Lam v. University of Hawai'

• Decision Date: 14 December 1994
• Docket Number: No. 91-16587,91-16587
• Citation: 40 F.3d 1551
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 74, 65 Empl. Prac. Dec. P 43,341, 95 Ed. Law Rep. 875, 41 Fed. R. Evid. Serv. 629 Maivan LAM, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI'I; Albert Simone, in his capacity as President of the University of Hawai'i; and Jeremy Harrison, in his capacity as Dean of the Richardson School of Law, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1551

40 F.3d 1551

66 Fair Empl.Prac.Cas. (BNA) 74, 65 Empl.

Prac. Dec. P 43,341,

95 Ed. Law Rep. 875, 41 Fed. R. Evid. Serv. 629

Maivan LAM, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI'I; Albert Simone, in his capacity as President of the University of Hawai'i; and Jeremy Harrison, in his capacity as Dean of the Richardson School of Law, Defendants-Appellees.

No. 91-16587.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1992.

Submission Deferred Nov. 19, 1992.

Resubmitted April 12, 1993.

Submission Deferred Feb. 17, 1994.

Resubmitted May 26, 1994.

Decided Oct. 11, 1994.

As Amended Nov. 21 and Dec. 14, 1994.

Catherine Fisk, Los Angeles, CA, for plaintiff-appellant.

Steven S. Michaels and Warren Price III, Atty. General's Office, Honolulu, Hawai'i, for defendants-appellees.

Carin Ann Clauss, Madison, WI, and Joan E. Bertin, Isabelle Katz Pinzler, New York City, for amici curiae American Civ. Liberties Union, Asian American Legal Defense and Education Fund, Asian Law Caucus, Asian Pacific American Legal Center, Center for Constitutional Rights, Equal Rights Advocates, Nat. Conference of Black Lawyers.

Appeal from the United States District Court for the District of Hawai'i.

Before: BROWNING, NORRIS and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Professor Maivan Clech Lam, a woman of Vietnamese descent, claims that the University of Hawai'i's Richardson School of Law ("the Law School") discriminated against her on the basis of her race, sex and national origin both times she applied for the position of Director of the Law School's Pacific Asian Legal Studies Program. Lam first applied for the directorship during the Law School's 1987-1988 hiring search (the "first search") and became a finalist in that search; however, the faculty cancelled the search without hiring anyone. She again applied during the Law School's 1989-1990 search (the "second search"), but the Law School offered the position to another candidate. When that candidate declined to accept the position, the faculty again cancelled the search. Lam also claims that the Law School's actions constituted unlawful retaliation.

Lam filed suit under 42 U.S.C. Sec. 2000e et seq. ("Title VII") and other anti-discrimination statutes. ¹ The district court granted partial summary judgment to defendants as to the first search, then, after a bench trial, granted final judgment to defendants as to the second search. Because we find a genuine issue of material fact regarding whether the defendants violated Title VII in considering Lam's application during the first search we reverse the award of partial summary judgment and remand for trial as to that search. ² However, finding no material legal errors in the district court's decision as to the claimed discrimination and retaliation during the second search, we affirm the court's award of final judgment as to that search.

I.

Lam was born in Vietnam of French and Vietnamese parentage, and is fluent in French, English, Vietnamese and Thai. She graduated magna cum laude with a B.A. in English and Economics from Marygrove College in Detroit, Michigan in 1965. After college she received a masters degree in Southeast Asian studies at Yale University in 1967, and was later awarded a Ford Foundation Fellowship. After several years as a full-time mother, Lam taught anthropology courses at Hawai'i Loa College between 1974-1981. She then obtained a second masters degree from Yale in Anthropology.

In 1982, she collaborated with her husband, a professor at the University of Hawai'i, on two monographs on administration and social movements in Vietnam. In 1984, she graduated from the Richardson School of Law, after having completed an externship with the Chief Justice of the Federated States of Micronesia. While she was a law student, she wrote two law review articles on Hawai'ian land law that were published after her graduation: one in the Journal of Legal Pluralism and the other in the University of Washington Law Review. During and after law school, Lam was assistant director of the Law of the Sea Institute, an organization that was affiliated with the University of Hawai'i and under the direction of Emeritus Law Professor John Craven. After graduating from law school, Lam taught courses at Hawai'i Loa College, served as a lecturer in the University of Hawai'i's political science department, and gave guest lectures before Professor Craven's ocean law class at the Law School. ³

A.

In the fall of 1987, the Law School began a hiring search for a full-time director for its Pacific Asian Legal Studies ("PALS") program. ⁴ Approximately 100 persons applied for the position, including Lam. The Law School established an appointments committee consisting of Professor Mari Matsuda, who was the chair, Professors Eric Yamamoto and Randall Roth, and two students to screen applicants and to recommend a list of finalists for review by the full faculty. By some time in January 1988, the appointments committee had prepared a list of ten names, including Lam's, for submission to the faculty. Five of the ten candidates were women, among whom were two of the three ethnic Asians recommended. Matsuda chose Lam as one of her top two candidates.

Because of a previously scheduled semester's leave, Matsuda had to resign from the appointments committee. Professor A., a senior faculty member, approached Matsuda expressing his interest in becoming chair and asking that she forward his request to the Dean of the law school. Matsuda, who was a friend of Lam's, knew that Professor A. and Lam had had a "run-in" the previous year. ⁵ Matsuda nonetheless passed along Professor A.'s request to the Dean while also recommending that a woman faculty member be appointed to the committee. Subsequently, Professor A. was appointed to the committee along with a woman professor. At the same time, Professor Williamson Chang, a member of the PALS committee, began to attend appointments committee meetings on an ex officio basis. ⁶

After Professor A. became chair of the appointments committee, the group discussed forwarding one name, that of a white male, rather than ten names to the faculty. When Chang informed Lam of this development, she became concerned and set up a meeting with the Dean to discuss the situation. Lam told the Dean of her prior problems with Professor A., but said that she was worried that if Professor A. were forced to resign from the committee his colleagues would blame her. She thus did not request Professor A.'s removal from the committee, but instead asked that the committee recommend five names to the faculty instead of one.

The Dean, in turn, mentioned to her the idea of cancelling the search and reopening it to accommodate an Asian male candidate who had missed the application deadline. In his view, this course of action had the dual benefit of mooting any possibility of obstruction by Professor A., since there would be a new chair for the new search, and of allowing consideration of the late applicant. Lam disagreed with his proposal, stating that it would be unfair to reopen the search.

There was vigorous debate regarding Lam's application at a March 2, 1988 joint meeting of the PALS and appointments committees. Professor A., in particular, asserted that Lam was not collegial, was a poor scholar, and had poor administrative ability. He finally stated that in his view Lam was unfit to teach anywhere on the University of Hawai'i campus. He also labelled Lam's in-print criticism of another (white male) faculty member inappropriate. Craven spoke up strongly for Lam at this meeting.

Both Craven and Chang later went to the Dean to complain of Professor A.'s behavior and to recommend his removal as chair of the appointments committee. At approximately the same time, Lam spoke to the campus EEO officer about the Dean's idea of reopening the search in order to consider the late applicant, leading the EEO officer to call the Dean and advise him against that plan. In accordance with Lam's request and the EEO officer's recommendation, the Dean then announced that the faculty was not to consider the late applicant. The Dean also announced that Professor A. had resigned from the committee and that Roth had replaced him as chair. Although most of the faculty believed that Professor A. resigned because of a conflict with Lam, the Dean never attempted to alleviate the resulting controversy by publicly explaining the events.

The candidate list was eventually narrowed down to four, including Lam, whose applications were considered by the full fifteen-member faculty of the law school at a meeting on March 18. At that meeting both Craven and Professor A. spoke strongly for their respective positions regarding Lam. Their polarization apparently made the rest of the faculty uncomfortable. Although a white male candidate apparently received the highest number of votes, a consensus did not form around any of the candidates and there was no decision to extend any offer of employment. Two weeks later a bare majority of the faculty voted to cancel the search.

B.

In response to the first search's cancellation, Lam filed a discrimination complaint with the office of the University vice-president. Although the University rejected her administrative grievance after an investigation, it issued a report detailing confidentiality breaches and procedural violations in the PALS director search process. The University vice-president told Lam that he would issue stern instructions to the Law School Dean requiring that the next search for the PALS directorship be conducted pursuant to strict guidelines, with the position's qualifications explicitly drawn. He asserted that it would be a "fishbowl operation" consistent with the highest standards of procedure.

At a Law School faculty meeting in September 1988, two University EEO officers discussed selection procedures and recommended, among other things, the use of...