United States District Court, N.D. Mississippi, Aberdeen Division
DR. SHU-HUI WU, Plaintiff,
MISSISSIPPI STATE UNIVERSITY, Defendant.
MEMORANDUM OPINION AND ORDER
DEBRA M. BROWN, District Judge.
This is an employment discrimination action brought by Plaintiff Dr. Shu-Hui Wu against her current employer, Defendant Mississippi State University. Plaintiff alleges that Defendant engaged in unlawful race and national origin discrimination when it: (1) calculated her annual pay increases between 2011 and 2013; and (2) denied her promotion to the rank of full Professor in its History Department between 2011 and 2012. Plaintiff also alleges that Defendant retaliated against her for engaging in activity protected by Title VII of the Civil Rights Act.
Before the Court are: (1) Defendant's motion to exclude the expert testimony of Donald Rubin ; (2) Defendant's motion to exclude the expert testimony of Saranna Thornton ;
(3) Defendant's motion to exclude the expert testimony of Brenda Ungerland ; (4) Defendant's motion for summary judgment ; and (5) Plaintiff's motion for partial summary judgment .
Standard on Summary Judgment
"Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law." Norwegian Bulk Transp. A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 22-23 (1986)). To award summary judgment, "[a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Norwegian Bulk Transp. A/S, 520 F.3d at 411-12 (internal quotation marks omitted). To this end, "[t]he moving party bears the burden of establishing that there are no genuine issues of material fact." Id. at 412.
"If, as here, the nonmoving party bears the burden of proof at trial, the moving party may demonstrate that it is entitled to summary judgment by submitting affidavits or other similar evidence negating the nonmoving party's claim, or by pointing out to the district court the absence of evidence necessary to support the nonmoving party's case." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citation omitted). If the moving party makes the necessary demonstration, "the burden shifts to the nonmoving party to show that summary judgment is inappropriate." Id. In making this showing, "the nonmoving party must go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir. 2011) (citation and internal punctuation omitted). When considering a motion for summary judgment, the Court "resolve[s] factual controversies in favor of the nonmoving party." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
A. The Parties
Plaintiff Shu-Hui Wu is an Asian female of Chinese origin. Doc. #1 at ¶ 10. Plaintiff earned a Ph.D. from the Freie University in Berlin, Germany, in 1994. Id. at ¶ 9. Defendant Mississippi State University ("MSU") is a public educational institution that was founded in 1878. Id. at ¶ 11. Plaintiff has been employed as a tenure-track academic in Defendant's Department of History ("Department") since 1998. Id. at ¶ 9. During the time period relevant to this suit, Alan Marcus served as Head of the Department. Id. at ¶¶ 1-2.
Faculty members in the Department hold one of three ranks: Assistant Professor, Associate Professor, or Professor. Doc. #66-13 at ¶ 6. Assistant Professors do not hold tenure, but "upon proper application, may be considered for promotion to Associate Professor with tenure." Id. While Assistant Professors must seek promotion to the rank of Associate Professor in order to remain on the faculty, there is no requirement that an Associate Professor must apply for promotion to the rank of Professor. Id. at ¶ 7. Although the Department only allows an Assistant Professor one or two promotion applications, an Associate Professor may seek promotion as often as he or she wants. Id.
B. Plaintiff's Receipt of Tenure
On October 5, 2003, Plaintiff submitted an Application for Promotion and/or Tenure in which she sought promotion from Assistant Professor to Associate Professor. Doc. #62-3. In her application, Plaintiff listed the following as her "[c]urrent or on-going research:"
Second monograph: Lien Hang (1878-1936): Taiwan's Search for Identity and Tradition, 2004 Indiana University Oriental Series (forthcoming)
5th Article: "Lien Hang (1878-1936) and the General History of Taiwan." to be published in spring 2004 Journal of Third World Studies.
Doc. #62-3 at 2.
Under "[p]ublications, " Plaintiff listed two books, Die Eroberung von Qinghai unter Beuchksichtigung von Tibet und Khams, a "[r]eworked dissertation published... in Germany;" and Lien Heng (1878-1936): Taiwan's Search for Identity and Tradition, indicated as "Forthcoming. To be published in June 2004 by Indiana University Oriental Series." Id. at 3. Plaintiff also listed as publications five articles and six "Professional papers read." Id.
On June 28, 2004, Plaintiff's application for promotion to Associate Professor was approved. Doc. #62-2. In approving the application, Godfrey Uzoigwe, then the Department Head, did not count the Lien Heng book toward Plaintiff's tenure application. He did, however, report that the book was "evidence of progress on her part... that she's not going to be one of those who will get tenure and stop writing." Doc. #84-13 at 77-78.
C. The Professor Promotion Process
In the Department, an Associate Professor seeking promotion to Professor must demonstrate excellence in research and either teaching or service. Doc. #66-13 at ¶ 8. With regard to research and scholarship, the Department's promotion policy provided:
To be considered by the Department for promotion from associate professor to professor, the candidate must have made substantial scholarly contributions since the last promotion. In addition to published works presented for promotion from assistant to associate professor, the candidate, at the minimum, must have published another book-length, peer-reviewed historical monograph with a reputable scholarly publisher. The candidate is also encouraged to produce three other publications, one of which should be an article in a leading journal in his or her field.
Doc. #62-8 at 8-9. Pursuant to this policy, "[c]onsideration for... promotion may be initiated in writing either by the Department Head or by an individual faculty member who has met the minimum time requirement for the action requested." Id. at 3. Regardless of the initiator, "[t]he department head has the responsibility to assist, where appropriate, the faculty member in preparing materials for tenure and promotion review." Doc. #62-9 at 15. Once under consideration, the faculty member must:
complete in detail the form provided by the University outlining his/her accomplishments at Mississippi State, and elsewhere if applicable, and giving a summary of future plans for academic and professional growth.... The Department requires four external letters of evaluation from peer or peer-plus institutions speaking to the candidate's research. One external referee will be selected by the candidate, the Department Committee on Tenure and Promotion, and the Department Head, respectively, from a mutually agreed upon list....
After studying all of the available, pertinent, and documented evidence in each case, the departmental Committee will report its recommendation in writing to the Department Head.... The Department Head's own recommendation, again based on all... pertinent... evidence... may agree or disagree with the recommendation of the Committee....
The recommendations of both the Committee and the Department Head will be forwarded to the Dean of Arts and Sciences.... Procedures beyond that point will follow the guidelines provided in the current Faculty Handbook.
Doc. #62-8 at 4-5 (underlining in original).
Once the Dean of Arts and Sciences receives the recommendations from the Department Committee and Department Head, she forwards the application and recommendations to the College Committee who, in turn will make a recommendation to the College Dean. Doc. #62-10 at 11-12. Then, the Dean must conduct an independent evaluation of the candidate's teaching, research and/or creative achievement, and service. See id. at 11. The Dean will then forward her evaluation, along with the recommendations of the Department and the College Committee, to the Provost. Id. at 12. The Provost will review all relevant documents and make a recommendation to the University President, who will issue the final decision. Id.
If the President decides against promotion, the faculty member may appeal to the University Committee on Promotion and Tenure. Id. If the University Committee on Promotion and Tenure upholds the President's decision, the faculty member may appeal to the Board of Trustees of the Institutions of Higher Learning. Id.
The University Policy requires that, as the applicant moves through the process, she: will be officially notified of the disposition of the application at each level of the process. A written recommendation and rationale will be made at each level in the process. These written recommendations will be provided to the candidate and placed on file by the department head, dean or director and provost. These recommendations will be the basis of future discussions of professional development between the faculty member and the department head. The candidate may respond in writing to the written recommendation and rationale of either the department head or the dean/director, or both. If the candidate elects to provide a written response to a recommendation, it must be submitted to the review level to which the response is made within 5 working days of receipt of the recommendation. The response will become part of the formal application.
Doc. #62-10 at 10. The Department's policy does not contain a notification provision.
D. Plaintiff's Post-Tenure Scholarly Activity
In 2004, after Plaintiff received tenure, one of the articles listed on her tenure application, Lien Heng (1878-1936) and the General History of Taiwan, was published. Doc. #62-4. Similarly, due to publication delays, Lien Heng (1878-1936): Taiwan's Search for Identity and Tradition, the second book listed on Plaintiff's tenure application, was published in December 2005. Doc. #88-48.
Following the publication of the second book, Plaintiff drafted four articles, The Great Migration: Inception of the Chou Identity; Fighting for His Majesty Accretion of the Greater Shang (ca. XXXX-XXXX B.C.); Debates and Decision-Making: The Battle of the Altai Mountains in A.D. 91; and On Shiji Chapter Twenty Two, Table Ten. Doc. #62-4. By July 2011, three of the articles had been accepted for publication but none had been published. Id. In addition to her written production, Plaintiff presented six papers at various academic gatherings. Id.
E. Department Salary Policy
Defendant sets the starting rate for faculty positions based on "outside market forces" in order "to compete with other institutions... attempting to fill faculty positions. Doc. #66-13 at ¶ 17. Post-hire, a faculty member's "salary is no longer directly impacted by market conditions [but is] adjusted and changed when, and if, the state's budget affords MSU an opportunity to provide salary increases." Id. at ¶ 17. Additionally, upon promotion from Assistant Professor to Associate Professor, a faculty member "customarily" receives a $5, 000 raise. Id. at ¶ 20.
Department Head Marcus testified that discretionary raises are determined "almost exclusively" by publication, under which books are "by the far most important" metric. Doc. 84-2 at 153-54. In justifying his emphasis on books, Marcus explained that "[a] good historian will publish maybe five books in his or her [career of] thirty to forty years." Id. at 154. In contrast, Marcus observed that a historian should average a peer-reviewed article a year. Id. at 154-55. Thus, while books are the most valuable source of contribution, Marcus stated that "[p]eer reviewed, primary source, historical articles in scholarly history journals, chapters of books and edited books are next in [the] hierarchy." Doc. #62-15. Scholarly production, for raise purposes, is measured from the date of the last raise period. Id.
F. Plaintiff's Salary History
In her first year as Associate Professor (fiscal year 2005), Plaintiff earned a salary of $47, 688, including the $5, 000 raise accompanying her promotion to the position. Doc. #88-3; Doc. #66-13 at ¶20. The Department did not award merit raises for fiscal year 2006. Doc. #88-3. For fiscal year 2007, Marcus recommended that Plaintiff receive a salary raise of approximately 11.8%. Doc. #66-13 at ¶ 14. Marcus recommended this raise, which was above the budgetary guidelines, "in large part due to her publication of a book in December 2005." Id. The recommendation was accepted and Plaintiff's salary increased to $53, 312. Doc. #88-3. On Marcus' recommendation, Plaintiff's salary increased to $55, 178 for fiscal year 2008. Id. ; Doc. #66-13 at ¶ 14.
Due to budget constraints, Marcus did not recommend any pay raises (but for those related to promotions) for fiscal years 2009, 2010, and 2011. Doc. #66-13 at ¶ 13. As of fiscal year 2011, Plaintiff was the lowest paid of the Department's five Associate Professors. See Doc. #88-3. As of the same time, Plaintiff earned less than four of the ten Assistant Professors. See id.
On June 2, 2011, Marcus received approval to grant merit raises ranging from two percent to six percent. Doc. #62-14. Based on Plaintiff's "publication record, " Marcus recommended that she receive a 2% merit raise. Doc. #66-13 at ¶ 25. Following this recommendation, Plaintiff's salary increased to $56, 281. Doc. #88-3.
G. Plaintiff's Promotion Application
On September 18, 2011, approximately twelve days before the application deadline, Plaintiff submitted an application for promotion to the rank of Professor. Doc. #62-4. In her application, Plaintiff listed: one book publication ( Lieng Heng (1878-1936) ); five articles; six professional papers; and four funding grants. Id. at 3-4. Of the five articles Plaintiff listed, three were listed as "forthcoming;" one was listed as "[a]ccepted during the process of tenure and promotion, published after being tenured;" and one was listed as "under review." Id. at 3.
1. Solicitation of Letters
Following the initiation of Plaintiff's application, the Department solicited letters of support from approximately twenty relevant academics identified by the Department's Committee and Marcus. Doc. #84-2 at 25, 27; see also Doc. #66-9. In the process of compiling the list, Marcus declined to accept offers from two faculty members to identify potential reviewers. See Doc. #84-2 at 34-35. Marcus explained that, while he was "not privy to who was solicited, " he met "with the entire [Promotion and Tenure] committee and passed out the external reviewers to talk about the list." Doc. #84-2 at 25.
Once the reviewers were contacted, three potential reviewers declined to partake in the process because, at least in part, their specialties did not align with Plaintiff's. See Doc. #88-41; Doc. #88-42; Doc. #88-43. One of the declining reviewers offered to suggest another potential reviewer, but when Jason Phillips, Associate Professor of History and point of contact for the potential reviewers, passed along the offer to the Department Committee, no action was taken. Doc. #84-9 at 27. The remaining reviewers either failed to respond or declined to participate in the process.
Plaintiff failed to obtain the necessary four reviewers and Marcus declined to consider her application. Doc. #62-22. Plaintiff appealed this decision, and the University Promotion and Tenure Committee recommended consideration of the application. Id. On December 8, 2011, Provost Jerome Gilbert accepted the University Committee's recommendation and directed the Department to consider Plaintiff's application. Id. In issuing this direction, Gilbert noted that the Department should "not infer from my decision that any judgments have been made as to the completeness or merits of Dr. Wu's application package." Id.
2. Department Committee
At the time of Plaintiff's application, the Department Committee consisted of three members: (1) Christopher Snyder, a white male; (2) Stephen Middleton, an African American male; and (3) Godfrey Uzoigwe, a male of Nigerian origin. Doc. #66-13 at ¶ 5. On January 20, 2012, the Department Committee recommended denial of tenure "since the required number of letters (4) from external reviewers were not produced...." Doc. #62-23. In reaching this conclusion, the Department Committee found Plaintiff: (1) "presented evidence of satisfactory teaching;" (2) "presented evidence of more than satisfactory service to the department, college, and university;" and (3) "demonstrated excellence in research based on two letters from external reviewers in her field." Id. One of the Department Committee members voted in favor of promotion. Id.
3. Department Head
On January 3, 2012, Marcus executed a written recommendation against Plaintiff's application. Doc. #62-25. In addition to what appears to be a standardized form, Marcus submitted an eleven-page memorandum outlining the reasons for his recommendation ("Memorandum"). Id. In what may best be described as a scathing evaluation, Marcus wrote "I cannot support Shu-hui Wu's application for promotion to professor. She has not demonstrated excellence in any of the three areas under consideration - research, teaching and service." Id. at 1. Marcus also observed that, due to the lateness of Plaintiff's application, the Department Committee "contacted over 20 scholars [and that] records show that in no other case has the [C]ommittee needed to contact more than nine scholars to receive five reviews." Id. at 3.
With regard to Plaintiff's research, Marcus observed "I have no faculty member - even those who have been here for a year or two and have a record only that long - who has been less productive and less engaged with the historical profession than Wu has been from 2006 through the first half of 2011." Id. In making this observation, Marcus noted that: (1) one of the articles Plaintiff claimed as forthcoming was slated for publication in a journal that "is not a significant historical publication;" (2) another article listed as forthcoming was slated for publication in a new journal with a "totally blank" website; and (3) a chapter Plaintiff listed as a forthcoming publication was slated for publication in a book that did not appear on the alleged publisher's website. Id. at 2. While Marcus declined to suggest "that Wu is necessarily being duplicitous, " he noted that "these three venues are not the sort of outlets where you would see the publications of a noted senior scholar. They do not connote excellence." Id.
Turning to Lien Heng, Marcus noted that Plaintiff's first book publication of her dissertation in Germany, could not have satisfied her grant of tenure because "there is almost always no blind peer review when German dissertations are published." Doc. #62-25 at 4. Thus, Marcus concluded that "[t]he Lien Heng [book] constituted the book that Wu needed for her mandatory tenure and promotion case [and that the] department of history promotion and tenure committee evaluated both manuscripts as part of her tenure package." Doc. #62-25 at 4. In making this statement, Marcus explained, "I am arguing... the book was a fundamental part of her tenure and promotion application and that Wu would not have gotten tenure and promotion had it not been for her ability to claim the Lien Heng book." Id. at 4-5. Marcus wrote that because the book "met the associate professor standard [it] should not be employed a second time to meet the professor standard. In any case, Wu's research productivity falls far short of the standard of excellence. " Id. at 5 (emphasis in original).
As to teaching, Marcus noted, "English is not [Plaintiff]s first language [and s]he uses Powerpoint frequently and shows motives to overcome the language barrier." Doc. #62-25 at 5. Marcus also remarked that, while Plaintiff "does not attract graduate students... [t]hat is not a problem." Id. However, Marcus expressed concern regarding a "precipitous" decline in student evaluations, in which "students complain that she doesn't respond to their emails, doesn't keep her office hours, acts arbitrarily in class, or does not treat them with respect." Id. Marcus explained that, following the decline, Plaintiff "now ranks significantly below department, college and university averages." Id. In sum, Marcus wrote, "Wu's teaching style is at best unusual, at worst a violation of university protocol, maybe even operating policy. In any case, I do not see how it can be said to rise to the standard of excellent. " Id. at 7 (emphasis in original).
In assessing Plaintiff's service to the university, Marcus noted that: (1) while Plaintiff claimed to be "Initiator and Founder of the Society of Ancient China and Co-Editor of the Journal of China, " the listed publication did not appear on the web; (2) while Plaintiff claimed to be a member of the search committee for dean at Meridian (University), a member of the committee stated that Plaintiff never attended a meeting after the initial two; (3) while Plaintiff claimed to have been a member of the Robert Holland Faculty Senate from Fall 2006-Spring 2009, she was a "senator in name only, " having attended only four meetings over the time period; (4) Plaintiff's service as "undergraduate coordinator" led to a sharp decline in history majors; (5) Plaintiff attended only half of the meetings of the Department's Promotion and Tenure Committee; and ...