Lim, Soo-Siang v. Trustees IN Univ ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4295
DR. SOO-SIANG LIM,
Plaintiff-Appellant,
v.
THE TRUSTEES OF INDIANA UNIVERSITY
AND DR. DAVID BURR,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP99-419-C M/S—Larry J. McKinney, Chief Judge.
____________
ARGUED MAY 30, 2002—DECIDED JULY 19, 2002
____________
Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.,
and MANION, Circuit Judges.
FLAUM, Chief Judge. Dr. Soo-Siang Lim (“Lim”) filed suit
against the Trustees of Indiana University and Dr. David
Burr, the Chairman of that school’s medical anatomy de-
partment. According to Lim, Indiana University (“IU”) en-
gaged in gender discrimination when it decided not to grant
her tenure. Furthermore, Lim alleged that Burr acted with
intent to deprive her of her civil rights in violation of 42
U.S.C. § 1983. After initial proceedings and discovery, the
district court granted summary judgment in favor of both
defendants. For the reasons stated below, we affirm the
decisions of the district court.
2 No. 01-4295
I. BACKGROUND
In 1990, Lim was hired by the Department of Anatomy
at the IU medical school in Indianapolis. At the time of
Lim’s hire, Burr was the chairman of the Anatomy Depart-
ment. In his capacity as chairman, Burr assiduously at-
tempted to attract Lim to IU’s medical school,1 such that he
made several deviations from standard IU policy. For ex-
ample, Burr offered Lim an entry position as an Associate
(as opposed to Assistant) Professor, allowed her to com-
mence her employment with IU two months later than he
would have ordinarily required, and helped to award her
laboratory almost $250,000 in start-up funds.
Under the terms of Lim’s appointment, she would be em-
ployed for an initial three-year term, after which she would
be reviewed annually, by a faculty committee, to see if she
would be reappointed. Assuming that she would, in fact,
be reviewed favorably, Lim’s employment agreement pro-
vided that a final decision regarding her tenure would be
made by late 1996.2
IU Medical School’s Policies Regarding Tenure
At IU’s medical school, a candidate for tenure is reviewed
for her proficiency in three principal areas: research, teach-
ing, and service. In order to receive tenure, a faculty mem-
ber must receive an “excellent” rating in one of these areas
and at least a satisfactory rating in the remaining catego-
1
Prior to her hire at IU, Lim was weighing offers from other
schools in the Midwest.
2
In March of 1993, Lim requested a one-year extension of her
tenure decision deadline. As a result of this extension, her tenure
probationary period was extended to June 30, 1998. This again
assumed that she would be reviewed favorably and would receive
annual renewal.
No. 01-4295 3
ries.3 Candidates for tenure can, and often do, declare the
area in which they believe that they are “excellent.” Lim
declared to Burr that she was “excellent” in the area of re-
search.
When Burr became chairman of the Department of Anat-
omy in 1990, he implemented higher standards for those
faculty members seeking tenure on the basis of their re-
search. According to these standards, faculty members were
expected, inter alia, to publish a minimum of 1 to 2 peer-
reviewed research papers per year in good to outstanding
quality journals. For at least half of these articles, tenure
candidates had to have been listed as first or senior author.4
During the relevant time period, Anatomy Department
faculty members who were on the tenure track were re-
quired to meet annually with the department chairman to
discuss their goals in the areas of research, teaching and
service. In addition, tenure track faculty members received
an annual review conducted by the Department Primary
Committee, which was composed of certain other faculty
members from the Department of Anatomy. Tenure track
faculty members also received a three-year review from the
School of Medicine’s Promotion and Tenure Committee.
The process that a candidate must undergo prior to re-
ceiving tenure is multi-tiered. First, a candidate must be
recommended by the Department Primary Committee. Sec-
3
In rare exceptions, tenure has been granted to faculty members
who have not received an “excellent” rating in any category. How-
ever, in these cases, there must be a finding that the faculty
member was near excellent in all three areas.
4
Medical and scientific journals, which are heavily driven by
research, often have numerous contributors. A first or senior au-
thor is generally presumed to have taken a more substantive role
in the conducting of that research and the presentation of the
results.
4 No. 01-4295
ond, the candidate has to be recommended by the chairman
of the Department. Third, the candidate must undergo re-
view by and receive a recommendation from the School
of Medicine. Next, the candidate must be approved by the
Dean of the School of Medicine. The fifth step entails a
review from the University’s committee on promotion and
tenure. After that review, assuming that favorable recom-
mendations have been given, the candidate must be ap-
proved by the Chancellor of the University and the Dean
of Faculties. The employment of a tenure-track faculty
member who is denied tenure is terminated at the end of
his or her current appointment term.
Lim’s Tenure Process
In Lim’s three year review, the Medical School’s Commit-
tee voted 12-0 that she had been making “inadequate” prog-
ress toward promotion and tenure. The Dean of the School
of Medicine forwarded Lim a copy of this review and in-
structed her to confer with the chairman of her department.
During her probationary period and her subsequent reviews
with Burr and the Department’s Primary Committee, Lim
was warned that she was not publishing at an acceptable
rate. Indeed, when Lim ultimately submitted her candidacy
for tenure in the summer of 1996, she had published only
five peer-reviewed publications while at IU. Lim was only
the senior author of one of these articles and the first au-
thor of none. Accordingly, the Department Primary Com-
mittee voted 4-0 against awarding Lim tenure; the School
Committee voted 15-0 against awarding tenure; and the
University Promotion and Tenure Committee voted 2 in
favor of awarding tenure to Lim and 14 against. Likely as
a result of these lopsided votes, on March 18, 1997, the
University Chancellor and the Dean of Faculties informed
Lim that her bid for tenure had been denied.
Lim filed an internal appeal of her tenure denial in June
1997. On appeal, the Department Primary Committee voted
No. 01-4295 5
3 to 2 in favor of granting tenure. Notwithstanding this
vote, Burr continued to recommend against granting tenure
to Lim due, in part, to her failure to meet departmental
publishing and research standards. The Dean of the School
of Medicine also recommended against tenure for Lim, after
which time the Dean of Faculties denied her appeal. On
December 9, 1998, the IU Faculty Board of Review also
disposed of the grievance which Lim filed challenging her
denial of tenure. According to that Board, “Dr. Lim received
fair and equitable treatment in the tenure review process
and . . . the University’s decision to deny tenure was appro-
priate.”
In February of 1998, shortly after the Faculty Board of
Review disposed of her grievance, Lim filed an internal
complaint against Burr and several other medical school
faculty members with the IU Committee on Ethics in Re-
search. According to Lim, Burr committed academic mis-
conduct by depriving her of authorship credit on an abstract
to which she contributed. A subcommittee investigated
Lim’s charge and found no credible evidence of academic
misconduct.
On August 6, 1998, Kathleen Warfel, a Professor of Pa-
thology and Laboratory Medicine at IU’s School of Medi-
cine, as well as the Director of the Office of Women for IU,
wrote a letter to Myles Brand, the president of the Univer-
sity. In her letter, Warfel stated that she was “distressed
at what seems likely to be a matter of gender discrimina-
tion in the tenure decision regarding Soo-Siang Lim of the
Department of Anatomy.” Brand responded to Warfel’s let-
ter on August 18, 1998, stating: “Your point, for example, of
the tenure decision of Soo-Siang Li [sic], Anatomy, as an
instance of continued unfairness in the treatment of women
in the Medical School is well taken. (In this particular case,
I was already aware of the problem, and I have previously
made inquiries of the Dean. I have not had a response.) He
is continuing to review the case.” Brand further stated that
6 No. 01-4295
“the problems are so entrenched in the culture of the Uni-
versity, and especially in such disciplines as Medicine,
change proves difficult to affect.”
Lim’s EEOC Charge and Complaint
Lim filed a charge with the Equal Employment Opportu-
nity Commission (“EEOC”) on February 18, 1998, alleging
that she was denied tenure because of her sex, race, or
national origin. A right-to-sue letter was issued by the
EEOC on March 17, 1999 and Lim filed suit the next day.
In her initial complaint, Lim asserted two causes of action
against IU for violation of Title IX, the Education Amend-
ments of 1972, 20 U.S.C. §§ 1681-1693, et seq. and for com-
mon law breach of contract. Lim’s complaint was later
amended to include a cause of action for gender discrimina-
tion under Title VII of the Civil Rights Act, 42 U.S.C.
§§ 2000, et seq. On December 10, 1999, Lim filed a second
amended complaint reasserting multiple claims against
IU and adding Burr as a defendant in his individual ca-
pacity. According to Lim, Burr violated section 1983 by
depriving her of her rights to equal protection and retaliat-
ing against her for her exercise of her rights under the First
Amendment of the Constitution.
On January 5, 2000, the district court granted IU’s
Motion for Partial Judgment on the Pleadings and dis-
missed Lim’s Title IX claim against IU. On December 5,
2001, the district court entered summary judgment against
Lim on all remaining counts. Lim has filed this appeal.
II. DISCUSSION
Lim does not appeal the district court’s disposition of her
Title IX, retaliation and breach of contract claims against
IU. Rather, she appeals the district court’s grant of sum-
mary judgment with respect to her gender discrimination
No. 01-4295 7
claims against the University. As for Lim’s section 1983
claims against Burr, we find that in making one perfunctory
reference to their continued viabilty, Lim failed to preserve
them for appellate review.
A. Gender Discrimination
We review a lower court’s grant of summary judgment de
novo, viewing all the facts and drawing all reasonable
inferences in favor of the nonmoving party. See Bennington
v. Caterpillar, Inc., 275 F.3d 654, 658 (7th Cir. 2001). When
we exercise that standard of review and examine the facts
that Lim proffers as evidence of gender discrimination, we
agree with the district court’s decision regarding summary
judgment.
Lim argues that IU did not grant her tenure because of
her gender. Title VII makes it unlawful for employers to
terminate (or not promote) employees because of their gen-
der. See 42 U.S.C. § 2000e-2(a)(1). A plaintiff seeking to
prove unlawful gender discrimination may do so either by
offering direct evidence of discrimination or by providing
indirect evidence through the framework articulated by
the Supreme Court in McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973).
Lim claims that the letter drafted by the President of
IU, in which he acknowledges concern over Lim’s tenure
decision, can be seen an admission of gender discrimination
and, accordingly, as direct evidence to prove her case. Lim’s
argument fails for two principal reasons. First and fore-
most, in his letter, Brand did not admit that Lim’s denial
of tenure was discriminatory. Rather, Brand expressed con-
cern about Lim’s tenure decision (rightly so, given that
at the time of the letter, she had already filed an EEOC
charge) and ordered a thorough investigation. Once this
investigation was conducted and Brand received a report,
he concluded that it was clear to him that “the decision to
8 No. 01-4295
deny tenure to Dr. Lim was correct and that there was no
basis for Dr. Lim’s allegations of discrimination.” Second,
even if Brand’s comments “can be interpreted as an ac-
knowledgment by the defendant . . . of its discriminatory
intent in making the challenged decision,” one possible
interpretation of these comments is not enough to trans-
form them into direct evidence of discrimination. Appellants
Br. at 9. Indeed, direct evidence should “prove the particu-
lar fact in question without reliance upon inference or
presumption.” Markel v. Board of Regents of the Univ. of
Wisconsin, 276 F.3d 906, 910 (7th Cir. 2002) (emphasis in
original). Absent substantial conjecture, the comments cited
by Lim do not establish discriminatory intent. Therefore, we
agree that the Brand letter is not an admission of discrimi-
natory intent and should not be cited as direct evidence of
gender discrimination.
Similarly, when we examine Lim’s claim under the Mc-
Donnell-Douglas burden-shifting framework, we find that
she failed to state a prima facie case of gender discrimina-
tion. Under McDonnell-Douglas, a plaintiff establishes a
prima facie case of sex discrimination if she demonstrates,
by a preponderance of the evidence, that: (1) she is a mem-
ber of a protected class; (2) at the time of termination, she
was meeting her employer’s legitimate employment expec-
tations; (3) in spite of meeting the legitimate employment
expectations of her employer, she suffered an adverse em-
ployment action; and (4) she was treated less favorably than
similarly situated male employees. See, e.g., Markel, 276
F.3d at 911.
When we examine the undisputed facts of this case, we
find that Lim fails to satisfy the second element of the
McDonnell-Douglas test—that she was meeting IU’s legit-
imate requirements regarding research and publishing.
Throughout the course of her appointment at IU, Lim was
warned that she was not meeting the publication expecta-
tions established by the Department of Anatomy. Indeed, in
No. 01-4295 9
her critical third-year review, she was unanimously criti-
cized by the Medical School’s Promotion and Tenure Com-
mittee for failing to publish at an acceptable rate. In spite
of this critique, Lim did not increase her rate of publication.
Indeed, when she submitted her candidacy for tenure she
had produced only five peer-reviewed publications since
joining IU six years earlier—on none of which was she first
author and on only one was she senior author. This rate of
publication did not meet the standards set forth by the
Department of Anatomy, which required the publication of
at least one to two articles a year with senior or first au-
thorship on at least half.
Perhaps aware of her lack of publishing, Lim has at-
tempted to cure this defect in her case in many ways. Pri-
marily, however, she argues that other professors (all of
whom are male) with publishing records equal or inferior to
hers, received tenure in spite of their apparent lack of
qualifications. This argument cannot prevail. While Lim
does cite male faculty members whose rate of publication
was similar to her own, those individuals were granted
tenure before Burr became chairman of the Department
of Anatomy and implemented higher publishing stan-
dards.5 Individuals who were examined for tenure under
different (and more stringent) standards, several years
before Lim was even a candidate for tenure, are not simi-
larly situated. See Radue v. Kimberly-Clark Corp., 219 F.3d
612, 617-18 (7th Cir. 2000) (to be deemed similarly situated,
the individuals with whom the plaintiff seeks to compare
his/her treatment must have “dealt with the same supervi-
sor . . . [and have been] subject to the same standards . . .”).
By even the most permissive of accounts, Lim did not meet
the research and publishing criteria established by her
Department. Accordingly, she failed to establish a prima
facie case of employment discrimination.
5
The remaining individuals cited by Lim all had met the de-
partmental requirements established by Burr.
10 No. 01-4295
B. Section 1983 Claims
We may dispose of Lim’s claims for relief against Burr
under section 1983 with a measure of dispatch. Throughout
the entirety of her opening brief, Lim makes one passing
reference (in a footnote) to section 1983 and has no separate
section devoted to her claims against Burr. Indeed, from our
review of Lim’s brief, it is far from clear whether she wishes
to appeal the district court’s rulings with respect to her
section 1983 claims against Burr. Where Burr is mentioned
in Lim’s brief, it appears that she seeks to use his conduct
to bolster her case under Title VII. When (as here) a party
so inadequately and perfunctorily develops a claim on ap-
peal, we will consider that claim or series of claims waived.
See Muhich v. Commissioner of the Internal Revenue Svc.,
238 F.3d 860, 864 n.10 (7th Cir. 2001); Colburn v. Trustees
of Indiana Univ., 973 F.2d 581, 593 (7th Cir. 1992).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the decisions of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-19-02