EEOC v. Muhlenburg College, No. 04-2788 (3d Cir.) Reply brief Oct. 25, 2004 No. 04-2788 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. MUHLENBERG COLLEGE. ______________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania ______________________________________________ REPLY BRIEF OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________ ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 TABLE OF CONTENTS Table of Authorities Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .1 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. Muhlenberg Misconstrues the Standards for Creating a Prima Facie Case of National Origin Discrimination in the Tenure Context2 1. Muhlenberg Misinterprets the "Qualified" Prong to Require the EEOC to Show that Pan Deserved Tenure to Create a Prima Facie Case. . . . . . . . . . . . . . . . .2 2. Muhlenberg Applies an Erroneous Categorical Rule that Would Require All Comparators to Be Identically Situated and from the Same Academic Department . . . . . .7 3. Muhlenberg Improperly Discounts the EEOC's Affirmative Evidence. . . . . . . . . . . . . . 11 B. Muhlenberg Urges This Court to Make the Same Mistakes the District Court Made in Evaluating the EEOC's Evidence of Pretext . . . . . . . . . . . . . . . . . . . . . 15 1. Stewart Is Practically on All Fours with This Case16 2. The EEOC Proffered Sufficient Evidence of Pretext to Survive Summary Judgment . . . . . . . . . . 17 3. Title VII Contemplates No Special Deference to Tenure Decisions . . . . . . . . . . . . . . 25 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Certificate of Compliance with Rule 32(a). . . . . . . . . . . 28 Certificate of Service . . . . . . . . . . . . . . . . . . . . 29 TABLE OF AUTHORITIES Cases Babbar v. Ebadi, 215 F.3d 1086 (10th Cir. 2000). . . . . . . . . . . . . 9 Bennun v. Rutgers State Univ., 941 F.2d 154 (3d Cir. 1991)2, 3, 5, 7, 8, 9, 10, 26 Coneen v. MBNA Am. Bank, NA, 334 F.3d 318 (3d Cir. 2003) . . . . . . . .26 Fowle v. C&C Cola, 868 F.2d 59 (3d Cir. 1989). . . . . . . . 5, 6, 7, 8, 9 Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313 (3d Cir. 2000). . . . . 26 Hall v. Kutztown Univ., 1998 WL 10233 (E.D. Pa. Jan. 12, 1998) . . . . . 9 Kunda v. Muhlenberg Coll., 621 F.2d 532 (3d Cir. 1980) . . . . . . . . .26 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . .5, 6 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999). . . . .11 Robinson v. PPG Indus., Inc., 23 F.3d 1159 (7th Cir. 1994) . . . . . . .26 Roebuck v. Drexel Univ., 852 F.2d 715 (3d Cir. 1988) . . . . . 2, 4, 5, 22 Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995) . . . . . . . . 6 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . . 6 Stewart v. Rutgers State Univ., 120 F.3d 426 (3d Cir. 1997). 1, 15, 16, 17 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . 6 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . .26 Waldron v. SL Indus., Inc., 56 F.3d 491 (3d Cir. 1995) . . . . . . . . .11 Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990) . . . . . . . . . . . 6 Rules Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . .28 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . .28 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . .28 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . . . . . .28 10th Cir. R. 36.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 INTRODUCTION In its opening brief, Appellant U.S. Equal Employment Opportunity Commission (the "EEOC") pointed to evidence proving its prima facie case and casting serious doubt on the explanation Appellee Muhlenberg College ("Muhlenberg") has given for its actions. The EEOC demonstrated that a genuine issue of material fact exists over whether Muhlenberg's assertion that Da'an Pan ("Pan") was not an "excellent" teacher was a pretext for national origin discrimination. EEOC thus showed that summary judgment was inappropriate here. Muhlenberg makes two fundamental errors in its response brief. First, Muhlenberg misinterprets and consequently misapplies this Court's principles on the Title VII prima facie case. Muhlenberg mistakenly claims the EEOC must prove Pan deserved tenure to show he is "qualified," erroneously imposes an "identically situated" rule on prima facie comparators, and dismisses the EEOC's affirmative evidence of cultural bias. Second, in evaluating the EEOC's evidence on pretext, Muhlenberg makes and asks this Court to repeat the same mistakes the district court made in ruling against the EEOC at summary judgment. It distinguishes Stewart v. Rutgers State University unconvincingly, makes credibility determinations and resolves inferences in its own favor, and defers inappropriately to the questionable tenure and promotion judgments of college decisionmakers. ARGUMENT A. Muhlenberg Misconstrues the Standards for Creating a Prima Facie Case of National Origin Discrimination in the Tenure Context Muhlenberg asks this Court to rule that the EEOC failed to create a prima facie case of national origin discrimination because (1) Pan was not rated an "excellent" teacher and was thus not "qualified" for tenure; and (2) Pan was not "similarly situated" to any of those professors outside his protected class who were given tenure and promoted during academic year 1998-1999. Muhlenberg Response Brief at 15, 17- 28. Muhlenberg apparently does not understand the prevailing standards for creating a prima facie case of national origin discrimination in the tenure context. Contrary to Muhlenberg's arguments, the EEOC satisfied the traditional prima facie factors, including the "qualified" and "similarly situated" elements. In addition, establishing these elements is not the only way to create a prima facie case, and the EEOC provided enough affirmative evidence of cultural bias to raise the requisite inference of national origin discrimination. 1. Muhlenberg Misinterprets the "Qualified" Prong to Require the EEOC to Show that Pan Deserved Tenure to Create a Prima Facie Case Muhlenberg appropriately cites the relevant test laid out by this Court in Roebuck v. Drexel University, 852 F.2d 715 (3d Cir. 1988), and Bennun v. Rutgers State University, 941 F.2d 154 (3d Cir. 1991) that to be "qualified" for tenure and promotion for purposes of the prima facie case, a professor need only be "sufficiently qualified to be among those persons from whom a selection, to some extent discretionary, would be made." Muhlenberg Response Brief at 17 (quoting Bennun, 941 F.2d at 176) (emphasis added)). Muhlenberg also accurately acknowledges that a professor only has to be "in the middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise of discretion by the tenure-decision making body." Muhlenberg Response Brief at 17 (quoting Bennun, 941 F.2d at 176). However, Muhlenberg then misconstrues and misapplies these standards. Muhlenberg contends that even though Pan was eligible to be considered for tenure during academic year 1998-1999, he was not "qualified" for purposes of the prima facie case. Muhlenberg Response Brief at 18- 19. Muhlenberg argues that because Muhlenberg decisionmakers determined Pan was not an "excellent" teacher, he could not have been in the "middle group" of tenure candidates. In other words, Pan was not "qualified" for tenure because he ultimately did not get it. Id. This is simply an inaccurate interpretation of applicable law. The requisite "middle group" is "the group whose members' bid for advancement are debatable." Bennun, 941 F.2d at 176 (emphasis added). The relevant test is whether a professor could legitimately be considered for tenure and promotion not whether the candidate ultimately should have been awarded these accolades. Contrary to Muhlenberg's assertions, the very fact that Pan was deemed eligible for tenure by Dean Dretsch was proof that he was in the necessary "middle group." In addition, Pan's tenure file was replete with glowing recommendations and unqualified tenure endorsements from students, outside peers, Muhlenberg professors, and each and every one of Pan's own Philosophy Department colleagues. See EEOC Opening Brief at 8-14, 45-51. Similarly, even though the FEC voted ultimately not to recommend Pan for tenure, the FPPC urged President Taylor to reconsider this FEC conclusion. Id. at 19. Pan thus was certainly in the "middle group" of tenure candidates as to whom "both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise of discretion by the tenure-decision making body." His bid for advancement at Muhlenberg was at the least debatable. Cf. Roebuck, 852 F.2d at 734-35 (where this Court concluded that "although we might well have decided the question differently de novo, there was sufficient evidence for a jury to conclude that, but for his race, [the university] would have rated [the professor seeking tenure] outstanding in service and satisfactory in scholarship, and hence would have granted him tenure"); Bennun, 941 F.2d at 180 (similarly finding that "differences of opinion about [a professor's] qualifications among the various reviewing groups were sufficient to establish that his fitness for promotion [to full professor] was debateable"). Under Muhlenberg's test, one could never challenge a denial of tenure as discriminatory in a pretext case where qualifications are at issue, because the mere fact that the professor is denied tenure would automatically defeat the prima facie case. Adopting Muhlenberg's view of Roebuck and Bennun would require plaintiffs to prove a prima facie case by first disproving the employer's articulated legitimate, nondiscriminatory reason. This puts the proverbial cart before the horse. On numerous occasions, this Court has held that such an approach would place an undue and inappropriate burden on the plaintiff at the prima facie case stage. In Fowle v. C&C Cola, 868 F.2d 59 (3d Cir. 1989), for instance, the Third Circuit cautioned that: [E]valuations that a plaintiff lacks [certain subjective] qualities are more susceptible of abuse and more likely to mask pretext . . . . [I]f a plaintiff's failure to establish that he met such criteria could defeat his prima facie case, the court would not have an opportunity to examine whether the use of these criteria was mere pretext . . . . [T]his result is clearly at odds with the mandate of McDonnell Douglas that a plaintiff be afforded a full and fair opportunity to demonstrate that the stated reason for rejection was in fact pretext. Id. at 64 (internal citations and quotations omitted); see also Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798-99 (3d Cir. 1990)) (similarly noting that "to deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext"); cf. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (emphasizing that the "burden of establishing a prima facie case of disparate treatment is not onerous"); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (referring to the "minimal requirements of a prima facie case"). Muhlenberg's restrictive reading of how to satisfy the "qualified" prima facie factor poses the very dangers the Fowle Court cautioned against. Here, Muhlenberg is effectively claiming that the EEOC's cause of action falters at the prima facie case stage because Muhlenberg itself has concluded that Pan was not an "excellent" teacher. Yet the EEOC is challenging, as discriminatory, this very conclusion. The EEOC asserts in this case that the FEC and/or Dean Dretsch and President Taylor determined (or agreed) that Pan was not an "excellent" teacher and thus should not be given tenure because of his national origin. Therefore, as the Fowle Court wisely warned, Muhlenberg should not be allowed to use its conclusions about Pan's teaching to short circuit the EEOC's very efforts to prove that those conclusions masked discrimination. For this reason alone, this Court should reject Muhlenberg's flawed interpretation of the "middle group" test, and find that Pan was "qualified" for tenure and promotion for purposes of the prima facie case. 2. Muhlenberg Applies an Erroneous Categorical Rule that Would Require All Comparators to Be Identically Situated and from the Same Academic Department Muhlenberg contends that the EEOC failed to create a prima facie case because it failed to show that Pan was "similarly situated" to the professors who were given tenure and promoted in academic year 1998-1999. Muhlenberg argues that Pan was not "similarly situated" to these professors because (1) they were rated "excellent" in teaching and Pan was not; and (2) they were all from different academic departments. Muhlenberg Response Brief at 19-27. Again, Muhlenberg misapprehends well settled precedent in this Circuit regarding the requirements for creating a prima facie case. In the tenure context, in Bennun, this Court denounced any categorical rule that would require, as Muhlenberg would, professors to possess the same ratings on tenure or promotion criteria to be considered "similarly situated." There, the district court had compared the records of two professors seeking promotion for purposes of analyzing whether the plaintiff had proven a prima facie case of national origin discrimination. The plaintiff and the comparator were from the same academic department. The university challenged the district court's comparison, however, contending that the two "were not similarly situated because [the comparator] was rated outstanding in two categories , teaching effectiveness and general usefulness, and [the plaintiff] was not rated as highly in these two categories." Bennun, 941 F.2d at 178. This Court rejected the university's position. It found that such a requirement would change "similarly situated" to "identically situated." Id. This makes sense. Muhlenberg is arguing that Pan cannot be compared to those it rated "excellent." Muhlenberg Response Brief at 19-20. By advocating a rule which would require all professors to be rated the same by tenure evaluators to be considered "similarly situated," Muhlenberg commits the same analytical blunder that it makes regarding the "qualified" prong of the prima facie standard, and that this Court criticized in Fowle. Not surprisingly, Muhlenberg's approach would permit it to defeat a prima facie case simply by pointing to differences in its ratings of performance which may themselves be the product of unlawful discrimination. Again, as in Fowle, this would improperly insulate an employer's explanation for its adverse actions from any scrutiny under a pretext analysis. It would preclude the EEOC from demonstrating that the "good" and "excellent" labels themselves may have been employed to mask unlawful discrimination. This Court must again reject this approach, as it did in Bennun and Fowle. Similarly, this Court should repudiate Muhlenberg's contention that professors need be in the same academic department to be prima facie comparators. Muhlenberg asserts that "the more pertinent inquiry aside from teaching ratings was whether Pan and his comparators stood for tenure in the same Department at Muhlenberg." Muhlenberg Response Brief at 21. Muhlenberg cites Bennun as support. Muhlenberg's reading of Bennun is unduly narrow, and the "same academic department" proposition Muhlenberg attempts to extrapolate from Bennun would be untenable in practice here. This Court in Bennun noted that the district court had allowed a comparison between two professors because the two (both the plaintiff and the comparator) were biochemistry professors in the Zoology and Physiology Department at the relevant university. Bennun, 941 F.2d at 178. The Bennun Court validated the district court's comparison, but not specifically because the two professors were from the same department. Somewhat to the contrary, the Bennun Court emphasized that the "propriety of [this type of professor] comparison is case- specific." Id. The Bennun Court elaborated by noting, for example, that in the right case a "teaching-oriented" professor might properly be compared with a "research- oriented" professor. Id. Thus, Bennun stresses the need for a facts-and-circumstances approach to determining whether any two (or more) professors are appropriate prima facie comparators. The application of a "same academic department" principle would be particularly inappropriate here. Indeed, this case demonstrates the wisdom of retaining a more flexible comparator rule. As Muhlenberg itself acknowledges, it is rare for two professors within the same Muhlenberg department to ever come up for tenure in the same academic year. If this Court adopted Muhlenberg's categorical approach and imposed a "same academic department" requirement in this case, there would be virtually no Muhlenberg professor who could hope to establish a prima facie case by relying on the more favorable treatment of colleagues. No professor could ever show that he or she was similarly situated to any other Muhlenberg professor because no two Muhlenberg professors from the same field or department are ever up for tenure at the same time. Muhlenberg's suggested application of the "similarly situated" prima facie prong would thus innoculate Muhlenberg (and countless other smaller colleges) from being challenged for making discriminatory employment decisions simply because their faculties and/or academic departments are relatively smaller. That cannot be, and is not, the law. 3. Muhlenberg Improperly Discounts the EEOC's Affirmative Evidence In any event, while evidence that an employer treated "similarly situated" individuals outside the protected group more favorably is one way of creating a prima facie case, it is not the only way to raise a presumption of discrimination. The requisite showing can be made by demonstrating that a charging party was the victim of an adverse employment action "under circumstances that give rise to an inference of unlawful discrimination." Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 1995); see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999). The EEOC proffered substantial affirmative evidence of national origin bias, apart from evidence of Pan's qualifications or comparators, to raise a presumption of discrimination here. Muhlenberg, of course, disagrees. It argues that "the unequivocal evidence establishes that tenure denial was based on Pan's failure to attain teaching excellence, whatever the cause" and that "this Court should hold that the EEOC has not presented affirmative evidence of discrimination so as to meet its prima facie burden." Muhlenberg Response Brief at 28. Muhlenberg suggests that the "only evidence the EEOC offers is that President Taylor, Dean Dretsch, the FEC, and the FPPC 'discussed' Pan's culture during the tenure process . . . ." Id. at 27. It contends that the fact that the terms "culture" or "cultural differences" were raised or discussed during Pan's tenure review is not evidence of discrimination. Id.; see also id. at 50, 51, 52. And it asserts that "[n]o evidence exists to establish or even suggest that the FEC discussed or in any way considered culture in their review or recommendation." Id.; see also id. at 50. To the contrary, there is ample record evidence, detailed in the EEOC's opening brief, to support an inference that cultural bias was at work here. See EEOC Opening Brief at 17-21, 39. All of the comments and conversations proffered were made to or by, or took place between, Muhlenberg decisionmakers who had substantial influence on or ultimate authority for the decision to deny Pan tenure. Similarly, all of these comments and conversations were made in the context of the ongoing debating about Pan's teaching or tenure bid, specifically. Susan Schwartz felt compelled to seek out President Taylor and express her concern that Pan's tenure review was tainted with a "racial overtone." EEOC Opening Brief at 17. Dean Dretsch testified that he discussed with Schlecht whether Pan's "culture" or "cultural differences" could be affecting Pan's teaching. Id. at 18-19. Dean Dretsch also admitted to raising the issue of Pan's "cultural differences" at the FPPC appeal hearing the very purpose of which was to assess whether Pan deserved tenure and promotion. Id. at 18. (Incidentally, Pan himself remembers that Dean Dretsch told the FPPC, in unambiguous terms, that Pan's teaching "problems" were "cultural." Id.) President Taylor admitted that a comment made by Christine Sistare that Pan was "a person of a different culture, and thus, somewhat differing manners" was a "red flag," and may have meant that Pan was "abrasive." Id. at 21. President Taylor testified that when he met with Dean Dretsch, Schlecht, and Pan to discuss the FEC's initial recommendation, Pan's "different culture" was again raised. Id. at 17. President Taylor also admitted to telling Pan that the FEC did not understand Pan because "they're playing . . . American chess and you're playing go" (an Asian chess- like game). Id. President Taylor testified that he viewed Pan as "different," and believed the difficulties between Pan and the FEC and Pan's supposed failure to adhere to the college's tenure standards were caused by "a certain amount of Chinese subtlety versus American directness." Id. at 18. Pan testified that, given the context of his conversations with President Taylor, he was convinced President Taylor's comments reflected a definite cultural bias. Id. This is highly probative affirmative evidence that relevant tenure evaluators were unduly influenced by impermissible considerations of Pan's national origin. Significantly, Muhlenberg does not deny that these comments were made or that the relevant conversations took place. Instead, Muhlenberg tries to downplay their evidentiary significance with its conclusory assertion that the "mere 'discussion' of Pan's culture in relation to his teaching is by no means evidence that discrimination motivated the decision to deny tenure and promotion to Pan." Muhlenberg Response Brief at 27. To the contrary, the totality of the evidence offered is more than sufficient to create an inference linking Pan's national origin with Muhlenberg's decision not to give him tenure or promote him. B. Muhlenberg Urges This Court to Make the Same Mistakes the District Court Made in Evaluating the EEOC's Evidence of Pretext The central issue in this case on appeal is really whether the EEOC offered sufficient evidence to create a genuine issue of material fact as to "pretext." The EEOC argued at length in its opening brief that it did so. See EEOC Opening Brief at 40-60. Muhlenberg responds by urging this Court to make the very mistakes the district court made in granting summary judgment in the first instance. Muhlenberg presses this Court to distinguish Stewart v. Rutgers State University, 120 F.3d 426 (3d Cir. 1997), even though Stewart (in which this Court reversed a district court's grant of summary judgment) presented strikingly similar facts. Muhlenberg urges this Court to discount all of the EEOC's evidence casting serious doubt on Muhlenberg's explanation and indicating affirmatively that Muhlenberg decisionmakers might have impermissibly considered Pan's national origin in denying him tenure and promotion. And Muhlenberg generally encourages this Court essentially to ignore evidence of national origin discrimination and defer entirely to the tenure decisions of Muhlenberg faculty and management. In the process, Muhlenberg effectively is asking this Court, inappropriately, to assess the credibility of key witnesses and resolve inferences in the light least favorable to the nonmovant EEOC. This Court should rebuff these efforts, recognize that sufficient evidence of pretext exists, and reverse the district court's grant of Muhlenberg's summary judgment motion. 1. Stewart Is Practically on All Fours with This Case The EEOC submits, and argued extensively in its opening brief, that this case can and should be decided under Stewart. See EEOC Opening Brief at 42-56. Muhlenberg rejects the EEOC's analysis and (not surprisingly) endorses the district court's flawed attempts to distinguish Stewart. See Muhlenberg Response Brief at 55- 59. For the reasons detailed in the EEOC's opening brief, the district court's, and now Muhlenberg's, reasons for refusing to apply Stewart here are simply unconvincing. Even a cursory consideration of Stewart's facts and holding reveals Stewart's applicability to this case. Most notably, the appeal committee in Stewart found that the original review panel's decision to reject Stewart's tenure and promotion bid was "arbitrary and capricious" and "could not have been reached by reasonable evaluators." According to the Stewart Court, these findings by the appeal committee were sufficient to raise a genuine issue of material fact as to whether the university's explanation for denying Stewart tenure and promotion was credible. Stewart, 120 F.3d at 434. Similarly here, the FPPC concluded that the FEC had given inadequate consideration to Pan's teaching and that the evidence in Pan's tenure file "points to a conclusion about [his] teaching different from that of the FEC's." The FPPC concluded that the FEC had taken certain comments in reviews in Pan's tenure file "out of context," and that the FEC made allegations about his teaching that were "without basis." FPPC Chair Anna Adams testified that the FEC's evaluation of Pan's teaching was simply "not warranted" by his tenure file. EEOC Opening Brief at 50-51. The district court ruled that the FPPC's conclusions in this case were "substantially weaker than the unequivocal conclusion that the grievance committee reached" in Stewart. (DE18 at 19.) The district court also found that the Stewart appeal committee's criticisms of the lower panel were "more substantial than those argued in this case." (Id.) Muhlenberg adopts this argument on appeal. Muhlenberg Response Brief at 56-58. Notwithstanding these unconvincing attempts to distinguish Stewart, given the factual similarities between Stewart and this case, if the appeal committee's conclusions in Stewart were enough to prevent summary judgment there, the FPPC's findings are enough to do so here. 2. The EEOC Proffered Sufficient Evidence of Pretext to Survive Summary Judgment Muhlenberg attempts to convince this Court that the district court properly granted summary judgment by portraying the FEC's critique of Pan's teaching as undisputed fact. In doing so, it refuses to acknowledge, and urges this Court to ignore, substantial proof of pretext and significant affirmative evidence of cultural bias, from which a reasonable fact finder could determine Muhlenberg's articulated reasons are a pretext for discrimination. Muhlenberg accuses the EEOC of presenting an overly-charitable view of Pan's teaching. Muhlenberg Response Brief at 30 n.6. It contends that the EEOC "focuses on the positive aspects of Pan's tenure file, ignoring and discounting the negative evidence and the resultant dichotomy of evidence regarding Pan's teaching that formed the basis of the FEC's determination that Pan's teaching should be rated as 'good' rather than 'excellent.'" Id. at 62-63. Contrary to Muhlenberg's claims, however, the EEOC did acknowledge (in conjunction with its discussion of the FEC's findings) that Pan's tenure file contained isolated negative comments from students and faculty members. See EEOC Opening Brief at 15-16. The EEOC also addressed other objectively less favorable information in Pan's file, his SIR scores, and pointed to evidence indicating that these scores did not cause certain Muhlenberg officials to question Pan's teaching abilities. See id. at 49. More importantly though, it is Muhlenberg, not the EEOC, that consistently distorts the record on Pan's teaching. Muhlenberg does exactly what it criticizes the EEOC of doing. It repeats, mantra-like, the FEC's assertion that there was "mixed evidence" and a "lack of consensus" on the Muhlenberg faculty concerning Pan's teaching, and that Pan was an ineffective teacher who failed to engage students, communicate difficult material, organize his courses, or adjust his teaching style to Muhlenberg. See Muhlenberg Response Brief at 7, 11, 18, 28, 30-34, 37, 39-44, 57, 62. Yet Muhlenberg never acknowledges just how much evidence to the contrary there is. As the EEOC painstakingly pointed out in its opening brief, the record is replete with references (in a multitude of reviews from Pan's students, colleagues, and peers, and the FPPC's report discrediting the FEC's evaluation) debunking each of the FEC's criticisms of Pan's teaching. See EEOC Opening Brief at 8-14, 45-51. This Court should resist Muhlenberg's efforts to gloss over this evidence, and recognize that it creates a genuine issue of fact as to whether Muhlenberg's explanation for its action was a pretext for national origin discrimination. This Court should also repudiate Muhlenberg's attempts to minimize the EEOC's affirmative evidence of cultural bias. These comments and conversations about Pan's "culture" and "cultural differences" suffice to raise an initial inference of national origin discrimination (as previously discussed) and to support the EEOCs allegation that Muhlenberg's explanation for its actions is not credible. Muhlenberg tries to obscure the importance of this evidence. For example: Muhlenberg claims several times that the discussion of "culture" or the "mere mention of 'cultural difference' cannot be deemed evidence of discrimination." Muhlenberg Response Brief at 50; see id. at 51, 52. The evidence suggests that Pan's "culture" and "cultural differences" were not "merely mentioned." This issue came up over and over while decisionmakers were deliberating over Pan's teaching ability and tenure bid. At summary judgment, it is up to the jury not the district court or Muhlenberg to discern the intent and tenor of these cultural comments and conversations, to determine whether relevant Muhlenberg decisionmakers viewed Pan's Chinese background positively or negatively, and to decide whether their view of his "culture" and "cultural differences" influenced their ultimate decision to deny him tenure and promotion. Muhlenberg discounts Susan Schwartz's conversation with President Taylor (in which Schwartz expressed her concern that Pan's tenure denial may have had a "racial overtone" to it). Muhlenberg contends that Schwartz "offered no foundation for this view and was the only person to raise this issue to President Taylor." Muhlenberg Response Brief at 45. Yet a jury could find it quite significant that Schwartz (who had no real stake in the outcome of Pan's tenure bid) felt compelled to spontaneously register an objection of racial bias contemporaneously with the FEC's suspect evaluation. Muhlenberg contends that "while President Taylor, Dean Dretsch, and other individuals involved in the tenure review process may have raised Pan's culture following the FEC's negative recommendation, there is not a scintilla of evidence to establish or even suggest that such consideration influenced or formed part of the FEC's unanimous recommendation." Muhlenberg Response Brief at 28; see also id. at 50. This is just not true. There is significant evidence enabling a jury to conclude that the FEC was influenced in its deliberations by a negative view of Pan's Chinese background or cultural characteristics related to it. There is an abundance of information in Pan's tenure file and the FPPC report casting serious doubt on the notion that the FEC had adequate cause to conclude Pan was not an "excellent" teacher. And more specifically, President Taylor told Pan that the FEC did not understand Pan because Pan was allegedly "playing" some sort of Asian chess-like game. President Taylor himself thus obviously decided that Pan's culture played a role in the FEC's deliberations and findings. Muhlenberg acknowledges that Dean Dretsch considered whether Pan's alleged teaching "problems" might be related to his culture, but asserts that Dean Dretsch "did not reach a conclusion" on this issue. Muhlenberg Response Brief at 51. Rather, Muhlenberg claims, "Dean Dretsch based his review of Pan's tenure denial on the FEC's evidence, which established that Pan failed to attain teaching excellence" Id. A jury could quite plausibly find otherwise that Dean Dretsch (who admitted to raising Pan's culture during the FPPC hearing) had decided that Pan's national origin was a drawback, and based his endorsement of the FEC's recommendation on that adverse conclusion. Muhlenberg derides the EEOC for pointing out an alternative interpretation of Anna Adams's statement (i.e., that "nobody believed that the FEC consciously denied [Pan] tenure because he was Chinese.") Muhlenberg Response Brief at 52. Muhlenberg chastises the EEOC for highlighting that Adams chose to insert the word consciously in her remarks. Id. But a jury could reasonably wonder why Adams affirmatively selected this particular word, and a jury could decide that, in light of all the evidence, she did so because she believed subconscious or unconscious bias was a factor. Muhlenberg alleges that the "issue of national origin discrimination was never raised at the FPPC level." Muhlenberg Response Brief at 47; see id. at 55. Yet Dean Dretsch himself testified that he discussed Pan's "cultural differences" directly with the FPPC, and Pan testified that Dretsch told the FPPC that Pan's teaching problems were "cultural." Thus, even though the topic of discrimination per se may not have come up during the FPPC hearing, a jury could find that an official with influence over the process Dean Dretsch expressly linked Pan's teaching "problems" to his ethnic background at the FPPC level (and throughout the process). Muhlenberg concludes that President Taylor's "acknowledgment" that Pan was "different" was a positive reference to Pan. Muhlenberg Response Brief at 47. A jury could easily conclude otherwise, however (especially in light of President Taylor's other testimony, indicating that Pan's "different culture and resulting different manners" might mean he was "abrasive"). Similarly, Muhlenberg asserts that President Taylor's use of the American Chess/ "Go" metaphor could not be deemed evidence of discrimination because President Taylor himself "testified that he did not, by this comment, insinuate bias on part of the FEC or himself regarding Pan's national origin." Muhlenberg Response Brief at 49. Thus, Muhlenberg's argument amounts to this: President Taylor did not discriminate because he denied that he discriminated. Yet Pan the only other witness to the conversation testified that President Taylor's use of the metaphor was a clear signal of cultural animus. The jury would certainly be entitled to draw this reasonable inference, as well. Time and again, Muhlenberg has chosen to discount pertinent evidence, resolve credibility determinations in the manner most helpful to its own witnesses, and draw inferences in the light most favorable to its own case. It would have this Court do so, too. This is obviously inappropriate at summary judgment. 3. Title VII Contemplates No Special Deference to Tenure Decisions Finally, Muhlenberg insists that "[s]ummary judgment in this case is especially appropriate because Courts have repeatedly expressed reluctance to second-guess and evaluate the tenure decisions made of colleges . . . ." Muhlenberg Response Brief at 16. In making this argument, and urging this Court to provide some sort of special Title VII deference to tenure decisions, Muhlenberg cites a Fourth Circuit case, a Seventh Circuit case, and an unpublished Tenth Circuit case. See id. The law in the Third Circuit, however, could not be clearer. In the EEOC's opening brief, we explained (citing only this Court's cases and the Supreme Court) that any such capitulation to the subjective tenure judgments of college decisionmakers would be contrary to the statute and against Congressional intent. EEOC Opening Brief at 31- 33; see also Univ. of Pa. v. EEOC, 493 U.S. 182, 190 (1990) (where the Supreme Court explained that Congress amended Title VII in 1972 specifically "to expose tenure determinations to the same enforcement procedures applicable to other employment decisions"). This Court in Bennun said it succinctly: "[N]o special deference is to be paid to the tenure and promotion decisions of universities when they are scrutinized under Title VII." Bennun, 941 F.2d at 174. To be sure, in Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980), this Court did caution others courts not to "substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure." Kunda, 621 F.2d at 548. But the EEOC does not seek in this litigation to second- guess the college's academic standards. Rather, we urge this Court to reverse the entry of summary judgment to permit a jury to decide whether Muhlenberg's asserted justification for denying Pan tenure was a mere pretext for discrimination. CONCLUSION For the foregoing reasons, we ask this Court to reverse the district court's grant of Muhlenberg's summary judgment motion, and remand this case for trial. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Attorney _______________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains 6180 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-Point Font in Times New Roman Style. ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 October 25, 2004 CERTIFICATE OF SERVICE I certify that on October 25, 2004, I served copies of this brief by mailing them first-class, postage prepaid, to the following: Office of the Clerk United States Court of Appeals for the Third Circuit 21400 U.S. Courthouse 601 Market Street Philadelphia, PA 19106-1790 Nancy A. Conrad Fitzpatrick Lentz & Bubba, PC 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034 Attorney for Muhlenberg College ____________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4571 October 25, 2004 ____________________________________________ 1 The Muhlenberg Faculty Handbook guidelines on tenure evaluation specifically state that “[t]o be considered for tenure . . . there must be a tenure opening in the department for which the candidate is qualified in terms of the special needs of the department.” (JA52 (emphasis added).) 2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973). 3 The district court ruled that Muhlenberg had “apparently conceded that differences in departmental affiliations or academic fields are not a bar to comparison.” (DE18 at 10.) At summary judgment, Muhlenberg did acknowledge that “Muhlenberg does not differentiate between Departments when evaluating tenure candidates,” and that “[d]ue to the relatively small size of the Muhlenberg faculty, it is rare that two candidates from the same Department stand for tenure in the same year.” (DE13 at 33 n.24.) Muhlenberg now attempts to dispute that this statement was any sort of concession. Muhlenberg notes that at summary judgment, it cited authority “suggesting that comparisons between candidates with different Departmental affiliations may be invalid.” Muhlenberg Response Brief at 21 (citing Hall v. Kutztown Univ., 1998 WL 10233 (E.D. Pa. Jan. 12, 1998), and Babbar v. Ebadi, 215 F.3d 1086 (10th Cir. 2000)). Muhlenberg, however, never affirmatively argued below that differences in departments would defeat comparison. (DE13 at 33 n.24.) Nonetheless, assuming for the sake of argument only that Muhlenberg has not conceded this point, the cases it cited at summary judgment (and cites now) for this proposition – Hall and Babbar – simply do not say what Muhlenberg says they say. There is no statement anywhere in either case indicating categorically that professors must be in the same academic field or department to be proper prima facie comparators. Moreover, Babbar is an unpublished Tenth Circuit decision, and cannot be cited as precedential authority. 10th Cir. R. 36.3. Hall is an unpublished district court case. These cases are thus not binding on this Court in any event. 4 Indeed, Muhlenberg itself describes most of this evidence in its brief. See Muhlenberg Response Brief at 27-28, 45, 47-52. For instance, it cites deposition testimony in which President Taylor awkwardly describes Pan as “an intellectual who is Chinese,” and in which President Taylor ruminates over why Pan “doesn’t . . . do these things that bring him up to the College standards.” Id. at 49. “[T]he only thing I could conclude,” President Taylor remarked, “was that there was a certain amount of Chinese subtlety versus American directness.” Id. 5 It is not at all surprising that a few students would choose to submit less-than-perfect reviews of Pan’s teaching, or that on occasion class participation would be less-than-scintillating. A reasonable jury could find that, even so, and given the abundant favorable evidence about Pan’s abilities, Muhlenberg’s assertion that Pan’s teaching was only “good” was not credible. 6 For example, Muhlenberg claims that “the FEC gave full consideration to Pan’s entire tenure file, including evidence both laudatory and critical of Pan’s teaching.” Muhlenberg Response Brief at 57. To be sure, the FEC evaluation does “reference[] both positive and negative evidence,” as Muhlenberg notes. See id. However, the FPPC report explicitly concluded that “inadequate consideration was given by the FEC in its evaluation of [Pan’s] teaching.” EEOC Opening Brief at 19. 7 In any event, the EEOC does not need to prove that the FEC’s recommendation itself was tainted by a discriminatory bias. Muhlenberg acknowledges that “ultimately, the President . . . determines whether the candidate has achieved the level of teaching excellence required for tenure.” Muhlenberg Response Brief at 30. Thus, the EEOC only has to prove that the FEC, Dean Dretsch, and/or President Taylor was motivated by discrimination. This Court ruled in Roebuck that “a plaintiff in a discrimination case need not prove intentional discrimination at every stage of the review process.” Roebuck, 852 F.2d at 727. “[I]t plainly is permissible for a jury to conclude that an evaluation at any level, if based on discrimination, influenced the decisionmaking process and thus allowed discrimination to infect the ultimate decision.” Id. 8 Astonishingly, for instance, Muhlenberg asks this Court to adopt the district court’s finding that the EEOC has offered no evidence that “the sincerity of the FEC, in its consideration of Pan’s tenure file and recommendation against tenure, should be questioned.” Muhlenberg Response Brief at 59. But the “sincerity” of the FEC (whose report formed the basis for Muhlenberg’s defense in this case) is a central issue in controversy. If determining whether the FEC was “sincere” is not a quintessential jury function, we do not know what is. 9 This is consistent with other case law from this Circuit concluding that, in the employment discrimination context, summary judgment principles are “‘applied with added rigor’ because ‘intent and credibility are crucial issues.’” Coneen v. MBNA Am. Bank, NA, 334 F.3d 318, 325 n.9 (3d Cir. 2003) (quoting Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir. 1994)); see also Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir. 2000) (internal quotations omitted) (warning that “a trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue”). If these warnings are to mean anything, this Court should reverse the district court’s ruling here.