UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES FABUNMI, Dr.,
Plaintiff-Appellant,

v.
                                                                     No. 97-2597
UNIVERSITY OF MARYLAND AT
COLLEGE PARK,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-95-2243-CCB)

Argued: October 28, 1998

Decided: February 23, 1999

Before ERVIN and HAMILTON, Circuit Judges, and
MOON, United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Ethelbert Patrick, LAW OFFICE OF RICHARD
E. PATRICK, P.L.C., Alexandria, Virginia, for Appellant. Anne Love
Donahue, Assistant Attorney General, Baltimore, Maryland, for
Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney General of
Maryland, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Dr. James Fabunmi was denied tenure in the University of Mary-
land's Department of Aerospace Engineering ("Aerospace Depart-
ment"). Dr Fabunmi subsequently sued the University, claiming racial
and national origin discrimination under Title VII of the Civil Rights
Act. Following a bench trial, the district court ruled in favor of the
University. Dr. Fabunmi now appeals.

The record indicates that reasonable minds could-- and did -- dis-
agree as to whether Dr. Fabunmi merited tenure. Such disagreement
does not support a Title VII claim, however. Absent credible evidence
of unlawful discrimination, federal courts are obliged to refrain from
questioning the wisdom of academic tenure decisions. We affirm the
judgment of the district court.

I.

The district court took jurisdiction pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e(1) - 2000e(17).
This Court has jurisdiction over the timely appeal from a final order
of the district court pursuant to 28 U.S.C. § 1291.

II.

In 1981 the Chair of the Aerospace Department hired Dr. Fabunmi,
a black, Nigerian-born aerospace engineer, as an associate professor
of engineering. The previous year Dr. Fabunmi had applied for an
open faculty position within the department, but the departmental
search committee selected another, more highly-ranked applicant.
After the position was filled, the department Chair, believing that
Fabunmi would be a valuable addition to the Aerospace faculty,
obtained extra-departmental funds through a University-wide program

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intended to increase minority hiring. These additional funds enabled
the Chair to create a second tenure-track position for Dr. Fabunmi.

Dr. Fabunmi applied for tenure in 1985. As per standard University
procedure, Dr. Fabunmi's application was reviewed by an inter-
departmental tenure committee. This committee voted against a grant
of tenure to Dr. Fabunmi. The committee then forwarded a report of
its deliberations and a letter from the Chair recommending against
tenure to the Dean of the College of Engineering. The Dean, who had
learned of a newly-received outside letter of recommendation favor-
able to Dr. Fabunmi, asked the departmental committee to reconsider
its vote. The committee met once again, and again voted to deny ten-
ure. Pursuant to a request by the University administration, the Dean
made certain that the department had committed no procedural errors.
Declaring himself satisfied with the handling of the case, the Dean
confirmed the denial of tenure.

Written policies govern tenure reviews at the University of Mary-
land. The University's statement of tenure policies provides that an
applicant shall not have the right to an appeal when neither the depart-
mental tenure committee nor the department chair has recommended
tenure. Despite the existence of this policy, the Chancellor of the Uni-
versity of Maryland appointed an ad hoc committee to review the
conduct of the Aerospace Department in Dr. Fabunmi's case. Both the
ad hoc committee and the Chancellor gave their sanction to the
Dean's final denial of tenure.

Soon thereafter, Dr. Fabunmi filed a discrimination complaint with
the Equal Employment Opportunity Commission (EEOC). When he
received a "right to sue" letter from the EEOC, Dr. Fabunmi filed suit
in district court, alleging that the University's rationale for denying
him tenure was a pretext for unlawful discrimination. As evidence of
this pretext, Dr. Fabunmi asserted that his credentials were compara-
ble to those of two other faculty members who had recently been
granted tenure in the Aerospace Department, and that his tenure
review had been tainted by procedural irregularities. Dr. Fabunmi fur-
ther alleged that on several occasions the Chair of the Aerospace
Department made statements indicative of racial animus.

The district court held a lengthy hearing on the matter. The record
indicates that the court had the benefit of a very thorough presentation
of the evidence, including direct testimony from those members of the

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Aerospace Department who were involved in Dr. Fabunmi's tenure
review. The district court was also provided with all relevant docu-
ments from Dr. Fabunmi's tenure file. At the conclusion of this hear-
ing the court found that Dr. Fabunmi had not proven that he was
denied tenure as the result of racial discrimination or of discrimina-
tion based upon his national origin.

III.

We review tenure decisions with "trepidation," mindful that it is the
University, not this Court, which rightfully determines a candidate's
scholarly potential. Jiminez v. Mary Washington College, 57 F.3d
369, 376 (4th Cir. 1995). A professor who pursues a Title VII action
in a tenure case cannot prevail merely by demonstrating that his ten-
ure vote was animated by interpersonal conflict or petty academic
politics. Rather, as does any Title VII plaintiff, a professor bears the
ultimate burden of persuading this Court that unlawful discrimination
has in fact occurred. See id. at 377 (citing Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

The district court found that Dr. Fabunmi failed to prove discrimi-
nation by a preponderance of the evidence. In a thoughtful opinion
from the bench, the court examined the circumstances of Dr. Fabun-
mi's hiring, employment, and tenure review, and acknowledged the
poor personnel management practices within the Aerospace Depart-
ment. Yet the court found no credible basis for a claim of racial or
ethnic bias in the tenure decision. We concur.

Dr. Fabunmi also asserts as error the district court's grant of the
defendant's motion in limine to exclude the testimony of Dr. Mark
Lewis. Dr. Lewis is a white member of the Aerospace faculty who
was tenured eight years after Dr. Fabunmi's review took place. Dr.
Lewis allegedly received preferential treatment from the Dean of the
College of Engineering during what became a protracted and conten-
tious review process. We find that the district court did not abuse its
discretion when it determined that the questionable probative value of
Dr. Lewis' testimony was outweighed by the potential for an irrele-
vant digression into the merits of the Lewis tenure decision.

AFFIRMED

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