Zeng v. Marshall Univ.
| Decision Date | 20 April 2020 |
| Docket Number | No. 18-1035,18-1035 |
| Court | West Virginia Supreme Court |
| Parties | Wei-ping Zeng, Petitioner Below, Petitioner v. Marshall University, Respondent Below, Respondent |
Petitioner Wei-ping Zeng, previously a tenure-track associate professor at Respondent Marshall University, appeals the November 1, 2018, order of the Circuit Court of Kanawha County that affirmed the August 18, 2017, decision of the West Virginia Public Employees Grievance Board denying petitioner's grievance. Below, petitioner claimed respondent discriminated against him on the basis of race when it denied his application for tenure and retaliated against him for filing a grievance by terminating his employment in violation of the terms of his contract. Respondent's counsel, Anna L Faulkner and Kristi McWhirter, filed a response. Petitioner, who is self-represented, filed a reply.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
Marshall University ("Marshall") hired petitioner on September 1, 2009, as a tenure-track associate professor in the Department of Biochemistry and Microbiology at the Joan C. Edwards School of Medicine.1 Petitioner's offer letter included the requirement that he obtain external grant funding. However, petitioner's "Notice of Faculty Appointment," the document by which petitioner accepted Marshall's offer of employment, did not include the external research funding requirement.
In October of 2012, the Promotion and Tenure Committee ("the Committee") for the Department of Biochemistry and Microbiology conducted petitioner's mid-tenure review.2 The Committee informed petitioner that he would have to substantially improve his teaching and research skills because, to obtain tenure, he was required to have obtained "excellence" in either teaching or research/scholarly activities. By letter dated October 12, 2012, the Committee suggested petitioner attend workshops and lectures to help with his teaching skills and named two people who could assist him in that regard. It also emphasized the need for scholarly publications and collaborations with other researchers. The Committee also informed petitioner that "it is mandatory for you to get external independent funding as stated in your contract." Petitioner claims this is the first time he learned that obtaining such funding was required for tenure. Petitioner responded in writing, stating that, "I will continue to seek external funding." He avers that this was his polite way of saying that he did not agree that he had to obtain external research funding to be tenured.
The Promotion and Tenure Committee conducted petitioner's pre-tenure review in 2014. The Committee again informed petitioner that he needed to substantially improve in several areas, including in his teaching and research/scholarly activities. The Committee also told petitioner that it did not believe Marshall would grant him tenure based upon the data available as of March of 2014.
Prior to petitioner's application for tenure, Dr. Donald Primerano, then the interim departmental chair of petitioner's department, notified the Committee and the School of Medicine's Personnel Advisory Committee that he would not be recommending petitioner for tenure. The timing of this notice did not fall within the standard tenure application protocol.
By letter dated March 24, 2015, Dr. Primerano informed petitioner that he was required to apply for tenure by October 1, 2015. Dr. Primerano also stated that if petitioner's tenure application was denied, his "contract would expire on June 30, 2016."
Petitioner applied for tenure in October of 2015.3 Petitioner included in his application a summary of his research history.4 To obtain tenure, petitioner was required to have obtained a rating of "excellence" in teaching or in research/scholarly activities. Marshall reviews a tenure application solely on the applicant's achievements at Marshall and up to the point of the submission of the tenure application. Petitioner's application was reviewed under the criteria and guidelines set forth in the Marshall's School of Medicine Faculty Promotion and Tenure Regulations (the "SOM Regs"); Marshall University Policy AA-28; Higher Education Policy Commission, Series 9; and The Greenbook, Marshall's faculty handbook.
In reviewing petitioner's application, the Promotion and Tenure Committee applied the tenure criteria in place when petitioner was hired. The Promotion and Tenure Committee found as follows: petitioner's teaching load was minimal; he did not develop a new course, however, he did develop active learning exercises; he sat on a graduate committee and had graduate students rotate through his lab, but he was not a primary mentor to a graduate student; his teaching improved after he participated in two skills building training sessions; he did not obtain external grant funding; he had two original research publications and two national meeting presentations; and he did not demonstrate excellence in either teaching or research. The Promotion and Tenure Committee recommended that Marshall's president deny petitioner's tenure application. The Promotion and Tenure Committee forwarded its report to Dr. Donald Primerano.
Dr. Primerano concurred with the Promotion and Tenure Committee's recommendation that tenure be denied. Dr. Primerano found that petitioner's number of publications was too fewfor petitioner's research to be rated "excellent." Dr. Primerano rated petitioner's teaching as "satisfactory" based upon petitioner's course evaluations, teaching load, and mentorship. By letter dated October 30, 2015, Dr. Primerano notified the Dean of the School of Medicine, Dr. Joseph Shapiro, of the Promotion and Tenure Committee's recommendation, and his recommendation, to deny tenure.
The School of Medicine's Personnel Advisory Committee reviewed petitioner's tenure application and then voted unanimously to deny tenure on the ground that petitioner lacked funded research productivity and had not achieved "effective performance in all major areas of responsibility and 'excellence' in either teaching or research scholarly activities." The Promotion and Tenure Committee notified Dean Shapiro of its recommendation.
Dean Shapiro reviewed petitioner's tenure application and each of the previous recommendations. Dean Shapiro found (1) petitioner's teaching reviews were satisfactory; (2) his mentorships did not result in abstracts or publications for the students involved; (3) his research ranking was not excellent; and (4) he had obtained no external research funding. Dean Shapiro then forwarded petitioner's application and the following comments to Marshall's President, Dr. Jerome Gilbert:
I do not recommend tenure for [petitioner]. [He] was employed in 2009 primarily to do research. Since then he has only published four research articles and two reviews. This is a very poor record based on the 60% time he has for research. Further he does minimal service and limited teaching. His references do not give compelling argument for his tenure and I was unable to find any support from his chair.
On February 8, 2016, Dean Shapiro notified petitioner that he would not recommend tenure. On March 16, 2016, petitioner met with Dr. Primerano who restated the Dean's decision. Thereafter, petitioner asked Marshall's president to intervene, without success.
Petitioner filed a questionnaire with the Equal Employment Opportunity Commission (the "EEOC") on March 21, 2016.
On April 30, 2016, Marshall's president formally denied petitioner's application for tenure. On May 5, 2016, Marshall's associate general counsel sent petitioner an e-mail stating that if petitioner withdrew his EEOC charges, waived his right to a grievance, and brought no further claims against Marshall, he would remain employed until February of 2017. On May 17, 2016, petitioner filed a grievance with the West Virginia Public Employees Grievance Board (the "Grievance Board") alleging discrimination in Marshall's denial of tenure and retaliation for opposing Marshall's discriminatory denial of tenure.
At petitioner's June 20, 2016, Level I grievance, he argued that Marshall discriminated against him in denying tenure where his job performance was comparable to or better than similarly situated employees, "Dr. K." and "Dr. D.,"5 who also worked in petitioner's departmentand who were awarded tenure, and (2) that he was the victim of unlawful discrimination due to his country of birth and ethnic identification and that faculty members of the "majority race" were awarded tenure. Marshall's defense was based, in part, on the "duties and responsibilities section" of petitioner's letter of appointment that required him to "[e]stablish . . . an independent and externally funded research program in cellular immunology." In denying petitioner's grievance, the hearing examiner found that (1) despite his many attempts to obtain external grant funding, petitioner failed to obtain such funding; and (2) the only evidence petitioner presented to support his charge of discrimination was that other applicants were granted tenure. The hearing examiner recommended that petitioner's grievance be denied.
Petitioner's employment with Marshall ended on June 30, 2016. Thereafter, petitioner's Level II mediation was unsuccessful.
Following petitioner's Level III grievance hearing, an Administrative Law Judge (the "ALJ"), entered a sixty-nine-page order on August 18, 2017, that denied petitioner's grievance. The ALJ first addressed petitioner's discrimination claim,...
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