Opinion
Case No. 2:01-CV-0474-DS
May 7, 2003
MEMORANDUM DECISION ADDRESSING SOUTHERN UTAH UNIVERSITY'S MOTION FOR SUMMARY JUDGMENT (DOCUMENT #78) AND ORDER
I. INTRODUCTION
Defendant Southern Utah University ("SUU") moves the court for summary judgment on plaintiff Wei-Kang Zhou's ("Zhou") claims of discrimination, retaliation, harassment, and breach of contract. Briefly stated these are the relevant facts. Zhou applied for and was hired for the position of Assistant Professor of Music and Orchestra Director with the Music Department of SUU. Although his position was tenure track, his contract was for only a nine month period running from August 14, 2000 thru May 7, 2001. Zhou's performance was unsatisfactory to those making employment decisions and his contract was not renewed. Specifically there were concerns regarding the quality of his teaching and conducting, his failure to prepare the orchestra in connection with the production of two operas during spring semester, and his unwillingness to correct perceived deficiencies.
II. SUMMARY JUDGMENT STANDARD
Under Fed.R.Civ.P. 56, summary judgment is proper only when the pleadings, affidavits, depositions or admissions establish there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. The burden of establishing the nonexistence of a genuine issue of material fact is on the moving party. E.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986). This burden has two distinct components: an initial burden of production on the moving party, which burden when satisfied shifts to the nonmoving party, and an ultimate burden of persuasion, which always remains on the moving party. See 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983)
Whether a fact is material is determined by looking to relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
When summary judgment is sought, the movant bears the initial responsibility of informing the court of the basis for his motion and identifying those portions of the record and affidavits, if any, he believes demonstrate the absence of a genuine issue of material fact.Celotex, 477 U.S. at 323. In a case where a party moves for summary judgment on an issue on which he would not bear the burden of persuasion at trial, his initial burden of production may be satisfied by showing the court there is an absence of evidence in the record to support the nonmovant's case. Id., 477 U.S. at 323. "[T]here can be no issue as to any material fact . . . [when] a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.
In his dissent in Celotex, Justice Brennan discussed the mechanics for discharging the initial burden of production when the moving party seeks summary judgment on the ground the nonmoving party — who will bear the burden of persuasion at trial — has no evidence:
Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient. Such a `burden' of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment. Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. This may require the moving party to depose the nonmoving party's witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories and other exchanges between the parties that are in the record. Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party.477 U.S. at 323 (citations omitted).
Once the moving party has met this initial burden of production, the burden shifts to the nonmoving party to designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324.
If the defendant in a run-of-the-mill civil case moves for summary judgment . . . based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. . . .Liberty Lobby, 477 U.S. at 252. The central inguiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. If the nonmoving party cannot muster sufficient evidence to make out a triable issue of fact on his claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. Id., 477 U.S. 242.
III. DISCUSSION
Zhou alleges generally and in conclusory fashion that SUU subjected him to discrimination, retaliation and harassment in violation of Title VII of the Civil Rights Act of 1964. He also claims that SUU breached the parties' contract.
A. Discrimination Claim
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin". 42 U.S.C. § 2000e-2 (a)(1). Zhou claims that he was discriminated against based on national origin when SUU f ailed to renew his employment contract. SUU urges that it is entitled to summary judgment because, even if Zhou could establish a prima facie case of race discrimination, it had legitimate nondiscriminatory reasons for not renewing Zhou's nine month contract.
Because Zhou has presented no direct evidence of discrimination, the court turns to the familiar burden shifting format set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) Thomas v. Denny's, Inc., 111 F.3d 1506, 1509 (10th Cir.), cert. denied, 522 U.S. 1028 (1997). plaintiff first has the burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of race discrimination, Zhou must show "(1) that he is a member of a racial minority, (2) that he suffered an adverse employment action, and (3) that similarly situated employees were treated differently." Trujillo v. University of Colo. Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998); McDonnell Douglas, 411 U.S. at 802. See also, Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (in discriminatory discharge context a plaintiff establishes a prima facie case by showing: "(1)he belongs to a protected class; (2)he was qualified for his job; (3)despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge"). If the plaintiff meets his initial burden, then the burden of production shifts to the defendant to "demonstrate `some legitimate nondiscriminatory reason' for the adverse employment action". Trujillo, 157 F.3d at 1215 (citation omitted). Lastly, if the defendant meets its burden, "the burden shifts back to the employer to show that there is a genuine dispute of material fact as to whether the employer's reason for the challenged action is pretextual and unworthy of belief." Id.
The court agrees with SUU that even if the court were to assume arguendo for purposes of this motion only, that Zhou could established a prima facie case of race discrimination, SUU has met its burden of producing a legitimate nondiscriminatory explanation to rebut any such prima facie case — i.e., that Zhou's job performance was unsatisfactory in that SUU "found him to be a poor conductor and teacher who was unwilling to work on correcting his deficiencies." (Mem. Supp. p. 2). "A reason is not a "`pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.'" Trujillo, 157 F.3d at 1215 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). SUU is entitled to summary judgment unless Zhou can "`offer evidence tending to show the defendant's innocent explanation for his employment decision was false.'" Id. (quoting Randle v. City of Aurora, 69 F.3d 441, 451 n. 14 (10th Cir. 1995)). "The relevant inquiry is not whether [the employer's] proffered reasons were wise, fair or correct, but whether [the employer] honestly believed those reasons and acted in good faith upon those beliefs." Bullington v. United Airlines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999), abrogation on other grounds recognized by Boyer v. Cordant Technologies, Inc., 316 F.3d 1137 (10th Cir. 2003). Zhou has produced no viable evidence that SUU's proffered explanation is a pretext for discrimination. His conclusory and self-serving statements regarding his qualifications fail to satisfy his burden of proof on the matter. Id. Statements made by Zhou's "experts" simply reflect another view of his conducting ability, not that discrimination was the real reason for his contract not being renewed. Zhou's reliance on the Declaration by faculty member James Williamson, that the signature on his purported observations notes of Zhou is not his, is insufficient to preclude summary judgment. Williamson does not deny that notes are his, only that the signature is not. In any event, the observation notes of five other faculty members remain unchallenged.
In addition, Zhou fails to address SUU's other reasons for not renewing his contract, specifically that his teaching was weak and that he was unwilling to work on his perceived deficiencies. See Wilson v. AM General Corp., 167 F.3d 1114, 1120 (7th Cir. 1999) ("[g]enerally, the employee has the burden of demonstrating that each proffered nondiscriminatory reason is pretextual"). See also, Combs v. Plantation Patterns, 106 F.3d 1519, 1539-1543 (11th Cir 1997), cert. denied, 522 U.S. 1045 (1998) (case should not have gone to jury where employer offered three reasons for promoting one person over another, two reasons were challenged by disputed evidence, but third reason was not).
In short, Zhou has offered nothing in the way of viable evidence sufficient to create a genuine issue of material fact that SUU's explanation for not renewing his contract is unworthy of belief.
B. Retaliation
Zhou contends "that when [he] asked for his equal rights under Title VII of the Civil Rights Act of 1964", (Am. Compl. p. 8), SUU retaliated against him in the following respects: "the new faculty evaluation became adjudication" and "he received [a] non-renewal letter from the university administration". Id. Zhou apparently contends that SUU did not renew his employment contract in retaliation for his filing charges of discrimination.
To establish a retaliation claim, Plaintiff must show (1) he engaged in protected opposition to discrimination; (2) he was subjected to adverse employment action subsequent to or contemporaneous with the protected opposition; and, (3) that there is a causal connection between the protected activity and the adverse employment action. Trujillo, 157 F.3d 1215. Once a plaintiff makes a prima facie showing, the employer then must articulate a legitimate, nondiscriminatory reason for the adverse employment action. O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1252 (10th Cir. 2001).
Zhou filed his first Charge of Discrimination on or after March 12, 2001, followed by another one on or after April 6, 2001. Based on the record before the court, this was his first protected opposition to any alleged discrimination by SUU. Zhou was notified by SUU on February 14, 2001 that his contract would not be renewed for another school year. SUU is entitled to summary judgment on Zhou's claim that his contract was not renewed for retaliatory reasons related to his filing charges of discrimination because Zhou has failed to show that he was subjected to an adverse employment action subsequent to or contemporaneous with his protected opposition.
SUU also is entitled to summary judgment on Zhou's claims that Defendant retaliated against him when it failed to take student evaluations after he was told his contract would not be renewed; and, when he was relieved of his duties five days prior to the end of his contract. Neither of those actions constitute an adverse employment action because the terms, privileges, duration or conditions of Plaintiff's employment were not materially affected. See Seely v. Runyon, 966 F. Supp. 1060, 1064 (D. Utah 1997), aff'd, 166 F.3d 348 (10th Cir. 1998) (plaintiff must "demonstrate how such actions effectuated a material change in the terms or conditions of [his] employment"). Student evaluations were not scheduled to take place until sometime after February 14, 2001, the date on which Zhou was notified of the decision not to renew his contract. SUU explains that student evaluations are taken for purposes of tenure and rank. The scheduled evaluations of Zhou were suspended because he had been notified that his contract would not to be renewed. Therefore, there was no need for the evaluations. Suspending the evaluations had no effect on an employment decision already taken. Similarly, relieving Plaintiff of his duties five days prior to the end of his contract with full pay and benefits does not rise to an adverse employment action for purposes of Title VII because it had no material impact on his employment with SUU, which as a practical matter was at an end. See Seely, 966 F. Supp. at 1065-66 (citing numerous cases, court held that reassignment of employee who suffered no diminution in title, salary or benefits was not adverse employment action); Trujillo, 157 F.3d at 1216-17 (removal of plaintiff's keys by supervisor had no adverse effect on plaintiff's employment because plaintiff no longer had a job). Likewise, Zhou's arrest did not affect the terms of his employment. The record reflects that Zhou's supervisor determined that it would be unprofessional, inappropriate and potentially disruptive to have Zhou present at the audition of candidates to replace him. That supervisory decision was communicated to Zhou who, nevertheless, appeared at the appointed time and place for the auditions. After Zhou refused to leave at the direction of SUU campus police, he was arrested. His arrest under the circumstances presented was not an ultimate employment decision meant to be actionable under Title VII. Zhou has failed to demonstrate how his arrest materially affected the terms or conditions of his employment with SUU which, as noted, was as a practical matter over. See generally, id. Finally, Defendant has proffered legitimate nondiscriminatory reasons for the above actions to which Zhou has offered no viable evidence of pretext.
C. Harassment claim.
Zhou apparently also claims hostile environment harassment due to his national origin. He alleges that he "was harassed throughout. the whole period of his employment" and "[t]he so-called `extensive evaluation' imposed on [him] was clearly the harass merit." (Am. Compl. p. 10). To prevail on his harassment claim, Zhou must show "that under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions or privilege of employment . . . and (2) the harassment was racial or stemmed from racial animus." Boulden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994), cert. denied, 516 U.S. 826 (1995) Something more than a few isolated incidents is required. Id. For Zhou's harassment claim to survive summary judgment, his facts must support the inference of "pervasive racial harassment". Id. After thoroughly examining the record, the court agrees with Defendant that there is no evidence that any of the conduct alleged was related to race or racial animus.
D. Breach of Contract
Zhou also claims that SUU breached its contract with him, apparently because he "did not get a fair and equal review process" before SUU elected not to renew his contract. Zhou offers no evidence that SUU breached the terms of its contract with him. The contract by its terms was effective for a period of nine months beginning August 14, 2000 and ending May 7, 2001. Although relieved of duties five days early, it is undisputed that he was paid fully according to the terms of the contract. In addition SUU's Policies and Procedures gave it considerable discretion in deciding whether to retain non-tenured faculty members notwithstanding that Zhou's employment was designated "tenure tract". When SUU was not satisfied with Zhou's performance, it chose not to renew his contract as provided in its polices and procedures. Zhou received full payment for the academic year for which he contracted.
IV. CONCLUSION
For the foregoing reasons as well as those additional reasons outlined by Defendant it its pleadings, SUU's motion for summary judgment is GRANTED and Plaintiff's complaint is DISMISSED with prejudice. The Clerk of the Court is requested to enter final judgment for Defendant and against Plaintiff.