                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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"EEOC v. Muhlenberg College" (2005). 2005 Decisions. Paper 1174.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1174


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                                                            NOT PRECEDENTIAL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.
