Sun, Yong-Qian v. Bd Trustees Univ IL

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2438
YONG-QIAN SUN,
Plaintiff-Appellant,
v.
THE 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,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-CV-2221—Michael P. McCuskey, Chief Judge.
____________
ARGUED DECEMBER 5, 2006—DECIDED JANUARY 16, 2007
____________
Before FLAUM, WOOD, and EVANS, Circuit Judges.
FLAUM, Circuit Judge. The University of Illinois did not
grant Yong-Qian Sun tenure after numerous committees
and faculty members considered his case. Alleging var-
ious procedural irregularities and nefarious motives, Sun
filed suit against the Board of Trustees of the University
as well as members of its faculty. After the defendants’
counsel failed to comply with discovery and the court
granted several motions to compel discovery, it entered
2 No. 06-2438
default judgment against the defendants. Soon after, the
court vacated the default, and, eventually, granted sum-
mary judgment in favor of all defendants. Sun appeals
both the vacation of the default judgment and the
court’s grant of summary judgment. For the following
reasons, we affirm.
I. BACKGROUND
The University of Illinois (“University”) hired Yong-Qian
Sun, a native of China, as an assistant professor in August
1997. He worked in the University’s Department of
Materials Science and Engineering in the College of
Engineering (“the Department”). The Department evalu-
ates assistant professors in their fifth year of employment
for promotion to associate professor with tenure. If the
Department decides to deny promotion and tenure, it
issues the tenure applicant a notice of nonreappointment
and ultimately terminates the professor’s employment.
In 2001, a year before his tenure review commenced, Sun
received the Donald Burnett Teacher of the Year Award.
The winner of the award was announced in College and
Department publications and received $8,000. In keeping
with Department tradition, Sun and Pascal Bellon, a
previous award recipient, were slated to choose the 2002
award winner. John Weaver, the Department Head,
strongly suggested that Sun consider him for the award.
Despite the suggestion, Sun and Bellon selected another
faculty member, Robert Averback, as the winner. On April
9, 2002, when Sun sent Weaver an e-mail recommending
that Averback be given the award, Weaver became ex-
tremely upset with Sun. The following month, Weaver
informed Sun that he would no longer receive income
generated by his online teaching, due to a change in
Department policy. Interestingly, the policy change
affected only Sun.
No. 06-2438 3
In the Spring of 2002, the Department was consider-
ing Sun’s candidacy for tenure and promotion. At that
time, John Weaver was Department Head and David
Daniel was Dean of the College of Engineering. Robert
Averback, Joseph Greene, and Ian Robertson were ten-
ured faculty members in the Department. Richard Herman
was the Provost of the faculty for the University. To aid
the process, the Department’s Promotion and Tenure
Committee (“PTC”) prepared and collected information
about tenure candidates. The PTC obtained biographical
information from the candidate, obtained written evalua-
tions from selected scholars outside of the University,
and compiled internal evaluations of the candidate’s
teaching, research, and public service. That information
was compiled in a document known as a dossier. Averback
and Greene served as two of the PTC’s four members, and
Averback acted as chairman.
Members of the faculty considered Greene powerful and
influential because he controlled federal block funding
ranging from $8 to $9 million per year, which meant that
many professors in the Department relied on Greene’s
allocations to support their research. At a May 15, 2002
faculty meeting, during a recruitment discussion, Greene
said that he would not accept 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 he had no
problems dealing with Chinese people. Greene later called
his comment a “throwaway remark,” made to express
his dissatisfaction with the length of a discussion on
recruiting international students, including those from
Asia. Greene had previously accepted and worked with two
Chinese graduate students.1
1
Greene’s remark resulted in an exchange of e-mails, including
an e-mail from Weaver to all of the professors in the Depart-
(continued...)
4 No. 06-2438
The PTC placed Averback in charge of obtaining ex-
ternal evaluators for Sun. This task was governed to a
large degree by Provost Communication No. 9, a document
that set out instructions for preparing a candidate’s
dossier. It provides, among other things, that evaluation
letters must be sufficient in number, from appropriately
selected individuals at peer institutions, and from objec-
tive evaluators without conflicts of interest. The candidate
must be provided with an opportunity to nominate external
evaluators, but 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.” It 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
external evaluations “are critical components of the
dossier and play a major role in the decision-making
process.”
1
(...continued)
ment which stated, “Friends, This is to reaffirm something
that should be part of our department culture—that we wel-
come 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.”
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 stu-
dents we admit. I suggest that a reasonable goal would be 2/3
U.S. and 1/3 foreign with a ‘maximum’ of 50% foreign.” (emphasis
in original).
No. 06-2438 5
On May 21, 2002, Sun suggested, in writing, five exter-
nal evaluators. Averback found three of the suggested
evaluators inappropriate because they were from outside
of the University’s peer rank.2 Averback gave the names
of the other two suggested evaluators to Weaver, and
Weaver formally requested the evaluations. One of the
suggested evaluators provided an evaluation that was
included in Sun’s dossier. The other wrote back and, in his
response, included a comment very critical of a paper co-
authored by Sun. Averback determined that, based upon
this comment and the fact that the evaluator resided
outside of the U.S., the PTC would not include the letter
from him.
Sun provided one name, in writing, of an evaluator he
did not want used, and the PTC did not solicit a letter from
that evaluator. Sun also orally informed Averback of
additional persons that might be biased against him.3
Averback testified that, because of problems he encoun-
tered with obtaining a sufficient number of qualified
external evaluators, he eventually requested and ob-
tained letters from the potentially biased evaluators—
Michael Mills and Patrick Veyssiere.4 Averback obtained
a total of seven external evaluation letters. While several
faculty members stated that they felt the letter from Mills
2
The Department is one of the highest ranked departments of
its kind in the country, and the University’s College of En-
gineering is among the highest ranked Colleges of Engineer-
ing. This limited the number of evaluators who could be con-
sidered appropriate based upon Communication No. 9.
3
Sun thought the two professors might be biased against him
because he had negatively reviewed articles they had submitted
for publication.
4
Sources inside and outside of the Department recommended
Mills as an external evaluator.
6 No. 06-2438
was somewhat weak, the majority of the faculty mem-
bers who expressed an opinion stated that the external
evaluation letters included in Sun’s dossier were good.
Prior to 2000, the PTC was solely responsible for vot-
ing on tenure candidates and recommending to the Depart-
ment Head whether tenure should be awarded. After
Weaver became Department Head, this procedure changed
so that the recommendation to the Department Head was
based upon the vote of all tenured faculty in the Depart-
ment rather than just the four members of the PTC. The
first candidate for tenure subject to this procedure was
Pascal Bellon, who was up for promotion and tenure in
2001. In Bellon’s case, after two faculty meetings, ten
faculty members voted in favor of tenure, ten faculty
members were opposed to tenure, and one faculty mem-
ber abstained. On September 27, 2001, Weaver wrote to
Bellon and advised him that he would not be recommended
for promotion. However, after Bellon appealed this decision
to faculty and took various steps to explain and improve
his dossier, he was recommended for tenure by a vote of
17-4.
In Sun’s case, the first faculty meeting to discuss his
candidacy for tenure was held on September 20, 2002. As
the new Chairman of the PTC, Averback presided over the
meeting. He began the meeting by discussing the neces-
sary qualifications for tenure, noting that Sun did not meet
the Department’s standards in some areas. Weaver told
the faculty that if they weren’t certain about how to vote,
they should vote “no.” The Department selected Bellon to
present Sun’s case, and Bellon gave a positive presenta-
tion. During the meeting, both Weaver and Greene made
remarks critical of Sun and Weaver downplayed the
importance of teaching in a tenure decision.
On September 23, 2002, pursuant to the University’s
tenure evaluation process, Sun presented a colloquium
No. 06-2438 7
in which he discussed the research he had done at the
University and answered questions. Prior to the collo-
quium, Sun met with Ian Robertson, another faculty
member, to present a “rehearsal” of his colloquium mate-
rial. Robertson urged Sun to revise the colloquium to
make it resonate with faculty that were not experts in
Sun’s field. Because of these late revisions, Sun replaced
some of his presentation slides with handwritten transpar-
encies, which Weaver subsequently criticized.
On October 2, 2002, another meeting was held in which
the faculty discussed Sun’s qualifications and voted on
whether he should be recommended for tenure. Prior to the
vote, Weaver discussed Sun’s candidacy with some mem-
bers of the faculty and made negative comments. For
example, Weaver asked Bellon how he was going to vote
and suggested that Sun was not the kind of person he
would want to be stuck with for 25 years. Bellon disagreed
and walked away, although he felt pressured by Weaver.
Ultimately, Bellon voted in favor of tenure. James Econ-
omy, the former head of the Department, testified that
Weaver approached him two to three times to make
negative comments about Sun and also discouraged him
from voting. Despite his attempts, Weaver was not suc-
cessful in influencing Economy’s vote. The faculty voted
by secret ballot, thirteen against tenure and six in favor.
Shortly thereafter, Weaver asked for a vote of the PTC,
which voted 4-0 against tenure. Weaver then notified Sun
that he intended to recommend against tenure and that
Sun had a right to appeal.
Sun asked the faculty to reconsider their decision and
circulated a written appeal document. Prior to the faculty’s
appeal meeting, persons outside of the University, some
of them very well-known in Sun’s field, submitted ap-
proximately 21 letters in support of his candidacy. Weaver,
after consulting with Dean Daniel, sent everyone in the
Department an e-mail suggesting that the letters were not
8 No. 06-2438
appropriate and that they should not be considered.
Despite Weaver’s recommendation, the letters were
provided to all members of the faculty before the ap-
peal meeting.
On October 16, 2002, Sun asked a Department secretary
for Donald Burnett’s telephone number.5 This prompted
Weaver to enter Sun’s office yelling, among other things,
“Don’t fuck with people outside the University!”; ” Don’t
fuck with alumni!”; “You are screwing yourself!”; and “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 Sun’s office, Sun wrote him a letter setting out these
statements and protesting his behavior.
On October 28, 2002, Sun spoke with Dean Daniel and
complained that his unsuccessful bid for tenure was a
result of Weaver inappropriately influencing the faculty
in retaliation for not receiving the teaching award. Sun
requested that a different committee hear his appeal.
Subsequently, Dean Daniel spoke to four members of the
Department, all of whom thought Weaver’s behavior was
appropriate. Weaver admitted that he remarked to Sun
that the Department Head should be eligible for teaching
awards. Weaver also admitted using profanity when he
spoke to Sun on October 16, but denied any inappropri-
ate attempt to influence the faculty vote. On October 30,
2002, Daniel advised Sun via e-mail that Weaver’s behav-
ior was not inappropriate and that Sun’s appeal would
be heard by the original decision makers, i.e., the Depart-
ment faculty.
On October 30, 2002, the faculty met to reconsider their
recommendation. Weaver chaired the meeting, and Bellon
5
Burnett is an influential alumnus of the University for whom
the teaching award is named.
No. 06-2438 9
presented some of the information contained in Sun’s
additional letters of support. The faculty voted by secret
ballot, returning nine votes in favor of tenure, nine votes
against, and one abstention. Weaver advised Sun that the
Department intended to affirm its original decision.
On November 5, 2002, Sun wrote to Gerald J. Janusz,
the chairman of the Faculty Advisory Committee (“FAC”),
a committee comprised of representatives elected from
the entire University faculty, asking that the FAC con-
sider his grievance over the denial of tenure. On November
14, 2002, Janusz appointed a subcommittee to investigate
the procedures related to Sun’s denial of tenure. (The FAC
did not undertake any substantive review.) After Sun filed
another grievance with the College of Engineering, the
FAC subcommittee decided to defer its consideration of his
appeal until the other investigation concluded.
On November 22, 2002, Sun filed a grievance with the
College of Engineering Grievance Committee. In his
grievance, Sun asked the College Grievance Committee
to investigate misconduct during the evaluation of his
promotion in the Department. Specifically, Sun 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 unfairly by accepting negative
votes and discarding positive votes; and (6) the same
committee was improperly used to evaluate his appeal. The
Grievance Committee investigated the procedures in Sun’s
case, and, on December 27, 2002, issued a six-page report,
which stated:
The Grievance Committee finds that while there were
certain areas in which departmental procedures, as
10 No. 06-2438
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 adjudica-
tion of Prof. Sun’s promotion case by the faculty of the
Materials Science and Engineering Department.
Consequently . . . we do not recommend that Prof.
Sun’s promotion case be reviewed in a second appeal.
In its report, the Grievance Committee discussed the
specific allegations of misconduct, concluding that the
evidence did not support many of the allegations. The
Committee said, “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, par-
ticularly 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
Sun’s appeal resulted in a biased review.
Finally, the Grievance Committee report discussed Sun’s
allegations of verbal abuse by Weaver, stating, “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.” Nonetheless, the Grievance
Committee concluded that Sun’s allegations of verbal
abuse were unrelated to his procedural allegations, since
there was no evidence that the incident resulted in an
improper handling of his promotion case. On January 22,
2003, Weaver resigned as Department Head, but re-
mained a tenured member of the faculty. On January 24,
2003, Dean Daniel wrote to Sun, stating that, based upon
No. 06-2438 11
the Grievance Committee’s report, he affirmed his pre-
vious recommendation that Sun be issued a notice of
nonreappointment.
On March 20, 2003, Ian Robertson became the Interim
Department Head. In April, he met with Sun and sug-
gested that Sun resign from the selection committee for
the Burnett Teacher of the Year Award because he had
taken actions against the Department. Sun refused to
resign, stating that he could be fair in his considera-
tions, and pointed out that he represented only one of
four votes. Robertson agreed with Sun, and Sun helped
select the 2003 award winner.
Soon thereafter, the FAC resumed its investigation of
Sun’s complaint. On May 15, 2003, the FAC issued a six-
page report to Provost Herman, which concluded that
Sun’s promotion and tenure dossier was not fairly con-
sidered. In reaching its conclusion, the FAC found that
the “Department Head inappropriately tried to negatively
influence the promotion and tenure vote on Professor Sun’s
dossier.” However, the FAC further stated that “proof that
he actually influenced a faculty member into changing
his/her positive vote to a negative one is absent.” Neverthe-
less, the FAC determined that there was “convincing
evidence to conclude that Professor Sun’s dossier did not
get a fair hearing.” The report noted other procedural
irregularities, such as inconsistent treatment of absentee
ballots, different and more exacting standards compared to
previous candidates, and Weaver’s presiding over the
faculty appeal. The FAC recommended to Provost Herman
that “a more fair and impartial evaluation of Professor
Sun’s promotion and tenure dossier be undertaken.”
Although it recognized that certain aspects of Sun’s
evaluation may have been unfair, the FAC rejected the
allegation that Averback tried to influence the outcome of
Sun’s case. It concluded that Averback was “entitled to
12 No. 06-2438
make negative evaluative comments about a candidate
since he is a member of the faculty.” The FAC noted that
Averback’s comments were made at an open faculty
meeting. In addition, the FAC did not agree with Sun’s
allegation that Averback deliberately solicited letters
from external evaluators who were biased. It stated
that the “solicitation of an ‘excluded’ individual as an
evaluator is consistent with Communication No. 9 which
says that individuals cannot be excluded.” After receiving
the report of the FAC, Provost Herman decided that
Sun’s case should be reconsidered. Provost Herman,
Dean Daniel and Robertson agreed that, because the
faculty governance structure dictated that the faculty
themselves decide promotion and tenure, the faculty
should determine whether they could render a fair and
impartial decision. If the faculty determined they could
not be fair, an external committee would decide the
matter.
On July 8, 2003, the faculty reconsidered Sun for tenure.
Prior to this meeting, Sun provided Robertson with in-
formation about his professional activities since October
2002. Robertson considered this additional information
to be marginal at best, so he decided not to add the
material to Sun’s dossier. According to Sun, he had a
significant number of publications and accomplishments
during this time which should have been added to his
dossier. Despite the exclusion of the information, all
questions about Sun’s activities since the previous fall
were answered during the discussion leading up to the
vote. At the meeting, Robertson told the faculty that the
FAC had determined that some of Weaver’s activities
were improper and may have tainted the decision. He
also stated that it was determined by the FAC that
there was no improper conduct regarding the outside
evaluators. Robertson then polled the faculty members on
whether they could fairly reconsider Sun’s application for
No. 06-2438 13
tenure. The faculty voted 13-4 that they could render a fair
and impartial decision.
After this vote, Bellon made a presentation and a
discussion followed. The faculty then voted eight in favor
of tenure and ten against tenure, with one abstention.
Weaver, who was not at the meeting, provided a proxy
vote, but Robertson did not count it. Robertson then asked
the faculty to vote on whether they believed the matter
should be referred to an outside committee. The vote
was five in favor and six against, with two abstentions.
On July 10, 2003, Robertson wrote a letter to Dean Daniel
which he forwarded with Sun’s dossier. In the letter,
Robertson described what happened at the faculty meet-
ing and included a paragraph that stated:
While it is clear that Yong-Qian Sun is an excellent
teacher and has . . . produced high-quality work, he
has not been able to establish and sustain a high-
quality research program at the University of Illinois.
The usual indicators of high-quality work (number of
invited presentations at international and national
meetings, invitations to join conference organizing
committees, research funding etc.) are missing. . . .
[Sun’s] total level of funding over a six-year period is
$462,501, which comes to less than $80,000 per year.
To put this in perspective, the average annual funding
level per faculty in Materials Science and Engineer-
ing is in excess of $250,000. . . . While total funding
should not be and was not an issue, Sun continues
to resubmit proposals on similar topics, he does not
appear to have learned from his failure, and he has not
changed his approach to seeking funds from external
agencies. . . . I recommend against the promotion of
Yong-Qian Sun to the rank of Associate Professor
with tenure.
14 No. 06-2438
On July 11, 2003, Dean Daniel forwarded Sun’s dossier to
the College Promotion and Tenure Committee for review.6
Robertson’s paragraph regarding his recommendation
was included as part of the dossier.
The College Promotion and Tenure Committee (“Commit-
tee”) consisted of six members, one of whom was Weaver.
However, Weaver and another member of the Committee
were not involved in the review of Sun’s dossier. Two of the
four remaining members had been on the Grievance
Committee that considered Sun’s case, a fact about
which Sun complained to Dean Daniel on July 16, 2003.
Although Sun complained about the Committee’s composi-
tion, Daniel let it proceed because he wanted to see its
report, particularly since it was the only appointed entity
to evaluate promotion cases.
On July 17, 2003, the Committee sent a seven-page
report to Dean Daniel. The report stated that, following
the Committee’s review, it concluded that the decision by
the Department “to not promote Prof. Sun was ‘reasonable’
in the sense that it was consistent with not only the
current standards and past practices established by the
MatSE department, but also with the guidelines and
procedures established by the Provost for promotion and
tenure cases.” The report then detailed the conclusions it
reached following its review of Sun’s record and its com-
parison of Sun’s case to Bellon’s. The report stated that the
“negative departmental votes in the Bellon case indicate to
us that the Bellon case was near the borderline of what is
acceptable to the MatSE faculty for promotion to associate
professor with tenure” and thus “offers an important point
of reference for the Sun case.” The Committee concluded
6
The College Promotion and Tenure Committee is an entity
distinct from the PTC, which represented Sun’s department only,
rather than the entire College of Engineering.
No. 06-2438 15
that: (1) there was no substantive difference in the format-
ting of the two dossiers; (2) the credentials of the external
evaluators for Plaintiff and for Bellon were roughly
comparable, although the overall credentials of Bellon’s
letter writers were perhaps slightly stronger than those
writing for Sun; (3) the two cases were nearly equivalent
as to classroom teaching; (4) although both cases were
somewhat below average in graduate student supervision,
Bellon’s case was slightly stronger because he had super-
vised one Ph.D. student to completion and had published
a larger number of journal articles with his students; (5)
the quantity and quality for journal publications was
roughly similar; (6) Bellon had a better record as to invited
presentations, particularly those that were international
in scope; (7) Bellon had a significantly better record of
research funding; (8) the strength of the external evalua-
tion letters was similar for both Sun and Bellon; and (9)
the level of service in the two cases was comparable and
satisfactory. The Committee concluded that the cases of
Bellon and Sun were very similar in many categories, but
Bellon’s case was stronger in the areas of visibility,
number of students graduated, impact of recent work, and
record of research funding. It stated that there were no
areas where Sun’s case was superior to Bellon’s and also
concluded that the process by which the faculty arrived at
their decision was reasonable.
After receiving the report, Dean Daniel conducted his
own review of Sun’s dossier, and he agreed with the
Committee’s evaluation. On July 21, 2003, Dean Daniel
sent a letter to Provost Herman explaining the proce-
dures followed in reviewing Sun’s case after the FAC’s
report. Daniel informed Herman that his own reassess-
ment of the Sun’s case convinced him that he “does not
meet the expectations for promotion and tenure in the
College of Engineering.” That same day, Herman wrote to
Sun, informing him that a letter of nonreappointment
would be forthcoming.
16 No. 06-2438
In August 2003, the Chairman of the FAC informed
Provost Herman that two members of the College Promo-
tion and Tenure Committee had also been members of the
Grievance Committee that considered Sun’s appeal. In an
abundance of caution, Herman agreed to appoint an ad hoc
committee at the University level to review the case.
Herman selected the ad hoc committee and Sun found the
proposed group acceptable. On October 14, 2003, Herman
sent a letter to each of the members of the ad hoc com-
mittee. Herman enclosed a copy of Sun’s dossier that
included Robertson’s comments. Herman also enclosed
additional material Sun provided updating his dossier. He
asked the ad hoc committee to determine whether the
unfavorable recommendation was justified on the merits of
the case or warranted higher levels of review. The ad hoc
committee did not review the additional letters received
following the initial Department vote.
Charles Tucker, a member of the ad hoc committee,
stated in an affidavit that, in his three years on the
Campus Promotion and Tenure Committee, he had the
opportunity to review hundreds of dossiers for tenure
candidates. Although Tucker and other committee mem-
bers read Robertson’s attached comments and considered
them, Tucker said the comments were but one of several
factors, and not the most important factor, in his evalua-
tion of Sun’s dossier. Instead, the discussions of the ad hoc
committee “centered around the quality of the work of
Professor Sun as reflected in his dossier with updates, and
the traditional factors of service, teaching and research
which are the bases for making determinations about
tenure.” Based upon his evaluation of the dossier and the
other materials provided by Sun, Tucker thought he “was
not deserving of tenure in the Materials Science and
Engineering Department, one of the top two or three
departments in the United States.” The vote of the ad hoc
committee was 3-1 against granting Plaintiff tenure.
No. 06-2438 17
On November 7, 2003, Provost Herman wrote a letter to
Sun affirming the negative recommendation and recom-
mending nonreappointment. On November 19, 2003, Sun
appealed to Chancellor Nancy Cantor, complaining of
procedural irregularities. The FAC also wrote to Chancel-
lor Cantor and Herman to record their continuing con-
cerns with the procedures followed. On November 24,
2003, Herman wrote Chancellor Cantor a four-page letter
regarding the “long history” of Sun’s case. In December
2003, Sun advised Herman that his list of 21 conference
proceedings was not included in the dossier that was
provided to the ad hoc committee. Herman thought that
conference proceedings were not a significant part the
dossier and their presence or absence was insignificant.
Weaver, Daniel, Robertson, Averback and Greene all
agreed that conference proceedings were not a significant
part of the dossier. Even, Jian Ku Shang, Trudy Kriven,
and James Economy, faculty members who were very
supportive of Sun’s tenure and felt that Sun was unfairly
denied tenure, agreed that conference proceedings were
not an important part of the dossier. On December 8, 2003,
Chancellor Cantor wrote to Sun, advising him that she
found no grounds for reversing the tenure decision.
On January 12, 2004, Sun filed his amended complaint
in this case, alleging employment discrimination in
violation of Title VII of the Civil Rights Act as well as
violations of his rights under 42 U.S.C. § 1981 and 42
U.S.C. § 1983. During the discovery phase, Sun had a
difficult time obtaining answers to interrogatories from
the defendants, which resulted in two orders to compel
discovery as well as sanctions. Upon granting a third
motion to compel, the district court entered a default
judgment against the defendants. Soon after, the defen-
dants engaged new counsel and moved the court to vacate
the default judgment, arguing, among other things, that
their former lawyer’s medical condition prevented him
18 No. 06-2438
from complying with discovery and that the defendants’
other attorney and the defendants themselves were
unaware of the situation. Although the court expressed
skepticism about the reasons offered by the defendants, it
granted the motion to vacate. After discovery closed, the
defendants moved for summary judgment and the court
granted it on all counts. Sun appeals both the vacation of
the default judgment and the entry of summary judgment.
II. DISCUSSION
Sun presents three primary arguments on review. First,
he claims that the court abused its discretion when it
vacated the entry of default judgment against the defen-
dants. Second, Sun contends that issues of material fact
remain as to whether he was denied tenure on the basis
of race or national origin. Finally, he argues that the
district court erred in granting summary judgment in favor
of the defendants on his First Amendment claim.
A. Default Judgment
On June 23, 2005, the district court granted Sun’s third
motion for sanctions, striking the pleadings of all defen-
dants, defaulting them, and allowing Sun to proceed to
trial on damages only. Then, on August 8, 2005, it granted
defendants’ Motion to Vacate Default Judgment. Sun
claims that the court abused its discretion when it
granted the motion, and he asks this Court to reverse the
judgment of the district court, reinstate the defaults
entered against all defendants, and remand this cause for
trial on damages only. In order to have an entry of default
vacated, the moving party must show: (1) good cause for
the default; (2) quick action to correct it; and (3) a merito-
rious defense to the complaint. Pretzel & Stouffer, Char-
tered v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir.
No. 06-2438 19
1994). Whether or not to vacate a default is in the sound
discretion of the district court, and we will reverse such a
determination only if the district court abused its discre-
tion. See Robinson Eng’g Co. Pension Plan and Trust v.
George, 223 F.3d 445, 448 (7th Cir. 2000).
In their Motion to Vacate Default Judgment and their
memorandum accompanying it, defendants’ new counsel
offered a litany of excuses. They asserted that the defen-
dants were personally innocent of any misconduct; that
the district court should have given the individual defen-
dants direct notice of the earlier sanctions; that they had
a complete defense and should be allowed to present it;
that the court’s interest in deciding cases on the merits
would best be served by vacating the defaults; and that one
of the defendants’ prior attorneys had medical condi-
tions which interfered with his ability to manage the
defense of the case.
One of the defendants’ attorneys, Michael Cornyn, stated
in his affidavit that he was in charge of coordinating
and finalizing the discovery compliance of all defendants,
and the defendants fully cooperated. Although he informed
University Counsel of the first Motion to Compel and
attendant sanctions, he did not inform them of the sec-
ond or third. Moreover, he stated that he had been diag-
nosed recently as suffering from “two serious conditions”
that had lasted at least for six months. A letter from
Cornyn’s treating doctor was produced under seal. Cornyn
stated his belief that the medical conditions from which he
suffered interfered with his ability to properly manage the
defense to the defendants’ detriment. William J. Brink-
man, the other attorney of record for the defendants,
swore that he had no personal knowledge of the second or
third motions to compel. Another attorney, Mark Henss of
the University’s Office of University Counsel, likewise
swore that he had no knowledge fo the second or third
motions.
20 No. 06-2438
Sun challenged the excuses, first pointing out that the
individual defendants had not even printed out some
requested documents until after the default judgment
was entered. Moreover, Sun noted that Cornyn’s behavior
was not out of character for him, because he had handled
discovery requests in a similar fashion in another case,
which also resulted in the entry of a default judgment
against his client. See Robinson v. City of Champaign,
Case No. 00-CV-2315 (C.D. Ill. 2002) (defendant’s failure
to provide answers to written interrogatories for more
than six months resulted in default judgment). Sun also
cited Tango Music, LLC v. DeadQuick Music for the
proposition that an attorney’s illness (in that case, depres-
sion) did not excuse his client from proceeding with a case.
348 F.3d 244, 247-48 (7th Cir. 2003). In Tango, we recog-
nized that a client has “to take responsibility for the
actions of is agents, including the lawyers whom it hires.”
Id. at 247. Finally, Sun pointed out that Brinkman had
registered with the Electronic Case Filing System of the
Central District of Illinois so that he received an elec-
tronic copy of each and every motion, order, and docket
entry in this case.
In its opinion filed on August 8, 2005 the district court
quickly disposed of defendants’ contention that the court
should have given them direct notice of their counsel’s
failures, calling it “completely outrageous.” Sun v. Bd. of
Trs. of the Univ. of Ill., 229 F.R.D. 584, 590 (C.D. Ill. 2005).
It also found that the individual defendants were not
innocent of misconduct, because they “did not provide
documents and answers to interrogatories until months
and months after the deadline.” Id. The court
also expressed reservations about whether Cornyn’s
conduct was the result of his alleged medical conditions,
noting the remarkable resemblance between the present
case and the Robinson case. Id. Moreover, the court said,
that “Brinkman’s claims of lack of knowledge ring hollow.”
No. 06-2438 21
Id. In short, the court concluded, “Defendants have not
convinced this Court that the entry of default judgment
was not warranted in this case.” Id. at 591. Nonetheless,
it added that “as much as [the] court finds all of these
arguments lacking in merit, it does have an interest in
having cases decided on the merits and concludes that
sanctions lesser than default may be appropriate in this
case.” Id. It then granted the defendants’ Motion to Vacate
Default Judgment, but ordered serious sanctions against
defendants’ (former) attorneys.
Sun is likely correct that a district court abuses its
discretion when it vacates a properly entered default
judgment absent an explicit finding that the party seek-
ing to vacate the judgment showed good cause for the
default. After all, the language of our case law is manda-
tory, stating that a party seeking to vacate a default
judgment must make the required showings. See Pretzel &
Stouffer, 28 F.3d at 45. Unfortunately, both parties gloss
over the antecedent issue of whether the entry of default
judgment was proper in the first place. Federal Rule of
Civil Procedure 55(a) provides that “when a party against
whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend as provided by these rules . . .
the clerk shall enter the party’s default.” We conclude
that default judgment was an unduly harsh sanction in
this case.
This Circuit has a well established policy favoring a
trial on the merits over a default judgment. C.K.S. Eng’rs,
Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205
(7th Cir. 1984) (collecting cases). For that reason, a de-
fault judgment should be used only in extreme situa-
tions, or when other less drastic sanctions have proven
unavailing. Id. Although a district court has the default
judgment “readily available within its arsenal of sanc-
tions,” id. at 1206, it is a weapon of last resort, appropriate
only when a party wilfully disregards pending litigation.
22 No. 06-2438
See, e.g., id. at 1204 (district court would not vacate
default where it concluded that defendants “believed they
could ignore this case and throw themselves upon the
mercy of the court by contending that their local counsel
was incompetent”); Calumet Lumber, Inc. v. Mid-America
Indus., Inc., 103 F.3d 612 (7th Cir. 1997) (holding that
entry of default judgment was proper where counsel
knowingly skipped a hearing and failed to answer a cross-
claim altogether); Pretzel v. Stouffer, 28 F.3d at 44 (hold-
ing entry of default proper where party did not file its
answer or attend a status hearing).
As the district court likely realized when it vacated its
entry of default, this case does not represent one of those
rare situations in which entry of default is appropriate.
While defendants’ attorneys were by no means paragons
of responsible lawyering, their involvement in the discov-
ery process was consistent and ongoing. Although coun-
sel should have promptly complied with the court’s orders
to answer outstanding interrogatories, their delay was
not so extreme as to warrant an entry of default. Like-
wise, although the district court tried to use less drastic
sanctions by twice imposing monetary penalties, it brought
out the heavy artillery too soon. Instead of entering a
default, punishing the defendants and giving the plaintiff a
windfall, the district court should have imposed increased
monetary sanctions against the attorneys who had caused
the discovery delays. Accordingly, we affirm the district
court’s decision to vacate its improvidently granted entry
of default judgment.
B. Race/National Origin Discrimination Claim
Sun next contends that the district court improperly
granted summary judgment in favor of the defendants on
his Title VII claim. We review a district court’s grant of
summary judgment de novo. Summary judgment is
No. 06-2438 23
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In
ruling on a motion for summary judgment, a district
court has one task: to decide whether there is any mate-
rial dispute of fact that requires a trial. Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In mak-
ing this determination, we draw reasonable inferences
from the underlying facts in the light most favorable to
Sun. Carreon v. Ill. Dep’t of Human Servs., 395 F.3d 786,
790 (7th Cir. 2005).
Sun argues that the defendants denied him promotion
and tenure on the basis of his race and national origin, in
violation of Title VII of the Civil Rights Act. To establish
a claim of disparate treatment, a plaintiff may pro-
ceed under the direct or indirect method. We consider
Sun’s Title VII claims under each method.
1. Direct Method
In order to establish a prima facie case of race or na-
tional origin discrimination under the direct method, Sun
must prove that the defendants were motivated by
animus based upon his race or national origin when he was
denied promotion and tenure. See Sylvester v. SOS Chil-
dren’s Vills. Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006);
Mosley v. Maytag Corp., 2006 WL 213950, at *4 (C.D. Ill.
Jan. 27, 2006). A plaintiff proceeding according to the
direct method may rely on either direct or circumstantial
evidence. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,
720 (7th Cir. 2005).
Sun argues that the voting record of the PTC and
Greene’s comment about Chinese students provide cir-
24 No. 06-2438
cumstantial evidence of discrimination sufficient to raise
a genuine issue of material fact under the direct method.
Circumstantial evidence of discrimination is evidence
which allows the trier of fact to infer intentional discrimi-
nation by the decisionmaker. Id. This Circuit has recog-
nized three types of “circumstantial” evidence of inten-
tional discrimination: (1) suspicious timing, ambiguous
oral or written statements, or behavior toward or com-
ments directed at other employees in the protected group;
(2) evidence, whether or not rigorously statistical, that
similarly situated employees outside the protected class
received systematically better treatment; and (3) evidence
that the employee was qualified for the job in question
but was passed over in favor of a person outside the
protected class and the employer’s reason is a pretext
for discrimination. Id. at 720-21. Sun’s evidence falls
into the first two categories.
Sun emphasized that, between the years of 1993 and
2003, the four members of the PTC voted on 19 promotion
candidates, two of whom were Asian and from China and
17 of whom were Caucasian. According to Sun, the PTC
voted unanimously against him and the other Chinese
candidate and, in almost every case, voted unanimously
in favor of the Caucasian candidates.7 The district court
disregarded this evidence, stating that it did not con-
stitute “statistical” evidence that similarly situated em-
ployees outside the protected class received systematically
better treatment. See Mosley, 2006 WL 213950, at *5-6.
Although the sample size is insufficient to provide statisti-
cally reliable evidence, the PTC’s voting pattern has some
probative value regarding discriminatory employment
practices. After all, Rudin recognizes pattern evidence of
7
The other Chinese candidate was eventually given tenure and
promoted—although not by the Department.
No. 06-2438 25
disparate treatment “whether or not rigorously statistical.”
420 F.3d at 720. We do not hold, however, that a ques-
tionable pattern of promotion, standing alone, is sufficient
evidence to withstand summary judgment.
Although Sun concedes that Greene’s remark is not
direct evidence of discrimination against him because
Greene referred to “students” and not “professors,” he
argues that it shows that Greene harbored prejudicial
views about Chinese people. Moreover, Sun asserts, the
suspect remark was contemporaneous with the adverse
employment action because the remark occurred at the
time the PTC, of which Greene was a member, was
discussing Sun’s case and selecting external evaluators.
Defendants contend, however, that Greene’s remark
about Chinese students was a “stray workplace remark”
that is not evidence of discrimination. We have held that
stray remarks that are neither proximate nor related to
the employment decision are insufficient to defeat sum-
mary judgment. Bahl v. Royal Indem. Co., 115 F.3d 1283,
1293 (7th Cir. 1997). At the same time, though, the state-
ments of a person who lacks the final decision-making
authority may be probative of intentional discrimination
if that individual exercised a significant degree of influence
over the contested decision. Porter v. State of Ill., Dep’t of
Children & Family Servs., 987 F. Supp. 667, 673 (N.D. Ill.
1997), aff ’d, 165 F.3d 32 (7th Cir. 1998).
If the PTC had made the final decision in Sun’s case, its
voting record coupled with the discriminatory remarks of
one of its four members may have created a genuine issue
of material fact. We need not decide that issue, though,
because we have previously held that “when the causal
relationship between the subordinate’s illicit motive and
the employer’s ultimate decision is broken, and the
ultimate decision is clearly made on an independent and
a legally permissive basis, the bias of the subordinate is
not relevant.” Willis v. Marion County Auditor’s Office, 118
26 No. 06-2438
F.3d 542, 547 (7th Cir. 1997). As the district court noted,
“the final decision in this case was made by Herman, after
multiple layers of review, including the review by the
ad hoc committee.” Sun v. Bd. of Trs. of the Univ. of Ill.,
429 F. Supp 2d 1002, 1023 (C.D. Ill. 2006). The numerous
levels of review, particularly those conducted by indepen-
dent and University-wide committees broke any connec-
tion between Greene’s possible discriminatory motive and
the ultimate decision.
Sun claims that Greene’s illicit motives infected the
entire process and points to a Third Circuit case in
which the court stated that “a plaintiff in a discrimination
case need not prove intentional discrimination at every
stage of the review process.” Roebuck v. Drexel Univ., 852
F.2d 715, 727 (3d Cir. 1988). Sun’s reliance on Roebuck
is misplaced, however, because each evaluator in that
case considered reports from the previous evaluators,
thus tainting subsequent reviews and leaving the causal
chain in tact. Id. By contrast, in Sun’s case, subsequent
reviewing committees had no report from the PTC commit-
tee that could have tainted their reviews or ultimate
decisions. In addition, Sun’s case is distinguishable from
Russell v. Bd. of Trs. of Univ. of Ill. at Chicago, in which
we concluded that the improper motives of the plaintiff ’s
supervisor “had to be imputed to the other members of the
disciplinary committee because of [the supervisor’s]
extensive role in initiating and carrying out the disciplin-
ary process.” 243 F.3d 336, 342 (7th Cir. 2001). Again,
given the numerous reviews, both substantive and proce-
dural, by committees outside of the Department and far
removed from Greene’s alleged influence, Greene could
not be said to have an “extensive role” in making the
tenure decision. Therefore, Greene’s possibly improper
motives cannot be imputed to the final decisionmaker.
Accordingly, the district court correctly determined that
No. 06-2438 27
no genuine issue remained with regards to Sun’s direct
method claim.
2. Indirect Method
Sun also attempts to show that issues of fact remain
under the McDonnell Douglas indirect method. Under this
method, Sun must first establish a prima facie case of
discrimination by showing that: (1) he is a member of a
protected class; (2) he was qualified for tenure; (3) he was
denied tenure; and (4) a similarly situated applicant not
in the protected class was granted tenure. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Namenwirth v. Bd. of Regents of Univ. of Wis. Sys., 769
F.2d 1235, 1240 (7th Cir. 1985); Sinha v. Bd. of Trs. of
Univ. of Ill., 2001 WL 921718, at *14 (N.D. Ill. Aug. 15,
2001). If Sun establishes a prima facie case, the burden of
production shifts to the defendants to articulate a non-
discriminatory reason for denying Sun’s tenure. See
Namenwirth, 769 F.2d at 1240. If the defendants produce
a nondiscriminatory reason for the decision, Sun must
then prove that the stated reason is merely a pretext
for discrimination based upon race and national origin.
Id. This is an extremely difficult burden to carry “[d]ue to
the layered and subjective nature of the tenure process,
and the courts’ recognition that such decisions are based
on the fine ‘distinction between competent and superior
achievement.’ ” Sinha, 2001 WL 921718, at *14, quoting
Kuhn v. Ball State Univ., 78 F.3d 330, 331 (7th Cir. 1996).
With respect to the prima facie case of discrimination, it
is undisputed that Sun is Chinese and was subject to an
adverse employment action, i.e., the denial of tenure
and promotion. As usual, it is the second and fourth prongs
that are at issue. Because the second prong is inextricably
intertwined with the pretext analysis, we address prong
four first—the identification of similarly situated individ-
28 No. 06-2438
ual who was treated more favorably. Sun identifies Pascal
Bellon as a similarly situated, non-Chinese tenure candi-
date who was promoted and granted tenure. Bellon was in
the same department as Sun and was a candidate for
promotion and tenure one year before Sun. The FAC
committee found that “different and more exacting proce-
dures and standards were applied” in Sun’s case, which
could satisfy the fourth prong of the prima facie case. On
the other hand, the College Promotion and Tenure Com-
mittee actually conducted a detailed comparison between
Bellon and Sun, concluding that Bellon’s dossier was
superior to Sun’s in a number of ways, including funding
and invited presentations. That comparison identifies
differences between the candidates, but does
not necessarily show that they were not at least “similarly
situated.”
Assuming that Sun could, in fact, establish a prima facie
case, the defendants have articulated a non-discriminatory
reason for denying him tenure that is not pretextual.
Specifically, they contend that Sun’s dossier was simply
inadequate, and multiple groups and individuals deter-
mined that he did not deserve tenure. This court has
recognized that tenure cases require something more
than mere qualification; the department must believe
the candidate has a certain amount of promise. Namen-
wirth, 769 F.2d at 1242. Given the nuanced nature of such
decisions, we generally do not “second-guess the expert
decisions of faculty committees . . . .” Vanasco v. Nat’l-
Louis Univ., 137 F.3d 962, 968 (7th Cir. 1998).
In this case, the University’s proffered reason is non-
discriminatory, as it identifies weaknesses in Sun’s dossier
related to funding, scholarship, and supervision of gradu-
ate students. We know that the proffered reason is legiti-
mate and not pretextual because Sun’s dossier was
considered numerous times by multiple committees,
No. 06-2438 29
including committees that had no interaction whatso-
ever with Greene, Weaver, or Averback.
Ultimately, the indirect method of proving discrimina-
tion attempts to isolate the cause of an adverse employ-
ment action in order to determine whether it was moti-
vated by discrimination. Where, as here, a plaintiff is
afforded process sufficient to eliminate potentially discrim-
inatory motives, summary judgment in favor of the
defendants is proper. Although some of the defendants’
actions early in the process may have caused Sun to lose
faith in the fairness and integrity of the University’s
tenure and promotion decision, no reasonable jury could
find that the final decision was based on Sun’s race or
national origin. To hold otherwise would discourage
employers from identifying and correcting potentially
unfair or discriminatory employment proceedings without
legal intervention.
C. First Amendment Claim
Sun’s final claim is that the individual defendants
violated his First Amendment right to free speech, and
that he was retaliated against for asserting those rights.8
Specifically, he claims that his selection of the recipient
of the teaching award constituted protected speech, as
did his subsequent grievance against Weaver. To establish
such a claim, Sun must show that 1) his speech was
constitutionally protected and 2) that speech motivated
the defendants’ actions. Vukadinovich v. Bd. of Sch. Trs.
of N. Newton Sch. Corp. 278 F.3d 693, 699 (7th Cir. 2002).
If Sun establishes these two elements, the burden shifts to
the University to show that its interest in efficient man-
8
This claim is primarily against Weaver, although Sun makes
some allegations against Robertson.
30 No. 06-2438
agement outweighed Sun’s interest in freedom of expres-
sion, or that it would have denied Sun tenure regardless
of the speech. Miller v. Jones, 444 F.3d 929, 935 (7th Cir.
2006).
Employee speech is protected when it relates to matter
of “political, social, or other concern to the community.” Id.
This Court considers the content, form, and context of
employee speech to determine whether it is on a matter
of public concern, with the primary emphasis on content.
Id. The defendants contend that Sun’s decision not to
nominate Weaver for the award was not speech on a
matter of public concern. In response, Sun notes that
educational improvement in public schools is a matter of
public concern, citing Klug v. Chicago Sch. Reform Bd. of
Trs., 197 F.3d 853, 858 (7th Cir. 1999). He also asserts
that his complaint to the FAC about Weaver’s behavior
was protected speech. The district court noted that this
was a close question, but found the speech protected. We
need not decide this question, however, because Sun’s
speech did not motivate the denial of tenure, and it is clear
that the Department would have denied Sun’s tenure
regardless of his speech.
The district court noted that even if Weaver took retalia-
tory actions against Sun and attempted to influence the
faculty regarding Sun’s tenure and promotion, there is no
evidence that anyone was actually influenced. Sun dis-
agrees, stating that Weaver’s influential position as
Department Head and his attempts to exert that in-
fluence constitute circumstantial evidence that he influ-
enced the vote. Although a reasonable jury could con-
clude that Weaver influenced some faculty members, the
numerous subsequent reviews by independent decision
makers once again break any causal chain between any
retaliatory conduct and the ultimate decision not to
promote Sun. Regardless of Weaver’s alleged improper
behavior, committee after committee found Sun’s qualifica-
No. 06-2438 31
tions unworthy of tenure and promotion. Therefore, it
cannot be said that Sun’s speech motivated the decision.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment on all counts.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-16-07