Fuming Wu v. Texas A&M Univ. Sys., CIVIL ACTION NO. H-10-3690
| Decision Date | 08 December 2011 |
| Docket Number | CIVIL ACTION NO. H-10-3690 |
| Parties | FUMING WU, Plaintiff, v TEXAS A&M UNIVERSITY SYSTEM, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is the defendant's, Texas A&M University System, motion for summary judgment (Docket Entry No. 73).1 The pro se plaintiff, Fuming Wu, filed a response (Docket Entry No. 100). The defendant filed a reply (Docket Entry No. 106), and the plaintiff filed a sur-reply (Docket Entry No. 108). Also pending are the plaintiff's motions to strike various affidavits (Docket Entry Nos. 89, 93), to which the defendant collectively responded (Docket Entry No. 102). After having carefully reviewed the motions, the responses, the record and the applicable law, the Court grants the defendant's motion for summary judgment and denies the plaintiff's motions to strike.2
This case concerns an employment discrimination and retaliation case under Title VII of the Civil Rights Act of 1964, arising from the plaintiff's former employment with the defendantas a non-tenured assistant professor. In January 2006, the plaintiff began working for the public university defendant as a tenure-track assistant professor in the presently-named College of Arts and Sciences ("COAS") at the Texas A&M International University ("TAMIU") branch in Laredo, Texas. His primary job duties were teaching, service and research, and his annual faculty evaluation summary forms and student evaluations assessed those responsibility areas.
As of the fall of 2007, his immediate supervisor was Dr. Rafic A. Bachnak, Chair of the plaintiff's department within the COAS. Dr. Bachnak's managerial responsibilities include coordinating all of his department's class offerings and schedules. On January 16, 2009, Dr. Thomas Mitchell became Dean of the COAS, thus supervising both Dr. Bachnak and the plaintiff. As of August 2008, Dr. Pablo Arenaz became the Provost of TAMIU, thus supervising all persons relevant to this dispute.
In the fall of 2007, one or more students complained to Dr. Bachnak about the plaintiff's teaching approach. Dr. Bachnak maintains that when he broached this issue with the plaintiff, the plaintiff became defensive and unprofessional and raised his voice. In April 2008, the plaintiff inquired about sponsoring a visiting scholar from China. Instead of raising the issue with his direct supervisor, the plaintiff first inquired with the Dean, who redirected him to Dr. Bachnak. Dr. Bachnak informed him that the scholar needed to submit a proposal. Thereafter, the plaintiff did not keep Dr. Bachnak apprised of the status of the prospective visiting scholar when requested. Ultimately, Dr. Bachnak recommended that the plaintiff's sponsorship request be denied.
In the fall of 2008, the plaintiff's students performed poorly on their college algebra midterm. On December 6, 2008, TAMIU's college algebra professors administered a common exam to all college algebra students. To make the common exam, each professor submitted fivequestions to Dr. Bachnak for a total of a forty-question bank from which Dr. Bachnak then selected the twenty-five questions. After the exam, the plaintiff learned that Dr. Oshima, another professor, provided a review session and practice problems for his students. The plaintiff believed that those questions were improperly leaked because Dr. Bachnak selected three exam questions that were substantially similar to three of Dr. Oshima's review problems. The plaintiff raised this issue with Dr. Bachnak, who determined that no improper leak occurred. Nevertheless, the plaintiff continued to complain to Dr. Bachnak and to accuse Dr. Oshima in emails to Dr. Bachnak and in a public setting.
During the 2008-09 academic year, the plaintiff and two other faculty members were awarded research grants that included release time, allowing those professors to reduce their teaching loads by one course. Simultaneously, due to increased student enrollment, the plaintiff's department increased the number of lower level courses it offered. Accordingly, Dr. Bachnak asked all three grant recipients to help the department meet its students' needs by taking their release time during the summer semester. Only the plaintiff resisted Dr. Bachnak's request.
In January 2009, Dr. Bachnak and Dean Mitchell determined to not reappoint the plaintiff, ultimately citing his performance issues, insubordination, lack of collegiality with peers and subpar teaching performance. Provost Arenaz approved the non-reappointment. On January 30, 2009, the plaintiff received his non-reappointment notification, in which Dean Mitchell advised him that he would be terminated on May 31, 2010. The plaintiff sought a meeting with Dr. Bachnak, Dean Mitchell and Provost Arenaz for the purported purpose of learning the "true reasons behind" the non-reappointment decision. Pursuant to TAMIU policy, his supervisors declined to discuss the bases of their decision.
On April 1, 2009, the plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge against the defendant based on, inter alia, Title VII race and national origin discrimination. He has proffered no official TAMIU policy or practice as proof of his suspicions, nor has he shown that any TAMIU employee made any discriminatory communication to him. On April 27, 2009, after the defendant had determined to not re-appoint the plaintiff, he received his 2008 evaluation, per his request. It listed that his teaching was unsatisfactory, noting multiple weaknesses. He appealed this evaluation to the University Grievance Committee ("UGC"), which found that he was unfairly evaluated in 2008, although it offered no rationale for its decision.
In February 2010, Dr. Bachnak appealed the UGC's decision to the President of TAMIU, Dr. Ray Keck. Dr. Keck reviewed the UGC report by considering all available documents and meeting with the UGC members. President Keck reversed the UGC's finding because "the negative elements in [Dr. Bachnak's] evaluation of the plaintiff were rooted in fact." The plaintiff's request that the Chancellor of the Texas A&M System review President Keck's decision was denied because no TAMIU or Texas A&M System policy or regulation provides for appeal beyond President Keck's decision.
On February 9, 2010, after Dr. Keck denied the plaintiff's other formal request to review his non-reappointment decision, the plaintiff amended his EEOC charge to include a Title VII retaliation claim. In July 2010, the EEOC dismissed both the retaliation and the underlying discrimination charges and issued to the plaintiff a notice of his right to sue.3 The Court has jurisdiction over this dispute pursuant to 28 U.S.C. § 1331.
The defendant contends that the plaintiff's non-reappointment was based on legitimate, non-discriminatory business reasons, including insubordination, lack of collegiality with his peers and subpar teaching performance. It avers that the plaintiff fails to establish a prima facie case of Title VII disparate treatment because he cannot show that it treated any similarly-situated employee outside of his protected class more favorably than himself. It maintains that the plaintiff fails to identify a neutral employment policy or practice that disparately impacted him. It claims that his prima facie retaliation case fails because his 2008 performance evaluation was not an adverse action, was not caused by his filing a discrimination charge, and that he has not shown that its proffered reasons for his performance review were pretextual. Regarding the plaintiff's motions to strike,4 the defendant claims that the plaintiff's allegations go to the weight of the evidence rather than to its admissibility. The defendant argues that any alleged hearsay is not offered for the truth of the matter asserted, and that the statements in the contested affidavits are supported by facts.
The plaintiff contends that the defendant discriminated against him by not renewing his professorship appointment. He also maintains that the defendant retaliated against his complaints of alleged discrimination by giving him a negative performance evaluation. He asserts claims for Title VII for race and national origin discrimination and retaliation. He claims that a faculty member told him that Provost Arenaz made two racially discriminatory remarks at different TAMIU meetings, stating that: (1) there are too many Chinese and Indian facultymembers; and (2) he would not hire those whose names he did not know how to pronounce.5 The plaintiff speculates that Provost Arenaz was trying to change the faculty portfolio to match the student population by reducing the number of Asian or Pacific Islander faculty and increasing the number of Hispanic faculty. Regarding his motions to strike, the plaintiff claims that the contested affidavits contain hearsay, omissions, false statements, and reckless attacks.
Federal Rule of Civil Procedure 56 authorizes summary judgment against a party who fails to make a sufficient showing of the existence of an element essential to that party's case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant bears the initial burden of "informing the Court of the basis of its motion" and identifying those portions of the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323; see also, Martinez v. Schlumber, Ltd., 338 F.3d 407, 411 (5th Cir. 2003). Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is...
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