Goswami v. DePaul Univ., 12 C 7167

• Citation: 8 F.Supp.3d 1019
• Decision Date: 04 April 2014
• Docket Number: No. 12 C 7167,12 C 7167
• Parties: Namita Goswami, Plaintiff, v. DePaul University, Peg Birmingham, and Elizabeth Rottenberg, Defendants.
• Court: U.S. District Court — Northern District of Illinois

8 F.Supp.3d 1019

Namita Goswami, Plaintiff

v.DePaul University, Peg Birmingham, and Elizabeth Rottenberg, Defendants.

No. 12 C 7167

United States District Court, N.D. Illinois, Eastern Division.

Signed April 4, 2014

Stuart David Gordon, Law Offices of Stuart D. Gordon, Carrie Alice Herschman, Karr, Herschman & Eggert LLP, Richard M. Karr, Laura Elizabeth Fahey, Gordon & Karr LLP, Chicago, IL, for Plaintiff.

Kerryann Marie Haase, Katherine Lee Goyert, Sarah E. Flotte, Michael Best & Friedrich LLP, Chicago, IL, Amy Schmidt Jones, Michael Best and Friedrich, LLP, Milwaukee, WI, for Defendants.

MEMORANDUM OPINION

Jeffrey Cole, United States Magistrate Judge

INTRODUCTION

In 2010, Dr. Namita Goswami, applied for tenure in DePaul University's Philosophy Department. Her application was rejected by a majority of the tenured faculty in the Department by a vote of eleven to seven, with one abstention. The majority's rejection “rest[ed] largely on the quality of [Dr. Goswami's] research and what this says about her ability to train doctoral students in philosophy. The view of the majority [was] that the research is weak, incoherent, and lacks a conceptual framework.” (Pl.Br., Ex 4 at 18).¹

As part of DePaul's multi-level tenure process, the University Board on Promotion and Tenure then considered the matter, ultimately recommending against tenure. The Board agreed that Dr. Goswami's scholarship was deficient. (Defs.Br. Ex. 5). That recommendation then went to DePaul's President, who had the ultimate decision-making authority. He accepted the Board's recommendation regarding “the quality of [Dr. Goswami's] philosophical work.”² He concluded that neither Dr. Goswami's response nor the minority opinion of the tenured faculty in the Department of Philosophy, nor the College Committee's response “adequately answers the substantive judgments made in the Department's majority analysis.” (Pl.Br. at 5, Ex. 6).³

Not surprisingly, Dr. Goswami has a very different view of her capabilities and what underlay her rejection by DePaul. It is her contention that she deserved to be awarded tenure and that DePaul's action was motivated by an assortment of discriminatory motives: gender, race, color, and national origin. (Amended Complaint, ¶ 1). In support of her claims, she plans to introduce the testimony of six professors—four philosophy professors, one literature professor, and one women's study's professor—from other universities.

In their Rule 26(a)(2) reports, they have discussed Dr. Goswami's published articles, and have praised her work and her potential importance as a scholar in the recondite field of postcolonial feminist theory. As often occurs in cases like this, they have done so in largely conclusory terms, which lend themselves to “exaggeration,” and “extravagan[ce]” of expression. Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir.1984). They have variously described her work in such undeniably subjective terms as: careful, innovative, vital, thought provoking, outstanding, wide-ranging, imaginative, courageous, solid, careful, excellent, original, high quality, strong, bold, ambitious, sophisticated, top-notch, lucid, eloquent and breathtakingly brave.

As we shall see, all the cases hold that assessments of “scholarship” by universities are inherently subjective and not measurable by objective criteria. See infra at 1030–32. Nonetheless, the plaintiff insists that DePaul's assessment of her scholarship is based on objective and thus measurable criteria, (Pl.Br. at 10–11, Ex 4 at 18), and therefore her witnesses' opinions being themselves “objective” are admissible to show that the criticisms of her scholarship were not merely inaccurate, but were “false” (Pl.Br. at 2, 10, 13, 18, 19), and “so plainly wrong” that they could not have been the real reasons for her rejection. (Pl.Br. at 11). DePaul's rejoinder is quite simple: since tenure decisions are inherently subjective, admitting the subjective opinions of other academics will prove nothing: they will merely deflect the jury's attention from the real issue in the case, which is not whether the majority members of the tenure committee were “wrong” about the plaintiff's “scholarship,” but whether DePaul's assessment was pretextual.

Perhaps the plaintiff's six witnesses are wiser than the eleven scholars at DePaul, who thought the plaintiff's scholarship deficient. After all, original genius is often “proved by the fact that we, working at our poor half thing, will oppose him might and main....” Albert Schweitzer, The Quest of the Historical Jesus 2 (The MacMillan Co.1940). Or perhaps their measure of her is not nearly as accurate as DePaul's. It matters not. The question of right and wrong plays no role in this and like cases. Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 338 (7th Cir.2012) ; O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.2011) (“The question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge.”); Gupta v. Board of Regents of University of Wisconsin System, 63 Fed.Appx. 925, 928 (7th Cir.2003) (“To prove discrimination, Gupta must show more than that he was a qualified tenure candidate or even that the defendants' reason for denying him tenure was ‘mistaken, ill-considered, or foolish.’

He must show that the defendants' reason was a lie.”).

Indeed, the law gives institutions of higher learning, like other employers, the right to be wrong, and grievously so. And more than that, it permits them to be insensitive, misguided, foolish, or even self-defeating in their employment decisions. “[I]t is not the function of the courts to sit as ‘super-tenure’ committees.” Thrash v. Miami University, 549 Fed.Appx. 511, 2014 WL 929152, 8–9 (6th Cir.2014).

Thus, in case after case, the Seventh Circuit and the other Courts of Appeals have refused “ ‘to review the merits of tenure decisions and other academic honors in the absence of clear discrimination. [They] have ... recognized that scholars are in the best position to make the highly subjective judgments related with the review of scholarship and university service.’ ” Adelman–Reyes v. Saint Xavier Univ., 500 F.3d 662, 667 (7th Cir.2007). Accord, Thrash, 549 Fed.Appx. at 521, 2014 WL 929152, *9 ; Farrell v. Butler University, 421 F.3d 609, 616 (7th Cir.2005) ; Colburn v. Trustees of Indiana University, 973 F.2d 581, 589 (7th Cir.1992) ; Jiminez v. Mary Washington College, 57 F.3d 369 (4th Cir.1995) ; Zahorik, 729 F.2d at 93 ; Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3d Cir.1980) ; McNaught v. Virginia Community College System, 933 F.Supp.2d 804, 823–24 (E.D.Va.2013) ; Leach v. Baylor College of Medicine, 2009 WL 385450, 23–24 (S.D.Tex.2009).

That being the case, DePaul argues, Dr. Goswami's evidence is irrelevant and will not be helpful to the jury and thus is inadmissible. DePaul has filed a motion to bar what it calls the “scholarship experts” pursuant to Daubert v. Merr e ll Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

DR. GOSWAMI'S PROPOSED EXPERTS

We begin with Henry Schwarz, who is not a professional philosopher, but is a professor in the Department of English at Georgetown University, specializing in post-colonial studies, critical theory and cultural studies. He holds a Ph.D. in Literature from Duke University. Expressing “admiration for this gifted colleague,” Dr. Schwarz noted that his “first impressions of Dr. Goswami's work were overwhelmingly positive.” (Pl.Br. Ex. 11 at 2). He felt the quantity of Dr. Goswami's publications was high and would be sufficient for tenure at his university.

Dr. Schwarz said the quality of the journals in which she published was extremely high and their reputations “highly appropriate for the various fields engaged by Dr. Goswami.” (Defendants. Br.Ex. 11 at 1). Dr. Goswami had published four articles in double-blind peer-reviewed journals—a large number, he said, for a junior scholar. (Defs.Br. Ex. 11, at 1,3). In commenting on one of Dr. Goswami's articles—“The Second Sex: Philosophy, Postcolonialism, African–American Feminism and the Race for Theory,” which he assigned as an optional reading in one of his courses—he noted that, while the “academy” has come to value difference in departments of literature and culture (the argument Dr. Goswami made in her article), those “same departments have been extremely resistant to hiring people of color to teach about difference....”⁴ He accepted uncritically Dr. Goswami's opinion in the article that marginalization of African–American women in the departments despite the embrace of difference was a new form of segregation. (Defs.Br. Ex. 11, at 2).

In another article that Dr. Schwarz lauded, Dr. Goswami analyzed a 1955 short story by an Urdu writer, Prem Chand. Dr. Goswami posited that India could never be truly post-colonial because of the violence of its birth—partitioning of Hindu and Muslim states—and racial mixing between Indian and English. Dr. Schwarz said that Dr. Goswami “does masterful service to the texture of the short story and is as comfortable a critic of literature as she is a high-flown philosopher of epistemology and ontology.” (Defs.Br. Ex. 11, at 3). Dr. Schwarz complimented what he perceived to be Dr. Goswami's “commitment to stylistic clarity” and her ability to express “very complex thinking in very straightforward language.” He closed by complimenting what he perceived as the “unflinching critical courage” she brought to each of her “ambitious projects” and reiterated that there was no question she would receive tenure and promotion at Georgetown. (Defendants. Ex. 11, at 3)

Chandra Mohanty, professor of Women's and Gender Studies at Syracuse University, defines her area of expertise as situated at the intersection of critical race, post-colonial, and transitional feminist studies. Dr. Mohanty began by calling Dr. Goswami the very best candidate for...