McGill v. Regents of University of California

• Decision Date: 04 April 1996
• Docket Number: No. G014837,G014837
• Citation: 52 Cal.Rptr.2d 466,44 Cal.App.4th 1776
• Court: California Court of Appeals
• Parties: , 108 Ed. Law Rep. 1228, 96 Cal. Daily Op. Serv. 3240, 96 Daily Journal D.A.R. 5264 Paul McGILL, Plaintiff and Respondent, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

Page 466

52 Cal.Rptr.2d 466

44 Cal.App.4th 1776, 108 Ed. Law Rep. 1228,

96 Cal. Daily Op. Serv. 3240,

96 Daily Journal D.A.R. 5264

Paul McGILL, Plaintiff and Respondent, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

No. G014837.

Court of Appeal, Fourth District, Division 3, California.

April 4, 1996.

James E. Holst, Christine Helwick, Eric K. Behrens, Oakland, Hagenbaugh & Murphy, Alan R. Zuckerman, Glendale, Greines, Martin, Stein & Richland, and Marc J. Poster, Beverly Hills, for Defendant and Appellant.

Donald K. Hufstader, Santa Ana, for Plaintiff and Respondent.

WALLIN, Associate Justice.

The Regents of the University of California appeal a judgment granting a writ of administrative mandamus (Code Civ. Proc., § 1094.5) directing the Chancellor of the University of California at Irvine (collectively the "University") to set aside a decision to deny tenure to mathematics Professor Paul McGill. The University contends substantial evidence supports its decision and issuance of the writ was improper. We agree.

* * *

McGill received his Ph.D. in mathematics in Ireland in 1973 when he was 25 years old and held various academic posts throughout Europe. Well into his career, he specialized in probability studies. He was hired by the University in 1987 as an untenured assistant professor, step IV, of mathematics. In 1989, he was promoted to assistant professor, step V. During that same academic year a tenure review was begun, but suspended. In the University's faculty system, an untenured professor is appointed for two years at a time and may serve at most for eight years. If the professor is not granted tenure, he or she is given a "non-reappointment" and allowed to remain for one final year before leaving the University.

Tenure Review

A second tenure review of McGill commenced in the fall of 1990. ¹ The mathematics department reviewed McGill's file and recommended against tenure. The majority of McGill's outside reviewers had given him very favorable reviews. Several commented that McGill should have been given tenure at the outset of his employment because of his international stature as a probabilist and previous academic experience. Only one outside reviewer was negative, stating McGill's work had not had the kind of impact which would justify tenure at the University. A department ad hoc committee formed to review McGill's case made two recommendations. The majority recommendation was to deny tenure because McGill's work since his doctorate, 17 years earlier, had not been significant, and there were others in his field who showed greater promise as probabilists. The majority concluded McGill had not interacted well with graduate students and his teaching was "only adequate at best." The dissenting member concluded McGill should be granted tenure because his published work had been very influential. In January 1991, 23 of 25 tenured mathematics department faculty voted against tenure for McGill and recommended he be non-reappointed.

The mathematics department chairperson, Professor Ronald Stern, submitted his recommendation that McGill not be tenured and favoring nonreappointment. He found McGill's work lacked the impact of other mathematicians of equal experience. McGill had not attracted outside funding, had not interacted well with the department's probability group, had not been very successful as a teacher, and had given limited service to the University. His only department service had been to train technical typists on a word processing system. Stern noted the mathematics department had made very marginal tenure appointments in the past and had to be very careful about its new appointments. He commented this was not the "ordinary tenure review case of a young promising mathematician," but rather the review of someone who had been in his career for 17 years, and nothing suggested McGill's research or impact on his field would significantly change in the future. Stern also commented, "Another important criteria for a tenure case is Collegiality. It is here that I also find Paul McGill deficient. During our recruitment during the past two years, [he] has insisted on talking with the candidates in private. On two occasions the candidates have called me and inquired as to why [he] was so negative and denigrating [of] some of our valued faculty." The dean of the physical sciences school also recommended against tenure.

McGill's case was next reviewed by an ad hoc committee appointed by the University's Committee on Academic Personnel (the "CAP"). McGill requested the entire mathematics department be excluded from this committee because he believed its decision was prompted by personal animosity of a few faculty members. The University allowed him to exclude 23 of 28 faculty members. When McGill complained about the omission of letters of recommendation which were part of his first halted tenure review, the dean agreed to include them.

In May 1991, the CAP ad hoc committee recommended McGill be promoted to the untenured position of assistant professor, step VI and be reconsidered for tenure in two years. The committee noted the file on McGill was confused and confusing and failed to candidly address some of the key issues. The committee report analyzed McGill's fulfillment of each of the criteria for tenure: teaching, research, professional activity, and University and public service. In research, the committee noted all but one of the outside letters were strongly positive, and "it is difficult to draw any conclusion other than that [McGill] is an internationally recognized scholar in probability theory." His lack of external funding was not a barrier to his status and impact on the field. As for teaching, the most recent student evaluations showed McGill was ranked second on the faculty, a conclusion the department and the University contest. The committee found McGill had shown a reasonable level of professional activity, having attended several professional meetings, but his service to the University was minimal. In conclusion, the committee believed undue weight had been accorded the single negative outside recommendation, and "[i]n trying to unravel the file and arrive at a judgment, we can't avoid the impression that personal friction may be influencing the decision to terminate." The CAP followed the recommendation of its ad hoc committee that McGill be elevated to assistant professor, step VI and be reconsidered for tenure in two years. The CAP chastised the mathematics department that collegiality was not a proper consideration, and that its file had been very poorly prepared.

In June, both the mathematics department and the dean prepared responses to the CAP report, denying that collegiality was anything more than a passing consideration. The mathematics department noted that although there had been praise for McGill's work preceding his employment at the University, his file was not strong for tenure and anything other than non-reappointment would be putting off the inevitable.

In July, the University's vice chancellor recommended against tenure and for non-reappointment. The vice chancellor noted the file contained many positive things about McGill and thought the record suggested personal friction might be influencing the mathematics department's decision. But the vice-chancellor also found most of McGill's significant work was accomplished before he came to the University and there was no demonstration of any significant achievements while at the University.

In August, the chancellor denied tenure and gave McGill notice of his non-reappointment, terminating his employment at the University at the conclusion of the 1991-1992 academic year. Noting that at all levels of review tenure was not recommended (the CAP recommendation was for reappointment and reconsideration in two years), the chancellor stated his decision for non-reappointment was made in light of those recommendations.

University Appeal Process

In September 1991, McGill appealed the chancellor's decision to the CAP. He complained that his file contained errors regarding the dates of publication of several articles which made it appear they were from an earlier review period. He also complained the action against him had been the result of a personal bias. His appeal was granted.

McGill submitted additional materials including new teaching evaluations, articles and a list of errors in the dates of his publication list. In his written statement, McGill explained why he believed there was animosity towards him. He had been recruited to the University by Professor Rene Carmona and another professor. Both told him the University could not offer a tenured position at the time, but assured him he would receive his tenure after his first year, so he accepted the untenured position. But at his first review, he was not considered for tenure, only a step increase. The only reason given was that his teaching evaluations were weak. In the middle of McGill's second year at the University, Professor Carmona inexplicably accused him of having presented the work of other mathematicians as his own. Carmona could not prove the accusations, but "became openly abusive to McGill." McGill spoke to Professor Stern about Carmona's attacks, and was assured everything would be fine. He recommended McGill go on leave for the Fall 1990 term to do research. McGill agreed. Stern then informed McGill one of the criteria for tenure was collegiality and, therefore, McGill would have to do some research work for Carmona or he would be terminated. McGill refused.

The mathematics department reconsidered McGill's case. Stern advised the department that McGill's statement regarding his dates of publication were correct. After confidential voting by the entire tenured faculty, the mathematics department again voted against tenure and for non-reappointment. One faculty member anonymously wrote on a ballot that McGill...