320 Construction Soils class. Her notes indicate that the students were bored and inattentive, that Atuahene berated his students, did not have control of the classroom, and did not know "how to be an effective instructor." Docket 52-5. Additionally, Hall observed "[n]o substantial learning to be taking place." Id. Atuahene does not dispute Hall's observations, other than to say that they conflict with her statements a month earlier that he was "off to a good start," and that after class Hall praised Atuahene for the practical examples he used during class. Docket 61, page 3-4.

Hall and Atuahene met on May 7, 2004, and her notes indicate that the discussion centered on Atuahene receiving summer salary support. Docket 53. Atuahene told Hall about three research projects he planned to complete over the summer, and Hall told him that reviews of reviewed articles are "not the best area to focus his efforts." Id. She said research-based reviewed journal articles and scholarly peer-reviewed articles were preferred and that "at SDSU it was important to perform original research and the resultant publication."

Id. Hall also suggested that Atuahene register for the Bush Faculty Teaching Workshop in July 2004 to support his teaching skills. Finally, Hall spoke with Atuahene about her observations of his CM 320 class in April, commending him for being well-prepared but pointing out that the students were bored and inattentive. Atuahene contends that the students were well-behaved, not bored and inattentive. Docket 61, page 4.

At Hall's request, Atuahene later submitted a ranked-order list of his summer research plans, which included the Bush Project Summer Teaching Academy but listed it as his last priority. Docket 53-3. Atuahane also stated his intention to revise a paper based on his dissertation, plan a course of research regarding the capillarity of soils, work on a research proposal on the sustainability of the water supply in Ghana, and review published articles and write discussions on some of them. Although Atuahene included the Bush seminar on his list of summer research plans, he did not otherwise promise to attend the Bush seminar as a condition to receiving summer support, nor did Hall make receipt of the summer support contingent upon Atuahene's attendance. See Docket 53-4. Atuahene's application for summer research support was granted, and he was given the largest amount of summer support among the CM faculty. Additionally, Atuahene's contract was renewed for the 2004/2005 school year.

Despite his enrollment in the Bush Summer Teaching Academy, Atuahene withdrew from the program the Friday before the week-long academy was to begin. Docket 53-5. Although he notified Hall the day he withdrew, she did not respond to this notice until after the session was underway.

Hall referred Atuahene to Dr. Ali Selim, a professor in SDSU's Civil Engineering Department, expressing an intention to support Atuahene in finding research opportunities and funding. None of the other professors, including white professors Pat Pannell, Wayne Haug, and Norm Chandler, were assigned "mentors." After speaking with Selim, Atuahene contacted Selim and Hall about a transfer to the Civil Engineering Department. Hall and Atuahene met on July 26, 2004, to discuss Atuahene's specific interest in transferring and performance expectations in general. See Docket 54, 54-2. Hall's notes from that meeting reflect that she indicated to Atuahene that her referral to Selim was not an attempt to get rid of him but was reflective of her desire for Atuahene to succeed at SDSU. When Hall asked Atuahene why he withdrew from the Bush Summer Faculty Workshop, he told her that this was a low priority and it was more important for him to prepare for a teaching assignment in fall 2004. Hall's notes state that she explained that "he was expected to attend the [Bush] workshop to improve his teaching skills and to build a network of persons at SDSU he could go to with questions. He did not seem to grasp the gravity of his action to withdraw." Docket 54. Atuahene also expressed concerns that Pat Pannell was trying to get rid of him by setting up an interview between Atuahene and Hansel Phelps Construction Company. Hall and Atuahene also discussed his student evaluations, and she told him that he would continue to teach GE 121 despite his reluctance to do so. Atuahene expressed concern that he was not given the chance to teach the classes where he would excel, namely Construction Soils and Structural Theory, which he believed he was hired to teach.

Hall and Atuahene also discussed expectations for performance in research for which Atuahene was funded for the summer. See Docket 54. Hall encouraged Atuahene to resubmit a paper based on his dissertation. Atuahene stated that he had been working on a review of another paper. Hall told Atuahene that such research would reflect poorly on him in light of SDSU's preference for other types of research and scholarly work. Hall's notes from the meeting do not reflect any further discussion about Atuahene's summer research. At the end of the meeting, Hall told Atuahene that it "was not a bad thing if he chose to leave SDSU in only 2 years," and she gave him "'reasons' why persons change institutions after a short stay." Docket 54. Atuahene's characterization of this conversation is that Hall "asked me to go to another place where I will be successful because the student population at SDSU was largely WHITE." Docket 61, page 29. The "reasons" Hall discussed with Atuahene about leaving were the fact that the "student population at SDSU was largely WHITE and I was BLACK." Id. at 30.

The next day, on July 27, 2004, Hall sent Atuahene a memo about their meeting which reiterated that no transfer to the Civil Engineering Department was possible and that Atuahene is to "take advantage of teaching development opportunities" at SDSU. Docket 54-2. Hall also emphasized that "refereed journal publications, externally funded research projects, and collaboration on scholarly work are expected activities" from tenure-track professors. Id. Finally, Hall stated that Atuahene's GE 121 assignment would not change.

Throughout the summer of 2004, Atuahene completed a research-based paper based on his doctoral dissertation and submitted it to the Journal of Geotechnical and Geoenvironmental Engineering. Docket 61, page 7; see also Docket 61-8 (copy of paper). Pat Pannell, who was a tenure-track associate professor, had a summer support activity that consisted of service, not scholarship, in that he participated in new student orientation and ACCE accreditation preparation. Pannell is a white man who was "not subjected to the same publication requirements" as Atuahene. Docket 61, page 13.

Student evaluations for Atuahene's spring 2004 classes were not available until the fall of 2004. In CM 320 and CM 332 Atuahene scored below the comparative mean in the areas of communication, course organization and planning, faculty/student interaction, assignments, exams and grading, and course outcomes. Docket 55. In GE 121, Atuahene scored below the comparative mean in some areas, but overall this course scored the best out of his three courses. Atuahene received the lowest student evaluations among all the professors in the Construction Management program.

Hall met with Atuahene and discussed his student evaluations on August 12, 2004.*fn2 Atuahene was visibly upset and shaking, and he complained loudly about his students, stating that they did not like his accent, did not know how to write, did not want to study, and wanted to be given the exam answers. When Hall told Atuahene that he needed to improve his student evaluation scores, Atuahene replied that he had seen low scores like this before, including at Rutgers University, and they were of no consequence. Docket 57. When Hall discussed her observations of Atuahene's classrooms, particularly his habits of cutting off the students and talking to the board with his back to the students, Atuahene did not appear to be listening and stated that these observations were not reflective of his normal classes and that he did not remember talking with ...

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