Sun v. Board of Trustees of University of Il

• Decision Date: 16 January 2007
• Docket Number: No. 06-2438.,06-2438.
• Citation: 473 F.3d 799
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

473 F.3d 799

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.

No. 06-2438.

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2006.

Decided January 16, 2007.

COPYRIGHT MATERIAL OMITTED

David Stevens (argued), Heller, Holmes & Associates, Mattoon, IL, for Plaintiff-Appellant.

James C. Kearns (argued), Heyl, Royster, Voelker & Allen, Urbana, IL, for Defendants-Appellees.

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 various 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 default judgment against the defendants. Soon after, the court vacated the default, and, eventually, granted summary 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 evaluates 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 extremely 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.

In the Spring of 2002, the Department was considering 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 tenured 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 evaluations 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

The PTC placed Averback in charge of obtaining external 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 objective 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."

On May 21, 2002, Sun suggested, in writing, five external 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 coauthored 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 encountered with obtaining a sufficient number of qualified external evaluators, he eventually requested and obtained 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 was somewhat weak, the majority of the faculty members 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 voting on tenure candidates and recommending to the Department 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 Department 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 member 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 necessary 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 presentation. 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 in which he discussed the research he had done at the University and answered questions. Prior to the colloquium, Sun met with Ian Robertson, another faculty member, to present a "rehearsal" of his colloquium material. 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 transparencies, 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 members 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 Economy, the former head of the Department, testified that Weaver approached him two to three...