Elsayed Mukhtar v. Cal. State University, Hayward

• Decision Date: 07 August 2002
• Docket Number: No. 01-15565.,01-15565.
• Citation: 299 F.3d 1053
• Parties: Mohamed Osman ELSAYED MUKHTAR, Plaintiff-Appellee, v. CALIFORNIA STATE UNIVERSITY, HAYWARD, a public entity, Carlos Navarro and Norma Rees, employees of the California State University in their Official and Individual Capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

299 F.3d 1053

Mohamed Osman ELSAYED MUKHTAR, Plaintiff-Appellee, v. CALIFORNIA STATE UNIVERSITY, HAYWARD, a public entity, Carlos Navarro and Norma Rees, employees of the California State University in their Official and Individual Capacities, Defendants-Appellants.

No. 01-15565.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2002.

Filed August 7, 2002.

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Felicia R. Reid, Curiale Dellaverson Hirschfeld Kraemer & Sloan, LLP, San Francisco, CA, argued the cause for the defendants-appellants.

Fania E. Davis, Oakland, CA, argued the cause for the plaintiff-appellee; Darryl Parker, Seattle, Washington, was on the brief.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CV-97-02566-CW.

Before O'SCANNLAIN, TALLMAN, Circuit Judges, and KING, District Judge.^*

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether the district court fulfilled its obligation to ensure that the testimony of an expert witness was sufficiently reliable before it was presented to the jury.

I

California State University, Hayward ("CSUH") hired Mohamed Osman Elsayed Mukhtar ("Elsayed"), a Muslim of Sudanese origin,¹ in 1990 as a tenure-track professor in its Mass Communications Department to teach broadcast television and other foundational courses. He was the first black tenure-track professor hired by the department. CSUH eventually denied Elsayed's application for tenure. CSUH claims it did so because he lacked sufficient scholarly activity; Elsayed contends it was because of his race, religion, and national origin. Due to the nature of the dispute, it is helpful to trace Elsayed's career at CSUH, starting from the time of his hiring.

While the Ph.D. degree is normally a pre-requisite for hire in CSUH tenure-track positions, the University makes exceptions for applicants close to completing the doctorate. Non-degreed candidates, such as Elsayed when he started at CSUH in 1990, are generally expected to complete the Ph.D. within their first year of employment. Elsayed, however, did not receive his Ph.D. from the University of Missouri until December 1995. His consistent failure to obtain his Ph.D. during his five-year probationary period at CSUH was a source of great concern among Elsayed's superiors. During that five-year period, he did not publish a single article. He did, however, consistently receive positive student evaluations and was named departmental Teacher of the Year for the 1995-96 and 1996-97 academic years. He mentored students of color, served on the Multicultural Council, and was active in the Black Faculty Association. Elsayed also participated in international humanitarian and community organizations, such as the Islamic African Relief Agency and the American Society of Humanitarian Aid and Development. He made oral presentations in numerous workshops and seminars, but none involved presenting written work.

During Elsayed's first year at CSUH, he received a reduced teaching load to enable him to complete his dissertation, as is customary. In his first annual evaluation in January 1991, Alan Smith, Dean of the School of Arts, Letters, and Social Sciences ("ALSS"), noted that if Elsayed "has not completed his degree by the time of his 1991-92 evaluation for retention, the dossier should include a statement from the candidate concerning the schedule for the completion of his degree." He also commented that Elsayed was "an enthusiastic, conscientious, and accessible teacher with a genuine interest in the education of his students." Finally, he noted that Elsayed had an article accepted for publication by Gazette, a mass communications journal. However, at trial Elsayed admitted that the editor had simply "showed interest," and the article was never published.

In Elsayed's second annual evaluation in January 1992, Robert Terrell, Chair of the Department of Mass Communications, expressed concern at Elsayed's failure to obtain a Ph.D.:

We feel it incumbent upon us to point out at this juncture that significant allowances/considerations were made particularly during the first year of employment to free [Elsayed] from the traditional obligations of the appointment in order that he might be encouraged to complete the degree. Such was not the case. We are now informed that completion is anticipated during the summer, 1992. We point out the seriousness of the condition to recommend to [Elsayed] that future evaluations will bear heavily on his showing good faith and meeting this obligation by this new target date.

(emphasis added). Terrell noted the "uniformly positive response" to Elsayed as a teacher; his evaluations were "more than generally enthusiastic." Terrell also encouraged him to "broaden his horizon and seek positions in the faculty governance structure," rather than limiting himself to the Multicultural Council. Finally, he recommended that Elsayed "adhere more stringently to the specific obligations attendant to a faculty appointment ... namely, keeping posted office hours and regular attendance at departmental meetings."

Dean Smith also warned Elsayed in January 1992 that "failure to complete this essential task [of finishing his Ph.D.] will negatively influence his chances of maintaining his current relationship with the university." While noting his "impressive" classroom skills, Smith also recommended that Elsayed assume more responsibility for the department's administrative obligations.

In his third evaluation in April 1993, Terrell expressed frustration over Elsayed's lack of a Ph.D., going so far as to recommend that his employment at CSUH be terminated at the end of the 1993-94 academic year if he did not complete his dissertation by the end of summer 1993.

Last year Professor Elsayed was informed that the failure to complete his dissertation would "negatively influence his chance of maintaining his current relationship with the university." This observation has been repeated on numerous occasions since. Professor Elsayed was released from all responsibilities during the summer of 1992 so he would have ample time to complete his dissertation. At the end of the summer, he promised to be finished by December. In December he promised to be finished by June. He currently promises to be done by the end of the summer of 1993. Professor Elsayed's failure to complete his dissertation, despite numerous chances to do so, raises serious questions regarding his continued employment at CSUH.

(emphasis added). While recognizing that Elsayed was "popular with many students," Terrell noted that his "teaching evaluations indicate an ongoing problem with organization." Furthermore, Elsayed "has done little or no publishing since arriving at CSUH three years ago." Finally, "he rarely participates in mainstream faculty governance procedures," despite being "strongly urged to broaden his involvement with the campus community."

In April 1993, Mary Cullinan, Interim Dean of ALSS, echoed Terrell's concern regarding Elsayed's lack of a Ph.D. She noted that Elsayed was a "popular instructor," but should "create detailed syllabi for his classes, provide ample office hours for students, and give students early and ample feedback on how they are doing." She also highlighted his failure to complete a number of professional works in progress.

The fourth evaluation, in March 1994, noted that Elsayed did not meet the summer 1993 Ph.D. deadline and set the new deadline for summer 1994. Terrell again stated that Elsayed's failure to complete his dissertation "might have significant, negative consequences." He observed that although Elsayed was a "sensitive, caring professor," he did not grade assignments in a timely fashion and taught in a "disorganized fashion." Terrell encouraged him to "devote more time and attention to becoming a better organized teacher" and expressed concern over Elsayed's practice of occasionally having students do portions of his work, which, Terrell felt, came "perilously close to being a violation of professional ethics."

Terrell wrote that "[t]oo many of the activities [Elsayed] cites as evidence of his professional achievement are insufficiently centered on mass communication." He recommended that Elsayed "devote more time and attention to producing articles and other texts such that he can clearly demonstrate his mastery of scholarship." He continued to note Elsayed's lack of campus involvement, stating that he "needs to get more directly involved in advising students, working with alumni, participating in faculty governance, [and] representing the department at campus and professional meetings." In short, "Professor Elsayed is not pulling his fair share of the department's load at this time." Terrell ended his evaluation with this stern warning: "I strongly recommend that [Elsayed] be informed — in the bluntest possible fashion — that prolonging completion of his dissertation will be a mistake of the most serious sort."

The new Dean of ALSS, Carlos Navarro, reiterated Terrell's concerns, stating that Elsayed needed "to make dramatic improvements" in the area of campus involvement. He also noted that Elsayed's position would be strengthened if he contributed to scholarly publications and organizations.

Elsayed's fifth evaluation in March 1995 indicated that the Mass Communications Promotion and Tenure Committee ("Tenure Committee") was "troubled" by Elsayed's "lack of progress toward attaining a doctorate." It "urge[d] him to complete some of his works in progress," and advised that it was "important" for him to "publish[ ] in the appropriate journals in his field or show evidence of completed scholarly productivity."

Dean Navarro's May 1995 evaluation recommended that Elsayed be retained for a sixth year, "but not without grave reservations about the quality of [his] faculty profile," including the lack of the Ph.D....