Swanson v. Arizona Board of Regents

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