EEOC v. Muhlenberg College , 131 F. App'x 807 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-17-2005
EEOC v. Muhlenberg College
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2788
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-2788
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Appellant
v.
MUHLENBERG COLLEGE
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No.: 02-CV-07430
District Judge: The Honorable Franklin S. Van Antwerpen
Argued March 30, 2005
Before: ALITO, SMITH and ROSENN, Circuit Judges
(Filed: May 17, 2005)
Eric S. Dreiband
Vincent J. Blackwood
Lorraine C. Davir
Daniel T. Vail (Argued)
Equal Employment Opportunity Commission
1801 L. Street, N.W., 7th Floor
Washington, D.C. 20507
Counsel for Appellant
Nancy Conrad (Argued)
White & Williams
3500 Winchester Road
1
Suite 200, The Frederick Building
Allentown, PA 18104
Counsel for Appellee
OPINION OF THE COURT
SMITH, Circuit Judge.
The Equal Employment Opportunity Commission (“EEOC”) filed a complaint in
the United States District Court of the Eastern District of Pennsylvania against
Muhlenberg College (“Muhlenberg”) alleging a Title VII national origin claim on behalf
of Dr. Da’an Pan based on Muhlenberg’s denial of Dr. Pan’s tenure application. The
District Court granted Muhlenberg’s motion for summary judgment. The EEOC filed a
timely appeal.1 We will affirm.
Dr. Pan, a native of China, obtained a Masters Degree in English Literature from
Hangzhou University in China, and taught for several years thereafter in his native
country. In 1991, after earning a Ph.D. in Comparative Literature from the University of
Rochester, Dr. Pan was employed as an assistant professor in Comparative Literature and
East Asian Language and Cultures at the University of Illinois. In 1996, Dr. Pan
1The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. Appellate
jurisdiction exists under 28 U.S.C. § 1291. We exercise plenary review over a grant of summary
judgment and apply the same standard that the District Court is required to employ. Abramson v.
William Patterson College, 260 F.3d 265, 276 (3d Cir. 2001).
2
responded to Muhlenberg’s search for a Professor of Traditional Chinese Civilization.
Muhlenberg’s President, Arthur Taylor, offered Dr. Pan an appointment as an Assistant
Professor of Chinese Civilization, with the hope that Dr. Pan would develop a program in
Asian and/or Asian and Western Comparative Studies. Dr. Pan’s primary affiliation was
with the Philosophy Department, but half of his teaching load was comprised of courses
in other departments.
During the spring of 1998, near the end of Dr. Pan’s second year, Muhlenberg
invited Dr. Pan to a meeting for all tenure candidates to review the requirements for
tenure as set forth in its Faculty Handbook. The Handbook provided that the initial
consideration of a tenure application was performed by a Faculty Evaluation Committee
on Tenure and Promotions (“FEC”), which evaluated the candidate’s record and
recommended either a grant or denial of tenure. The FEC’s report and recommendation
was submitted to the Dean of the College Faculty, Curtis Dretsch, and then forwarded to
President Taylor. “Tenure is granted only by action of the Board of Trustees upon the
recommendation of the President and Board of Trustees’ Educational Policies and Faculty
Affairs Committee.” The Faculty Handbook specified that “excellence in teaching is
foremost among the criteria used to evaluate members of the Faculty.”
Dr. Pan applied for tenure in the fall of 1998, submitting various documents to the
FEC for its consideration. These included evaluations by Muhlenberg faculty, alumni,
students and academic peers, as well as standardized student evaluation scores, and Dr.
3
Pan’s Professional Statement. The evaluations were predominantly positive. There were,
however, some neutral and negative observations. Dean Drestch rated Dr. Pan’s teaching
as “good to excellent,” an observation Philosophy Chair Ludwig Schlecht understood to
indicate that Dretsch “had some reservations.” Muhlenberg Professor Christine Sistare
noted that Dr. Pan “could ask more” of his students. Professor Benjamin, a member of
the FEC, reported that Dr. Pan’s attempts to elicit class discussion were met with modest
success as only a small core of students actively participated.
The alumni and student feedback, though generally commendable of Dr. Pan’s
teaching, contained some unfavorable observations. While one alumnus stated that Dr.
Pan was a very good teacher, he pointed out that it “was hard to follow the direction he
was taking” and that Dr. Pan needed “to add some more structure to his lectures so that
students can grasp the basis of his material better.” Another alumnus expressed her
“concern . . . that the class lacked a structured syllabus and grading policy. . . .” This
alumnus stated: “I wish I could strongly recommend him [for tenure] but I want to ensure
that Muhlenberg students get the best teaching possible and I feel that Dr. Pan’s style
needed to be changed.” A third alumnus was quite positive about Dr. Pan, yet she
explained that “Dr. Pan’s students got out of the class what they put into it. Those who
wanted to sit like a lump in the back of the room were able to . . . .” She was critical of
these lackadaisical students and the fact that Dr. Pan’s classes “came to be known . . . as
‘blow off courses.’”
4
Muhlenberg utilized a standardized evaluation form (“SIR”) completed by students
in each course to rank their professors on a scale of 1 to 5, with 5 as the highest ranking.
Generally, these scores were considered low if they were not over 4.0. Dr. Pan’s SIRs
had, as Dean Dretsch noted, “greater variability” than was typical at Muhlenberg. His
initial scores were high: 4.46; 4.79; 4.18; 4.0; and 4.09. His scores declined thereafter to:
3.21; 3.67, 3.23; 3.67; 3.38; 3.09; and 3.36. Of the scores of the seven tenure candidates
under consideration that year, Dr. Pan’s SIRs were the lowest, with the other candidates
averaging well above 4.0.
After considering Dr. Pan’s tenure application and his supporting documents, and
conducting a face-to-face interview, the FEC, in a report dated April 5, 1999, “voted
unanimously against recommending Dr. Pan for tenure.” The FEC rated Dr. Pan’s
teaching ability “good,” but not “excellent” as Muhlenberg required for an award of
tenure. The FEC characterized the evidence on the quality of his teaching as “mixed,”
noted that concerns were raised about his effectiveness as a teacher, cited certain
comments by faculty and alumni, and found Dr. Pan’s SIRs lacking in comparison to the
other tenure applicants. With respect to Dr. Pan’s Commitment to the Goals of the
College, the FEC reported that it was concerned about Dr. Pan’s view of his students
because he “belittled the written work of students by name” and
came to the interview with the Committee and handed out copies of a
current student’s poor writing. By naming the student, Dr. Pan
demonstrated a disturbing lack of respect for the student. Also . . . Dr. Pan
attributed the difficulty and lack of success experienced by students in his
5
courses to their prior poor education. He did not seem to be aware of his
own responsibility to provide a successful educational experience for
students.
Dean Dretsch notified Dr. Pan of the FEC’s report. Dretsch did not think that Dr.
Pan should have been granted tenure because his “performance was not up to our
standards.” Dean Dretsch forwarded the FEC’s recommendation to President Taylor.
After receiving the FEC’s report, President Taylor met with its members. In
Taylor’s view, there was “no light for Dr. Pan. Each one of [the FEC members] had a
negative and in some cases devastatingly negative report.” Taylor learned that the FEC’s
interview with Dr. Pan was “terrible . . . that Dr. Pan was abrasive; he was uncollegial.”
According to one member of the FEC, “it was the worst interview in 40 years.”
In May 1999, Dr. Pan requested a review of the FEC’s recommendation by the
Faculty Personnel and Policies Committee (“FPPC”). After conducting a hearing, the
FPPC issued its recommendation in a letter dated July 19, 1999. By a four to one vote,
the FPPC found that the FEC had given inadequate consideration to Pan’s teaching. The
letter noted that quotes from faculty members were taken out of context and
misrepresented. In the FPPC’s view, the “preponderance of evidence in Dr. Pan’s written
file . . . points to a conclusion about Dr. Pan’s teaching [that is] different from that of the
FEC’s.” The FPPC, however, did not find any fault with the FEC’s treatment of the
alumni comments or the SIR scores. By a three to two vote, the FPPC recommended that
President Taylor reconsider Dr. Pan’s tenure application.
6
In addition, the FPPC noted two procedural violations: (1) the FEC’s failure to
notify Dr. Pan that it had received his fall 1998 SIR scores (a procedural irregularity that
was not limited to Dr. Pan, but experienced by all six of the tenure candidates); and (2)
the fact that the Philosophy Department and a steering committee had not formulated a
composite recommendation. The FPPC, by a three to two vote, recommended
reconsideration because in the absence of these procedural violations there was “at least
the potential of a different outcome.” The FPPC concluded its report by noting that it
understood that its charge was limited and that its recommendation for reconsideration
was “not an endorsement of a particular outcome.”
At some point, Muhlenberg Professor Susan Schwartz, a friend of Dr. Pan’s, told
President Taylor that she thought “there was a racial overtone in the Pan matter.” She did
not substantiate her allegation. In response, President Taylor met with the members of
the FPPC and noted that Pan brought a different intellectual point of view to the college
and that the college needed difference. Professor Schwartz’s comment also prompted
President Taylor to invite Dean Dretsch, Department Chair Schlecht, and Dr. Pan to a
meeting in his office to consider this allegation. During this meeting, according to
Taylor, Schlecht indicated that he did not think there was any bias on the part of the FEC,
“but someone who comes from [a] different culture can be misunderstood from time to
time.” According to President Taylor, Dr. Pan’s education, experience and background
were commendable, but Dr. Pan was unable to appreciate the standards that had to be met
7
for an award of tenure.
Although President Taylor reconsidered the merits of Dr. Pan’s tenure bid, he
chose to adhere to the FEC’s recommendation to deny tenure. He acknowledged that the
faculty evaluations of Dr. Pan were very positive, but explained during his deposition that
“it was still bad coming out of the students. The teaching was bad. Teaching is very
important.” According to President Taylor, the “reason that Dr. Pan did not receive
tenure is that he did not feel it was a priority to meet the standards of the college that it
has been using for many, many decades.”
At a final meeting between President Taylor and Dr. Pan in August, President
Taylor conveyed his decision to deny Dr. Pan’s application for tenure. According to Dr.
Pan, Taylor
tried to understand why the FEC was negative about my tenure eligibility. .
. And he tried to understand in my favor. He said, you know, they don’t
understand you. They’re playing American chess and you’re playing go.
Go means a Japanese chess game. That’s why . . . they don’t understand
you. That’s what he said. That made a deeper impression on me because
he used a metaphor.
Taylor acknowledged making the comment, and explained that he was trying to make a
“philosophical point” because the game of “go” “takes a very substantial mind to play”
and it was “only played by people that have great respect.”
Dissatisfied with the denial of his tenure application, Dr. Pan filed a charge of
national origin discrimination in December 1999. The EEOC eventually filed a complaint
on his behalf. The District Court granted Muhlenberg’s motion for summary judgment.
8
It rejected Muhlenberg’s contention that the EEOC failed to establish a prima facie case
because Dr. Pan was not qualified. The Court acknowledged that Muhlenberg had
offered a legitimate, nondiscriminatory reason for its action, explaining that it had denied
Dr. Pan’s bid for tenure because he failed to satisfy the college’s standard of “excellence”
in teaching required for an award of tenure. The District Court concluded that the EEOC
had not demonstrated that Muhlenberg’s reason for denying tenure was pretextual. The
EEOC filed this timely appeal.
The District Court appropriately concluded that the EEOC established a prima
facie case of discrimination. In Bennun v. Rutgers State University, 941 F.2d 154, 176
(3d Cir. 1991), we instructed that there is “no need to sift through [a tenure applicant’s]
credentials in any detail in connection with his prima facie case.” It is sufficient if the
evidence places the candidate in the middle group of candidates for whom tenure could be
either granted or denied. Roebuck v. Drexel Univ., 852 F.2d 715, 726 (3d Cir. 1988). To
be sure, Dr. Pan met this requirement.
In order to survive summary judgment when a Title VII plaintiff makes out a prima
facie case and the employer has proffered a legitimate, nondiscriminatory reason for its
action, “a plaintiff must point to some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d
9
759, 764 (3d Cir. 1994). It is not enough to show that the employer was wrong or
mistaken in taking such action because the issue is “whether the discriminatory animus
motivated the employer. . . .” Id. at 765. Rather, the plaintiff must demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the
proffered reason that a reasonable factfinder could disbelieve it and infer that the
employer did not act for the asserted reason. Id.Consistent with this framework, we have instructed that a plaintiff must
demonstrate more than just a denial of tenure in the context of a disagreement about the
candidate’s teaching abilities. Bennun, 941 F.2d at 170; Molthan v. Temple University,
778 F.2d 955, 962 (3d Cir. 1985). Accordingly, we do not sit “as a super tenure review
board . . . . It is not for us to weigh the evidence and determine whether we agree with the
University’s assessment. . . .” Roebuck, 852 F.2d at 731. As we recognized in Equal
Employment Opportunity Commission v. Franklin and Marshall College, 775 F.2d 110(3d Cir. 1985), “it is neither for the EEOC nor for the courts to reevaluate a candidate’s
qualifications . . . . The oft times difficult decision to promote or to grant tenure shall be
left exclusively to this nation’s colleges and universities so long as the decisions are not
made, in part large or small, upon statutorily impermissible reasons.” Id. at 117 (citation
omitted).
After a thorough review of the record, we conclude that a reasonable factfinder
could not conclude that the decision to deny Dr. Pan’s tenure application was motivated
10
by a discriminatory animus. At most, the evidence establishes that there was a
disagreement about Dr. Pan’s teaching abilities. The FEC determined, after reviewing
Dr. Pan’s written file and interviewing him personally, that Dr. Pan’s teaching, though
“good,” did not meet the standard of “excellence” required for tenure. The FPPC,
however, concluded that the FEC had not given adequate consideration to Dr. Pan’s
written file. Yet nothing in the report of either the FEC or the FPPC suggests that Dr.
Pan’s heritage played any part in the denial of his tenure application.
The EEOC equates the FPPC’s report with the grievance committee’s report in
Stewart v. Rutgers State University, 120 F.3d 426 (3d Cir. 1997). There, we reversed a
grant of summary judgment for the University, explaining that the District Court had
failed to consider the grievance committee’s conclusion that the denial of tenure was
arbitrary and capricious and that such evidence was probative of a racial animus. Id. at
434 n.5. Stewart is distinguishable on its facts and is not controlling. Unlike Stewart,
where the professor specifically alleged race and gender discrimination, and the grievance
committee observed that some of the University’s conduct was not consistent with its
affirmative action initiatives, there is nothing in the FPPC’s report suggesting that Dr.
Pan’s nationality adversely affected his bid for tenure. Moreover, while the grievance
committee in Stewart stated that the professor’s rejection “could not have been reached by
reasonable evaluators,” 120 F.3d at 430, here there was evidentiary support in the
negative statements by alumni and the low SIRs, as well as in the less-than-favorable
11
personal interview, to support the FEC’s conclusion that Dr. Pan failed to meet
Muhlenberg’s standard for tenure which was “excellence in teaching.” Indeed, even the
FPPC noted that the FEC had neither misrepresented the alumni comments nor placed
inappropriate reliance on Dr. Pan’s SIRs.
We recognize that two deviations from Muhlenberg’s rules occurred. Neither
procedural irregularity can be reasonably related to Dr. Pan’s nationality, as our
description of them, supra, makes clear. Accordingly, these irregularities can not cast
doubt on Muhlenberg’s reason for denying tenure, and do not give rise to an inference
that an anti-Chinese animus flavored the FEC’s recommendation. Cf. Weinstock v.
Columbia Univ., 224 F.3d 33, 45 (2d Cir. 2000) (rejecting contention that series of
procedural irregularities in tenure process showed discriminatory intent because there was
no evidence that plaintiff’s sex played a role in the alleged irregularities); Bickerstaff v.
Vassar College, 196 F.3d 435, 452 (2d Cir. 1999) (acknowledging that procedural
irregularities may raise question as to reliability of the tenure decision, but pointing out
that irregularities at issue were not race related).
Nor are we persuaded that President Taylor’s remark about Dr. Pan playing “go”
is evidence that Taylor’s decision to adhere to the FEC’s recommendation was based on
Dr. Pan’s heritage. We agree with the District Court that this remark “referred to the
interaction between the FEC and Dr. Pan, rather than his own views.”
The other comments regarding Dr. Pan’s culture do not give rise to inference of
12
discrimination either. They were made in the midst of inquiring into Professor
Schwartz’s unsubstantiated allegation that the denial of tenure was marred by racial
overtones. Indeed, Professor Schwartz’s statement, which is inadmissible for purposes of
establishing the existence of a discriminatory animus, see Pamintuan v. Nanticoke Mem’l
Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999), was the event that prompted Taylor to
inquire into the issue of Dr. Pan’s culture. Title VII encourages employers to heed
allegations of this nature. No employer should be placed in a Catch-22 where it may face
liability because it has failed to respond to an allegation of discrimination, and also face
liability because it has in fact responded. An inquiry into an allegation of discrimination
should not itself become evidence of discrimination merely because those charged with
conducting the inquiry have discussed the allegation frankly and considered all the
possibilities. As always, statements by an employer must give rise to a reasonable
inference of discrimination before a jury question is presented. Cf. Lim v. Trustees of
Indiana Univ., 297 F.3d 575, 580 (7th Cir. 2002) (concluding that president’s letter
acknowledging concern about tenure was not inappropriate in light of the fact that an
EEOC charge had been filed and that it was speculation to conclude that the letter
established discriminatory intent).
In sum, we conclude that the EEOC failed to show more than a denial of tenure in
the context of a disagreement about Dr. Pan’s teaching ability. There is nothing to
reasonably suggest that Dr. Pan’s Chinese heritage was a factor in Muhlenberg’s decision
13
to deny tenure.2 Accordingly, the District Court did not err in granting summary
judgment for Muhlenberg. We will affirm the judgment of the District Court.
2 While we hold that there is insufficient evidence in the summary judgment record to
show that the University's tenure decision was based on race or national origin, our opinion
should not be interpreted as expressing any view as to whether the University was correct in its
evaluation of Dr. Pan' s abilities as a scholar or teacher. Those are questions that we have neither
the authority nor the expertise to decide.