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LOPEZ v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS

November 12, 2004.

JUAN LOPEZ, Plaintiff,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS AT CHICAGO, LYN RAGSDALE, LAWRENCE POSTON, STANLEY FISH, CHARLOTTE A. TATE, CLARK HULSE, SYLVIA MANNING, JOHN DOES, and JANE DOES, Defendants.



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Juan Lopez ("Lopez") brought this action against the Board of Trustees of the University of Illinois at Chicago ("UIC" or "the University"), along with named and unnamed individuals employed by the University ("individual defendants").*fn1 In his Second Amended Complaint, Professor Lopez alleges that UTC discriminated against him based on his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Professor Lopez also alleges that the individual defendants retaliated against him in violation of the First Amendment and denied him his right to procedural due process under the Fourteenth Amendment. See 42 U.S.C. § 1983. The University and individual defendants have moved for summary judgment on all three counts. For the following reasons, Defendants' motion is granted. I. SUMMARY JUDGMENT STANDARDS

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The existence of a factual dispute is not sufficient to defeat a summary judgment motion, instead the non-moving party must present definite, competent evidence to rebut the summary judgment motion. See Vukadinovich v. Board of Sch. Trs., 278 F.3d 693, 699 (7th Cir. 2002) (quotation and citation omitted). The Court considers the evidence in a light most favorable to the non-moving party and draws all reasonable inferences in his favor. See Anderson, 477 U.S. at 255; Williamson v. Indiana Univ., 345 F.3d 459, 462 (7th Cir. 2003).

  II. UNDISPUTED FACTS

  A. Parties

  1. Professor Juan Lopez

  Dr. Juan Lopez is a Cuban exile who left Cuba when he was 13 years-old and settled in the Chicago area. (R. 60-1, Pl.'s Statement of Add'l Facts, ¶ 1.) In 1978, Professor Lopez graduated from the University of Chicago with a Bachelor of Arts degree in Political Science. Professor Lopez also has a Masters and Ph.D. in Political Science from the University of Chicago. (Pl.'s Stmt. ¶ 1.) In 1995, UIC hired Professor Lopez as an assistant professor with a 75 percent appointment to the Political Science Department and a 25 percent appointment to the Latin American and Latino Studies ("LALS") Program. (Id. at ¶ 2.) Professor Lopez's specialty is comparative politics with an emphasis on Latin American and Cuba. (Id. at ¶ 5.) At the time the University hired Professor Lopez, the Political Science Department was actively seeking to hire new Hispanic and African American faculty members and ultimately hired two new Hispanic faculty members, including Professor Lopez, and a new African American faculty member. (Id. at ¶ 3.)

  2. University of Illinois at Chicago

  The University is an accredited public research university with a total enrollment of 26,000 undergraduate, graduate, and professional students. (R. 50-1, Def.'s Rule 56.1 Statement of Material Facts ¶¶ 2, 3.) The University employs approximately 1,300 faculty members who are tenured or working toward tenure. (Def.'s Stmt. ¶ 4.) The University requires that full-time faculty must attain tenure within a proscribed period. (Id. at ¶ 6.) The University employs tenured track faculty members on a probationary basis of a year-to-year contract. (Id. at ¶ 8.) A faculty member on the tenure track must submit his materials for tenure consideration no later than his sixth year of probation. (Id. at ¶ 9.)

  The tenure process is a complex, ruled-governed system controlled by the University's Promotion and Tenure Policies and Procedures. (Pl.'s Stmt. ¶ 6.) According to the Promotion and Tenure Policies and Procedures for 2001-02, administrators and fully tenured faculty members on the candidate's committee evaluate tenure candidates on both achievement and the promise of future achievement in the areas of research, teaching, and service. (Pl.'s Stmt. ¶ 6; R. 60-1, Pl.'s Rule 56.1 Resp. ¶ 7, R. 51-1, Def.'s Combined Materials Vol. I, Tab 7, Hulse, Decl., Tab A, at U00013, U00027-29.) The tenure process includes mid-probation evaluations, including a third year review, which describes a faculty members' progress toward tenure at the third year of what is usually a six or seven year process. (Pl.'s Stmt. ¶ 7.) Before the final tenure process, the University submits tenure application files to external reviewers at other research universities for their evaluation. (Id. at ¶ 12.) After receiving the external reviews and prior to the final tenure evaluation, a working committee evaluates the candidate's progress toward achieving tenure. (Def.'s Stmt. ¶ 50.) Next, the departmental tenure committee reviews the applicant's tenure packet and then votes on whether the applicant should receive tenure. (Id. at ¶ 84.) The committee's vote is advisory to the department chair, who makes the final decision on behalf of the candidate's particular department. (Id. at ¶ 88.) The Executive Committee of the College of Liberal Arts and Sciences then reviews the applicant's tenure case. (Id. at ¶ 105.) Finally, the Campus Promotion and Tenure Committee reviews a candidate's tenure application and makes the final determination. (Id. at ¶ 113.) If the candidate receives a negative decision on his tenure bid, he may file an appeal with the Vice Chancellor for Academic Affairs. (Id. at ¶ 124.)

  B. Professor Lopez's Promotion and Tenure Review Process

  1. Mid-Probation Evaluations

  Rasma Karklins, who at the time was the Chair of the Political Science Department, was on Professor Lopez's third year review committee and selected the other members of the committee, including another specialist in comparative politics, Professor B.C. Koh, and Professor Dick Johnson, a non-comparativist. (Pl.'s Stmt. ¶ 9.) In 1998, the third year review committee gave Professor Lopez a positive review. (Pl.'s Stmt. ¶ 8; R. 61-1, Pl.'s Combined Materials Vol. I, Karklins Dep., Tab11, Ex. 8, at U00145-151.) The committee characterized Professor Lopez as "an excellent scholar" who had published several important articles and noted that "the quality of his publications is very high." (Id.) The committee also noted that Professor Lopez is an "extremely dedicated teacher whose performance is clearly above the norm" and that he "has carried a heavier service load than one often finds among junior faculty members." (Id.; Karklins Dep., Tab 11, Ex. 8 at U000150.) The committee concluded that Professor Lopez "is making good progress towards promotion" and "should be a strong candidate for tenure if his book is accepted for publication in due course." (Id.; Pl.'s Tab 11, Karklins Dep., Ex. 8 at U000151) (emphasis in original).

  A committee representing the LALS Program also prepared a third year review of Professor Lopez's progress toward tenure. (Def.'s Stmt. ¶ 38.) On a general level, the LALS committee concurred with the Political Science committee that Professor Lopez had made sufficient progress to pass his third year review. (Def.'s Stmt. ¶ 42; Def.'s Tab 1, Aparicio Dep., Ex. 9 at U00498.) As to Professor Lopez's research, the LALS committee was concerned with his theory and methodology. (Id.) The committee noted: "Prof. Lopez has studied with some of the leading students of democratic transition in international and Latin American contexts. He knows much. Yet, the application of the theories he has studied may require further nuancing and self-critical reformulation." (Def.'s Tab 1, Aparicio Dep., Ex. 9 at U00499.) The LALS committee also commented that Professor Lopez's teaching ratings were very positive and concluded that Professor Lopez's service was satisfactory for a junior professor on a 25 percent appointment. (Id.) In March of 2000, Professor Lopez' fifth year review committee, comprised of Professors Karklins and Koh, issued a report to the Political Science Department's tenured faculty regarding Professor Lopez's progress toward tenure. (Def.'s Stmt. ¶ 45; Def.'s Tab 10, Karklins Dep., Ex. 8 at U00160.) In the report, the committee stated that Professor Lopez was making steady and good progress toward tenure and that he was working on three book projects. (Def.'s Tab 10, Karklins Dep., Ex. 8 at U000160.) One book involved the United States' policy toward Cuba, another evolved from his Ph.D. thesis on Argentina, and the third, a co-authored piece, addressed transitions and non-transitions from communism in Eastern Europe, Latin America, and Cuba. (Id.) The committee also noted that Professor Lopez had received UIC's Teaching Recognition Program Award and that he was very active in departmental meetings and student lectures. (Id.) The fifth year report concluded: "[T]he review committee urges Juan to focus on having at least one of his books in print or accepted for publication by the time his tenure materials have to be sent out for review in early summer 2001." (Id.)

  2. Professor Lopez's Publications

  Professor Lopez decided not to publish his book on Argentina entitled, Economic Performance: Argentina a Comparative Perspective, which related to the importance of political institutions for economic development and success. (Def.'s Stmt. ¶ 45; Def.'s Tab 10, Karklins Dep., Ex. 8 at U00147.) Professor Lopez's Argentina research was broadly based on his doctoral dissertation at the University of Chicago. (Karklins Dep., Ex. 8 at U00147.) Instead, Professor Lopez wanted to publish a book on the Cuban embargo given the focus at the time on why the Castro government had enduring power when communism had fallen in Eastern Europe. (Def.'s Stmt. ¶ 45.) Professor Lopez finalized his manuscript on Cuba, ultimately entitled Democracy Delayed: The Case of Castro's Cuba, prior to the final disposition of his request for tenure, but Professor Lopez did not have it ready for transmittal to publishers until the spring of 2001. (Id. at ¶ 53.) Professor Lopez's book followed the model of Juan Linz and Alfred Stepan, which examined the historic development of totalitarian regimes. (Id. at ¶ 54.) Although the Linz/Stepan model was normally used to examine past events, Professor Lopez went further and used the model in an attempt to predict the best way to bring democracy to Cuba. (Id. at ¶ 55.) Professor Lopez concluded that a necessary means to bring democracy to Cuba was to tighten the United States' embargo on Cuba and significantly increase the United States' funding of Radio Marti, a radio station similar to Radio Free Europe, designed to bring outside information to Cuba. (Id.)

  Initially, the University of Pennsylvania Press indicated that it planned on publishing Professor Lopez's book. (Pl.'s Stmt. ¶ 18.) At the last minute, however, the University of Pennsylvania Press decided not to publish the book because it chose not to publish anything additional in the area of political science. (Id.) Ultimately, John Hopkins University Press, a highly respected academic press, accepted Professor Lopez's book for publication in early September of 2001. (Id. at ¶ 20.) Both Transaction Press and Lexington Press, also well-regarded publishers, offered to publish Professor Lopez's book, but Professor Lopez chose John Hopkins University Press because it was more prestigious. (Def.'s Stmt. ¶ 59.)

  3. External Reviews of Tenure File

  Next, five external reviewers analyzed Professor Lopez's tenure file, which included a partial manuscript of Democracy Delayed: The Case of Castro's Cuba. (Id. at ¶ 63.) In a June 22, 2001, letter to the external reviewers, Professor Karklins requested that they evaluate the quality of Professor Lopez's work and its standing in a national context. (Pl.'s Tab 11, Karklins Dep., Ex. 25, at U00239.) Specifically, Professor Karklins asked: "What do you see as his most important contributions? How ...


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