You are on page 1of 116

Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 1 of 116

IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

LINDA SUSAN MULLENIX, §


§
Plaintiff §
§ Civil No. 1:19-cv-1203-LY
-v- §
§
UNIVERSITY OF TEXAS AT §
AUSTIN, §
§
Defendant. §

PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND

Given the extraordinary breadth and volume of your work, I think you
are in line, after Professor Subrin, to be the next guru of the field

Professor Geoffrey Miller


Stuyvesant P. Comfort Professor of Law
New York University School of Law

I believe what she writes and what I have read was quite good. I
thought it was insightful. I thought it was important. I thought it was
thoughtful. And she is also very, very prolific . . . . [H]er work in the
law journal is really, really good. I believe she is a leading civil
procedure scholar.

Professor Richard Freer


Charles Howard Candler Professor of Law
Emory University School of Law

Linda has a significant reputation in the field [of civil procedure].

Professor Robert Bone


G. Rollie White Teaching Excellence Chair in Law
The University of Texas School of Law

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 1
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 2 of 116

I believe that – the way the system works at the [University of Texas
School of Law] she will not get fair treatment.

Professor Robert Peroni


Fondren Foundation Centennial Chair for Faculty Excellence
The University of Texas School of Law

I am sorry to say that the quality of Professor Mullenix’s writing,


whether classified as scholarship or service, is not generally considered
very impressive.

Dean Ward Farnsworth


John Jeffers Research Chair in Law
The University of Texas School of Law

Since 2016, Professor Linda Mullenix, one of UT Law’s most distinguished

professors, has been paid at least $237,297 less than male professor Robert Bone.

Professor Bone has similar above-average teaching evaluation ratings as Professor

Mullenix, but almost a decade less overall teaching experience, fewer than a third of

Professor Mullenix’s overall publications, and fewer professional honors. Professor

Bone is not underpaid. Professor Mullenix is. This pay gap is a violation of the Equal

Pay Act and Title VII sex discrimination.

Moreover, UT Law has retaliated against Professor Mullenix for opposing the

law school’s unequal pay practices. For the last several years, Professor Mullenix has

received among the lowest raises of any tenured faculty. For example, Professor

Mullenix received a $1,500 raise for the 2018-2019 academic year, which was the

lowest raise given to any faculty member who received a raise. That same year,

Professor Bone, and many other professors with lower teaching evaluations, less

teaching experience, and fewer publications than Professor Mullenix, received

$10,000 raises, some of the highest raises given because Dean Farnsworth

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 2
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 3 of 116

guaranteed raises to specific faculty regardless of their merit or performance. In 2018,

Dean Farnsworth also retaliated against Professor Mullenix and attempted to chill

reports of discrimination by telling Professor Mullenix that he would only pay her the

same as Professor Bone if she agreed to retire in two years. At the time, Professor

Mullenix was 68 years old and intended to teach at UT Law until she was at least 80.

In retaliation and despite Professor Mullenix’s repeated requests to be

appointed Associate Dean for Research, she has been relegated to “do-nothing”

committees that have little impact on law school governance. This marginalization

of disfavored faculty is a common tactic employed by Dean Farnsworth and prior

deans to punish outspoken faculty. Most disturbingly, because of Professor Mullenix’s

challenges to UT Law’s unequal pay and other discriminatory practices, she has been

made a pariah by the administration and her colleagues. New professors are told to

stay away from her and that she is “poison.” Indeed, Dean Farnsworth, the law

school, and the university have waged a scorched earth campaign denigrating,

debasing, and disparaging Professor Mullenix to her peers, the public, and this court.

This very public war against one the law school’s most distinguished scholars and

teachers is meant to retaliate and used as a not-so-subtle warning to any other

professors who might wish to speak out about issues at the law school or the

university.

UT Law has reason to be worried about others speaking out about unequal pay

and sex discrimination. From 2016 until at least 2020, UT Law, on average, paid

tenured female professors at least $20,000 less than tenured male professors.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 3
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 4 of 116

By paying Professor Mullenix less than similarly-situated male professors and

retaliating against her for challenging unequal pay based on gender, UT Law has

violated Title VII and the Equal Pay Act.

I
PARTIES

1. Plaintiff Linda Mullenix is an individual who resides in Travis County, Texas,

and has during all relevant times been employed by the University of Texas at

Austin.

2. Defendant, University of Texas at Austin, is a state university located within

the Western District of Texas. Defendant has already been served through its

President.

II
JURISDICTION AND VENUE

3. This Court has original jurisdiction to hear this complaint under 28 U.S.C. §

1331, this action being brought under 42 U.S.C. § 2000e et al. and 29 U.S.C. §

206.

4. Venue is appropriate because the acts giving rise to this lawsuit occurred

within the Western District of Texas.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 4
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 5 of 116

III
FACTS

A. Professor Mullenix has been teaching for nearly 48 years, has taught at
the University of Texas School of Law for almost 31 years, and is a
nationally recognized scholar in the fields of civil procedure and federal
courts.

5. Professor Linda Mullenix currently holds the Rita and Morris Atlas Chair in

Advocacy at the University of Texas School of Law, where she has been

teaching since 1991.

6. As of September 2021, Professor Mullenix has over 47 years of teaching

experience, making her the most senior woman on the UT Law faculty. In

spring 2022 she will enter her 48th year of teaching.

7. At UT Law, Professor Mullenix teaches first-year federal civil procedure, mass

tort litigation, and a seminar on transnational class actions. In the past, she

has taught complex litigation, federal courts, and conflict of laws.

8. Professor Mullenix’s academic responsibilities include creating course syllabi

and updating course materials, teaching course content, holding office hours

with students, counseling students on academic and career issues, creating

and grading student performance assessment measures, performing

institutional committee obligations, attending law school faculty events,

research and publication of books, treatises, articles, and other commentary,

engaging in continuing legal education, engaging in professional activities

outside the law school (such as serving on various federal, state, and local

committees), participating as a speaker or conferee at academic and

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 5
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 6 of 116

professional meetings and conferences, and serving as a peer reviewer of

colleagues’ research and scholarship.

9. Professor Mullenix earned her B.A. degree in political science from the City

College of New York, where she graduated magna cum laude, Phi Beta Kappa.

10. Professor Mullenix earned M.Phil and Ph.D degrees in political theory from

Columbia University, and her law degree from Georgetown University Law

Center.

11. After law school she practiced appellate litigation in Washington, D.C.

12. Since beginning to teach in 1974, Professor Mullenix has been a visiting

professor at Oxford University and the University of Trento in Italy.

13. Professor Mullenix has been a visiting professor at Harvard, the University of

Michigan, and Southern Methodist University law schools.

14. She held the Reuschlein Distinguished Visiting Chair at Villanova and

served as the Katherine Ryan Distinguished Professor at the Institute on

World Legal Problems in Innsbruck, Austria.

15. She has delivered lectures on class actions and complex litigation to academic

and professional audiences around the world, including in Australia, Austria,

Brazil, Belgium, Canada, Colombia, Croatia, Germany, Israel, Italy, South

Africa, Switzerland, and the U.K.

16. Professor Mullenix has numerous professional honors. Among others, she has

served as a Supreme Court Fellow at the Federal Judicial Center; was a

scholar-in-residence at the Rockefeller Foundation Bellagio Study and

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 6
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 7 of 116

Conference Center in Italy; and held the Fulbright Senior Distinguished Chair

in Law in Trento, Italy.

17. She is an elected Life Member of the American Law Institute, an elected Life

Fellow of the Texas Bar Foundation, and an elected Life Fellow of the

American Bar Foundation. She also is an elected member of the International

Association of Procedural Law. She served on the Board of Directors of the

Austin Fulbright Alumni Association.

18. Professor Mullenix served as an Associate Reporter on the American Law

Institute Restatement of the Law Governing Lawyers, a consultative member

of the ALI Transnational Rules of Civil Procedure, and the ALI Complex

Litigation Project.

19. In 2020, the American Law Institute requested that Professor Mullenix

contribute a chapter to the ALI’s upcoming centennial volume commemorating

the 100th anniversary of the Institute. Professor Mullenix was one of a very

small group of distinguished scholars invited to contribute to this volume.

20. Since 2020 Professor Mullenix has been working on an international

collaborative project sponsored by the Max Planck Institute for Procedural

Law in Luxembourg, on Comparative Procedural Law and Justice.

21. In 2012, the Travis County Women’s Law Association awarded her the

“Pathfinder 2012” Award. This honor recognizes women in the community who

“have used their law degrees in ways that inspire the rest of us.”

22. Professor Mullenix has the second largest publication record of any faculty

member. This publication record can be verified by the review of Professor


_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 7
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 8 of 116

Mullenix’s curriculum vitae, and the CVs of every UT faculty member placed

in the record in this litigation.

23. Professor Mullenix has authored over 99 law review articles and book chapters,

is the author or co-author of over 20 books, and has written 200 articles of short

commentary, analysis, or reviews.

24. Her scholarship is cited by state and federal courts across the country. In fact,

from 2000 through 2017, Professor Mullenix was the only UT faculty member

to be listed as a top-ten scholar in the field of civil procedure on Professor Brian

Leiter’s compilation of citation rankings by academic fields.

25. Professor Mullenix is the only female faculty member of UT law school to be

repeatedly listed as a top 250 most-cited scholar, in all fields, by HeinOnline.

26. As of September 2021, SSRN reported that Professor Mullenix’s articles had

been downloaded more than 10,000 times from the SSRN database.

27. Her students have recognized her for teaching excellence. From 2017 through

2020, Professor Mullenix—with an average rating of 4.76—has had the second

highest student evaluation ratings among the senior cohort of professors.

28. Professor Mullenix has long served the profession in numerous capacities,

including serving on American Bar Association committees; as a thirty-five

year contributor to the ABA Preview of Supreme Court Cases; as an Associate

Reporter for an ALI Restatement; as a Co-Reporter and Legal Advisor to the

United States District Court for the Southern District of Texas; as a member

of a Special Committee of the District of Columbia Bar on Ethics, Continuing

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 8
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 9 of 116

Legal Education and the Model Rules; as a Reporter for the National

Conference on State-Federal Judicial Relationships; as an Advisory Committee

member for the National Center for State Courts Study on Civil Discovery, and

on the Board of Directors and Advisory Board of numerous publications.

29. Professor Mullenix has also served the profession as a keynote speaker or

conference participant at more than 150 professional programs sponsored by

law school and professional organizations.

30. Professor Mullenix has served the academic profession by active participation

in various committees of the Association of American Law Schools, including

as Chair of the Professional Development Committee; the planning committees

for numerous AALS programs and workshops; and as speaker and discussion

leader for many AALS programs.

31. Internally at the law school Professor Mullenix has served the law school in

the past by participation in the work of various committees, including as past

Chairperson of the Appointments Committee; the Tenure and Promotion

Committee; the Budget Committee; Capital Campaign Advisory Committee;

Advocacy Programs; Voting Procedures; International Studies; Graduate

Studies; Computer Committee; Rules & Procedures; Faculty Governance; and

the Teaching Committee.

32. After Dean Farnsworth became the dean in 2012, Professor Mullenix was

removed from all law school committees important to law school governance

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 9
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 10 of 116

and instead was assigned to a series of committees that did not meet and did

minimal work.

33. Professor Mullenix has also served the law school internally by attending

colloquia and Drawing Board sessions; participating in faculty recruitment by

writing assessments of candidates for the Appointments Committee; attending

job talks and interviewing prospective candidates; offering comments on

papers to colleagues (both internally and externally) upon request; presenting

a colloquium on a work-in progress; attending colleagues’ seminars with

invited speakers; meeting with students and providing career advice, including

writing clerkship, internship, and other recommendations; attendance at

almost all alumni functions; and active participation in the Texas Law Fellows

fundraising efforts.

34. Professor Mullenix has served the University as an elected member of the

University of Texas Faculty Grievance Committee, currently serving a three-

year term.

35. Professor Mullenix has served the external academic community by reviewing

draft scholarship of colleagues at other law school; over thirty years writing

numerous tenure reviews for junior faculty under consideration for promotion

to tenure; writing academic assessments of colleagues at other law schools

under consideration for promotion or appointment to Chairs or other

distinctions; serving as a reviewer for publishers on book proposals; and

writing testimonials for retiring colleagues.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 10
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 11 of 116

B. In 2010, Professor Mullenix discovered that she was being paid less than
comparable male faculty at UT Law.

36. In December 2010, while researching the Texas Tribune’s government salary

tracker, Professor Mullenix discovered that she was being severely underpaid

compared to her male colleagues.

37. She asked then-Dean Lawrence Sager to provide her with the salary array for

all UT Law professors.

38. After six months of discussion, in late May 2011, Dean Sager complied, albeit

only in part, by providing a partial salary array.

39. According to that array, Professor Mullenix was paid around $50,000 less than

Professor Robert Bone, a recent lateral hire with less teaching experience than

Professor Mullenix and a less substantial publication record.

40. Professor Bone is a proper comparator because he teaches civil procedure as

does Professor Mullenix and he is also in the same faculty cohort at UT Law.

Through its responses to Plaintiff’s Requests for Admissions, the University

has admitted that Professor Bone’s position requires the same skill, effort, and

responsibility as Professor Mullenix’s position. Further, the University has

admitted that both Professor Mullenix and Professor Bone perform their jobs

under similar working conditions.

41. When Professor Mullenix pointed out the gap between her and Professor

Bone’s salary, Dean Sager said, “I knew you would be upset when you saw

that.”

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 11
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 12 of 116

42. Despite Dean Sager’s apparent acknowledgement that Professor Mullenix was

not being properly paid, Dean Sager refused to negotiate any adjustment to

her salary, deferring this conversation for several months.

43. Because of his unwillingness to negotiate a salary adjustment and anticipating

possible legal action by Professor Mullenix, Dean Sager tried to discourage

Professor Mullenix from taking legal action.

44. Even though Professor Mullenix had never mentioned or discussed with Dean

Sager the possibility of pursuing legal action, Dean Sager threatened her,

stating that if she brought a lawsuit, “you will never be able to work anywhere

again,” and “nobody will like you.”

45. In September 2011, after retaining counsel, Professor Mullenix settled her

Equal Pay Act claim against the School of Law.

46. The settlement paid Professor Mullenix $250,000, increased her salary by

$20,000, and required the University to provide her with a salary array at the

beginning of each academic year in order for her to monitor UT Law’s

continued compliance with its equal pay obligations.

47. The $250,000 payment was structured, over objections by Professor Mullenix

and her lawyer, as a “forgivable loan.”

48. The law school’s settlement to Professor Mullenix in 2011 triggered an Open

Records Act request by three of her colleagues. This Open Records Act request

revealed that Dean Sager had made large sum “forgivable loans” in amounts

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 12
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 13 of 116

ranging from $100,000 to $250,000 to approximately 20 male members of the

UT faculty, that were not disclosed to the faculty.

49. After disclosure of the forgivable loans through the Open Records Act request,

the Budget Committee in coordination and approval of Dean Farnsworth, in

reporting annual faculty salaries, determined to amortize the forgivable loans

to these male faculty members over varying periods of years.

50. Because Professor Mullenix had received her settlement in the form of a

“forgivable loan,” in reporting faculty salaries in its annual salary arrays, UT

Law unilaterally decided to amortize Professor Mullenix’s $250,000 settlement

amount over ten years in $25,000 amounts that were added to Professor

Mullenix’s reported salary each year, though the actual salary she received

was less.

51. That unilateral decision to amortize Professor Mullenix’s Equal Pay Act

settlement allowed UT Law to falsely inflate Professor Mullenix’s salary by

$25,000 every year through 2021 and falsely make it appear that Professor

Mullenix’s salary was higher in the salary array than the salary she actually

received each year.

52. Indeed, UT Law maintains several different salary arrays for the purpose of

inflating Professor Mullenix’s salary through amortization, or improperly

understating salaries of several faculty members by failure to include

numerous and various “special deals,” which will be addressed below.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 13
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 14 of 116

53. In December 2011, Dean Sager stepped down. In 2012 Dean Ward Farnsworth

was selected as the new dean of UT law school.

54. In 2013, two years after Professor Mullenix’s Equal Pay Act settlement, the

Texas Attorney General’s Office determined that Dean Sager’s forgivable loan

program was improper.

55. In December 2013 Professor Mullenix’s attorney was notified by the UT Law

Foundation’s outside tax counsel, Vinson & Elkins, that due to the

determination by the Attorney General about the forgivable loans, the Law

School Foundation had rescinded all forgivable loans, which included Professor

Mullenix’s settlement.

56. Professor Mullenix was informed that her forgivable loan would be reported to

the IRS as income in 2010 and that Professor Mullenix was responsible for

paying all back taxes, interest, and penalties on the rescinded forgivable loan.

57. Due to the improper way UT Law structured the $250,000 payment of her

Equal Pay Act claim as a forgivable loan, Professor Mullenix was forced to file

amended tax returns for 2011, 2012, and 2013. Consequently, in 2014,

Professor Mullenix was required to pay thousands of dollars in tax penalties

and for accountant fees.

58. Because Professor Mullenix and her counsel had objected to her Equal Pay Act

settlement in the form of a forgivable loan and the Foundation’s rescission and

tax consequences, Professor Mullenix requested that Dean Farnsworth

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 14
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 15 of 116

reimburse her for the tax penalties and CPA fees she incurred because of the

law school’s actions.

59. In December 2016, UT Law agreed to pay Professor Mullenix $16,000 to

reimburse her for the fees and penalties they caused, but only if she signed

another general release of all claims to date.

60. UT’s General Counsel Jeff Graves repeatedly made it clear to Professor

Mullenix that UT law would not reimburse her tax penalty expenses and CPA

fees unless she signed a waiver of all claims.

61. Under protest about signing a waiver of all claims, and in order to receive a

reimbursement after several years, Professor Mullenix signed the agreement

and release of claims on December 19, 2016.

62. Because the reimbursement agreement did not increase her salary to parity

with Professor Bone, the day after she signed that reimbursement agreement,

Professor Mullenix continued to be paid less than her male colleagues.

63. This gap has continued to grow larger every year since.

C. The Budget Committee review process: how faculty salary and annual
raises are determined by the Dean of UT Law based on recommendations
from the Budget Committee.

64. The Dean annually appoints seven or more faculty members to the Budget

Committee. Its function is to conduct annual performance review of the tenure

and tenure-track faculty. The Budget Committee is advisory to the dean.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 15
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 16 of 116

65. After a rule was passed by Regents of the University of Texas, the Budget

Committee also assumed the responsibility for conducting mandatory six-year

post-tenure reviews of faculty members and giving a separate rating for it.

66. Faculty members may request to serve on the Budget Committee, but Dean

Farnsworth ultimately selects the faculty to serve on the committee.

67. In September 2012, at Professor Mullenix’s first meeting with Dean

Farnsworth, she requested to be placed on the Budget Committee. She

explained to Dean Farnsworth that given her long tenure at the law school,

her lengthy career, and her knowledge of compensation issues, she wanted to

serve on the committee.

68. Dean Farnsworth ignored her request to serve on the Budget Committee and

instead put Professor Mullenix on the newly created computer committee, an

area in which Professor Mullenix had no knowledge, experience, or expertise.

69. According to Dean Farnsworth he selects faculty members for the Budget

Committee who are the “strongest . . . performing members of the faculty.”

Farnsworth Corp. Rep. Dep. 138:2-3. He also indicated that he selects faculty

to serve on the Budget Committee “whose judgments I think will be valuable

to me.” Farnsworth Dep. 46:7-8.

70. The Budget Committee, excluding Ex Officio members Dean Farnsworth and

Associate Dean Robert Chesney, has had between seven and ten members.

Since 2015, there have never been more than four women on the Budget

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 16
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 17 of 116

Committee in a single year. Further, every single year, women have comprised

less than half the committee.

71. Since Dean Farnsworth became Dean, he has repeatedly appointed several

faculty members, including Professors Bob Bone, Steve Goode, Lynn Baker,

Charles Silver, Angie Littwin, Willy Forbath, Susie Morse, Tom McGarity,

Jordan Steiker, Sean Williams, and Jay Westbrook.

72. Every faculty member subject to review is required to submit to the Budget

Committee every January an annual report of their publications in the last

calendar year and a statement of their service.

73. The Budget Committee Chair obtains from the Student Affairs office each

research faculty members’ numerical teaching evaluations from the prior

calendar year.

74. After receiving this information, the Budget Committee Chair prepares a

binder containing that data on each faculty member.

75. The Budget Committee Chair also compiles a running list of each faculty

member’s publications for the preceding six years.

76. Each year from February through May, the Budget Committee sits collectively

to evaluate each individual faculty member’s performance in three different

areas: (1) scholarship, (2) teaching, and (3) service.

77. Each committee member is provided a binder which includes:

• a professor’s current total compensation along with the year they

graduated law school;

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 17
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 18 of 116

• a scatterplot showing the total compensation of a professor compared

with their total years teaching;

• the chairs and professorships each professor may have been awarded;

• a table with the “mean” teaching evaluation which is weighted by

“taking the ‘Professor’ rating mean for each course taught during the

specified period and multiplying it by the number of survey respondents

for each course, then adding those numbers and dividing by the total

number of survey respondents” (2019-20 Salary Binder D-0036296);

• a table showing the “mean of means” which “is calculated by taking the

‘Professor’ rating mean for each course taught during the specified

period, then determining the mean of those means” (2019-20 Salary

Binder D-0036296);

• A “Summary by Class Size, Type” chart and bar graph showing the

mean, median, means of means for all courses, courses with under and

over 20 students, and seminars;

• A table listing each professor, semester taught, the course code of the

course taught over a specified period, the number of surveys submitted,

enrollment in class, the total respondents who rated a professor from

very unsatisfied to excellent, the number of total responses, the total

score for the professor, and the mean;

• Each professor’s “Budget Committee Submission” listing scholarship

both published and forthcoming, awards/grants, any additional

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 18
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 19 of 116

information about teaching, and service done for the law school,

university, bar, and academic field and/or public interest;

• For each professor a table showing the courses taught and the

professor’s ratings, averages, median, means of means and bar graph of

that information is provided for the specific look-back period.

78. The Budget Committee discusses and rates each professor as baseline, above

baseline, below baseline, or baseline plus/minus.

79. After reviewing each faculty’s member’s performance for the preceding

calendar year, the Budget Committee members, like former Chair Professor

Baker, report, “there’s a holistic component to the final aspect of the process in

the years that I’ve been on the committee, and part of what is looked at at that

point in the process is whether something looks to be out of alignment. And so

adjustments will be made in that sense to minimize or reduce or alleviate

things like that.” Baker Dep. 149:3-9 (emphasis added).

80. Although the Budget Committee members in their depositions described this

second “holistic” review, as “based upon these three criteria but taking them

in a holistic way” (Bone Dep. 173:3-4) and “there can be a host of factors . . .

looking at spatial representation . . . and how at a given point in time people

are appearing compared to one another in proximity” (Baker Dep. 149:13-17),

though none could explain or describe specifically how the Budget Committee

conducts this “holistic” review, or what standards it applies in making

“holistic” appraisals.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 19
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 20 of 116

81. However, not every Budget Committee member agrees or is aware that there

is a holistic assessment. Professor Forbath’s belief even though he was on the

committee is that “it wasn’t the business of the committee to make holistic

assessments of colleagues” (Forbath Dep. 118:10-11), Professor McGarity, a

former chair and repeat budget committee member stated that the review was

“not holistic over their entire careers. No, we don’t do that” (McGarity Dep.

88:17-18).

82. No Budget Committee member could explain what materials – such as a CV –

that the Committee reviews in making this second global “holistic” appraisal,

and as shown above the Budget Committee members could not say for sure

whether there was a holistic assessment.

83. The performance standards provided to each faculty member in August 2013

make no mention of such a “holistic” review in addition to the annual review.

This subjective holistic review is an evaluation process created by some Budget

Committee members.

84. The “holistic” review performed by the Budget Committee is not disclosed as a

part of the review process.

85. After discussing each faculty member’s annual performance and (some)

considering a holistic review, the Budget Committee recommends a particular

raise for each faculty member to the Dean.

86. To support the Budget Committee’s recommendations, the Chair of the Budget

Committee can choose to take notes. However, each chair varies in the level of

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 20
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 21 of 116

detail the notes contain, which allows a faculty member’s entire performance

to be reduced to few words or completely characterized by a brief statement.

87. For example, as Chair of the Budget Committee in 2018, Professor Lynn Baker

submitted notes to Dean Farnsworth that reduced faculty accomplishments,

like Professor Mullenix’s to “continued strong teaching; publications were all

casenotes and updates, no substantial articles.” Salary Raise Chart and

Committee Notes D-0036733.

88. In contrast, Professor Tom McGarity, Chair of the Budget Committee in 2019

described professors according to the three purported metrics that the

committee evaluated them on. 2019 Committee Notes D-0001770.

89. These notes are furnished to Dean Farnsworth, and then in May and June he

determines pay raises to take effect every September 1st (the beginning of the

university fiscal year).

90. In determining pay raises in May and June after committee deliberations,

Dean Farnsworth relies on the Budget Committee Chair’s notes as well as his

own recollection of the Budget Committee deliberations.

91. In actuality, Dean Farnsworth has an extremely poor memory for budget

committee meetings and proceedings. Indeed, during his deposition, he could

not recall any of the Budget Committee’s discussion of the faculty under review

a meeting held a mere three days before his deposition. Farnsworth Corp. Rep.

Dep. 131:1-8. Dean Farnsworth also had difficulty in even identifying which

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 21
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 22 of 116

faculty members were under review at that meeting three days earlier.

Farnsworth Corp. Rep. Dep. 122:2-9.

92. Dean Farnsworth’s inability to recall details about the faculty members

discussed in the meetings indicates that he relies heavily on the notes

submitted by the Chair of the Budget Committee.

93. On September 10, 2018, Professor Mullenix met with Dean Farnsworth after

she received the lowest raise out of her cohort. At that meeting, he refused to

acknowledge that he alone sets salaries. Instead, he repeatedly stated that he

deferred to the decisions of the Budget Committee, implying that the Budget

Committee sets pay raises.

94. When Professor Mullenix interviewed Budget Committee members during fall

2018, Budget Committee members stated that they did not set pay raises; that

Dean Farnsworth did. Dean Farnsworth has the final say on what raise each

faculty member will receive in the upcoming academic year, based on the

previous calendar year’s performance.

95. The Dean also determines the raises for each member of the Budget

Committee.

D. Purported Standards for Law School Performance Evaluation for


Tenured and Tenure-Track Faculty.

96. Faculty salaries and raises at UT Law are not based on a seniority system.

97. Rather, in theory, salaries and compensation are based on a merit system.

98. For merit determinations, faculty members’ annual performance is reviewed

in three categories: research and scholarship; teaching; and service.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 22
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 23 of 116

99. In August 2013 the entire faculty was furnished with a memorandum setting

forth “Standards For Law School Performance Evaluation of Tenured and

Tenure-Track Faculty.” Mullenix 002921.

100. These standards were promulgated by a Budget Committee consisting of

Professors Avraham, Baker, Blais, Goode, Lindquist, McGarity, Peroni,

Rabban Steiker, Westbrook, Wagner, Dean Farnsworth (ex officio) and

Chesney (ex officio).

101. The standards indicate that each year every research faculty member is to

submit to the Budget Committee research published in the last calendar year

and a curriculum vitae.

102. The Budget Committee has never collected faculty members’ CVs and therefore

has not that basis for making the “holistic” assessments that it does in the

salary review process, described in the section below. Professor Mullenix has

repeatedly furnished every dean and various Budget Committee members with

her CV, to keep them apprised of her accumulated career accomplishments.

103. The performance standards do not indicate the relative weight the Budget

Committee is to give to each performance category. Budget Committee

members could not and cannot agree on the relative weight to be accorded to

these three performance categories. In their depositions, some Budget

Committee members indicated that the three performance categories were to

be given equal weight, while other Budget Committee members indicated that

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 23
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 24 of 116

the most important category was scholarship. Several suggested that service

was to be accorded the least weight.

104. For example, Professor Forbath, who served on the committee, stated that

“both teaching and scholarship was more important than service” (Forbath

Dep. 80:13-14), but when asked to rank them said, “scholarship was first.”

Forbath Dep. 80:21. Professor Bone ranked these three categories similarly,

indicating that “scholarship gets a great deal of weight, teaching gets

considerable weight, perhaps service less so.” Bone Dep. 75:5-7.

105. Professor Peroni, however, thinks that “teaching should be the main focus”

(Peroni Dep. 222:21), while Professor Westbrook thinks “really high or really

low performance in any of those three areas . . . may have more weight than

just a third.” Westbrook Dep. 149:12-15.

106. Regarding service, Dean Farnsworth indicated that the Budget Committee

“tend[ed] to regard service to the law school as the most valuable kind”

(Farnsworth Dep. 177:18-19) rather than any other university or external

service. The written standards do not state this.

107. Rather than applying an objectively agreed upon weight of performance

criteria, individual Budget Committee members instead apply their own

subjective views of what counts as important, and what does not. None of this

is communicated to the faculty at large.

108. The failure to agree on the weight to be given to performance categories has

resulted in inconsistent performance reviews among faculty members. Budget

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 24
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 25 of 116

Committee members who believe scholarship is the most important

performance category focus exclusively on that, to the denigration of

contributions in the other performance categories.

109. Budget Committee members who believe teaching performance is paramount,

discount faculty members with otherwise weak service or scholarship

performance.

Scholarship:

110. The standards for scholarship state that the Budget Committee “will consider

both the quality and quantity of a faculty member’s scholarship, with the

emphasis placed on the quality.” Standards for Law School Performance

Evaluation of Tenured and Tenure-Track Faculty Mullenix 002921.

111. “This scholarship may take many forms, including books (as author or editor),

book chapters, articles (printed or online) in law reviews or peer-reviewed

journals in other disciplines, book chapters, treatises, and casebooks. Grants

sought and obtained may also be considered.” Standards for Law School

Performance Evaluation of Tenured and Tenure-Track Faculty Mullenix

002921.

112. “Except in extraordinary circumstances, the Budget Committee as part of its

review of a faculty member’s scholarship, will not consider CLE materials,

legislative testimony, briefs, blogs, brief essays or articles for the popular

press, or articles posted on SSRN or similar websites, although preparation of

such materials may be considered as part of a faculty member’s service.”

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 25
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 26 of 116

Standards for Law School Performance Evaluation of Tenured and Tenure-

Track Faculty Mullenix 002921.

113. The Budget Committee reads and reviews only scholarship published in the

previous calendar year. However, it will review a list of a faculty member’s

publications over the past five years to take into account length multi-year

projects such as books. Faculty members are encouraged to report works-in-

progress to the committee.

114. A faculty member’s scholarship is assigned to one Budget Committee member.

All the Budget Committee members do not read each faculty member’s

scholarship, nor does Dean Farnsworth. The Budget Committee then adopts

as its own assessment the review of the single person assigned to read a faculty

member’s submitted publication.

115. The committee member assigned to read the work is also not necessarily in the

same specialty or area of interest as the professor they are reviewing. Further,

committee members can recuse themselves from reading pieces of scholarship

by particular professors. Moreover, there are no rules regarding conflicts of

interest for reading assignments.

116. The Budget Committee does not consider any opinions outside of the Budget

Committee itself on the merits of a piece of faculty scholarship even if there

are such assessments from other professors in that area, judges, or

practitioners. The Budget Committee also does not consider citation counts or

any other indicia of merit regarding a faculty member’s scholarship.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 26
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 27 of 116

117. Instead, the assigned committee member presents his or her evaluation of the

publication to the rest of the committee and provides his or her personal

opinion on whether a submitted piece is scholarship or service, how well it is

written, and whether it has merit.

118. The committee then generally relies solely on that one professor’s opinion

about the submitted scholarship.

119. Budget Committee members do not agree with one another as to what

publications should be credited as scholarship.

120. Budget Committee members in the past and present have different opinions

on what counts, which means that whether a scholarly piece of work is

considered meritorious lies solely in the hands of the faculty member

presenting his or her assessment of submitted work.

121. If a professor’s scholarship has been assigned to a committee member that

views the publication not as scholarship but as service, then that committee

member’s judgment will prevail.

122. Professor Mullenix annually writes Supreme Court Previews for publication

by the American Bar Association. These articles are highly regarded and have

even been read by Supreme Court Justices such as Ruth Bader Ginsburg.

However, depending on which committee member is assigned to read those

works, the committee variously considers these articles scholarship, not

scholarship, or just service.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 27
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 28 of 116

123. Professor McGarity stated that he views Preview articles “at least as

scholarship” (McGarity Dep. 135:7), while Professor Bone views Supreme

Court Preview articles as “service” (Bone Dep. 60:14). A respected external

professor at Emory Law School, Professor Richard Freer, states “it [Preview

articles] is scholarship.” Freer Dep. 48:7.

124. In another instance, Professor McGarity credited articles by Professor

Mullenix and other faculty members published in Jotwell to be scholarship,

but Professor Forbath credited JOTWELL articles as service.

125. Concerning casebook revisions, Professor Goode’s assessment “depends on the

particular revision,” (Goode Dep. 211:8), Professor Baker said that casebook

revisions “almost never” (Baker Dep. 196:17) count as scholarship, and

Professor Forbath said “no, never” (Forbath Dep. 85:17) do they count as

scholarship.

126. However, the written standards state that substantial case revisions count

towards scholarship (D-36801), but members of the Budget Committee could

not come to an agreement about what “substantial” would entail and even

argued about whether a “complete” revision of a casebook was considered a

“substantial” revision. Again, none of this is communicated to the faculty at

large and clarification of faculty submissions is never sought.

127. In assessing scholarship, committee members do not only evaluate the work

based on what should be counted as scholarship, but each member passes

personal judgment on the merits and value of the assigned piece of scholarship.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 28
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 29 of 116

128. Professor Bone evaluates “whether somebody has made a significant

contribution, that is to say, advancing the scholarly ball in some fashion.” Bone

Dep. 26:9-11.

129. This means that if Professor Bone does not think a colleague’s work is a

“significant contribution” to their field of expertise, then he would present that

opinion to the budget committee.

130. These personal assessments of quality are made without any regard to whether

the professor reviewing the work has the experience or knowledge about the

field to make the evaluation on whether the publication has made a significant

contribution.

131. Moreover, the Budget Committee makes no effort to screen bias or to place

safeguards to avoid bias from infecting reviewer’s assessments of the quality

of a piece of scholarship.

132. In reality, the inconsistency in application of the scholarship standards creates

disparities in performance evaluations and ultimate decisions about pay

raises.

133. Even a cursory comparison of the salary array for 2018-2019 with the Budget

Committee’s publication list shows that some professors who publish very little

or nothing over a period of several years still received large raises.

134. The Budget Committee’s application of the scholarship standards is greatly

inconsistent across faculty members. The Budget Committee credits some

faculty members for scholarship that the standards explicitly discount, while

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 29
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 30 of 116

the Budget Committee excludes the same type of scholarship submitted by

other faculty.

135. Exacerbating this problem is that publications excluded from credit as

scholarship is then not credited as “service,” as the standards indicate.

136. This discounting of publications has certainly been true for Professor Mullenix.

Every year the Budget Committee routinely dismisses a large percentage of

her submitted publications as “not scholarship,” but then does not credit this

work as service in the Chairs’ notes of committee deliberations to the dean by

only sending notes that relay information about Professor Mullenix’s teaching

and scholarship. 2018 Salary Raise Chart and Committee Notes D-0036733.

137. In 2017, Professor Mullenix submitted fourteen publications to the Budget

Committee. These included the complete revision of one casebook; a

substantial revision of a second casebook; a 64+ page completely revised book

chapter; four annual updates to a well-know federal procedure treatise; five

articles on pending Supreme Court cases published in the ABA Preview of

Supreme Court Cases; and two JOTWELL (Federal Courts) articles.

138. Professor Mullenix’s publication records for 2017 consisted of hundreds of

pages of written work product and hundreds of hours of research and writing.

139. The 2018 Budget Committee, reviewing this publication record and in opposite

of the law school’s written standards, disregarded that work and rated

Professor Mullenix as “below baseline.”

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 30
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 31 of 116

140. Instead, Professor Lynn Baker, Chair of the 2017-18 Budget Committee,

explained that the reason for Professor Mullenix’s below baseline rating that

year was “that there was no scholarship submitted that year for our review.”

Baker Dep. 165:17-18.

141. Along with its evaluation of her teaching performance in 2017 (see next) the

Budget Committee deemed her to be a below baseline faculty member, along

with five other faculty members who had no publications and poor teaching

evaluations.

142. Writing to the EEOC to explain Professor Mullenix’s 2017 performance review

that resulted in the faculty’s lowest pay raise, Dean Farnsworth explained: “To

begin with quantity: much of what Professor Mullenix writes is not considered scholarship

at all by the Budget Committee.”

143. Adding insult to injury, he further commented: “Year in and year out, different

reviewers of her scholarship agree about this. They usually find it mediocre.”

144. For comparison, Professor Rabban, in 2017 a male professor and comparator

to Professor Mullenix, submitted a six-page book review as his scholarship for

the Budget Committee to consider.

145. In comparing a six-page book review to Professor Mullenix’s scholarship,

Professor McGarity, a member of the 2017-18 Budget Committee, stated a “six-

page book review is not more than revising several case books and treatise

work.” McGarity Dep. 234:23-25.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 31
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 32 of 116

146. The Budget Committee still rated Professor Rabban baseline and Professor

Mullenix below baseline. Professor Rabban received a $10,000 raise that year

and Professor Mullenix received only $1,500.

147. Another male professor, Professor Henry Hu (a Mullenix comparator), did not

publish anything in 2016 or 2017, but stated that he had forthcoming articles.

He was rated baseline and received a $4,000 raise.

148. Professor Lucas Powe, a male professor, submitted a short article in 2018 and

stated he had a forthcoming book. He was rated baseline that year and

received a $3,000 raise.

149. Professor McGarity, another comparator of Professor Mullenix, published

nothing in 2016. In 2017, he wrote one journal article, co-authored another

article with two colleagues, and wrote an op-ed for The American Prospect

magazine. He received one of the highest raises in the amount of $10,000.

150. As evidenced above, the Budget Committee’s process depends solely on the

committee member’s opinions of what is and is not scholarship and those

opinions are wildly inconsistent.

Teaching Performance:

151. The written standards for teaching indicate that a faculty member’s

performance will be evaluated based on numerical and written student

evaluations, as well as other factors such as size of classes and teaching loads.

Standards for Law School Performance Evaluation of Tenured and Tenure-

Track Faculty Mullenix 002922.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 32
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 33 of 116

152. The Budget Committee’s assessment of annual teaching performance is highly

inconsistent. Faculty members with exactly the same numerical teaching

evaluations will be reported to the dean in the Chairperson’s notes with

dissimilar rhetorical characterizations.

153. To evaluate teaching, the binder provided to the committee members includes

a table that lists how many classes a professor teaches, how many students are

in each class, and the corresponding student evaluation scores.

154. Some faculty members with high numerical evaluations will be reported as

superior, excellent, or stellar teachers, while disfavored faculty members with

equal or superior numerical ratings will be reported to the dean merely with

the note as “continued good teaching.”

155. The Chairperson’s notes to the dean may highlight and flag a high numerical

teaching evaluation for a favored faculty member, while failing to report the

same or higher numerical evaluations regarding other faculty.

156. This has been true for Professor Mullenix, where Chairperson’s notes report

high teaching numbers for Professors Bone and McGarity, while failing to

report Professor Mullenix’s equally high numerical evaluations.

157. Moreover, the Budget Committee does not read student comments. Professor

Mullenix has received thousands of enthusiastic, positive student written

comments over the course of her long career and continues to do so every

semester. She has annually submitted the written student comments to the

Budget Committee.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 33
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 34 of 116

158. In fall 2018 when Professor Mullenix questioned Budget Committee

Chairperson Professor Baker whether she had read the student comments that

Professor Mullenix had submitted, she was told no. Professor Baker stated that

she could not understand why the committee should waste time reading

student comments (even though the standards state that the Budget

Committee does this). Budget Committee Interviews 2018 Mullenix 004342.

159. In 2017, Professor Mullenix taught a large section of first year civil procedure

students with 77 students and a seminar on transnational class actions. The

UT law school numerical evaluation scale rates faculty members from 1 – 5 for

teaching. The average law school faculty numerical teaching score is 4.5, with

faculty members below that considered relatively poor teachers.

160. Professor Mullenix received a 4.7 evaluation in her large civil procedure section

and 5.0 for her seminar, for a combined 2017 teaching score of 4.85. This score

placed her at the top of the law faculty teaching ranks.

161. Nonetheless, in combination with the Budget Committee’s 2017 scholarship

evaluation and her 2017 service evaluation (discussed next), Professor

Mullenix was rated as “below baseline” along with five faculty members who

had no scholarship and relatively poor teaching evaluations.

162. The average teaching evaluation score for UT Law faculty in 2018-2019 was

4.5. Professors with student evaluations below 4.5 were below average

teachers.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 34
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 35 of 116

163. Professors Henry Hu, Jens Dammann, and David Adelman all had below

average teaching evaluations in 2018 but were recommended for higher raises

than Professor Mullenix in 2019.

Professor Teaching Mean Raise Recommended

Hu, Henry 4.38 $9,000

Dammann, Jens 4.45 $7,500

Adelman, David 3.99 $7,500

Mullenix, Linda 4.69 $7,000

Service:

164. The UT law standards state that faculty members are to make valuable

contributions in service to the law school and university as well as to the larger

legal and educational community. Standards for Law School Performance

Evaluation of Tenured and Tenure-Track Faculty Mullenix 002922.

165. Listed among the types of service to the law school and the professional

community include, but are not limited to: participating in colloquia and job

talks, commenting on colleagues works in drafts, and mentoring tenure-track

faculty; serving on committees; advising student organizations; directing a

center, program, or organization; acting as a hearing officer; serving on a

dissertation committee; working on admissions and alumni outreach; scholarly

presentations; and participating in CLE programs. Standards for Law School

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 35
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 36 of 116

Performance Evaluation of Tenured and Tenure-Track Faculty Mullenix

002922.

166. Examples of service to the larger legal and educational community include law-

reform efforts, which may encompass legislative testimony; working with the

ALI, national or state bar organizations, or legislative groups; authoring pro

bono briefs; serving on the board of national associations and societies;

providing tenure reviews at other universities; participation in conferences at

other universities; serving as a peer reviewer for journals and societies; press

interviews; and providing pro bono or other philanthropic legal service.

Standards for Law School Performance Evaluation of Tenured and Tenure-

Track Faculty Mullenix 002922-23.

167. The Budget Committee inconsistently applies the service standards to

highlight and praise favored faculty and to discredit as poor institutional

citizens disfavored faculty.

168. The Budget Committee and Dean Farnsworth have indicated that it considers

faculty attendance at law school colloquia, as “a big point of faculty life,” (Goode

Dep. 221:5-6) and “the reason why I value my colleagues” (Baker Dep. 178:8),

as well as drawing Board sessions to be the most important part of faculty

service.

169. The standards nowhere state that this is the most important criterion of

service. In Chair McGarity’s 2020 Budget Committee notes to Dean

Farnsworth the notes make special note of the faculty members who routinely

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 36
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 37 of 116

attended colloquia and Drawing Board sessions, and faculty members who did

not. In his opinion, “colloquia and drawing board luncheons, two of the

important ones I think, particularly the drawing board” (McGarity Dep. 172:1-

3).

170. At least three quarters of the faculty do not attend law school workshops or

colloquia. However, many of these faculty still receive high raises, including

Professors Mark Ascher, Charles Silver, Angela Littwin, Sean Williams, Lynn

Baker, Mechele Dickerson, and Michael Sturley.

171. Budget Committee members do not agree on how to evaluate different types of

service, despite both internal service to UT Law and external service to the

profession being considered equal in the UT Law written standards.

172. Professor Bone considers “external service and internal service equally,” (Bone

Dep. 203:3-4), while Professor McGarity considers “service to the law school

may be…more heavily weighted,” (McGarity Dep. 19:4-5), and Professor

Westbrook contends that “it depends on the quality and importance of a

particular service” (Westbrook Dep. 150:9-10).

173. Professor Baker includes an additional, unwritten consideration to the

assessment of a faculty member’s institutional service: namely, collegiality.

Her “personal view is that collegiality is part of service.” Baker Dep. 178:4-5.

However, collegiality is not part of the written UT performance standards.

174. Professor Robert Peroni, in his deposition, affirmed that in his experience of

many years of service on the Budget Committee, the Budget Committee

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 37
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 38 of 116

deliberations often were infected with comments that had nothing to do with

the annual performance because “they would bring up things from past years

. . . it was totally inappropriate” (Peroni Dep. 69:14-15), including negative

comments about Professor Mullenix like referring to her as “being kind of a

complainer” (Peroni Dep. 69:24-25).

175. Moreover, at UT law school, this “collegiality factor” appears to only apply to

women who have complained of gender discrimination. In the over 40,000

pages of documents the University has produced, lack of collegiality has only

come up in relation to Professor Susan Klein and Professor Mullenix.

176. Specifically, Dean Farnsworth told Professor Susan Klein that she received the

lowest raise of her career in 2015 because of a lack of collegiality. This was

shortly after Professor Klein had questioned Dean Farnsworth about why more

female faculty did not receive FII funding. In 2021, the Budget Committee

gave Professor Klein a “baseline minus” rating due to a “serious breach of . . .

collegiality.”

177. Despite all the “difference of opinion as to how important, how much weight to

give, that sort of thing” (Westbrook Dep. 148:21-23) about what counts and

what is considered to have merit, there are no safeguards to prevent the system

being applied in a discriminatory and retaliatory way.

178. Faculty members who do not sit on the Budget Committee have no idea that

their annual evaluations are being negatively appraised for the failure to

attend colloquia and Drawing Board sessions, or for collegiality reasons, and

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 38
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 39 of 116

that the Budget Committee considers attendance at law school colloquia to be

the most important “service” contribution.

179. To the extent that attendance at these law school functions has become the

most important component of service -- to the diminution of all other forms of

service -- even this criterion is inconsistently applied.

180. For example, faculty members who have been habitual attendees at the

colloquia have received below baseline evaluations, including Professors

Ganor, Adelman, Weinberg, and Churgin. On the other hand, several faculty

members with above baseline or baseline ratings have not been penalized for

routine non-attendance. These include Professors Albert, Baker, Peroni,

Silver, Steiker, Dickerson, and Sage.

181. Of the 24 examples of service that the Budget Committee lists in its standards

for annual performance review, Professor Mullenix has engaged in 21 of these

activities. Yet, these accomplishments are left out or diminished in the Budget

Committee’s reviews and the Chair’s notes to the dean about Professor

Mullenix’s annual performance.

182. In Professor Mullenix’s 2017 annual report to the 2018 Budget Committee,

Professor Mullenix enumerated, in detail, 42 explicit examples of service to the

law school and larger profession encompassed by and listed in the performance

standards.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 39
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 40 of 116

183. Despite listing 42 examples of service performed in review year 2017, Professor

Baker’s notes to Dean Farnsworth as Chair made no mention of these service

contributions.

184. Further, In Professor Mullenix’s 2017 annual report to the 2018 Budget

Committee, she listed five published articles in the ABA Preview of Supreme

Court Cases and two published JOTWELL (Federal Courts) articles. In

rejecting these publications as scholarship, Professor Baker’s notes to the Dean

also did not list these seven articles (and considerable work that went into

them), as service.

185. Additionally, Professor Mullenix writes and publishes articles in The Preview

of Supreme Court cases every year. Every year the Budget Committee

discounts these articles as “not scholarship,” but then does not credit these

publications as service (despite the standards indicating that they are to be

credited as service).

186. Nonetheless, in combination with the Budget Committee’s 2017 scholarship

evaluation and her 2017 teaching evaluation, along with no recognition of her

service to the law school or profession, Professor Mullenix was rated as “below

baseline” along with five faculty members who had no scholarship and

relatively poor teaching evaluations.

187. Consequently, despite the submission of an extensive performance record,

Professor Mullenix received the lowest pay raise of those who received raises

on the faculty.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 40
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 41 of 116

Dean Farnsworth’s Determination of Salaries:

188. The 2018 Budget Committee recommended to Dean Farnsworth a $4,000 pay

raise to Professor Mullenix for her below baseline evaluation.

189. When Dean Farnsworth returned to the Budget Committee with his proposed

raises after all deliberations, he reduced Professor Mullenix’s pay raise to

$3,000.

190. Against Budget Committee recommendations, Dean Farnsworth further

reduced Professor Mullenix 2018 pay raise by an additional 50%, down to

$1,500.

191. When Professor Mullenix interviewed all the 2018 Budget Committee

members in fall 2018, no one knew that she had received the lowest pay raise

on the faculty; no one knew it was $1,500, and no one said they had advised or

authorized that pay raise.

192. In their subsequent depositions, Budget Committee members had difficulties

in explaining how Professor Mullenix could have received a $1,500 pay raise

based on her 2017 performance record, yet they nonetheless defended the

Budget Committee operations as fair and conducted with integrity.

193. For professors who make representations about offers from other institutions,

the Budget Committee again has an ill-defined methodology. If a professor

approaches Dean Farnsworth or the Budget Committee in the fall “with an

offer from another school . . . in the spring – so we may say, okay, you have this

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 41
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 42 of 116

range to work with or we recommend this range, Dean.” McGarity Dep. 93:3-

7.

194. The committee decides on the range based on “how valued the faculty member

is . . . sometimes we get that scatter plot and we see where that’s going to put

that person with respect to other colleagues that might be in his or her range

on the scatter plot and see . . . how far out our range that’s going to put this

person.” McGarity Dep. 43:22 – 44:2.

195. “And the dean of course takes some number out of that range . . . and we don’t

know . . . what that number is.” McGarity Dep. 43:15-17.

196. The Dean then, “makes that recommendation to . . . whoever, and in the spring

we’ll know that and we’ll take that into account as we’re looking at other

people’s salary.” McGarity Dep. 93:7-10.

197. For example, in 2019 Professor Richard Albert reported that he received an

offer of employment from the University of Virginia. Professor Albert did not

provide the offer letter, nor did the Budget Committee request any supporting

evidence.

198. The Budget Committee in his case did recommend a substantial raise in 2019

based on this alleged but unsubstantiated offer.

199. As a result, Professor Albert received a raise of $43,250 for the 2020-21 school

year noted as “equity and retention” despite already being the recipient of

$12,000 in FII funds as well. Professor Albert began his tenure at UT Law in

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 42
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 43 of 116

2018 and began his teaching career in 2003. Three years after arriving at UT

law, he is now one of the highest paid members of the faculty.

200. Equity and retention raises creating a disparity within a cohort is not a new

problem for UT Law.

201. The Budget Committee “did several equity raises right after the end of the

Sager years” (McGarity Dep. 94:1-2).

202. The committee “look[ed] at female faculty members and adjusting their pay

upward for what we regarded on the budget committee as equity reasons

because it seemed like over the past they had not received what we now think

they were entitled to.” McGarity Dep. 94:5-9. This did not fix the problem

though, as noted by the continued disparity in pay between male and female

faculty.

203. Most recently, UT Law may have utilized the University Faculty Investment

Initiative program (discussed below) as a way to produce equity raises.

Professor McGarity, a repeat Chair of the Budget Committee, suggested that

in fact “the dean thought or said that the university thought that equity ought

to be a consideration . . . I think we may have used equity as a consideration

there as well.” McGarity Dep. 95:4-6. Again, this approach to equity concerns

did not fix the problem.

204. Instead, UT Law’s implementation of the Faculty Investment Initiative raises

and “equity and retention” raises has created further disparities within faculty

cohorts. The implementation of these initiatives has caused salary dislocation

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 43
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 44 of 116

for several female professors and in particular, for Professor Mullenix, whose

salary has progressively moved further down the salary array (discussed

below).

E. Further examples of Dean Farnsworth and the Budget Committee’s


inconsistent application and implementation of performance reviews
and the salary dislocations caused by the University’s Faculty
Investment initiatives in 2015 and 2018.

205. As described above, Dean Farnsworth and the Budget Committee do not

consistently apply and implement the standards of performance review. In

many cases, including for Professor Mullenix, there is no discernible

relationship between a professor’s Budget Committee evaluation or baseline

rating, and the amount of the raise that professor receives from Dean

Farnsworth.

206. For example, according to the Spring 2021 Budget Committee’s ratings for pay

raises in fascial year 2021-22, Professors Mullenix, Peroni, Westbrook, Steiker,

Rabban, Baker, and Silver were all given baseline ratings. Yet their raises

range from the low end of $12,000 for Professors Mullenix and Peroni to

$18,000 for Professors Westbrook and Rabban to $20,000 for Professors Baker

and Silver and $22,000 for Professor Steiker.

207. According to the 2021 ratings, Professors Bone, McGarity, and Goode received

baseline plus ratings, but received $18,000, $20,000, and $12,000 raises

respectively, which are the same amounts that baseline-rated professors

received.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 44
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 45 of 116

208. According to the 2021 ratings, Professors Deigh, Williams, Spindler, Ascher,

and Klein all received baseline minus ratings. Nevertheless, Williams,

Spindler, and Ascher received $15,000 raises, while Klein received only

$10,000 and Deigh received only $3,430.

209. From 2017 until 2019, and then in 2021, most of the faculty members on the

Budget Committee received pay raises of at least $10,000 and are among the

highest pay raises given, regardless of their performance record.

210. The law school’s pay raise system has been further disrupted and dislocated

by two separate rounds of funding from the University’s Faculty Investment

Initiative. The first round of FII funding took effect in 2015.

211. The purported purpose of FII funds were to retain faculty at risk of being lured

to other institutions. Yet in implementing the FII program at the law school,

the Budget Committee involved in selecting FII recipients, as well as Dean

Farnsworth, have made no effort to actually ascertain whether the recipients

were in any danger of being recruited by another institution, or had any in-

hand offers from another institution.

212. In his deposition Dean Farnsworth indicated that in selecting faculty members

to be awarded guaranteed multi-year FII funds, “committee members did not

feel they were in a position to be sure to know who was likely to be recruited

by another school” (Farnsworth Corp. Rep. Dep. 17:11-13), so they did not focus

on discussions of retention and which faculty members were most likely to be

lured to other institutions (the purpose of the FII program).

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 45
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 46 of 116

213. Instead, Dean Farnsworth indicated that the Budget Committee felt “more

comfortable simply evaluating who the strongest members of the faculty were.”

Farnsworth Corp. Rep. Dep. 17:13-14. Dean Farnsworth declined to define how

the Budget Committee made these determinations. As detailed above, the

Budget Committee members do not agree on the factors that make a faculty

member’s performance strong.

214. To decide on who would receive funding, “the Budget Committee did not make

a collective recommendation to the Dean. . .” Goode Dep. 187:7-8. Instead, “the

dean asked for the input and the dean ultimately made the decision” (Goode

Dep. 187:15), which matches Professor Baker’s reasoning for her receipt of the

raise that “in the judgment of the dean that I fit the description that was being

provided.” Baker Dep. 145:4-5 (emphasis added).

215. In 2015, for the first round of FII funding which included a 5-year commitment,

Professor Farnsworth alleges he asked the members of the Budget Committee

who “the best people to award the money to in terms of who not only was . . .

the strongest, but who would most appropriately benefit from a raise.”

Farnsworth Corp. Rep. Dep. 141:16-19.

216. In implementing both rounds of the FII program, Dean Farnsworth and the

Budget Committee declined to apply the University’s objective criteria for

satisfying the goal of this program (retention of faculty at risk for recruitment

to other institutions), and instead substituted its own opinion of which faculty

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 46
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 47 of 116

members were the “strongest.” In doing so, the Dean and the Budget

Committee did not act in line with the intention of the University FII program.

217. In the first round of FII funding in 2015, Dean Farnworth selected seven law

faculty members to receive guaranteed pay raises in amount ranging from

$10,000 to $12,000 annually for five years, for a total of $50,000 to $60,000

each.

218. These annual pay raises were not freestanding one-time annual bonuses, but

rather raises added to the faculty member’s base pay each year, thus

compounding the effect of FII raises over the five-to-eight-year periods for FII

awards.

219. These annual FII pay raises have been awarded without regard to actual

annual performance or merit. It does not matter what an FII recipient does by

way of performance in any year; he or she is guaranteed FII pay raises.

220. The implementation of the first round of FII funding had an immediate and

dislocating impact on Professor Mullenix’s placement in the salary array. It

elevated three faculty members above Professor Mullenix, with lesser career

accomplishments, to salaries above hers in the salary array (Professor Baker,

Dickerson, and Wagner).

221. In the same time frame these professors were receiving annual guaranteed

$12,000 pay raises for five years, Professor Mullenix’s salary was further

deflated by her 2018 raise of $1,500, the lowest raise of those given, followed

in successive years by other unjustified low pay raises.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 47
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 48 of 116

222. The seven FII first-round recipients were Professor Baker, Dickerson, Wagner,

Littwin, Laurin, Franklin, and Fishkin. After receiving multiple years of FII

pay raises of $12,000 annually, as well as $100,000 hiring bonuses each,

Professors Franklin and Fishkin (a partnered couple) left to join the law faculty

at U.C.L.A. in 2021.

223. The faculty at large was not informed about the 2015 FII program in advance

nor did the faculty have any input into selection of the FII recipients.

224. Dean Farnsworth did consult with the then-2015 Budget Committee and asked

the committee members to vote on likely recipients. Dean Farnsworth, not

revealing the results of this secret ballot, then chose the recipients of FII funds.

225. Dean Farnsworth reported information about the FII recipients to the faculty

in August 2015.

226. The university authorized a second round of FII funding in 2018, FII (2). The

FII(2) round of funding guaranteed raises of $10,000-$15,000 to faculty

recipients for three years, without regard to annual performance or merit.

227. Most of the former and current members of the Budget Committee are

recipients of the Faculty Investment Initiative rounds (1) and (2). Some

Budget Committee members have been recipients of both rounds of FII

funding, guaranteeing very large pay raises for those faculty over a period of

eight years – without regard to merit or performance.

228. Unlike the first round of FII funding in 2015, when the second round of FII

funding was authorized in 2018, Dean Farnsworth consulted with the Budget

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 48
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 49 of 116

Committee members and asked each to select faculty members they thought

should receive FII funding. Dean Farnsworth conducted this survey by secret

ballot. After receiving all the faculty nominees by secret ballot, Dean

Farnsworth then chose which faculty members would receive FII(2)

guaranteed funding.

229. Dean Farnsworth stated that the Budget Committee submitted anonymous

ballots for who should be awarded the second round of FII funding, there was

a discussion about the candidates, then the committee chose the final list,

which Farnsworth accepted because the “recommendations were reached in a

very careful and responsible fashion.” Farnsworth Corp. Rep. Dep. 133:4.

230. According to the tally of votes, Professor Derek Jinks received 8 votes, the

second highest amount, and but he did not receive the guaranteed raise.

231. In reality, the Budget Committee was asked to choose faculty members without

any guidelines and without regard to merit.

232. For example, the committee was either asked to create “just a list of who we

each thought . . . we were supposed to identify 20 people that we thought would

– were worthy” (Baker Dep. 199:9-11), or “I do have . . . a strong recollection

that . . . we weren’t told to vote for 22 people” (Forbath Dep. 28:3-5), or they

were told “to list I want to say seven, eight or nine people” (Goode Dep. 197:5-

7).

233. The committee was then supposed to choose “people whom we thought whose

departure would be a hurt to the law school” (Forbath Dep. 28:13-15), or they

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 49
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 50 of 116

were supposed to choose “people who are viewed as important and productive

and at risk for retention” (Baker Dep. 208:5-6), or the purpose was “to try and

equalize or become more equal in terms of the salaries the faculty received.”

Bone Dep. 189:6-9.

234. Then again, Professor Forbath considered “individuals’ . . . contributions to the

intellectual life of the school . . . individuals’ sort of academic reputations . . .

in the scholarly worlds that I was familiar with” (Forbath Dep. 29:5-10), while

Professor Baker considered “people who are viewed as important and

productive and at risk for retention” (Baker Dep. 208:5-6), despite Dean

Farnsworth claiming the purpose was “to provide additional raises to its

strongest faculty members.” Farnsworth Corp. Rep. Dep. 115:12-13.

235. In other words, there were no set standards, no set criteria, no set guidelines

regarding how to award these substantial guaranteed raises that would be

provided regardless of the performance standards that allegedly applied to

everyone.

236. For example, Professor Littwin, who was on the Budget Committee and

received FII funding in both rounds, published just one journal article in 2016

and nothing in 2017, yet she receives a guaranteed $12,000 FII raise each year.

237. Professor Bone, another member of the Budget Committee, who received a FII

raise in the second round, published just one article and one update in 2019,

but was still guaranteed a $10,000 raise.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 50
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 51 of 116

238. As a consequence of Dean Farnsworth’s selection from the secret balloting,

about one-third of the faculty (or 21 members) received guaranteed FII

funding. Currently, 18 members continue to receive this funding.

239. Dean Farnsworth, in conjunction with the Budget Committee, decided not to

tell the rest of the faculty of the FII(2) funding and the newly appointed

recipients.

240. In his deposition Dean Farnsworth stated that he made this decision because

he thought disclosure of this second round of FII funding, and the newly added

group of faculty recipients, would “cause morale issues for other faculty

members” (Farnsworth Dep. 148:20-21) if this information was disclosed.

241. The Budget Committee members did not protest Dean Farnsworth’s request

that this information not be disclosed to the two-thirds of the faculty who are

not recipients of FII funding.

242. This agreement not to disclose to the entire faculty the second round of FII

funding was not surprising in that almost all the recipients were members of

the Budget Committee who had been asked by Dean Farnsworth to vote by

secret ballot on who to designate the recipients.

243. The recipients of FII funding, and the guaranteed amounts of annual pay

raises for three years are: Professors Bone ($10,000); McGarity ($10,000);

Westbrook ($10,000); Rabban ($10,000): Dickerson ($12,000); Baker ($12,000);

Wagner ($12,000); Steiker ($10,000); Silver ($10,000); Forbath ($10,000);

Golden ($15,000); Chesney ($12,000);Wasserman ($12,000); Laurin ($12,000);

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 51
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 52 of 116

Bracha ($15,000); Morse ($12,000); Vladeck ($12,000); Albert ($10,000);

Fishkin ($13,000); Franklin ($13,000); and Littwin ($12,000). D-008642

244. Every one of the recipients for FII (2) funding—except for Professor Vladeck,

Dickerson, and Wasserman—has served on Dean Farnsworth’s Budget

Committees and have advised him on who to award FII rounds of funding.

245. Professor Vladeck, another FII(2) recipient, has been appointed to the 2021-22

Budget Committee.

246. The implementation of the FII funding has caused severe dislocations in the

salary array that are not justified by any merit system. These dislocations

could have been remedied by providing equity pay raises to faculty dislocated

by the FII funds, but Dean Farnsworth and the Budget Committee did not

consider the dislocating effects of implementation of the FII program.

247. Professor McGarity seemed to acknowledge the dislocation effect of the FII

raises. He noted that there was a dislocation of specific professors within their

cohort “who didn’t get [FII] that were good-performing faculty members . . .

now these raises tended to separate folks that . . . [the budget committee]

thought about, well, when we bump somebody we should bump them up a little

more, given our annual amount of budget that we have to work with.” McGarity

Dep. 210:11-16.

248. Nonetheless, the Budget Committee did nothing to remedy faculty members

adversely affected by the FII dislocation effect, including the effect on Professor

Mullenix’s salary.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 52
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 53 of 116

249. The FII program has resulted in the advancement of salaries without merit

justification, based on undefined notions of whom the Budget Committee and

Dean Farnsworth considered to be the “strongest” faculty members.

250. The dislocation effects of the FII funding rounds have certainly been true for

Professor Mullenix. Since implementation of the FII program in 2015,

Professors Dickerson, Baker, Wagner, Steiker, and Silver, have displaced

Professor Mullenix, in the salary rankings.

251. Of note, four of Professor Mullenix’s comparators have been awarded FII(2)

guaranteed funding, but Professor Mullenix has not: Professors Bone,

McGarity, Westbrook, and Rabban.

252. The 2018 Budget Committee’s assessment of Professor Mullenix’s performance

had an especially adverse impact on her compensation that has extended

several years beyond 2018 and into 2022.

253. As explained above, those inconsistent deliberations resulted in a below

baseline assessment and the lowest pay raise of those given on the faculty. In

addition, this was the same review cycle in which the Budget Committee

secretly voted on faculty members to receive FII(2) raises over the next three

years.

254. The award of FII(2) guaranteed funding to Professor Mullenix’s comparators

has further widened the disparity gap.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 53
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 54 of 116

255. Professor Mullenix, despite her comparable merits in teaching, service, and

scholarship, was the only faculty member in her cohort not to be given an FII(2)

award.

256. In comparison, Professors Bone, McGarity, Westbrook and Rabban, with

equivalent or lesser records were given FII(2) raises, which allowed the pay

disparity between Professor Mullenix and her comparators to widen even more

during the three year time period.

257. This gap is more insidious for Professors like Mullenix given that this

guaranteed raise through the FII has implications beyond the time period in

which they are allocated. At the end of the FII period, professors will move

forward with an inflated salary, while non-recipients cannot bridge this gap

through normal raises, which cements the disparity over time.

258. Professor Mullenix did not learn of the FII program or its implementation at

the law school until this was revealed through discovery in this litigation. The

salary arrays that Professor Mullenix received did not provide any information

about the FII program or who was receiving FII funding.

259. The FII program not only has created unfair, severe dislocations in the salary

array but has divided the faculty into faculty members who are subjected to

annual performance reviews based on merit and those who are not.

260. Conducting performance reviews for the FII recipients is rendered

meaningless because they are guaranteed certain raises over periods ranging

from three to six years.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 54
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 55 of 116

261. Meanwhile, two-thirds of the faculty who are not beneficiaries of FII funding

are subjected to annual performance reviews that have consequences for their

pay raises.

262. Similar to the implementation of the FII(1) raises, the Budget Committee and

Dean Farnsworth did not investigate whether any of the designated recipients

were at actual risk of recruitment by another institution. Indeed, several

recipients testified that they were not.

263. Because almost all the FII recipients with a few exceptions are Budget

Committee members who advised Dean Farnsworth on who to award the FII

funds to, these Budget Committee members have received a benefit not based

on their annual faculty performance. Indeed, several recipients have had scant

publication records during the FII years, teaching performance records with

lower evaluations than other non-FII colleagues, or service records that are

comparably less than many of their non-FII colleagues.

F. Other discriminatory practices by Dean Farnsworth and the Budget


Committee in setting compensation.

264. Dean Farnsworth and the Budget Committee routinely engage in various

discriminatory practices that have adversely affected Professor Mullenix’s

compensation and that of other faculty members.

265. Dean Farnsworth and the Budget Committee make it extremely difficult to

obtain accurate information about pay raises and comparable faculty

compensation. The inability to obtain accurate salary information frustrates

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 55
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 56 of 116

the ability of any faculty member, including Professor Mullenix, to conduct an

informed salary discussion with the dean.

266. As indicated above, in 2011 Dean Sager refused to disclose salary information

to Professor Mullenix for over six months and when he did provide salary

information during her settlement conference, he failed to disclose the

important information about the large forgivable loans to nearly twenty male

colleagues.

267. Between 2013 and 2017 the Budget Committee attached a copy of the salary

array to its annual memorandum to the faculty concerning pay raises. In 2017,

the Budget Committee announced it would stop sending the salary array to

faculty members.

268. After 2017, a faculty member who requests to see the salary array will not be

sent a copy by email. Faculty members are required to make an appointment

with the dean’s assistant and may only review the salary array in the dean’s

office. Faculty members are not permitted to make a copy of the salary array

or to make cell phone copies of the salary array.

269. The salary array furnished to faculty members in the dean’s office – under

supervision – consists of a single column of faculty member names, organized

alphabetically, with each members’ salary.

270. A faculty member examining this salary array has no way of knowing the

amount of a pay raise that any faculty member has received from the preceding

year.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 56
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 57 of 116

271. Because faculty members are furnished with a copy of the salary array in

alphabetical order, and not the Excel spread sheet which it based upon, a

faculty member cannot know the relative arrangement of faculty salaries from

highest to lowest.

272. The dean’s office and the law school CFO prepare several different salary

arrays containing a variety of different information. Faculty members are not

aware of these different salary arrays and the existence of additional

information about the special deals and supplemental compensation that many

faculty members received annually.

273. The salary array furnished to faculty members contains hidden columns not

available to faculty members, which are only accessible to persons with access

to the original Excel spreadsheet on which the redacted salary array appears.

274. Dean Farnsworth and CFO Jeff Toreki admitted in deposition that the CFO

prepared several different versions of the salary array in any particular fiscal

year. Dean Farnsworth stated that salary arrays were “put together a different

version for different purposes” (Farnsworth Corp. Rep. Dep. 164:21) without

explaining what those different purposes are, while Jeff Torecki, former Chief

Financial Officer of the law school indicated that he was asked to prepare

salary arrays with “different information.” Torecki Corp. Rep. Dep. 111:10.

275. In several years, upon her requests, Professor Mullenix has been furnished

with multiple conflicting versions of the salary array including, “a summation

. . . from the master spreadsheet” (Torecki Corp. Rep. Dep. 107:20-21), the

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 57
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 58 of 116

entire salary array, a salary array showing “total compensation” (Torecki Corp.

Rep. Dep. 109:4) and sometimes a spreadsheet listing “people with total

compensation higher than Professor Mullenix’s” (Torecki Corp. Rep. Dep.

109:4-5).

276. When Professor Mullenix asked UT Law to explain the conflicting information

on different salary arrays, neither Dean Farnsworth nor Jeff Toreki could offer

an explanation. In fact, when asked why there were so many different salary

arrays, Torecki stated “I don’t know,” (Torecki Corp. Rep. Dep. 113:9) and Dean

Farnsworth stated “I’m not aware there are different versions given to

different people.” Farnsworth Corp. Rep. Dep. 167:7-8.

277. The unredacted salary arrays indicate that many faculty members have special

deals and salary supplements that are not reported to the general faculty.

Many of these faculty supplements are granted in perpetuity, or for periods of

several years.

278. Some recipients of special deal annual supplements have no idea why they are

receiving these additional monies. For example. Professor Forbath annually

receives a $25,000 supplement, but in deposition, when asked what that was

for, he testified, “I don’t know.” Forbath Dep. 23:15.

279. Among the higher salary supplements are six faculty members receiving

annual “housing allowances:” Professor Sager ($25,000); Professor Sage

($60,000 housing allowance); Professor Forbath ($25,000); Professor Hu ($46,

653), Professor Jinks ($50,000 annually); and Professor Cohen ($25,000).

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 58
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 59 of 116

Professor Sager and Cohen, a married couple, collect $50,000 annually as a

housing supplement in addition to their substantial salaries.

280. Professors Sager and Cohen joined the UT law faculty in 2002. Over the span

of twenty years, Professors Sager and Cohen have collected $1,000,000 in

housing allowance money. Professor Sager relocated to Austin from New York

City and Professor Cohen relocated from Boston: both cities with higher costs

of living than Austin and higher property values.

281. Professor Hu joined the UT faculty in 1987. Over the span of 25 years on the

UT faculty, Professor Hu has collected well in excess of $1,000,00 in housing

allowance money. Henry Hu relocated to Austin from Los Angeles, a city with

a higher cost of living than Austin and higher property values.

282. Professor Sage joined the UT faculty in 2006. Over the span of 16 years on the

UT faculty, Professor Sage has collected approximately $960,000 in housing

allowance money. Professor Sage relocated to Austin from New York City, a

city with a higher cost of living than Austin and higher property values.

283. Professor Forbath joined the UT faculty in 1997. In his 25 years on the faculty,

he has collected $625,000 in housing allowance money. Professor Forbath

relocated to Austin from Los Angeles, a city with a higher cost of living than

Austin and higher property values.

284. Professor Jinks joined the UT faculty in 2005. In his 17 years on the UT faculty

Professor Jinks has collected approximately $850,000 in housing allowance

money. Professor Jinks relocated to Austin from Tempe, Arizona.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 59
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 60 of 116

285. All six faculty members receiving housing allowances will continue to receive

these housing allowances annually for the duration of their employment on the

UT law faculty

286. The non-Budget Committee faculty members have no idea that some of their

colleagues have been receiving and will continue to receive annual housing

allowances in large sums not accounted for in their reported salaries.

G. Budget Committee performance review processes and salary


determinations by Dean Farnsworth are done without transparency.

287. As indicated above, the Budget Committee annual performance review process

is secretive; it is extremely difficult if not impossible for individual faculty

members to obtain meaningful feedback on their performance or comparative

performance evaluations of colleagues.

288. It is virtually impossible for faculty members, who are not on the Budget

Committee, to obtain complete and accurate information concerning the actual

comparative salaries faculty members are paid.

289. To Plaintiff’s knowledge, UT Law uses at least three different salary arrays in

any given fiscal year.

290. Prior to 2021-2022, the dean’s office compiled at least three different salary

arrays. There was a salary array that set forth each faculty member’s base

salary exclusive of amortized amounts; a salary array that sets forth amortized

salaries; and a salary array that included other monetary special deals like

Faculty Investment Initiative raises, teaching award compensation like the

Massey Teaching Award and the Academy of Distinguished Teachers, or other

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 60
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 61 of 116

additional money without labels as to where the amounts come from

specifically.

291. However, there is not one single document that shows exactly how much each

professor is actually getting paid by the University. More surprisingly, there

are items listed on certain salary arrays and in certain financial documents

that even the Chief Financial Officer for the law school could not adequately

explain.

292. UT Law uses these different arrays to artificially inflate or deflate professors’

salaries. For example, as detailed above, one salary array misleadingly makes

Professor Mullenix’s salary appear to be $25,000 higher because of her 2011

settlement. Professor Mullenix is the only professor who has an amortized

amount that comes from a settlement of an equal pay act claim.

293. Additionally, if a professor receives $30,000 over their base salary for teaching

an extra class in an emergency, then that amount is excluded in the salary

array available.

294. These different salary arrays allow UT Law to obscure certain deals, bonuses,

and perks that some professors, mostly male, receive.

295. This includes supplements that Associate Deans receive, additional

supplements for academic programs, appointment bonuses, and the catch-all

“equity and retention.”

296. In fall 2002, for example, then-Dean Bill Powers, offered Larry Sager’s wife,

Jane Cohen, the excess amount of Sager’s initial salary demand so that he

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 61
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 62 of 116

would not alienate the senior male faculty by giving Sager an outlandishly

high salary.

297. For the 2021-22 academic year, Professor Sager will still receive his ongoing

annual $25,000 “housing supplement,” along with enjoying $47,000 in “other

supplement” monies.

298. After Dean Powers was promoted to President, Professor Sager took over the

Deanship. He began allocating unrecorded bonuses, called “forgivable loans.”

Open Records Act material showed that approximately 20 male colleagues

were given off-the-books money, which inflated their salaries by about

$150,000 to $300,000. Professor Bone was one of the recipients of these loans.

Professor Mullenix was not.

299. After the “forgivable loans” program was discovered and Dean Sager was

asked to step down, instead of ceasing this conduct, Dean Farnsworth

continued this practice, but under a different name.

300. When Dean Farnsworth took over in 2012, he claimed he would be the “most

transparent dean” that the law school has ever had. Contrary to his

statement, he continued the “forgivable loan” program and made special deals

with specific faculty, this time disguising hiring bonuses by calling them

“moving allowances.”

301. “Housing supplements” and a column entitled “other supplements” are all

listed in the salary array, but no justification or explanation is given for these

amounts. Indeed, even professors receiving this money do not always know

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 62
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 63 of 116

what that money is for. For example, when Professor Forbath was asked what

annual $25,000 payment to him labeled “additional compensation” was for.

He replied, “I don’t know.” Forbath Dep. 23:15. That unknown additional

compensation lasts until at least 2026-2027.

302. These different salary arrays allow UT Law to hide what is really going on

and to continue knowingly discriminating against female tenured professors.

303. The Budget Committee meets in closed sessions with Deans Farnsworth and

Chesney.

304. Only the Budget Committee Chair takes notes of the deliberations; Dean

Farnsworth does not. The Budget Committee historically has not always

generated notes of the proceedings. As explained above, the quality of the

Chair’s notes for the dean may distill a faculty member’s entire annual

performance to a few words, or omit entire assessment of performance

categories, such as service.

305. Budget Committee members must return to the dean all materials furnished

during their meetings, which include the binders created for their review.

Budget Committee members are instructed to destroy any notes that they

create relating to Budget Committee matters, which would include any notes

of their reviews of assigned publications so no written record of reviews are

kept.

306. In absence of preserved written evaluations, Budget Committee members’

recollections of performance assessments of individual faculty is unreliable.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 63
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 64 of 116

307. During the deposition of Budget Committee members, several, like Dean

Farnsworth, simply could not recall the discussion of faculty members under

review, which had occurred a few days prior to their depositions. Regarding

the Friday budget committee meeting preceding Professor McGarity’s Monday,

deposition, most recent meeting prior to his deposition, Professor McGarity

could not remember who the committee discussed or what was recommended

(McGarity Dep. 128:13-14), and in general Professor Bone stated that his

“memory of committee meetings . . . is not sharp” (Bone Dep. 175:1-2).

308. Budget Committee members are instructed that all deliberations of the

Committee are confidential, and they may not discuss deliberations with

faculty members who are not on the Budget Committee.

309. Every year Dean Farnsworth sends each faculty member a letter indicating

the results of the faculty member’s annual review and their salary increase, if

any.

310. For the duration of Dean Farnsworth’s tenure, Professor Mullenix has

annually received the same one-page letter indicating her pay raise, without

meaningful comments concerning the Dean’s and the Budget Committee’s

assessment of her performance.

311. Annual salary letters produced in discovery demonstrate that the dean’s

letters vary widely across the faculty, with Dean Farnsworth providing

effusive praise, encouragement, and gratitude for favored faculty (always the

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 64
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 65 of 116

Budget Committee members and other faculty he has hired) in contrast to the

boilerplate recitations typical of Professor Mullenix’s letters.

312. The salary letter Professor Mullenix received in fall 2018 gave absolutely no

indication that the Budget Committee had rated her as “below baseline.” The

letter gave no indication of any dissatisfaction by Dean Farnsworth or the

Budget Committee with her performance. 2018 Salary Letters D-0009072.

313. Professor Mullenix has been given no indication on whether she had been rated

below baseline in any other year, despite her continued satisfaction of all

written performance criteria.

314. The salary letter Professor Mullenix received in fall 2018 gave no indication

that she had received the lowest pay raise on the entire faculty among faculty

members receiving pay raises.

315. Only after Professor Peroni called to complain to Professor Mullenix about his

pay raise – considerably higher than Professor Mullenix’s raise – was she

alerted that something was amiss with her pay raise.

316. The failure of the dean’s salary letter to accurately report below baseline

evaluations has had detrimental impact on faculty members’ continued

employment.

317. Professor Lynn Blais indicated that she decided to prematurely quit the

Budget Committee because “it was the lack of standards, the baseless

decisionmaking, men justifying high salaries for other men and lower salaries

for women. I couldn’t be part of it.” Blais Dep. 15-18.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 65
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 66 of 116

318. Dean Farnsworth will not discuss with faculty members the content of their

annual performance review.

319. Instead, when Professor Mullenix requested an explanation of her performance

review in fall 2018, Dean Farnsworth refused to do so, repeatedly stating that

he deferred to the decisions of the Budget Committee.

320. Dean Farnsworth stated that he views his function as sitting like an appellate

court, giving deferential review of Budget Committee decisions.

321. Budget Committee members will not discuss the content of a faculty members’

performance review if questioned either. During fall 2018 Professor Mullenix

interviewed every Budget Committee member individually. The either refused

to explain like Professor Bracha who simply stated yes when asked if Professor

Mullenix’s low raise was justified (Budget Committee Interviews 2018

Mullenix 004335), or could not explain like Professor Morse who expressed

surprise (Budget Committee Interviews 2018 Mullenix 004337) at learning

that Professor Mullenix had received the lowest pay raise. Every Budget

Committee member was unaware that she had received the lowest pay raise

and disavowed that they had made that recommendation. Some Budget

Committee members refused to talk to her including Professor Bone who

simply directed her to Dean Farnsworth. Budget Committee Interviews 2018

Mullenix 004339.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 66
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 67 of 116

322. The Budget Committee members were unaware that Dean Farnsworth had

unilaterally twice reduced the Budget Committee’s recommendation for

Professor Mullenix’s pay raise in that 2018 salary cycle.

323. During fall 2018 Dean Farnsworth sought to intervene in Professor Mullenix’s

efforts to learn about her performance review. After Dean Farnsworth learned

that Professor Mullenix was seeking information from Budget Committee

members, he sent an email to Budget Committee members, instructing them

not to talk to Professor Mullenix. D-0009488. His email arrived, however, after

every Budget Committee member had met with Professor Mullenix, except for

the Professor Baker, the Chair of the 2018 Budget Committee.

324. In Professor Mullenix’s subsequent interview of Professor Baker – and

consistent with instructions from Dean Farnsworth – Professor Baker refused

to provide Professor Mullenix with information about her performance review.

325. Instead, Professor Baker insisted that the Budget Committee process was

entirely fair, and that Professor Mullenix’s problem was her failure to

understand how the Budget Committee operated. Budget Committee

Interviews 2018 Mullenix 004342.

326. Faculty members who are not on the Budget Committee have no access to their

annual performance review, or the summery or distillation of that review in

the Chair’s notes.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 67
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 68 of 116

327. In absence of access to the Budget Committee’s assessments, faculty members

have no means of countering irrelevant considerations or inaccurate

information.

328. For example, during the 2020 Budget Committee deliberations, the Budget

Committee member assigned to review a well-received article by Professor

Mullenix, gave a negative review of the article, informing the Budget

Committee members and Dean Farnsworth that the article was a review of a

book by Erwin Chemerinsky. This was factually incorrect—the article simply

discussed Erwin Chemerinsky.

329. The reviewer negatively reviewed Professor Mullenix’s article as an attack on

Chemerinsky. The reviewer’s entire negative review of Professor Mullenix’s

article was based on a factually incorrect premise.

330. Professor Mullenix had no idea of this negative review until this was revealed

in discovery. During the Budget Committee process she also had no way of

countering the incorrect information that formed the basis for the negative

review.

331. The same article that was negatively assessed by the assigned Budget

Committee member concurrently received unsolicited high praise from a

prominent civil procedure professor on the Georgetown University Law Center

faculty.

332. Dean Farnsworth’s annual salary letter to faculty simply contains a statement

of the faculty member’s pay raise. The letter provides no indication of the

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 68
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 69 of 116

percentage basis for the raise (as past letters indicated), or comparative

indications of the pay raise in the context of the entire faculty.

333. In an email to Dean Farnsworth, Professor Klein complained to Dean

Farnsworth about the lack of information not allowing her to “judge whether I

am doing well or not without having some method of comparison” concerning

individual pay raises that had previously been routinely included in the annual

salary letters. D-0009438.

334. Not only do UT law faculty have no access to their performance review, even if

they did, they have no rights to challenge or appeal decisions of the Budget

Committee or the dean.

335. The Budget Committee performance review process stands in stark contrast to

the law school’s mandated performance review by faculty of their staff

assistants.

336. For many years, each faculty member was tasked by Sylvia Hendricks, the

staff supervisor, with providing a detailed performance review of staff

members working in coordination with a faculty member.

337. Faculty were furnished with a detailed chart containing multiple categories of

job performance criteria. For each described job criteria, faculty were to provide

a written explanation for how the staff member met or did not meet the

criteria.

338. Faculty members were required to submit their written evaluations to Sylvia

Hendricks and to the staff person reviewed by the faculty member.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 69
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 70 of 116

339. Faculty members were required to meet with their staff member and to discuss

all categories of the performance review.

340. Professor Mullenix complied with all these staff performance review

requirements for every year in which Sylvia Hendricks requested these

performance reviews. At some point in recent years, Sylvia Hendricks ceased

requesting staff performance reviews from faculty.

341. During the period when faculty members were conducting staff reviews, staff

members were accorded more meaningful performance reviews than faculty

members can obtain from Dean Farnsworth or the Budget Committee

members.

H. Budget Committee’s lack of knowledge and implementation of legal


requirements concerning equal pay and gender discrimination

342. To the best of Professor Mullenix’s knowledge, almost all members of the UT

law school Budget Committee as well as Dean Farnsworth are licensed

attorneys admitted to practice law in Texas or other state courts, as well as

several federal courts.

343. Upon admission to the bar, admittees swear to uphold the United States

constitution and the laws of the United States.

344. As law professors, all members of the UT faculty are engaged in the endeavor

of imparting the principles of the rule of law and justice to the law school’s

classes of students.

345. Every law faculty member, including the dean, is required to take employment

discrimination training every two years, which includes training in the Equal

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 70
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 71 of 116

Pay Act, Title VII employment discrimination, retaliation, and Title IX

discrimination.

346. This training provides faculty members with explanation of the various

statutes and constitutional provisions governing employment discrimination,

as well as illustrative examples of conduct that violates these laws.

347. As part of this bi-annual training, professors are required to respond to quizzes

testing their knowledge and understanding of employment discrimination law.

348. Despite having to undertake bi-annual employment discrimination training,

the Budget Committee members deposed in this action could not explain the

requirements of the Equal Pay Act or Title VII. For example, Professor

McGarity admitted he was “just not familiar with [the Equal Pay Act]”

(McGarity Dep. 156:15), similarly Professor Peroni, a former Chair of the

Budget Committee stated, “I don’t know that much about [the Equal Pay Act]”

(Peroni Dep. 210:11-12).

349. Dean Farnsworth declined to explain his understanding of the legal

requirements of the Equal Pay Act or Title VII.

350. Dean Farnsworth affirmed that, “I do not recall hearing the budget committee

explicitly discuss the Equal Pay Act” (Farnsworth Corp. Rep. Dep. 12:1-3) or

the requirements of Title VII, “whether the committee by name discusses anti-

discrimination laws, I don’t recall them doing that” (Farnsworth Corp. Rep.

Dep. 12:22-24).

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 71
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 72 of 116

351. In 2011 Professor Mullenix visited every member of that year’s Budget

Committee serving under Dean Sager. She asked each Budget Committee

member if they knew and understood the requirements of the Equal Pay Act

and Title VII. Not a single Budget Committee member told Professor Mullenix

that they had any understanding of these laws, nor are they required “to be

speaking in terms of particular laws” (Farnsworth Corp. Rep. Dep. 15:4-5).

352. Professor Sandy Levinson, then a member of the Budget Committee, jokingly

told Professor Mullenix that he only did constitutional law; he did not do

statutory law.

353. Professor Mullenix asked each Budget Committee member whether any had

read the University Gender Task Force report which documented university-

wide salary discrimination against female faculty members, including female

faculty members at the law school. No Budget Committee member, except for

Professor Dickerson, had read the report.

354. At that time, Professor Mullenix gave every Budget Committee member a copy

of the Equal Pay Act, Title VII, the UT Gender Task Force report, and her CV.

355. She requested that at their forthcoming meetings, the Budget Committee

discuss the Equal Pay Act and Title VII requirements regarding pay, as well

as her lagging salary compared to the approximately 15 male members paid

more than her.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 72
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 73 of 116

356. Professor Mullenix followed up by asking whether the Budget Committee had

done as Professor Mullenix requested, to discuss the legal requirements of the

Equal Pay Act and Title VII.

357. To Professor Mullenix’s knowledge and as explained by the deposed Budget

Committee members, the Budget Committee does not discuss compliance with

the legal requirements for compensation. In fact, Professor Baker, a former

Chair of the Budget Committee stated that she has not discussed the equal pay

act at meetings.

358. After 2011, Professor Mullenix renewed her request to Dean Farnsworth that

the Budget Committee discuss the legal requirements of the Equal Pay Act and

Title VII. Again, to Plaintiff’s knowledge this request was disregarded.

359. In his deposition Dean Farnsworth confirmed that the Budget Committee does

not discuss the requirements of the Equal Pay Act and Title VII.

360. This lack of discussion is interesting because Professor Mullenix previously

brought up Equal Pay Act claims, which she settled with the law school though

they persist, which was a widely publicized. Everyone at UT Law School was

on notice that Professor Mullenix had challenged the law school’s

compensation system as a violation of the Equal Pay Act and gender

discrimination laws.

361. Notwithstanding Professor Mullenix’s repeated requests to have her law school

colleagues (especially the dean and the Budget Committee members) discuss

the law relating to compensation practices, the Budget Committee deliberately

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 73
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 74 of 116

continued to engage in employment practices that violated these statutory

requirements by not consistently applying the purported standards for merit-

based evaluations and in the case of FII raises, not having standards at all.

362. Even worse, the Budget Committee, Deans Sager and Farnsworth then

targeted Professor Mullenix for her continuous advocacy of Budget Committee

discussion and compliance with the employment laws.

I. Since December 20, 2016, the gender pay gap between Professor
Mullenix and her male comparators has grown by thousands of dollars
every year.

363. There are numerous male comparators on the UT law faculty whose

compensation compared with Professor Mullenix’s salary demonstrates a pay

disparity between her compensation and theirs. Professors Robert Bone, Tom

McGarity, Jay Westbrook, David Rabban, William Sage, Henry Hu, Sandy

Levinson, Robert Peroni, Willy Forbath, Lucas Powe, and Steve Goode are

comparators.

364. Professor Robert Bone is the best comparator because he and Professor

Mullenix both teach the same large-section first year civil procedure class,

often at the same time in adjoining classrooms.

365. Professors Tom McGarrity and Jay Westbrook, classified in the same faculty

cohort as Professor Mullenix, are also comparators.

366. Since 2016, the gender pay gap between Professor Mullenix and these three

comparators has ranged from over $19,000 to nearly $55,000 annually:

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 74
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 75 of 116

Salary Pay Salary Pay Salary Pay


Faculty
17/18 Gap 18/19 Gap 19/20 Gap
Mullenix $329,418 $330,918 $337,418
Bone $372,522 $43,104 $382,162 $51,244 $392,162 $54,744
McGarity $349,192 $19,774 $359,192 $28,274 $369,192 $31,774
Westbrook $348,743 $19,325 $358,743 $27,825 $368,743 $31,325

Faculty Salary Pay Salary Pay

20/21 Gap 21/22 Gap


Mullenix $337,418 $349,418
Bone $380,037 $42,619 $395,037 $45,619
McGarity $369,192 $31,774 $389,192 $39,774
Westbrook $368,743 $31,325 386,743 $37,325

J. If UT Law applied its standards in a non-discriminatory manner,


Professor Mullenix would be paid as much as Professor Bone. In fact,
Professor Bone has been paid at least $237,297 more than Professor
Mullenix since 2017.

367. Professor Bone is currently the third highest paid tenured faculty member at

UT Law, after Professors Bobby Chesney and Larry Sager, with a salary of

$395,037. The current available salary array only lists Professor Bone’s salary

as $390,276. However, Professor Bone receives an additional $4,761 in

perpetuity to make up the disparity in retirement contributions between UT

Law and his prior employer, Boston University.

368. Professor Bone started teaching in 1983, with almost a decade less teaching

experience than Professor Mullenix. He has also been teaching at UT Law as

tenured faculty for 19 years fewer than Professor Mullenix.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 75
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 76 of 116

369. Professor Bone teaches first year federal civil procedure, intellectual property,

trademarks, and class actions. Professor Bone is a proper comparator because

UT Law has admitted in discovery that his job requires the same skill, effort,

and responsibility performed under similar work conditions to that of Professor

Mullenix’s job.

370. Comparing Professor Mullenix and Professor Bone in the three performance

criteria that the Budget Committee and the Dean use to evaluate raises,

demonstrates that the two professors are virtually equal in performance, with

Professor Mullenix slightly more accomplished based on her publication

history.

371. Regarding their scholarship records, the quantity of Professor Mullenix’s

publications across all types of publications has exceeded Professor Bone’s.

Professor Mullenix’s publication record over the course of her career, and in

individual budget review years, has equaled or exceeded Professor Bone’s

number of publications.

372. Scholars across the country, as well as practitioners and judges, have assessed

the quality of both Professor Mullenix’s and Professor Bone’s publications in

civil procedure as among the leading and impactful scholarship in their areas

of expertise.

373. For the Spring 2018 Budget Committee performance review, Professor Bone

provided five publications; Professor Mullenix provided fourteen. For the

Spring 2019 Budget Committee review, Professor Bone provided two

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 76
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 77 of 116

publications; Professor Mullenix provided ten. During the Spring 2020 Budget

Committee review, Professor Bone provided two publications; Professor

Mullenix provided nine. For the Spring 2021 Budget Committee review,

Professor Bone provided five publications, while Professor Mullenix provided

seven.

374. Regarding the quality of her scholarship and its impact on her fields of

procedure, from 2013 until 2017, Professor Mullenix has been listed as one of

the top-ten most cited scholars on civil procedure according to Professor Brian

Leiter’s compilation of citation rankings. During that same period, Professor

Bone received an honorable mention.

375. Both Professors Mullenix and Bone have been listed several times in the

HeinOnline list of 250 most-cited academics, in all fields.

376. Regarding teaching, during the 2017-2018 academic year, Professor Bone did

not teach any classes in fall 2017 but taught 2 classes in spring 2018. His

average score on his teaching evaluations was 4.68. Professor Mullenix taught

two classes in fall 2017, but no classes in spring 2018. Her average rating was

4.85.

377. For the 2018-19 academic year, Professor Bone’s average student rating was

4.78. Professor Mullenix had a rating of 4.76.

378. From Spring 2017 through Spring 2020, Professor Bone’s averaged teaching

evaluation was at 4.72 was slightly lower than Mullenix’s averaged teaching

evaluation for that period at 4.76.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 77
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 78 of 116

379. As a recipient of the 2018 Faculty Investment Initiative, Professor Bone was

guaranteed a raise of at least $10,000 each year for three years, regardless of

how he performed during the years of that program. The raises began in the

2018-19 school year but were put on hiatus during the 2020-2021 academic

year but have resumed in 2021-2022.

380. For 2018-19, Professor Mullenix was given a $1,500 pay raise, the lowest raise

of all faculty members who received pay raises. Professor Bone received his

first guaranteed raise of $10,000.

381. For the 2019-2020 academic year, Professor Bone was given his guaranteed

$10,000 pay raise. For the same period, Professor Mullenix was given a $6,500

pay raise, the 11th lowest raise of all faculty members who received pay raises.

382. For the 2020-21 academic year, neither professor received a raise. However,

for the current 2021-22 academic year, Professor Bone received a $15,000 raise,

which included the $10,000 guaranteed raise plus an additional $5,000.

Professor Mullenix received a $12,000 raise.

383. Regarding the performance criterion of service, Professor Bone and Professor

Mullenix are comparable. Professor Bone attends many internal law school

workshops and meetings. Professor Mullenix attends and participates in law

school colloquia and Drawing Board sessions when in residence, participates

in faculty recruitment, writes evaluations of prospective candidates, attends

candidate job talks, is a frequent conference speaker outside the law school,

participates in ALI projects, mentors students with career advice, writes

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 78
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 79 of 116

numerous clerkship and internship recommendations for students, comments

on colleagues draft papers, writes tenure and promotion reviews for colleagues

at other law schools, participates in CLE programs, attends almost all alumni

events, attends the annual the Texas Law Review Banquet and the TJIL

banquet, serves on the law school Tenure and Promotion committee, and is

serving a three year tenure on the University Faculty Grievance committee.

In addition, Professor Mullenix’s service is enhanced by the Supreme Court

Preview articles, which some of the Budget Committee has decided count as

“not scholarship.” Professor Mullenix has listed all these service contributions

in every annual report to the Budget Committee.

384. Based on the above, under UT Law’s own written standards, Professor

Mullenix and Professor Bone have comparable performance records from 2016

through 2021.

385. If the law school properly and consistently applied the stated UT law

performance standards, this would establish that Professor Mullenix and

Professor Bone are comparable because that is how they are viewed outside of

the law school.

386. Professor Richard Freer of Emory School of Law stated that both Professor

Mullenix and Professor Bone are “leading figures” (Freer Dep. 36:19) and "[o]n

the scholarly reputation and impact I would be surprised that Professor Bone

would be rated above Professor Mullenix in that sense” (Freer Dep. 40:10-12).

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 79
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 80 of 116

387. Professor Bone concurs in this assessment, stating that “Linda has a

significant reputation in field. I believe I do as well.” Bone Dep. 94:19-20.

Professor Bone testified that both of them would be included on a list of top

civil procedure scholars in the country.

388. Dean Farnsworth and UT Law School have paid Professor Mullenix at least

$237,297 less than Professor Bone since 2017. Professor Mullenix is paid less

than Professor Bone for equal work because of her sex and her prior challenges

to equal pay violations and other discriminatory conduct at UT Law Sschool.

K. Professor Mullenix should not make less than Professor McGarity.

389. Professor McGarity has been teaching for four years fewer than Professor

Mullenix.

390. Professor McGarity teaches torts, environmental law, and administrative law.

His job requires equal skill, effort, and responsibility under similar work

conditions to Professor Mullenix.

391. In terms of quantity, Professor Mullenix’s scholarly publications annually have

exceeded those of Professor McGarity. In the Spring 2018 Budget Committee

review, Professor McGarity provided three publications; Professor Mullenix

provided fourteen. During the Spring 2019 Budget Committee review,

Professor McGarity provided two publications, while Professor Mullenix

provided ten. During the Spring 2020 Budget Committee review, Professor

McGarity provided two publications, while Professor Mullenix provided nine.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 80
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 81 of 116

For the Spring 2021 Budget Committee review, Professor McGarity had one

publication, while Professor Mullenix had seven.

Regarding to the quality of their respective scholarship, both Professor

McGarity and Professor Mullenix are highly regarded in their fields. From

2013 until 2017 Professor Mullenix was listed as one of the top-ten most cited

scholars on civil procedure according to Professor Brian Leiter’s compilation of

citation rankings. During that same period, Professor McGarity was listed as

number 14 in administrative law. Both have also been listed in the HeinOnline

list of 250 most-cited academics, in all fields.

392. In his deposition, Professor Rich Freer attested to the high regard in which

Professor Mullenix’s scholarship is recognized among her peers as “a leading

civil procedure scholar” (Freer Dep. 22:23) and federal courts.

393. Professor Freer noted numerous examples of scholarship by Professor Mullenix

that engaged in current debates in civil procedure and has frequently offered

novel and informative critiques which not only engaged in current debates, but

often are the first to recognize and identify the implications of procedural

developments. For example, Professor Freer referenced an article Professor

Mullenix wrote on the Shady Grove case, “that made an observation that I

think is really important. It was profound” (Freer Dep. 28:24-29:1) and a

McGeorge piece submitted for the Mike Vitiello symposium that was “a very

thoughtful piece about the art of procedural form” (Freer Dep. 29:22-25).

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 81
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 82 of 116

394. Professor Freer noted that “one of the things [he] particularly admire[s] about

Professor Mullenix’s work is that she was one of the people I think to blow the

Whistle on MDL,” (Freer Dep. 24:23-25), and “Professor Mullenix has been

one of the first people to talk about that” (Freer Dep. 25:11-12), which has

ultimately lead to “the rules advisory committee . . . actually considering a

separate set of rules for MDL case[s]” (Freer Dep. 26:15-16).

395. Regarding teaching, during the 2017-18 and 2018-19 academic years, Professor

McGarity and Professor Mullenix both taught approximately the same number

of students, and both received top-five overall average student ratings.

Professor McGarity achieved an average of 4.85 rating to Professor Mullenix’s

4.80.

396. Regarding service, Professor McGarity and Professor Mullenix have

comparable service records. Professor McGarity engages in various service to

the law school, including recommendation letters for students, and other

internal and external activities, including attendance at colloquia and Drawing

Board sessions and Chairing the Budget Committee and serving annually on

the Budget Committee. As indicated above, Professor Mullenix attends

participates in law school colloquia and Drawing Board sessions when in

residence, participates in faculty recruitment, writes evaluations of

prospective candidates, attends candidate job talks, is a frequent conference

speaker outside the law school, participates in ALI projects, mentors students

with career advice, writes numerous clerkship and internship

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 82
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 83 of 116

recommendations for students, comments on colleagues draft papers, writes

tenure and promotion reviews for colleagues at other law schools, participates

in CLE programs, attends almost all alumni events, attends the annual the

Texas Law Review Banquet and the TJIL banquet, serves on the law school

Tenure and Promotion committee, and is serving a three year tenure on the

University Faculty Grievance committee. In addition, Professor Mullenix’s

service, as decided by the Budget Committee, includes her Supreme Court

Preview articles. Professor Mullenix has listed all these service contributions

in every annual report to the Budget Committee.

397. Professor McGarity is 1 of 21 professors chosen by Dean Farnsworth to receive

the second round of the Faculty Investment Initiative raises, which includes a

guaranteed $30,000 raise over three years – regardless of any performance

metrics. Professor Mullenix was not selected for an FII(2) guaranteed raise.

398. Despite equivalent performance records, in 2018, Professor McGarity received

a $10,000 raise, while Professor Mullenix received only a $1,500 pay raise. In

2019, Professor McGarity received a $10,000 raise, while Professor Mullenix

received a $6,500. In 2020, neither received raises. However, in 2021,

Professor McGarity received a $20,000 raise, which included his guaranteed

$10,000 FII(2) raise plus an additional $10,000. Professor Mullenix received a

$12,000 raise.

399. Pursuant to UT Law’s own written standards, Professors Mullenix and

McGarity are comparably equal. However, since 2017, Professor McGarity has

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 83
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 84 of 116

received at least $151,370 more than Professor Mullenix, not including the

$50,000 Massey Teaching award he received during this period.

400. Professor Mullenix is paid less than Professor McGarity for equal work because

of her sex and her prior challenges to equal pay violations and other

discriminatory conduct at the UT law school.

L. Professor Mullenix should not be paid less than Professor Jay


Westbrook.

401. Professor Westbrook has been teaching for seven years fewer than Professor

Mullenix.

402. Professor Westbrook teaches basic commercial law, secured credit, bankruptcy,

international business litigation, international business transactions and

related seminars. His job requires equal skill, effort, and responsibility under

similar work conditions to Professor Mullenix.

403. Annually Professor Mullenix publishes more scholarship than Professor

Westbrook. In the Spring 2018 Budget Committee review, Professor Westbrook

provided two publications; Professor Mullenix provided fourteen. In the Spring

2019 Budget Committee review, Professor Westbrook published one piece;

Professor Mullenix provided ten publications. During the Spring 2020 Budget

Committee review, Professor Westbrook provided two publications; Professor

Mullenix provided nine. And during the Spring 2021 Budget Committee

review, Professor Westbrook provided one publication, while Professor

Mullenix provided seven.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 84
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 85 of 116

404. Both Professor Westbrook and Professor Mullenix are regarded as outstanding

scholars in their fields. From 2013 until 2017, Professor Mullenix was listed as

one of the top-ten most cited scholars on civil procedure according to Professor

Brian Leiter’s compilation of citation rankings. During that same period,

Professor Westbrook was also listed as a top-ten scholar in the fields of for

bankruptcy and commercial paper. Both have also been listed in the

HeinOnline list of 250 most-cited academics, in all fields.

405. As indicated above, Professor Westbrook and Professor Mullenix’s scholarship

is recognized by external reviews as outstanding in their respective fields. In

terms of quality of scholarly contributions, Professor Mullenix and Professor

Westbrook are substantially comparable; in term of quantity, Professor

Mullenix has out-published Professor Westbrook.

406. During all periods, Professor Mullenix’s numerical teaching evaluations have

exceeded those of Professor Westbrook. During the 2017-2018 academic year,

Professor Westbrook’s average student rating was 4.8. During that same

period, Professor Mullenix’s student rating was 4.85.

407. For the 2018-2019 academic year, Professor Westbrook’s average student

rating was 4.33. Professor Mullenix had a rating of 4.76.

408. From Fall 2017 through Spring 2020, Professor Westbrook has received lower

average student ratings at 4.57 to Professor Mullenix’s rating at 4.80.

409. Regarding satisfaction of the service performance criterion, both Professor

Westbrook and Professor Mullenix engage in comparable service activities (as

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 85
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 86 of 116

indicated for Professor Mullenix, above). Both Professors Westbrook and

Mullenix engaged in similar activities that have benefited the law school.

410. For the 2018-2019 academic year, Professor Westbrook was a recipient of the

second round of Faculty Investment Initiative. The initiative guarantees a

$10,000 pay raise to Professor Westbrook regardless of any performance

metrics. Over the three years of the program, Professor Westbrook will receive

$30,000.

411. For the same 2018-2019 academic year, Professor Mullenix was given a $1,500

pay raise, the lowest raise of all faculty members who received pay raises.

412. Unlike all her comparators in the cohort, Professor Mullenix was not given an

FII(2) award, even though her performance record is comparable to or exceeds

that of her comparators receiving FII funds.

413. The annual receipt of additional guaranteed FII funds has widened the salary

gap between Professor Mullenix and her comparators.

414. For the 2019-2020 academic year, Professor Westbrook was given his

guaranteed $10,000 pay raise.

415. For the same period, Professor Mullenix was given a $6,500 pay raise, the 11th

lowest raise of all faculty members who received pay raises.

416. For the 2020-2021, neither professor was given a raise. However, in 2021,

Professor Westbrook received an $18,000 raise, which included his guaranteed

$10,000 raise, plus $8,000 more. Professor Mullenix received a $12,000 raise.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 86
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 87 of 116

417. Pursuant to UT Law’s written standards, Professors Westbrook and Mullenix

are comparably equal. Professor Mullenix has slightly better performance

under the law school’s standards for scholarship and teaching. But from 2017

until 2021, Professor Westbrook has received at least $147,125 more than

Professor Mullenix.

418. Professor Mullenix is paid less than Professor Westbrook for equal work

because of her sex and her prior challenges to equal pay violations and other

discriminatory conduct at the UT law school.

419. A similar detailed comparison of Professor Mullenix’s career performance

record and annual assessments with her other male comparators (Professors

Rabban, Sage, Hu, Forbath, Steiker, Peroni, and Silver) would all result in the

same conclusion: Professor Mullenix is paid less than her male comparators

for equal work because of her sex and her prior challenges to equal pay

violations and other discriminatory conduct at the UT law school.

M. UT Law has been retaliating against Professor Mullenix for her prior
reports of unequal pay for a long time.

420. The above-described acts of unequal pay also constitute retaliation against

Professor Mullenix for her prior challenges to equal pay violations and other

discriminatory conduct at the UT law school.

421. This retaliatory unequal pay has been ongoing for Professor Mullenix’s more

than thirty years on the UT law faculty and continues to this day.

422. Professor Mullenix has voiced concerns about her pay disparity and the pay

disparity of other female faculty members to six deans of the UT law school,

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 87
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 88 of 116

including Dean Mark Yudof, Dean Michael Sharlot, Interim Dean Stephanie

Lindquist, Dean Bill Powers, Dean Lawrence Sager, and Dean Ward

Farnsworth. She also publicly and privately raised unequal pay concerns with

numerous of her faculty colleagues.

423. Because of the failure of successive deans and the faculty to address Professor

Mullenix’s challenges to compensation practices at the law school, Professor

Mullenix also raised her concerns with Former University Vice President and

Provost Sheldon Eckland-Olson.

424. Provost Sheldon Eckland-Olson did nothing in response. Instead, various law

deans and faculty members have engaged in numerous retaliatory acts against

Professor Mullenix over the span of her UT law career.

425. In spring 1994, Professor Mullenix told then-Professor Bill Powers and

Professor Doug Laycock about her concerns regarding the discriminatory

employment practices that occurred in the Appointments, Budget, and Tenure

Committees on which she sat at that time (Chairing the Appointments

Committee).

426. Later that spring, Dean Mark Yudof offered the position of Associate Dean for

Academic Affairs, which Professor Mullenix accepted. Approximately two

weeks later, Dean Yudof rescinded his offer because Professors Powers and

Laycock objected to the appointment because of her reports of discriminatory

practices.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 88
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 89 of 116

427. In fall 1995, Professor Mullenix agreed to a “look see” visit at the University of

Michigan School of Law, after visiting at Harvard Law School the entire

previous year.

428. At the end of the semester, her friend and colleague Professor Ed Cooper on

the Michigan faculty informed her that an offer of a full-time faculty position

at Michigan was “in the bag.”

429. Therefore, Professor Mullenix was stunned when in January or February of

1996 the Chair of the Michigan lateral hiring committee, Professor Rick Pildes,

informed her that she would not be receiving an offer. Shortly after hearing

that news, she learned why.

430. When Professor Sam Issacharoff, then a UT Law professor, discovered from his

friend Professor Pildes that Professor Mullenix was being considered for a

lateral offer, Professor Issacharoff wrote—unbidden and unrequested—a “kill

letter” to the Michigan hiring committee.

431. Professor Mullenix later learned that the “kill letter” Professor Issacharoff

wrote was a group effort by several male professors in the UT Law faculty

lounge, to assist Professor Issacharoff in avoiding a potential libel lawsuit.

432. Professor Mullenix informed Dean Sharlot of these events and requested that

he take some curative action. When Dean Sharlot questioned Professor

Issacharoff about the latter, Professor Issacharoff lied about having written

the letter.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 89
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 90 of 116

433. He and his friends among the UT Law faculty then spread the rumor to the

entire UT Law faculty that Professor Mullenix was a liar. Professor Mullenix

subsequently received a copy of Professor Issacharoff’s “kill letter” from a

member of the Michigan hiring committee.

434. Professor Mullenix provided a copy of the “kill letter” to the UT Law faculty to

refute the claim that she was a liar. Nothing was done about Professor

Issacharoff’s behavior, instead he was awarded a Chair year in advance of

Professor Mullenix.

435. Professor Mullenix was further marginalized and ostracized for calling

attention to the sabotaging behavior of her male colleagues. The false

narrative that Professor Mullenix is a liar has been passed down to new faculty

members and persists to this day.

436. In 1999, Professor Mullenix asked to be part of the deanship candidacy pool

when UT Law was searching for a new Dean after Dean Sharlot stepped down.

It is customary for faculty members to be included in the candidacy pool if they

request to be included in the deanship pool.

437. However, Professor Mullenix was refused this opportunity expressly because

of her prior grievances. According to Professor Teresa Sullivan, the wife of

Professor Laycock, Professor Mullenix would not be considered as a dean

candidate because the dean search was “not a forum for airing grievances.”

438. Professor Mullenix did not confine her deanship searches to UT Law. Between

2000 and 2010, Professor Mullenix was nominated, vetted by numerous

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 90
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 91 of 116

committees, and interviewed for deanships six times at various law schools.

After extensive vetting and interviews, she was a deanship finalist all six

times.

439. In every instance, when the law schools published their deanship finalist lists,

her male colleagues at UT Law intervened to successfully sabotage her

candidacy by making calls to their colleagues at these institutions. She learned

of this sabotage from friendly colleagues at the law schools where she was

under consideration for the deanship.

440. Professor Bob Peroni in his deposition confirmed that UT law colleagues were

sabotaging Professor Mullenix’s ability to appointed as a dean. Professor

Peroni explained that he was contacted by a colleague at the University of

Maryland law school in the final stages of its deanship search who told him

“the stuff people are saying at University of Texas is just astounding. I’ve never

seen anything like this in my years of being on appointments committees, just

saying she’s terrible” (Peroni Dep. 63:11-14).

441. Professor Peroni’s colleague reported that he very much liked Professor

Mullenix through her deanship interviews, but he was surprised to learn that

UT colleagues were contacting faculty at his law school with negative

commentary on Professor Mullenix. Professor Peroni’s colleague wanted to

know what was going on with the faculty at UT law that they would sabotage

a colleague’s decanal prospects late in a deanship search.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 91
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 92 of 116

442. Independent of Professor Peroni’s information concerning the sabotage of

Professor Mullenix during the Maryland decanal search, Professor Mullenix’s

longstanding friend Professor June Carbone (now at the University of

Minnesota) independently contacted Professor Mullenix to apprise her of the

fact that her UT colleagues were spreading false and malicious gossip about

Professor Mullenix to sabotage her candidacy.

443. Professor Mullenix had the same experience with the deanship search for the

William and Mary law school, where she also was a deanship finalist. After

being rejected for the position, she learned that her UT colleague Professor

Dan Rodriguez had provided faculty at William and Mary with a negative

assessment of Professor Mullenix.

444. Professor Mullenix had no interaction with Professor Rodriguez during his six

years on the UT faculty. Professor Mullenix sat on no committees with

Professor Rodriguez and never had a single conversation with him.

445. After learning that Professor Rodriguez had supplied a negative assessment of

Professor Mullenix, she invited Professor Rodriguez to lunch and asked

whether he had indeed made negative comments to another law school during

a decanal search. He admitted that he had.

446. In the following weeks after this conversation, Professor Rodriquez was

appointed as the new dean of Northwestern University Law School. Dean

Rodriquez subsequently was appointed as President of the Association of

American Law Schools and appointed to the American Law Institute Council.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 92
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 93 of 116

447. Professor Mullenix has been marginalized and excluded from participating in

institutional life because of her challenges to unequal pay, challenges to the

UT law compensation system, and challenges to sex discrimination.

448. On September 27-28, 2013, in conjunction with Vanderbilt Law School, UT

Law sponsored a conference in honor of Professor Richard N. Nagareda, who

had prematurely died. Professor Nagareda had taught mass tort litigation.

449. Professor Charlie Silver of UT Law and Professor Sam Issacharoff, a former

UT Law professor, planned the conference and invited speakers from the UT

Law faculty who teach civil procedure and complex litigation to participate and

write papers.

450. Professor Mullenix is an expert on mass tort litigation. At that time, she had

published a casebook on mass tort litigation, which is still the only dedicated

casebook on the subject and was the only member of the faculty who taught a

dedicated course on mass tort litigation. Professor Mullenix had, and continues

to have, an extensive publication record concerning mass tort litigation.

451. Despite this expertise, Professor Mullenix was not asked to participate in the

conference.

452. Professor Mullenix has held the Morris and Rita Atlas Chair in Advocacy since

2001. Since meeting both Morris and Rita Atlas in 2001, she kept in touch

with them, corresponding every year. She also personally knows both Scott

and Nancy Atlas through her work with alumni affairs and her work on the

Southern District of Texas’ Civil Reform Task Force, respectively.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 93
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 94 of 116

453. In October 2015 Morris Atlas died. Professor Mullenix, as the Chairholder

bearing Morris Atlas’ name, asked to be part of the delegation UT Law sent to

the memorial service in Brownsville/McAllen. Dean Farnsworth told her there

was no room on the university plane for her and on short notice was unable to

independently make travel arrangements to honor Morris Atlas and the Atlas

family.

N. UT Law has continued its retaliation against Professor Mullenix up to


the present, most notably between May 11, 2018, and March 7, 2019.

454. On October 12, 2018, in response to Professor Mullenix’s challenge to her pay

disparity on September 20, 2018, Dean Farnsworth told Professor Mullenix

that he could bring her salary into parity with Professor Bone, but only if she

agreed to retire in two years.

455. Dean Farnsworth’s statement is direct evidence of retaliation because

Professor Mullenix is a tenured faculty member who cannot be forced to resign

or retire. Moreover, Professor Mullenix was not planning to retire in two years,

as she intends to work until 80, the age at which most UT faculty members

have retired.

456. At the time Dean Farnsworth made his salary parity offer conditioned on

Professor Mullenix’s immediate retirement, except she had at least twelve

more years as a tenured professor on her contract with the university.

457. This act of retaliation was within 300 days of Professor Mullenix’s March 7,

2019, charge of discrimination and within 22 days of Professor Mullenix’s

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 94
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 95 of 116

protected activity of challenging the law schools’ unequal pay and

compensation system.

458. Further, such a response to a complaint of discrimination is likely to chill

complaints of discrimination from other faculty members. If the Dean offers

to address a tenured faculty member’s challenge only if the faculty member

retires early, faculty members are not likely to bring forward other concerns

for fear of being pressured to resign.

459. Since assuming the deanship, Dean Farnsworth has established a habit of

pressuring faculty members who challenge UT law compensation practices to

retire. Dean Farnsworth pressured two of the three professors who requested

open records regarding Dean Sager’s secret compensation deals to retire

(Professors Getman and Sampson).

460. That this is a strategy of Dean Farnsworth to retaliate against and deal with

difficult faculty members who oppose unlawful pay practices has since been

confirmed by Professor Peroni at UT Law.

461. According to Professor Peroni, one of the first things Dean Farnsworth said to

Professor Jack Getman, one of the open records filers, was “I don’t really like

troublemakers.” Peroni Dep. 99:25. Professor Peroni says there is a definitely

a pattern in who Dean Farnsworth tries to pressure into retirement.

462. Dean Farnsworth has been and continues to be especially hostile to those who

have brought legal action against UT Law. For example, according to Professor

Peroni, when he brought up Professor Mullenix’s 2011 settlement, “he [Dean

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 95
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 96 of 116

Farnsworth] was very hostile. I was shocked how hostile he was. And he was

very flippant.” Peroni Dep. 24:22-23. Peroni stated that in specific reference

to Professor Mullenix, Dean Farnsworth said something along the lines of “I

don’t like complainers.” Peroni Dep. 24:25-25:1.

463. In addition to Dean Farnsworth encouraging Professor Mullenix to retire in

exchange for addressing her claims, Professor Mullenix has been retaliated

against in other ways, both within the 300 days before her EEOC charge was

filed on March 7, 2019, and after:

• Despite repeated requests, including in May 2018 and May 2019, to be

appointed Associate Dean for Research, she has not been appointed to

that position.

• Given her extensive publication record and knowledge of research

scholarship methods, Professor Mullenix has been more than qualified

to serve in this position. During her more than thirty years at UT law,

this position has been held by three male colleagues: Professors Jack

Getman, Douglas Laycock, and Willy Forbath. When Professor Mullenix

requested this appointment during Dean Sharlot’s tenure, Dean Sharlot

refused the appointment, informing Professor Mullenix that the position

belonged to the guy holding the job.

• The lack of appointment to the position of Associate Dean for Research

has had a non-trivial adverse impact on Professor Mullenix’s career

prospects. During her various deanship vettings, Professor Mullenix

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 96
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 97 of 116

was repeatedly questioned why, during her long career, she had never

served as an Associate Dean.

• Not only was Professor Mullenix unceremoniously removed from

appointment as the Associate Dean for Academic Affairs by Dean Yudof,

but she has been blocked from serving as Associate Dean for Research

for over thirty years.

• Further, Professor Mullenix is the only senior female faculty member to

be continually excluded from the Budget Committee, even though she

requested appointment to the Budget Committee in her first meeting

with Dean Farnsworth in August 2012.

• Instead, in August or September of each year, Professor Mullenix is

assigned to “do-nothing committees,” which have no real impact on law

school governance. This has happened since and in retaliation for her

EEOC charge being filed.

• In 2012-2013 Professor Mullenix was assigned to the newly created

computer committee along with the guys in the IT department. She had

absolutely no expertise in the law school or the university’s computer

systems. The Chair of the Committee and the IT department, Mike

Harvey, commented to Professor Mullenix that he understood she was

assigned to the computer committee as punishment.

• In 2013-2014 Professor Mullenix was assigned to the Tenure and

Promotion Committee because of Dean Farnsworth’s mistaken belief

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 97
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 98 of 116

that Professor Mullenix would vote against giving tenure to a junior

faculty member, Professor Mira Ganor, who Dean Farnsworth

repeatedly and vocally opposed granting tenure. When Professor

Mullenix voted to approve tenure for Professor Ganor, she was removed

from the tenure committee.

• In 2014-2015 Professor Mullenix was assigned to the Rules and

Standards Committee, chaired by Professor David Robertson. Professor

Robertson never convened a meeting of this committee for the entire

year, so there was never any work completed or assigned.

• In 2015-2106, Professor Mullenix was assigned to the Faculty

Governance Committee, chaired by Professor George Dix. Professor Dix

never convened a meeting of this committee for the entire year, and

again no work was completed or assigned.

• In 2016-2017, after initially being assigned to yet another do-nothing

committee Professor Mullenix requested that Dean Chesney reassign

her to the Tenure and Promotion Committee. Professor Jordan Steiker

chaired this committee in 2016-2017, but he never convened a meeting

during the entire year and the committee did not review any faculty for

tenure or promotion.

• In 2017-2018, despite requesting assignment to the Tenure Committee,

Professor Mullenix was placed on the Teaching Committee chaired by

Professor Lynn Blais. Professor Lynn Blais confirmed that being placed

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 98
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 99 of 116

on a committee that “was boring as can be and a useless waste of time”

and was “kind of a punishment.” Blais Dep. 66:8-10. She stated it was a

punishment because “it looks on paper as if you’re getting committee

assignments, but you are not getting any important committee

assignments.” Blais Dep. 66:5-7.

• In 2018-2019 Professor Mullenix was again placed on the Teaching

Committee after she explicitly requested not to be put on the Teaching

Committee but asked to be on the Tenure Committee. She was re-

assigned to the Tenure Committee, chaired by Professor Charlie Silver.

Professor Silver never convened a single meeting during this year and

the committee did not review any faculty for tenure.

• In 2019-2020 Professor Mullenix was again placed on the Teaching

Committee, despite her specific request not to be placed on that

committee. Dean Chesney reassigned Professor Mullenix to the Tenure

Committee, this time chaired by Professor Joey Fishkin. Professor

Fishkin did not convene any meetings of the committee during this year,

and it again did not review any faculty for tenure.

• In 2020-2021 Professor Mullenix was assigned to the Tenure Committee

chaired by Professor Liz Sepper. She requested classroom visits of an

untenured faculty member, Eric Encarnacion. The committee did not

complete any other work.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 99
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 100 of 116

• During his tenure Dean Farnsworth has created several Ad Hoc

committees to address issues that he does not send to the existing

constituent committees. Dean Farnsworth has failed to appoint

Professor Mullenix any ad hoc committees that Dean Farnsworth has

created.

• In 2017, Dean Farnsworth had created a committee to review First Year

Law Exams, which conducted a study between 2017 and 2019.

Notwithstanding that Professor Mullenix is highly regarded for her

teaching first year law students, she was excluded from this committee

and did not learn of its existence until 2019. The ad hoc committee also

never consulted with Professor Mullenix concerning a faculty

governance issue that affected her teaching.

• Similarly, she was not considered for or appointed to an ad hoc

committee reviewing grading, convened during spring 2020.

• The failure to appoint Professor Mullenix to functioning committees or

special ad hoc committees is a form of retaliation that contributes to the

Budget Committee’s adverse performance evaluations regarding law

school service and as Professor Peroni and others have corroborated, are

intended as retaliation. The Budget Committee in Spring 2021 placed

great emphasis on ad hoc committee membership in rating faculty

members’ level of service.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 100
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 101 of 116

• Professor Mullenix has never been awarded university or law school

teaching awards, which carry additional compensation.

• The Massey Teaching Excellence prize is usually awarded every other

year to a law school professor and carries a substantial financial award

of up to $50,000. The Massey Teaching award has been given to a series

of male law professors (Professors David Rabban, Ernest Smith, Stan

Johanson, Steve Goode, and Tom McGarity). The only female faculty

member to be awarded the Massey Teaching prize was Barbara Hines,

an untenured clinician. In 2019, the award was given posthumously to

Dean Powers.

• Professor Mullenix has never been considered for the Massey Award

despite an exceptionally lengthy, strong record of excellent teaching

evaluations comparable to all the male recipients of this honor.

• Induction into the University of Texas Academy of Distinguished

Teachers occurs annually with nominations in the fall of each year and

appointments announced in the spring. Professor Mullenix has never

been appointed to Academy. Five male members of the UT Law faculty

have been appointed to the Academy of Distinguished Teachers:

Professor Steve Goode, Stanley Johanson, David Rabban, David

Robertson, and Bill Powers. Professor Mechele Dickerson is the only

female faculty member appointed to the Academy.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 101
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 102 of 116

• Professor Mullenix was nominated twice for the Academy and twice

denied during President Bill Power’s tenure as university president.

• Despite her lengthy distinguished teaching record and continued

superior teaching evaluations and enthusiastic student comments, Dean

Farnsworth has stated that he has “chosen to nominate other people . .

. for that university teaching award rather than renominate Professor

Mullenix again.” Farnsworth Dep. 287:5-7.

• Dean Farnsworth has suggested that he made that choice because of

correspondence from Professor Mullenix in which, among other things,

she had raised issues of gender equality regarding nominations for that

award and why she should be considered for it.

• Within 300 days of her charge of discrimination and since filing her

charge, Professor Mullenix has also intentionally been excluded from

specific aspects of institutional life, including her accomplishments

being featured on the law school web page and participating in specific

law school events.

• Since her charge was filed, Professor Mullenix has been invited as a

speaker to numerous conferences to share her work, appointed to

prestigious projects for the ALI and Max Planck Institute, published in

numerous law journals, and has released two completely revised

editions of two of her books. None of these accomplishments has been

publicized by the law school on its webpage.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 102
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 103 of 116

• In August 2019, she asked Professor Willy Forbath to participate in the

Supreme Court Review panel that the law school conducts at the

beginning of every school year. Professor Mullenix has requested to

participate in this law school program every year going back two

decades. Professor Forbath, who controls this program has repeatedly

ignored Professor Mullenix’s request to present during this program,

even though she has been writing Previews of Supreme Court cases for

over thirty-five years and has written and analyzed over 100 Supreme

Court cases.

• For the 2019 program, Professor Mullenix had written at least fifteen

articles prior about mandatory arbitration clauses, the subject of a

recently decided Supreme Court decision. In spite of her considerable

scholarship and knowledge of this topic, discussion of the Supreme

Court case was assigned to another faculty member who had not

published anything relating to that topic.

• During her thirty years on the UT law faculty, Professor Mullenix has

only been asked to participate once in the law schools’ Supreme Court

review program. In 2010, Professor Mullenix was permitted to talk

about the Court’s decision in Wal-Mart v. Dukes.

• In retaliation for her advocacy and challenges to pay disparity and other

gender-based discrimination, Professor Mullenix is held out by the

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 103
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 104 of 116

administration as an example of what happens when a faculty member

complains.

• Female faculty members who raise questions or challenges to pay equity

issues are labeled as problematic, difficult, or troublemakers: faculty

members that Dean Farnsworth has admitted that he does not like and

whose judgment he does not trust.

• In contrast, female faculty members who do not raise equity issues have

been rewarded with generous pay raises. Dean Farnsworth has

identified these female faculty as outstanding members of the faculty

whose judgment he trusts.

• Dean Farnsworth places these female faculty in all important positions

of faculty governance: the Budget and Appointments Committees, as

well special ad hoc committees. Dean Farnsworth has previously

appointed Professors Lynn Baker and Angie Littwin as the law school’s

representatives to the University Gender Task Force committees, both

professors who are not known for their knowledge on gender equity

issues.

• Dean Farnsworth has avoided appointing any female faculty member

who has raised equity concerns to the university committees addressing

such issues.

• Female members of the UT law faculty have gotten the message about

how to make—and not make – a successful career at UT law school.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 104
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 105 of 116

• Dean Farnsworth selected female Professors Dickerson, Baker, Wagner,

Laurin, Littwin, Wasserman, and Morse to all received FII(1) and (2)

pay raises. None of these recipients have ever raised any questions or

challenges to the UT compensation system. In 2019, Professor Melissa

Wasserman received a $30,000 pay raise from the Budget Committee,

and in 2021-2022, these female faculty all were recipients of

comparatively larger raises than Professor Mullenix. Dean Farnsworth

and the Budget Committee conferred these large raises after Professor

Mullenix filed her discrimination charge.

• The Budget Committee also did not extend FII or other equity raises to

any female faculty that had challenged the law school’s compensation

practices or requested equitable salary adjustments.

• Dean Farnsworth has twice reduced the budget committee’s

recommended raises for Professor Mullenix. Dean Farnsworth reduced

her raise from $4000 down to $1,500 in 2018. In May 2019, he reduced

the committee’s proposed raise to Professor Mullenix of $7,000 down to

$6,500. He has provided no explanation for either.

• New faculty are told not to interact with her because she is “poison” due

to her prior complaints. Professor Lynn Blais confirmed this during her

deposition, stating that when she arrived at the law school, “the message

conveyed by my male colleagues was very loudly and clearly conveyed to

me to not align myself with [Professor Mullenix] and to avoid her

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 105
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 106 of 116

basically and that she was crazy and that if I wanted to be taken

seriously at tenure time, I would not associate myself with her.” Blais

Dep. 40:25-41:5.

• Professor Blais also confirmed that rude or mean comments were

“ubiquitous. . . the tenor of the law school was she’s crazy and . . . wants

more than she deserves and stay away from her.” Blais Dep. 106:23-25.

• As another longstanding female member of the faculty, Professor Blais

reported that there was a sense that “difficult women can’t be on

committees at UT.” Blais Dep. 46:13-14.

• Professor Mullenix has been described to others as someone who causes

problems for the university, by the University General Counsel Jeff

Graves as “a known difficult woman,” and has been described by Dean

Farnsworth as both “difficult,” “vain,” and “mediocre.” Despite his belief

that Professor Mullenix is not the most vain or difficult professor at UT

Law, Dean Farnsworth has refused to publicly name anyone else.

O. UT Law has retaliated against Professor Mullenix to discourage


others from coming forward and conceal the fact that for from at least
2016-2019, tenured female professors at UT Law have been paid on
average at least $20-$24,000 less than tenured male professors and do
not receive chair appointments.

464. UT Law has retaliated against Professor Mullenix because the unequal pay

problem goes beyond her.

465. During Spring 2012, Interim Dean Lindquist in Spring 2012 was well aware of

the pay disparities between male and female faculty at UT Law. In fact, in

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 106
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 107 of 116

2010, prior to her becoming Dean, she had done an analysis of whether there

was a pay gap. Here are her findings:

Dear Bob:
Thought you might be interested in this statistical analysis of the salary data. Of
course it does not account for differences in negotiating position or resume content
in terms of articles and books. But it does control for position (chair,
professorship, professor--with assistant professor as omitted reference category},
which should get at some of these factors. It also accounts for grad year and
whether someone is a spousal hire. And it controls for whether the faculty member
has a phd.
The results show that (1) men are overpaid compared to women, on average by about
$16k, (2) minorities are underpaid compared to whites, on average by about $16k, (3)
spousal hires are overpaid compared to nonspousal hires, on average by about $19k
(this result is statistically significant in a one-tailed test}, and (4) having a phd
has no effect on salary differentials.
These results are seriously concerning from a legal standpoint, it seems to me. I am
not personally litigious, but someone who was could have a field day with this
information. For that reason, I am sharing it only with you.
Stef

466. When she was appointed as interim dean, she did not fix the problem and when

Dean
log: Farnsworth came on, it got worse and the issue continues
C:\Users\Stefanie\Documents\Administrative\salary data\results.logto persist.
log type: text
opened on: 30 Apr 2010, 09:16:05
467. As stated above, under Dean Farnsworth, the female faculty members who
regress annual_salary phd professor chair professorship spouse gradyear mal
> e minority
challenged compensation practices or requested equitable salary adjustments
Source SS df MS Number of obs 62
-------------+------------------------------ F( 8, 53) 11.93
have
Modelbeen marginalized by
I 3.3494e+l0 8 UT Law—including Professors
4.1867e+09 Prob> F Mullenix,
0.0000Sue Klein,
Residual I 1.8592e+10 53 350796508 R-squared 0.6430
-------------+------------------------------ A~ R-squared 0.5892
Louise
Total Weinberg,
I 5.2086e+10 Lynn 61 Blais, Barbara Bintliff, Root
853871697 and Lauren
MSE Fielder.
18730

468.
annual Insal~y
fact, Professor
I Coef.Barbara Bintliff went
Std. Err. t toP>lt'I
Dean Farnsworth
[95% Conf. office
Interval]to request a
-------------+----------------------------------------------------------------
phd 2862.532 8616.18 0.33 0.741 -14419.34 20144.4
salary adjustment,
professor 33504.24 armed with her
15617.29 list of0.037
2.15 accomplishments
2179.914 and contributions,
64828.56
chair 57583.43 9973.298 5.77 0.000 37579.53 77587.34
professors~p 35905.21 9077.254 3.96 0.000 17698.54 54111.88
and
spousewas brushed
19246.49 off and denied any
10661.44 1.81consideration.
0.077 -2137.662 40630.64
gradyear -56.41385 232.5922 -0.24 0.809 -522.9347 410.107
male 16416.47 5988.349 2.74 0.008 4405.362 28427.58
469. minority
Professor Lauren
-16105.67 Fielder approached
7794.567 -2.07 Dean 0.044Farnsworth
-31739.59on December
-471.7515 12, 2019,
cons 255430.9 465744.7 0.55 0.586 -678734.6 1189596
to request a salary adjustment, i.e., a pay raise. Like Professor Bintliff,
log close
Professor
log:
log type:
Fielder approached Dean Farnsworth
C:\Users\Stefanie\Documents\Administrative\salary
text
armed with a list of her
data\results.log

closed on: 30 Apr 2010, 09:16:26

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 107
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 108 of 116

accomplishments and contributions. Dean Farnsworth brushed her off and

rejected her efforts.

470. According to Professor Blais, in her 27 years at the law school things have

never been so bad for women as they are right now at the school.

471. Dean Farnsworth personally attacks the characters of female faculty or

administrators who complain of unequal pay based on gender. For example,

after Professor Klein asked why there were not more women given FII funding,

Dean Farnsworth gave her the lowest raise she had ever received and said she

was not collegial.

472. When the Assistant Dean for Student Affairs, Elizabeth Bangs, made a

complaint of sex discrimination regarding pay to the Office for Inclusion and

Equity, Dean Farnsworth said she was paid less because she did not conduct

herself professionally around students in sensitive situations because of her

style of communication. Dean Farnsworth also stated that Dean Bang’s salary

complaint “was not found to be substantiated.” Farnsworth Dep. 25:2-3.

473. Based on the publicly available salary arrays for 2017-2020 and including

distinguished teacher awards for the seven professors who have received them,

there is a large pay gap between tenured male and female professors:

2017-18 2018-19 2019-20


All faculty avg: $275,623.23 $282,417.05 $290,223.03
Female faculty avg: $263,484.00 $270,807.53 $279,800.50
Male faculty avg: $287,762.46 $294,026.56 $300,645.57
Gender pay gap: $24,278.46 $23,219.03 $20,845.07

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 108
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 109 of 116

474. The salary arrays from 2017 through 2020 generated these averages:

2017-18 Last 2018-19 2019-20


Last Name Sex Sex Last Name Sex
Comp. Name Comp. Comp.
Powers M $365,892 Powers M $375,692 Bone M $387,401
Bone M $355,276 Bone M $365,276 Sager M $383,017
Sager M $352,017 McGarity M $359,192 McGarity M $369,192
McGarity M $349,192 Westbrook M $358,743 Westbrook M $368,743
Westbrook M $348,743 Rabban M $355,957 Rabban M $365,957
Rabban M $345,957 Sager M $355,017 Dickerson F $358,519
Goode M $334,720 Dickerson F $346,526 Levinson M $349,305
Dickerson F $334,526 Levinson M $339,305 Hu M $347,208
Levinson M $334,305 Goode M $337,720 Baker F $346,512
Peroni M $330,959 Baker F $334,824 Goode M $344,220
Mullenix F $329,418 Peroni M $333,959 Powe M $341,319
Powe M $328,319 Powe M $331,319 Peroni M $340,459
Baker F $322,824 Mullenix F $330,918 Sage M $340,000
Ascher M $320,887 Wagner F $326,297 Wagner F $338,297
Wickelgren M $318,500 Ascher M $324,387 Forbath M $338,104
Robertson M $318,410 Steiker M $323,724 Mullenix F $337,418
Wagner F $314,297 Wickelgren M $322,500 Steiker M $333,724
Steiker M $313,724 Silver M $321,265 Silver M $331,265
Silver M $311,265 Robertson M $320,410 Ascher M $330,887
Smith M $307,671 Smith M $311,171 Wickelgren M $329,000
Johanson M $299,044 Forbath M $303,104 Cohen F $319,972
Weinberg F $298,099 Johanson M $301,044 Smith M $314,171
Cohen F $294,972 Weinberg F $300,099 Jinks M $308,144
Markovits M $294,801 Markovits M $296,801 Johanson M $304,044
Forbath M $293,104 Cohen F $294,972 Weinberg F $303,099
Hu M $288,454 Hu M $292,454 Markovits M $299,801
Rau M $283,425 Rau M $287,425 Dzienkowski M $293,941
Dzienkowski M $282,941 Dzienkowski M $286,941 Golden M $291,832
Klein F $275,672 Klein F $279,672 Chesney M $287,700
Sage M $269,977 Golden M $276,832 Klein F $286,672
Engle F $268,000 Engle F $275,500 Engle F $282,500
Sturley M $265,947 Sage M $273,977 Sturley M $277,447
Graglia M $261,992 Chesney M $273,826 Wasserman F $277,000
Golden M $261,832 Sturley M $270,447 Albert M $274,000
Chesney M $261,826 Bintliff F $263,000 Laurin F $272,110

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 109
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 110 of 116

Bintliff F $258,500 Woolley M $262,807 Bintliff F $270,500


Woolley M $258,307 Albert M $262,000 Franklin F $270,000
Albert M $250,000 Graglia M $261,992 Woolley M $267,807
Jinks M $248,644 Laurin F $260,110 Bracha M $267,000
Laurin F $248,110 Franklin F $257,000 Fishkin M $263,600
Franklin F $244,000 Bracha M $252,964 Vladeck M $259,000
Adelman M $242,000 Jinks M $252,644 Littwin F $257,833
Spindler M $239,750 Fishkin M $250,600 Sepper F $257,000
Dammann M $239,200 Adelman M $247,000 Morse F $255,000
Bracha M $237,964 Wasserman F $247,000 Adelman M $254,500
Fishkin M $237,600 Vladeck M $247,000 Dammann M $251,700
Wasserman F $235,000 Littwin F $245,833 Spindler M $250,751
Vladeck M $235,000 Spindler M $245,750 Deigh M $237,104
Littwin F $233,833 Dammann M $244,200 Blais F $235,115
Morse F $231,000 Morse F $243,000 Williams M $226,833
Johnson M $228,872 Blais F $233,115 Encarnacion M $215,000
Blais F $227,615 Johnson M $228,872 Ganor F $200,666
Williams M $210,333 Williams M $216,833 Churgin M $195,886
Churgin M $195,886 Ganor F $197,666 Perry M $183,824
Ganor F $195,166 Churgin M $195,886 Hansen F $168,196
Hansen F $168,196 Hansen F $168,196 Rau M n/a
Perry M $95,412 Perry M $95,412 Johnson M n/a
Deigh M $65,150 Deigh M $67,150 Graglia M n/a
Sepper F n/a Sepper F n/a Powers M n/a
Encarnacion M n/a Encarnacion M n/a Robertson M n/a

475. The pervasive and substantial pay disparity present between female and male

faculty shows a systematic discriminatory environment at UT Law.

476. The above chart also shows how UT Law has retaliated against Professor

Mullenix by moving her farther and farther down the salary array, even

though she had equal or better performance than those with higher salaries.

This continues to this day and additional columns on the above chart would

show Professor Mullenix falling farther down the array. Indeed, Professor

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 110
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 111 of 116

Mullenix is now lower in the salary array than she was both prior to and after

her 2010 settlement, which UT Law alleges solved any potential unequal pay

issues. Specifically, according to the 2009 salary array, Professor Mullenix was

ranked 14th in the array. After her settlement, she moved up to 7th. According

to the latest salary array, Professor Mullenix is now 16th.1 Professor Bone has

not had a similar drop, always oscillating between the highest and second

highest paid faculty member. In other words, UT Law is moving backwards in

terms of equal pay for Professor Mullenix due to FII funding, equity bonuses,

and housing allowances made to mostly male faculty.

477. Moreover, since 2018, Dean Farnsworth has appointed at least eleven tenured

faculty members to Chair positions. All of these appointments have been male

and none female. Over half are or were members of the Budget Committee.

Upon learning that Dean Farnsworth had appointed a newly hired male lateral

faculty member to a Chair, Professor Barbara Bintliff – who has never held a

Chair – emailed Professor Mullenix that Chair appointment to another male

“was the last straw.”

478. Moreover, the salary arrays created by the law school, but not provided to the

faculty, generally contain a column containing “other supplements.” Female

faculty generally receive the lowest “other supplements” as compared to their

1
The salary array provided to Professor Mullenix for 2021-22 actually lists her as 14, but when the housing allowances
for Professor Forbath and Hu are added into their salaries, as they have been in previous salary arrays, Professor
Mullenix drops to 16.
_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 111
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 112 of 116

male counterparts. For example, in 2020 and 2021, four of the six faculty that

received the lowest “other supplement” amounts were female.

P. All conditions precedent to suit have been met.

479. On March 7, 2019, Professor Mullenix filed a charge of Discrimination with the

EEOC alleging sex discrimination, Equal Pay Act violations, and retaliation.

480. On November 14, after 180 days passed, Professor Mullenix requested a Notice

of Right to Sue, which was issued on November 20, 2019.

481. On November 26, 2019, Professor Mullenix requested a Right to Sue from the

Texas Workforce Commission.

482. All conditions precedent to filing suit have been met.

IV
FIRST CAUSE OF ACTION: EQUAL PAY ACT VIOLATIONS

483. Plaintiff incorporates all of the above paragraphs as if restated herein.

484. Defendant is subject to the Equal Pay Act.

485. Professor Mullenix performed work in a position requiring skill, effort, and

responsibility similar to that of her male counterparts, and in similar working

conditions.

486. As shown above, Professor Mullenix was paid less than her male counterparts

that were working under substantially equal jobs requiring similar skills,

effort, and responsibility as her position.

487. As shown above, Professor Mullenix was also retaliated against for asserting

violations of the Equal Pay Act.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 112
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 113 of 116

488. Because of the actions of Defendant, Professor Mullenix has suffered damages.

489. As shown above, Defendant has willfully violated the Equal Pay Act.

V
SECOND CAUSE OF ACTION: TITLE VII SEX DISCRIMINATION

490. Plaintiff incorporates all of the above paragraphs as if restated herein.

491. Professor Mullenix is one of UT Law’s most distinguished professors.

492. Professor Mullenix is also one of UT Law’s most published and cited professors.

She consistently receives higher than average student reviews.

493. Despite her hard work and dedication to UT Law, Professor Mullenix is

compensated at a rate less than her male counterparts.

494. Professor Mullenix does not get equal pay for equal work.

495. Defendant is paying Professor Mullenix less because of her sex.

496. Defendant has violated Title VII.

VI
THIRD CAUSE OF ACTION: TITLE VII RETALIATION

497. Plaintiff incorporates all of the above paragraphs as if restated herein.

498. Defendant has retaliated against Professor Mullenix by punishing her for

speaking up against its discriminatory compensation practices.

499. Defendant has marginalized Professor Mullenix’s role at the law school by

assigning her to “do-nothing” committees and refusing to consider her for

various university and law school teaching awards. She has been ostracized

and has been reduced to a pariah within the UT law faculty.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 113
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 114 of 116

500. She has received low raises in retaliation for challenging the inequitable

compensation system at the law school.

501. Moreover, shortly after she filed her charge of discrimination with the EEOC,

Defendant increased the salary disparity between Professor Mullenix and the

male senior cohort in order to retaliate against her.

502. These actions, as well as the other actions stated in the complaint, violate Title

VII’s anti-retaliation provision.

VII
JURY DEMAND

503. Plaintiff demands trial by jury on all issues and defenses in this case.

VII
DAMAGES

504. Plaintiff seeks all damages allowed under the law, including monetary relief

like back pay, benefits, lost wages, and:

(a) Plaintiff seeks an injunction prohibiting Defendants from

engaging in unlawful practices such as pay discrimination and

retaliation.

(b) Plaintiff seeks additional equitable relief as may be appropriate,

such as a raise to parity with male comparators, promotion, front

pay, and court costs.

(c) Plaintiff seeks compensatory damages for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses.

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 114
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 115 of 116

(d) Plaintiff seeks reasonable attorney’s fees and costs, including

reasonable expert fees.

(e) Plaintiff seeks pre- and post-judgment interest at the maximum

rate allowed by law.

WHEREFORE, premises considered, Plaintiff respectfully prays that

Defendant be cited to appear and, that upon a trial on the merits, that all relief

requested be awarded to Plaintiff, and for such other and further relief to which

Plaintiff is justly entitled.

Respectfully submitted,
WILEY WALSH, P.C.

By: /s/ Colin Walsh


Colin Walsh
Texas Bar No. 24079538
Board Certified Specialist, Texas Board of
Legal Specialization, Labor and Employment
Law
Jairo Castellanos
Texas Bar No. 24089624

WILEY WALSH, P.C.


1011 San Jacinto Blvd., ste 401
Austin, TX 78701
Telephone: (512) 27-5527
Facsimile: (512) 201-1263
colin@wileywalsh.com

Paige E. Melendez
Texas Bar No. 24121731

ROB WILEY, P.C.


2613 Thomas Ave.
Dallas, TX 75204
Telephone: (214) 528-6500
Fascimile: (214) 528-6511
pmelendez@robwiley.com

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 115
Case 1:19-cv-01203-LY-SH Document 127-1 Filed 09/24/21 Page 116 of 116

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I certify that on September 24, 2021 I sent a true and correct copy of the

foregoing to Defendant via e-filing

/s/ Colin Walsh


Colin Walsh

_____________________________________________________________________________________________
PLAINTIFF’S SECOND AMENDED COMPLAINT & JURY DEMAND Page— 116