Li v. Norwich Univ. ( 2020 )

Li v. Norwich Univ., No. 577-10-18 Wncv (Tomasi, J., May 2020).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
VERMONT SUPERIOR COURT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 577-10-18 Wncv
│
Xingbo Li, │
Plaintiff │
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v. │
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Norwich University, │
Defendant │
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Opinion and Order on Norwich’s Motion for Summary Judgment
This case arises out of the denial of tenure by Defendant Norwich University
(“Norwich”) to assistant professor of Chinese, Plaintiff Xingbo Li. Mr. Li claims
that Norwich breached binding employment policies (1) by failing to inform him
properly prior to the tenure determination of performance deficiencies that
ultimately resulted in the denial of tenure and (2) by miscalculating and misusing
his student evaluations in the tenure review process. He alternatively asserts these
claims styled under the doctrine of promissory estoppel. Mr. Li further claims that
Norwich’s tenure denial was influenced by unlawful discrimination against him on
the basis of race and national origin—he is Chinese.1 Norwich has filed a motion for
summary judgment addressing all claims. The Court makes the following
1 Mr. Li asserted other claims in the complaint but withdrew them in the course of
summary judgment proceedings. See Mr. Li’s Opposition to Summary Judgment 2
n.1 (filed Jan. 3, 2020). Accordingly, the Court addresses only the claims described
herein.
determinations.
I. Summary Judgment Standard
Summary judgment is appropriate if the evidence in the record, referred to in
the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a
matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party
fails to make a showing sufficient to establish an essential element of the case on
which the party will bear the burden of proof at trial). The Court derives the
undisputed facts from the parties’ statements of fact and the supporting documents.
Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A
party opposing summary judgment may not simply rely on allegations in the
pleadings to establish a genuine issue of material fact. Instead, it must come
forward with deposition excerpts, affidavits, or other evidence to establish such a
dispute. Murray v. White, 155 Vt. 621, 628 (1991). Speculation is insufficient.
Palmer v. Furlan, 2019 VT 42, ¶ 10, 215 A.3d 109, 113. The material facts of this
case are undisputed unless otherwise indicated below.
II. Undisputed Facts
Mr. Li’s claims arise out of Norwich’s annual review, pre-tenure, and tenure
processes. The core tenure process appears in the Faculty Manual at § 2.3. The
initial tenure track appointment is for a probationary term of 6 years, unless credit
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is granted for prior experience, at the conclusion of which the candidate is tenured
or “separated” following a one-year terminal appointment. Id. § 2.3.1. Mr. Li was
given credit for one year of prior experience. In the third year of probation, the
College Dean initiates a pre-tenure review process. “This pre-tenure review is
intended to inform probationary candidates of progress towards tenure and to alert
these candidates to any deficiencies in their teaching, professional development,
and university service.” Id. § 2.3.4.
The tenure decision process occurs in the final year of probation, as follows:
1. College deans submit in writing their recommendation and the
recommendations of the department and college Promotion and Tenure
Committee, together with other supporting documentation, to Provost
and Dean of the Faculty who forwards this material to the University
Promotion and Tenure Committee. The latter committee in turn
submits its recommendation (along with those of the department,
college and College Dean) and supporting documentation to the
Provost and Dean of the Faculty. . . .
2. The Provost and Dean of the Faculty submits in writing his or her
recommendations to the President, together with those from the
department, college, College Dean and the University Promotion and
Tenure Committee. The President, in turn, submits those
recommendations, together with his or her own, to the Board of
Trustees for final action.
3. A negative recommendation will be communicated in writing to the
faculty member at the time any such recommendation is made. This
communication will include a summary of the reasons for the negative
recommendation, which shall be final unless the faculty member
appeals. The faculty member may appeal a negative recommendation
to the next higher level. . . .
Id. § 2.3.5. “Recommendations for tenure will be based on department or school,
and college, standards of performance” in teaching, professional development, and
university service. Id. § 2.3.6.
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Mr. Li taught in the Chinese Program, which is part of the Department of
Modern Languages in the College of Liberal Arts. The annual review, pre-tenure,
and tenure processes are further explicated in the College of Liberal Arts Standards
& Procedures for Annual Evaluation, Promotion & Tenure (CoLA Standards). The
CoLA Standards provide more procedural and substantive detail to these processes.
They explain that annual reviews and tenure recommendations are based on three
general standards: teaching, professional development, and service. CoLA
Standards 1. “The college considers excellence in teaching pre-eminent among
areas of faculty responsibility. The college seeks to tenure and promote individuals
of demonstrated teaching excellence, as measured by such evaluative instruments
as colleague visitations and reviews, recommendations of department chairs,
student evaluations, and peer evaluations written by outside observers.” Id. Each
of these general standards is broken down into many more component standards.
Id. at 4–7.
Neither the faculty manual nor the CoLA Standards provides objective
mechanisms for measuring whether or to what extent a candidate meets the
standards ultimately used to make tenure decisions. The determination of the
candidate’s satisfaction of the standards is largely within the judgment of the
annual, pre-tenure, or tenure reviewers. While the annual reviews and pre-tenure
process are intended to inform the candidate of deficiencies and facilitate the
candidate’s progress towards tenure, neither purports to bind the ultimate tenure
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decision makers. Similarly, the lower levels of tenure decision making do not bind
the higher levels. Accordingly, positive annual reviews and a positive pre-tenure
process do not guarantee an ultimate positive tenure decision. The entire process
includes the discretion for decision makers to make independent determinations
that may be inconsistent with one another. One only becomes tenured after
surviving a gauntlet of scrutiny yielding a “yes” at every level.
The tenure determination process for Mr. Li unfolded as follows. On
December 12, 2017 and January 22, 2018, the CoLA Promotion and Tenure
Committee (CoLA PTC) and the CoLA Dean, respectively, recommended Mr. Li for
tenure. The matter proceeded to the University Promotion and Tenure Committee
(UPTC). Following a tenure presentation, by a vote of 5 to 1, however, the UPTC
voted against tenure and so informed Mr. Li in a letter dated March 2, 2018. The
letter states, in relevant part, as follows:
The [UPTC] convened on February 20, 2018 regarding your application
for promotion and tenure. By vote of the [UPTC] members present,
your application for promotion and tenure was not advanced.
The comprehensive review of materials from your portfolio, student
course evaluations, and annual assessments did not demonstrate
adequate evidence of teaching excellence. As stated in the faculty
manual, “The University seeks to tenure individuals of demonstrated
teaching excellence, as measured by such evaluative instruments such
as colleague visitations, observations, and reviews, recommendations
of department chairs, student evaluations, and peer evaluations
written by outside observers. Although the [UPTC] appreciated that
you have worked to improve your effectiveness as an educator, it did
not consider the improvements to be sufficient for promotion and
tenure. Review of your dossier in the area of teaching documented
student course evaluations at or below the University average.
Further, the [UPTC] concluded that your scholarship and publication
record did not meet the high standard for promotion and tenure.
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Letter from Dr. Affenito to Mr. Li (dated March 2, 2018).2 This denial gave Mr. Li
the right to appeal to the Provost, the next decision-making level. Faculty Manual §
2.3.8.
Mr. Li thus appealed to Provost Sandra Affenito. Mr. Li and Provost Affenito
met on April 9, 2018, and by letter dated April 20, Provost Affenito denied Mr. Li’s
appeal. The letter states, in relevant part, as follows:
Thank you for the opportunity to meet with you on April 9, 2018
regarding your appeal of the recommendation made by the [UPTC]
against your promotion to Associate Professor with tenure.
My comprehensive appellate review of your portfolio and the
supplemental oral and written testimony you submitted did not
demonstrate adequate evidence of teaching excellence and professional
development to support tenure. The [UPTC] review of your dossier
noted that while you made efforts during your employment at Norwich
University to enhance your effectiveness as an educator and to
generate scholarly work, your performance was not sufficient to satisfy
our high standards for tenure. I concur. Therefore, I affirm the
[UPTC] recommendation to not advance your application for promotion
and tenure.
Letter from Dr. Affenito to Mr. Li (dated April 19, 2018). According to the tenure
process as described in the Faculty Manual, Dr. Affenito’s appeal decision then
became final. Faculty Manual § 2.3.8.
III. The Employment Agreement Claims
Mr. Li claims that the annual review, pre-tenure process, and tenure process
employment policies described above are binding on Norwich, and that Norwich
breached those obligations (1) by failing to implement the annual review and pre-
2 Dr. Affenito is an ex officio member of the UPTC.
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tenure process so as to effectively inform him of what would become the bases for
his denial of tenure, and (2) by improperly using or calculating his student
evaluation scores.
A. Binding Nature of the Employment Policies
Mr. Li’s employment was not “at will.” It was a tenure-track appointment
that would lead either to tenure or to separation. Faculty Manual § 2.3.1. In the
meantime, it was subject to a “just or sufficient cause” limitation on termination.
Id. The annual review, pre-tenure process, and tenure process provisions are
neither vague nor aspirational. They clearly are material terms of the employment
relationship and were binding on Norwich. Neither Norwich nor Mr. Li were at
liberty to disregard them.
Norwich does not argue otherwise. Its sole argument on this matter is to the
effect that there is no obligation in the policies to award tenure based on the content
of annual reviews or the pre-tenure process. Those processes do not bind the tenure
decision. As described above, the various levels of tenure decisions are independent
and subject to the judgment of the reviewer. Under the policies, tenure is never
guaranteed. Mr. Li’s response to this argument is to clarify that he is not arguing
that Norwich was obligated to award tenure to him. Rather, he explains, his claim
is that he was entitled to be informed of his deficiencies as those may affect the
tenure decision and, in his view, Norwich breached this duty to inform.
Thus, the parties may dispute precisely what the annual review and pre-
tenure processes required of Norwich, but there is no dispute that these and related
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provisions were binding and enforceable. Perceiving no controversy as to this issue,
the Court declines to address it further.
B. The Duty to Inform Claim
As described above, the annual reviews and pre-tenure process are intended
to inform the candidate of deficiencies and facilitate the candidate’s progress
towards tenure. Mr. Li argues that Norwich breached this “duty to inform” insofar
as he ultimately was denied tenure due to perceived deficiencies in teaching
excellence, scholarship, and service, and he does not believe that he was adequately
warned of those deficiencies in his annual and pre-tenure reviews. In other words,
Mr. Li looks to the asserted reasons for the denial of tenure and reasons backwards
that his annual and pre-tenure reviews therefore failed to apprise him sufficiently
that he had the deficiencies that ultimately would result in the denial of tenure.
See Mr. Li’s Statement of Facts ¶¶ 8–16 (filed Jan. 3, 2020).
The Court rejects this claim. The tenure decision is based on several levels of
review. Each positive tenure recommendation leads to the next level of review.
Each subsequent, higher review is made independently and, though guided by the
tenure standards, is subject to the reviewer’s judgment and discretion. There is no
necessary contradiction in a candidate receiving a positive pre-tenure review but
still failing to achieve tenure. Those who conduct the annual reviews and the pre-
tenure review bring to the process their own experience, discretion, and judgment.
But that experience, discretion, and judgment does not bind subsequent decision
makers, who are free to make their own determination. The employment policies do
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not guarantee that the annual reviews and pre-tenure process will be undertaken in
a manner that accurately predicts how tenure decision making will be made. Thus,
it is insufficient to point to the reasons for the denial of tenure and conclude ipso
facto that there must have been a breach of the duty to inform during the annual
review and pre-tenure processes, yet that is how Mr. Li has framed his claim. The
tenure decision itself cannot be the measure of Norwich’s compliance with the
annual and pre-tenure review processes.
Otherwise, Mr. Li does not explain how his annual and pre-tenure reviews
deviated from a proper standard by which to measure Norwich’s obligations. The
summary judgment record includes substantial evidence that appears to reflect on
its face that his annual reviews and pre-tenure review were conducted robustly and
in good faith, and there is no allegation that they simply did not occur, were
undertaken in bad faith or by unqualified persons, etc. Though his advocates,
including Department Chair Frances Chevalier, passionately disagreed with how
tenure discretion ultimately was exercised, that and similar advocacy in Mr. Li’s
favor may point out the breadth of discretion involved in the tenure assessment, or
that those higher decision makers may have been influenced by other factors, but it
does not demonstrate that there was some actionable breakdown in the annual and
pre-tenure reviews amounting to a breach. This is so even though the eventual
tenure decision reflects what may amount to disagreements with those who
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undertook the earlier reviews as to whether Mr. Li was on track to be tenured or
ought to be tenured.
Norwich is entitled to summary judgment on this claim.
C. The Student Evaluation Claim
Mr. Li also claims that Norwich breached its obligations by miscalculating
average scores of his student evaluations. He argues that some of his scores should
have been eliminated from the calculation because they were statistically unusable
due to too few evaluations from a particular class. He claims that, if his average
scores were calculated correctly, they would have shown that he received above
average evaluations rather than below average evaluations. He also argues
generally that the whole student evaluation process was known to have little value
as a reflection on teaching excellence.
This claim has no merit. Nothing in the manuals entitled Mr. Li to any
particular methodology for calculating his average student evaluation scores or to
any particular weight on this criterion as one among many for assessing teaching
excellence. While evaluation scores were mentioned in the denial letter from the
UPTC, its assessment of teaching excellence was based on a “comprehensive review
of materials from your portfolio, student course evaluations, and annual
assessments.” Altogether, that comprehensive review “did not demonstrate
adequate evidence of teaching excellence.” There is no showing that Mr. Li was
entitled to any particular treatment of his annual evaluations or that any different
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calculation of his averages would have had any material impact on the UPTC’s
broader determination of teaching excellence.
IV. The Promissory Estoppel Claims
Mr. Li asserts the claims addressed above alternatively framed under the
doctrine of promissory estoppel, exclusively in the event that the relevant policy
provisions are determined to not be binding on Norwich. See Complaint ¶ 177 (filed
Oct. 15, 2018). Otherwise, there is no difference in substance between the contract
claims and the promissory estoppel claims, which are purely duplicative.
As the Vermont Supreme Court has explained, the law of Vermont in the
area of employment agreements “draws on aspects of both unilateral contract
formation and promissory estoppel.” Taylor v. National Life Ins. Co., 161 Vt. 457,
464 (1993); see also Restatement of Employment Law § 2.05 (explaining that
traditional contract principles are a “conceptually awkward fit” in this context). It
is often unnecessary or unhelpful to distinguish between them in this context.
Here, there is no dispute that the relevant provisions of the employment agreement
are binding, and thus there is no reason to separately analyze Mr. Li’s claims under
the doctrine of promissory estoppel.
Norwich is entitled to summary judgment on Mr. Li’s employment agreement
claims.
V. Discrimination
Mr. Li also claims that his denial of tenure reflects discrimination against
him on the basis of race and national origin in violation of Vermont’s Fair
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Employment Practices Act, 21 V.S.A. §§ 495–496a. Norwich seeks summary
judgment on this claim. It argues that the record includes no evidence of any such
discrimination and, to the contrary, it includes general, affirmative evidence that it
does not discriminate against Chinese professors or other employees. Mr. Li argues
that the record includes ample evidence of disparate treatment, whether viewed
under “mixed motive” law or “pretext” law, to demonstrate a dispute of fact on this
claim, and he notes that relevant discovery requests, which remain pending, are
targeted at revealing additional such evidence.
Norwich filed a motion to stay discovery on the same day that it filed its
summary judgment motion. At the time, Mr. Li had sought, among other things,
files relating to the tenure processes of other professors, which presumably might
reveal evidence that Mr. Li was held to an unusually demanding standard or
otherwise treated unfavorably. Norwich argued that the discovery would be
burdensome, tangential at best to the issues of the case, and at least should await
the determination of its summary judgment motion. The Court granted the motion
to stay to that extent. Accordingly, Mr. Li’s discovery requests remain outstanding.
Vermont discrimination law incorporates the prevailing federal “proof
structures” for discrimination claims, commonly known by reference to Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989) (“mixed motive” structure), and
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (“pretext” or “single motive”
structure). See Graff v. Eaton, 157 Vt. 321, 324 (1991); 1 Employment
Discrimination Law and Litigation § 2:2 (describing Price Waterhouse and
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McDonnell Douglas as alternative “proof structures” and explaining that “mixed
motive” and “single motive” descriptors are misleading and “it is no longer
appropriate to use these words to describe separate claims”). Under Price
Waterhouse, if the plaintiff can prove that a discriminatory motive played a role in
the employment decision, then the burden of persuasion switches to and remains
with the employer to prove that it would have made the same decision regardless.
See Graff, 157 Vt. at 324. If the plaintiff cannot make that predicate showing of
improper motive, a more traditional approach ensues. If plaintiff is in a protected
class, is qualified for a job, and is denied employment, the burden shifts to
defendant to provide nondiscriminatory reasons for the failure to hire. If defendant
meets that burden, the ultimate burden of persuasion returns to the plaintiff to
show that the nondiscriminatory reason for the employment decision promoted by
the employer was a pretext for discrimination.3 See id. n.3; see also Gallipo v. City
of Rutland, 163 Vt. 83, 89 n.2 (1994) (“If the plaintiff fails to establish that an
impermissible factor played a motivating part in the employment decision, then the
McDonnell Douglas analysis applies.”).
3 The Court notes that while the burden of persuasion under McDonnell Douglas
always remains with the plaintiff, the burden of production switches back and forth
in pretrial proceedings to aid the court’s determination of whether the claim should
reach the jury. The shifting burden of production, however, is a matter for the
court. Juries are not properly instructed to consider such issues. See Henry v.
Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 154 (2d Cir. 2010); Lewis v. City of
Chicago Police Dep’t, 590 F3d 427, 439 (7th Cir. 2009); Armstrong v. Burdette
Tomlin Memorial Hosp., 438 F.3d 240, 249–50 (3d Cir. 2006).
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In this case, Mr. Li points to evidence in the record that could be marshalled
in favor of a showing, by inference or otherwise, that a discriminatory reason could
have had a role in the denial of his tenure or that the nondiscriminatory reason for
the denial of his tenure urged by Norwich was a pretext for discrimination. Such
evidence includes, among other things, statements by witnesses, who presumably
had a basis to know, that Mr. Li was held to a higher standard than other
candidates, that his student evaluations were interpreted in a contrived way to his
detriment, that his scholarship was inexplicably devalued, and that, against
convention, he was denied tenure even though the CoLA PTC and CoLA Dean
recommended him for tenure.
In light of such evidence, Norwich’s argument in favor of summary
judgment—essentially, that because it employs and has tenured other Chinese
employees there is no reason to think it would discriminate against Mr. Li—is
especially unconvincing. The mere fact than an employer has employed more than
one Chinese employee, and has promoted some of them, does not necessarily
indicate anything about whether a particular Chinese employee has been
discriminated against.
At this point, the Court needs not engage in a more probing review of the
evidence. It is clear that Mr. Li does not completely lack evidence that can be
marshalled to show possible discriminatory treatment, and Norwich’s response does
not establish a defense as a matter of law. Further, relevant discovery is
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outstanding. This is sufficient to warrant the denial of summary judgment on this
claim, at least at this stage, and to allow discovery to proceed.
Conclusion
For the foregoing reasons, Norwich’s Motion for Summary Judgment is
granted, in part, and denied, in part. Norwich shall respond to outstanding
discovery requests within 30 days.
Dated this __ day of May 2020 at Montpelier, Vermont.
_____________________________
Timothy B. Tomasi
Superior Judge
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