The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on the Amended Motions for Summary Judgment filed by Defendants, Board of Trustees of the University of Illinois, Richard Herman, David E. Daniel, Robert Averback, John H. Weaver, Ian M. Robertson, and Joseph E. Greene, and related motions. Following this court's careful consideration of the arguments of the parties and the voluminous documents provided by the parties, this court rules as follows: (1) Defendants' Amended Motions for Summary Judgment (#97, #98, #99, #100, #101, #102, #103) are GRANTED; (2) Defendants' Motion to Strike Plaintiff's Affidavit (#123) is DENIED as moot; (3) Plaintiff's Motion to Strike Portions of the Reply of Defendants Greene and Board of Trustees (#125) is DENIED as moot; and (4) Defendant Herman's Motion to Amend Reply (#127) is GRANTED. Because the Amended Motions for Summary Judgment have been granted, the Motions in Limine (#130, #131, #132, #133, #134, #135, #136, #137, #138, #139) filed by the parties are MOOT.
Plaintiff, Yong-Qian Sun, is of the Asian race and his national origin is the People's Republic of China. On August 21, 1997, Plaintiff was hired as an assistant professor at the University of Illinois. Plaintiff was employed in the Department of Materials Science and Engineering, which is a Department in the College of Engineering. Assistant professors are on a tenure track and are evaluated in the fifth year of their employment for promotion to associate professor with tenure. If a decision to deny promotion and tenure is made, the assistant professor is issued a notice of nonreappointment, and the professor's employment is ultimately terminated. Plaintiff was considered for tenure during the 2002-2003 academic year. At that time, Defendant John Weaver was Department Head and Defendant David Daniel was Dean of the College of Engineering. Defendants Robert Averback, Joseph Greene and Ian Robertson were tenured faculty members in the Department. Defendant Richard Herman was the Provost, or Chief Executive Officer, of the faculty for the University.
In 2001, Plaintiff received the Donald Burnett Teacher of the Year Award. This award was given each year to reward excellence in undergraduate teaching in the Department. The recipient received a monetary award of about $8,000 that was funded by Burnett, an alumnus of the Department. The winner of the award was announced in College and Department publications. In April 2002, the award winner was chosen by the two previous winners, Plaintiff and Pascal Bellon, who received the award in 2000. Professors who were recent recipients of the award were not eligible to receive the award.
Plaintiff testified that Weaver had suggested to Plaintiff that he be considered for the award. However, in April 2002, Plaintiff and Bellon selected Averback as the winner of the award based upon his ranking in the Instructor and Course Evaluation System. On April 9, 2002, Plaintiff sent an e-mail to Weaver recommending that Averback be given the Burnett award. According to Plaintiff, Weaver was extremely upset with Plaintiff because Weaver was not selected for the award. Plaintiff testified that Weaver's attitude toward him changed dramatically after Weaver was not selected for the award. Prior to this time, Weaver was very positive toward Plaintiff and had even nominated Plaintiff for a prestigious research award. Plaintiff testified that, after the award winner was selected, in May 2002, Weaver informed him that he would no longer have access to income generated by his teaching of online courses. Plaintiff was the only member of the Department who taught online courses, so Weaver's decision to change the policy on online courses only affected Plaintiff. Because of Plaintiff's problems with Weaver, Plaintiff and Bellon had a discussion with Phil Geil and Ken Schweizer, who received the award in 1999 and 1998 respectively. They decided that, in the future, the winner of the Burnett award would be selected by the previous four winners of the award, rather than the previous two.
It was the primary responsibility of the Department's Promotion and Tenure Committee to prepare and collect information about tenure candidates. This responsibility consisted of obtaining certain biographical information from the candidate, choosing external evaluators and obtaining a written evaluation from the chosen external evaluators, and compiling internal evaluations of the candidate's teaching, research, and public service. The information needed for making the tenure recommendation was compiled in a document known as a dossier.
In the spring of 2002, the members of the Department's Promotion and Tenure Committee who were involved in the preparation of materials for Plaintiff's dossier were Defendants Averback and Greene, as well as David Payne and Ken Schweizer. Averback was acting as chairman of the committee for the first time. In addition to being on the committee, Greene was also the Director of the Materials Research Laboratory (MRL) which received block funding from the United States Department of Energy which ranged from $8 to $9 million per year. As Director, Greene had budget authority over this block grant money and was considered powerful and influential by some members of the faculty because he controlled the research funding for a large number of professors in the Department. On May 15, 2002, Greene said at a faculty meeting that he would not take any Chinese graduate students and that he would not interview them. Following the meeting, Weaver asked Greene about the comment. Greene said it was a stupid remark and that, while he had personal issues with human rights abuses by the Chinese government, he had no problems dealing with Chinese people. Greene testified that this was a "throwaway remark" made to express his dissatisfaction with the length of a discussion on the Department's recruitment of international students, including those from Asia. It is undisputed that, in fact, Greene had previously accepted and worked with two Chinese graduate students.
Greene's remark resulted in an exchange of e-mails, including an e-mail from Weaver to all of the professors in the Department which stated "Friends, This is to reaffirm something that should be part of our department culture--that we welcome people from all lands, of all backgrounds, and that we seek to provide a supportive atmosphere for them to do the best work that they can." Weaver stated that this was true for "undergraduates, graduate students, postdocs, faculty, staff, and visitors" and that this was "important." Greene responded with an e-mail which stated that "[w]e should have agreed upon departmental [guidelines] (not strict numbers!) regarding the fraction of US/foreign graduate students we admit. I suggest that a reasonable goal would be 2/3 US and 1/3 foreign with a 'maximum' of 50% foreign (emphasis in original)."
In the spring of 2002, the Department Promotion and Tenure Committee placed Averback in charge of obtaining external evaluators for Plaintiff. This task was governed to a large degree by Provost Communication No. 9, a lengthy and detailed document which set out instructions for preparing promotion papers. The document included guidelines and procedures for obtaining external evaluations. Communication No. 9 provides that letters from at least four scholars or professional specialists outside the University are required for each nominee. It also provides that the letters must be appropriate in several dimensions, including that they must be sufficient in number, from appropriately selected individuals at peer institutions, from individuals of appropriate rank, and from objective evaluators without conflicts of interest. Communication No. 9 provides that the candidate must be provided with an opportunity to nominate external evaluators but that the department must also seek letters from evaluators other than those suggested by the candidate. Communication No. 9 states that a "majority of the external evaluations should come from the department's, rather than the candidate's, nominations" and that the department should "obtain a slightly larger number of opinions" from persons not nominated by the candidate. Communication No. 9 also states that the "candidate has no privilege of vetoing external reviewers, but may indicate individuals whom he or she considers inappropriately biased." However, the "candidate cannot reasonably request avoidance of more than one or two individuals." Communication No. 9 states that the person obtaining the external evaluations should be "selective in choosing evaluators." Communication No. 9 states that the external evaluations "are critical components of the dossier and play a major role in the decision-making process." The identity of the external evaluators is confidential and not disclosed to the tenure candidate.
On May 21, 2002, Plaintiff suggested, in writing, five external evaluators. Averback testified that he determined that three of the evaluators suggested by Plaintiff were inappropriate because they were from outside of the University's peer rank. It is undisputed that the Department is one of the highest ranked departments of its kind in the country, and the University's College of Engineering is among the highest ranked Colleges of Engineering. This fact limited the number of evaluators who could be considered appropriate based upon Communication No. 9. Averback solicited letters from the other two evaluators suggested by Plaintiff. Averback gave the names to Weaver, and Weaver signed the formal letters requesting an evaluation. One of these suggested evaluators, V. Vitek, provided an evaluation which was included in Plaintiff's dossier. The other suggested evaluator, F.R.N. Nabarro, wrote back and, in his response, included a comment very critical of a paper co-authored by Plaintiff. Averback testified that, based upon this comment and also the fact that Nabarro was located outside the United States, he determined that it would not be helpful to Plaintiff to include a letter from Nabarro.
Plaintiff provided one name, in writing, of an evaluator he did not want used, A.S. Argon. No letter was solicited from Argon. Plaintiff also orally informed Averback of additional persons he wanted Averback to avoid. Averback testified that, because of problems he encountered with obtaining a sufficient number of qualified external evaluators, he eventually requested letters from Michael Mills and Patrick Veyssiere. Plaintiff had requested that Mills not be used as an evaluator because Plaintiff had provided a negative review of an article Mills submitted for publication. Although the review was anonymous, Plaintiff believed Mills had identified Plaintiff as the review's author. Mills was suggested as a potential external evaluator by sources inside and outside of the Department, and Averback decided to contact him about providing an evaluation. According to Plaintiff, he also asked that Veyssiere not be used, but Averback did not recall Plaintiff giving him Veyssiere's name. Averback testified that, after consultation with Bellon, he decided to contact Veyssiere about providing an evaluation. Both Mills and Veyssiere wrote evaluation letters which were included in Plaintiff's dossier. Averback obtained a total of seven external evaluation letters. While several faculty members stated that they felt the letter from Mills was somewhat weak, the record shows that the majority of faculty members who expressed an opinion stated that the external evaluation letters included in Plaintiff's dossier were good.
Before Weaver became Department Head in 2000, the four members of the Department's Promotion and Tenure Committee voted on candidates for tenure and made a recommendation to the Department Head regarding whether the candidate should be given tenure. After Weaver became Department Head, this procedure was changed so that the recommendation to the Department Head was based upon the vote of all tenured faculty in the Department. The first candidate for tenure subject to this procedure was Pascal Bellon, who was granted tenure in 2001, the year before Plaintiff was considered for tenure. In Bellon's case, the faculty met in the fall of 2001 for a vote on whether the Department Head should recommend Bellon for tenure. However, the meeting adjourned without a vote. After a period of time, the faculty met again for further discussion and a vote. Ten faculty members voted in favor of tenure, ten faculty members were opposed to tenure, and one faculty member abstained. On September 27, 2001, Weaver wrote to Bellon and advised him that he intended to recommend that Bellon be issued a notice of nonreappointment.
Bellon appealed this decision to the faculty. During the period between the initial faculty vote and the appeal meeting, Bellon met with the faculty members individually to explain his work. In addition, Averback and Gert Ehrlich, faculty members in Bellon's area, forwarded a memo to Weaver which was circulated to the Department, in which they criticized the external evaluators. They also asserted that there were inaccuracies presented at the meetings concerning Bellon's work. Weaver determined that it was appropriate that the Department contact additional external evaluators. The additional materials obtained from those evaluators were made available to the faculty at the second meeting. Additionally, Bellon's dossier was updated and made current as of the date of the appeal meeting. This updating included some additional invitations to speak and a list of five submitted papers (not yet approved, though all were subsequently accepted). At the appeal meeting, a discussion occurred and a vote was taken. On this occasion, the faculty voted seventeen to four in favor of Bellon's tenure. On November 8, 2001, Weaver forwarded Bellon's dossier to Dean Daniel with a recommendation that he be given tenure. Following this process, Bellon was granted tenure.
In Plaintiff's case the following year, the first faculty meeting to discuss his candidacy for tenure was held on September 20, 2002. As Chairman of the Promotion and Tenure Committee, Averback presided over the meeting. This was the first such meeting that Averback presided over as Chairman. Averback began the meeting by presenting the promotion standard on an overhead transparency and by discussing the necessary qualifications for tenure. Averback then stated that Plaintiff did not meet these standards in some areas. Weaver testified that he told the faculty that if they weren't certain about how to vote, they should vote "no." Bellon was chosen to make a presentation of Plaintiff's case. Weaver testified that Bellon was chosen because he was a supporter of Plaintiff, he was in the same field as Plaintiff, and had gone through the tenure process the year before. Bellon gave a positive presentation supportive of Plaintiff's case. At the meeting, both Weaver and Greene made remarks critical of Plaintiff. Weaver also made comments which downplayed the importance of teaching in a tenure decision.
On September 23, 2002, Plaintiff presented his colloquium. In his colloquium, Plaintiff discussed the research he had done at the University and answered questions after his presentation. Prior to the colloquium, Plaintiff met with Robertson to present a "rehearsal" of his colloquium material because Robertson was familiar with Plaintiff's work and was not going to be able to be present for Plaintiff's presentation to the faculty. Robertson urged Plaintiff to revise the colloquium to make it have more of an impact on non-experts in Plaintiff's field. Plaintiff also met with Bellon who suggested some changes. Because of these revisions, Plaintiff had to replace some of his presentation slides with handwritten notes which he used during his presentation. Weaver was critical of the use of handwritten transparencies.
After the colloquium, another faculty meeting was held on October 2, 2002. The faculty discussed Plaintiff's qualifications for tenure and then voted on whether Plaintiff should be recommended for tenure. Prior to the vote, Weaver discussed Plaintiff's candidacy with some members of the faculty and made negative comments. Bellon testified that Weaver asked him how he was going to vote and suggested that Plaintiff was not the kind of person to be stuck with for 25 years and should not be promoted. Bellon testified that he told Weaver he had a different opinion and walked away. Bellon testified that he felt pressured by Weaver, but voted in favor of tenure for Plaintiff. James Economy, the former head of the Department, testified that Weaver approached him two to three times to make negative comments about Plaintiff and also encouraged him not to come to the meeting to vote. However, Economy testified that Weaver was not successful in influencing his vote.
Averback testified that, prior to this meeting, he called Mills to get additional information because he was not sure how to vote. This conversation occurred after Mills submitted his evaluation letter. Averback did not discuss his conversation with Mills at the meeting.
At the meeting on October 2, 2002, the faculty voted by secret ballot. The faculty ballots were counted at the meeting and found to be thirteen against tenure and six in favor. Shortly thereafter, Weaver asked for a vote of the Department Promotion and Tenure Committee. That vote was four to zero against tenure. Based upon the negative vote, Weaver wrote to Plaintiff to notify him that Weaver was going to recommend against tenure and that Plaintiff had a right to appeal.
After the Department's negative recommendation, Plaintiff asked the faculty to reconsider and prepared a written appeal document which was circulated to the faculty. Prior to the appeal meeting of the faculty, approximately 21 letters in support of Plaintiff were received from persons outside of the University, some of them written by very well-known individuals in Plaintiff's field. Weaver, after consulting with Dean Daniel, sent everyone in the Department an e-mail suggesting that the letters were not appropriate, and that he believed they should not be considered. This was because the letters were not solicited with the same guidelines that the University imposes on communications with external evaluators. However, the letters were provided to all members of the faculty prior to the appeal meeting.
On October 16, 2002, Plaintiff asked a secretary of the Department for Burnett's telephone number. According to Plaintiff, Weaver later entered Plaintiff's office and said, "Don't fuck with people outside the University!" "Don't fuck with alumni!" "You are screwing yourself!" "Five minutes ago I thought you had a good brain to pass on to your children. I don't think so anymore!"
After Weaver left the room, Plaintiff wrote a letter to Weaver setting out these statements and protesting Weaver's behavior. Weaver later admitted making some of the statements attributed to him by Plaintiff.
On October 28, 2002, Plaintiff spoke with Dean Daniel and complained that his unsuccessful bid for tenure was a result of Weaver's retaliatory activity. Plaintiff alleged to Daniel that Weaver inappropriately influenced the tenured faculty of the Department in retaliation for Plaintiff not nominating Weaver for the teaching award. Plaintiff also asked that the appeal of the negative decision be heard by a different committee. Subsequently, Dean Daniel spoke to four members of the Department, Geil, Schweizer, Averback, and Russ Jamison. All four faculty members told Daniel that Weaver's behavior was appropriate. Schweizer had suggested that Daniel speak to Jamison because Jamison was a quiet individual and perhaps someone Weaver might have influenced had he attempted to do so. Daniel also spoke to Weaver. Weaver affirmed that he did suggest to Plaintiff that the Department Head should be eligible for teaching awards. Weaver also admitted using profanity when he spoke to Plaintiff on October 16, but denied any inappropriate attempt to influence the faculty vote. On October 30, 2002, Daniel e-mailed Plaintiff and advised him that Daniel did not think Weaver behaved inappropriately relative to the promotion and tenure decision. Daniel also informed Plaintiff that "the original decision-making body is generally, if not always, the same body that considers that appeal."
The faculty met on October 30, 2002, to reconsider their recommendation. This meeting was chaired by Weaver as Department Head. Bellon testified that, at this meeting, he presented some of the information contained in the additional letters received by the faculty. The faculty again voted by secret ballot. The ballots were counted at the meeting and found to be nine votes in favor of tenure, nine votes against, and one abstention. Weaver wrote to Plaintiff the same day and advised him that the Department intended to affirm the original decision regarding the notice of nonreappointment. Subsequently, Weaver received an e-mail from Veyssiere, who wrote to Weaver complaining about the denial of tenure to Plaintiff.
On November 5, 2002, Plaintiff wrote to Gerald J. Janusz, the chairman of the Faculty Advisory Committee, and asked the committee to consider his grievance over the denial of tenure. The Faculty Advisory Committee is made up of representatives elected from the entire faculty body. It is a campus-wide body that is advisory to the Provost and only investigates procedural matters. It is undisputed that the Faculty Advisory Committee is not qualified and does not attempt to determine whether a candidate is entitled to tenure. On November 14, 2002, Janusz appointed a subcommittee to look into the matter. The members of the subcommittee were Paul Gerding, Lynn Barnett-Morris, and Jan Novakofski.
On November 22, 2002, Plaintiff filed a grievance with the College of Engineering Grievance Committee. In this grievance, Plaintiff stated that he would like the College Grievance Committee to investigate misconduct which occurred in the evaluation of his promotion in the Department. Specifically, Plaintiff alleged that: (1) Averback asked for negative comments from external evaluators and biased the evaluators against him; (2) Weaver was prejudiced against him because he did not nominate Weaver "for an award he did not deserve"; (3) Weaver verbally abused him and his children; (4) Weaver inappropriately influenced the committee meetings on his promotion by misrepresenting his contributions; (5) Weaver treated proxy votes discriminatorily by accepting negative votes and discarding positive votes; and (6) the same committee was improperly used to evaluate his appeal. Plaintiff's allegations regarding Averback were based upon statements supposedly made by Mills to the effect that Averback sought negative comments from him.
The Grievance Committee was composed of Lance Cooper, David Lange, Phillip Krein, Eric Loth, and Joseph Torrellas. The Grievance Committee conducted an investigation and looked into the procedures used to evaluate Plaintiff's case. The Grievance Committee did not look at Plaintiff's dossier or consider the substance of his tenure case. On December 27, 2002, the Grievance Committee issued its six-page report. The report stated:
The Grievance Committee finds that while there were certain areas in which departmental procedures, as well as the Department Head's handling, of Prof. Sun's promotion case could have been improved, it is our view that there were no procedural problems that ultimately resulted in an unfair or tainted adjudication of Prof. Sun's promotion case by the faculty of the Materials Science and Engineering Department. Consequently, as we believe that the earlier recommendation of the department to not promote Prof. Sun accurately reflects the collective wish of the tenured MatSE faculty, and resulted from a decision-making process that was in all respects consistent with the guidelines outlined in Provost Communications 9 and 10, we do not recommend that Prof. Sun's promotion case be reviewed in a second appeal.
In its report, the Grievance Committee discussed Plaintiff's specific allegations of misconduct. The Grievance Committee stated that it had contacted Mills by phone and "Mills denied that there had been any attempt by Prof. Averback or any other member of the MatSE department at UIUC to solicit from him negative comments about Prof. Sun." The Grievance Committee therefore concluded that the evidence did not support the allegation that negative referee comments were solicited by Averback or any other faculty member. The Grievance Committee also concluded that Averback's "reasons for not honoring all of Prof. Sun's secondary list of requested exclusions were reasonable and in accordance with Provost Communication 9" (emphasis in original). The Grievance Committee stated that in "addition to finding no evidence that the use of Prof. Mills as an external evaluator was procedurally improper, the Grievance Committee found no indication that Prof. Sun's case was in any way disadvantaged by Mills' letter."
The Grievance Committee also stated that "while there is a perception on the part of some MatSE faculty members that Prof. Weaver was too forceful in his attempts to sway faculty voting, particularly given his role as head of the department, there is no evidence that Prof. Weaver's actions were the reason that the voting faculty of MatSE ultimately did not support the promotion of Prof. Sun in either the original or appeals votes on his case." The Grievance Committee also found no evidence that the use of the same committee to evaluate his appeal resulted in a biased review of his case. The Grievance Committee noted that this procedure is in accordance with Provost Communication 10. The Grievance Committee also concluded that the evidence showed that all absentee ballots were counted. The Grievance Committee finally discussed Plaintiff's allegations of verbal abuse by Weaver. The Grievance Committee stated, "there is evidence in this case that aspects of the 'Professionalism in the Work Place' memorandum distributed by the Dean on 9/18/02 were violated, particularly with respect to the use of disrespectful language and the display of unprofessional conduct." However, the Grievance Committee concluded that these allegations, while considered seriously, were unrelated to Plaintiff's allegations of inappropriate procedures during his promotion process, since there was no evidence that the incidents described by Plaintiff resulted in an improper handling of Plaintiff's promotion case. The Grievance Committee noted that Weaver admitted to speaking to Plaintiff in a raised voice and to uttering a profanity during his October 16, 2002, exchange with Plaintiff. The Grievance Committee stated:
[W]hile Prof. Weaver expressed to the Committee regret for his October 16 comments, it is clear that, coming from the Department Head in the midst of the promotion process, these comments eroded the confidence that Prof. Sun had in the integrity of his promotion process, and greatly undermined his trust in Prof. Weaver. Moreover, such comments are contrary to the guidelines put forward by the College and Campus regarding the manner in which faculty should interact with one another, and should be discouraged.
After Dean Daniel received the Grievance Committee's report, he reviewed with Weaver his expectations for professional conduct in the College of Engineering. On January 22, 2003, Weaver resigned as Department Head. Weaver remained a tenured member of the faculty and was subsequently appointed to the Donald B. Willett Professorship of Engineering.
On January 24, 2003, Dean Daniel wrote to Plaintiff. Daniel stated that, based upon the Grievance Committee's conclusion that Plaintiff's promotion case was handled fairly, he affirmed his previous request to Provost Herman that Plaintiff be issued a notice of nonreappointment. Daniel also informed Plaintiff that he had reviewed with Weaver his expectations for professional conduct. Daniel noted that Plaintiff had already filed a grievance with the Faculty Advisory Committee, which was his next avenue of appeal.
The subcommittee of the Faculty Advisory Committee assigned to Plaintiff's case deferred its consideration of Plaintiff's appeal until the completion of the investigation by the College Grievance Committee and interviewed witnesses between March and May 2003. Weaver declined to be interviewed by the Faculty Advisory Committee.
On March 20, 2003, Robertson became Interim Head of the Department. In April 2003, Robertson met with Plaintiff and suggested that Plaintiff resign from the selection committee for the Burnett Teacher of the Year Award. Plaintiff testified that Robertson said he should resign because he had taken actions against the Department by filing complaints and had attacked the Department. Plaintiff refused to resign, stating that he believed that he could be fair in his considerations, and pointed out that there were four members of the committee so that his vote would not be determinative in any event. ...