Li v. Norwich Univ.

• Court: Vermont Superior Court
• Decided: May 6, 2020
• Docket: 577-10-18 Wncv
• Status: Published

Opinion

Li v. Norwich Univ., No. 577-10-18 Wncv (Tomasi, J., May 2020).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

VERMONT SUPERIOR COURT

SUPERIOR COURT CIVIL DIVISION Washington Unit Docket No. 577-10-18 Wncv

│ Xingbo Li, │ Plaintiff │ │ v. │ │ Norwich University, │ Defendant │ │

Opinion and Order on Norwich’s Motion for Summary Judgment

This case arises out of the denial of tenure by Defendant Norwich University

(“Norwich”) to assistant professor of Chinese, Plaintiff Xingbo Li. Mr. Li claims

that Norwich breached binding employment policies (1) by failing to inform him

properly prior to the tenure determination of performance deficiencies that

ultimately resulted in the denial of tenure and (2) by miscalculating and misusing

his student evaluations in the tenure review process. He alternatively asserts these

claims styled under the doctrine of promissory estoppel. Mr. Li further claims that

Norwich’s tenure denial was influenced by unlawful discrimination against him on

the basis of race and national origin—he is Chinese.1 Norwich has filed a motion for

summary judgment addressing all claims. The Court makes the following

1 Mr. Li asserted other claims in the complaint but withdrew them in the course of

summary judgment proceedings. See Mr. Li’s Opposition to Summary Judgment 2 n.1 (filed Jan. 3, 2020). Accordingly, the Court addresses only the claims described herein. determinations.

I. Summary Judgment Standard

Summary judgment is appropriate if the evidence in the record, referred to in

the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine

issue as to any material fact and that the movant is entitled to a judgment as a

matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)

(summary judgment will be granted if, after adequate time for discovery, a party

fails to make a showing sufficient to establish an essential element of the case on

which the party will bear the burden of proof at trial). The Court derives the

undisputed facts from the parties’ statements of fact and the supporting documents.

Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A

party opposing summary judgment may not simply rely on allegations in the

pleadings to establish a genuine issue of material fact. Instead, it must come

forward with deposition excerpts, affidavits, or other evidence to establish such a

dispute. Murray v. White, 155 Vt. 621, 628 (1991). Speculation is insufficient.

Palmer v. Furlan, 2019 VT 42, ¶ 10, 215 A.3d 109, 113. The material facts of this

case are undisputed unless otherwise indicated below.

II. Undisputed Facts

Mr. Li’s claims arise out of Norwich’s annual review, pre-tenure, and tenure

processes. The core tenure process appears in the Faculty Manual at § 2.3. The

initial tenure track appointment is for a probationary term of 6 years, unless credit

2 is granted for prior experience, at the conclusion of which the candidate is tenured

or “separated” following a one-year terminal appointment. Id. § 2.3.1. Mr. Li was

given credit for one year of prior experience. In the third year of probation, the

College Dean initiates a pre-tenure review process. “This pre-tenure review is

intended to inform probationary candidates of progress towards tenure and to alert

these candidates to any deficiencies in their teaching, professional development,

and university service.” Id. § 2.3.4.

The tenure decision process occurs in the final year of probation, as follows:

1. College deans submit in writing their recommendation and the recommendations of the department and college Promotion and Tenure Committee, together with other supporting documentation, to Provost and Dean of the Faculty who forwards this material to the University Promotion and Tenure Committee. The latter committee in turn submits its recommendation (along with those of the department, college and College Dean) and supporting documentation to the Provost and Dean of the Faculty. . . .

2. The Provost and Dean of the Faculty submits in writing his or her recommendations to the President, together with those from the department, college, College Dean and the University Promotion and Tenure Committee. The President, in turn, submits those recommendations, together with his or her own, to the Board of Trustees for final action.

3. A negative recommendation will be communicated in writing to the faculty member at the time any such recommendation is made. This communication will include a summary of the reasons for the negative recommendation, which shall be final unless the faculty member appeals. The faculty member may appeal a negative recommendation to the next higher level. . . .

Id. § 2.3.5. “Recommendations for tenure will be based on department or school,

and college, standards of performance” in teaching, professional development, and

university service. Id. § 2.3.6.

3 Mr. Li taught in the Chinese Program, which is part of the Department of

Modern Languages in the College of Liberal Arts. The annual review, pre-tenure,

and tenure processes are further explicated in the College of Liberal Arts Standards

& Procedures for Annual Evaluation, Promotion & Tenure (CoLA Standards). The

CoLA Standards provide more procedural and substantive detail to these processes.

They explain that annual reviews and tenure recommendations are based on three

general standards: teaching, professional development, and service. CoLA

Standards 1. “The college considers excellence in teaching pre-eminent among

areas of faculty responsibility. The college seeks to tenure and promote individuals

of demonstrated teaching excellence, as measured by such evaluative instruments

as colleague visitations and reviews, recommendations of department chairs,

student evaluations, and peer evaluations written by outside observers.” Id. Each

of these general standards is broken down into many more component standards.

Id. at 4–7.

Neither the faculty manual nor the CoLA Standards provides objective

mechanisms for measuring whether or to what extent a candidate meets the

standards ultimately used to make tenure decisions. The determination of the

candidate’s satisfaction of the standards is largely within the judgment of the

annual, pre-tenure, or tenure reviewers. While the annual reviews and pre-tenure

process are intended to inform the candidate of deficiencies and facilitate the

candidate’s progress towards tenure, neither purports to bind the ultimate tenure

4 decision makers. Similarly, the lower levels of tenure decision making do not bind

the higher levels. Accordingly, positive annual reviews and a positive pre-tenure

process do not guarantee an ultimate positive tenure decision. The entire process

includes the discretion for decision makers to make independent determinations

that may be inconsistent with one another. One only becomes tenured after

surviving a gauntlet of scrutiny yielding a “yes” at every level.

The tenure determination process for Mr. Li unfolded as follows. On

December 12, 2017 and January 22, 2018, the CoLA Promotion and Tenure

Committee (CoLA PTC) and the CoLA Dean, respectively, recommended Mr. Li for

tenure. The matter proceeded to the University Promotion and Tenure Committee

(UPTC). Following a tenure presentation, by a vote of 5 to 1, however, the UPTC

voted against tenure and so informed Mr. Li in a letter dated March 2, 2018. The

letter states, in relevant part, as follows:

The [UPTC] convened on February 20, 2018 regarding your application for promotion and tenure. By vote of the [UPTC] members present, your application for promotion and tenure was not advanced.

The comprehensive review of materials from your portfolio, student course evaluations, and annual assessments did not demonstrate adequate evidence of teaching excellence. As stated in the faculty manual, “The University seeks to tenure individuals of demonstrated teaching excellence, as measured by such evaluative instruments such as colleague visitations, observations, and reviews, recommendations of department chairs, student evaluations, and peer evaluations written by outside observers. Although the [UPTC] appreciated that you have worked to improve your effectiveness as an educator, it did not consider the improvements to be sufficient for promotion and tenure. Review of your dossier in the area of teaching documented student course evaluations at or below the University average. Further, the [UPTC] concluded that your scholarship and publication record did not meet the high standard for promotion and tenure.

5 Letter from Dr. Affenito to Mr. Li (dated March 2, 2018).2 This denial gave Mr. Li

the right to appeal to the Provost, the next decision-making level. Faculty Manual §

2.3.8.

Mr. Li thus appealed to Provost Sandra Affenito. Mr. Li and Provost Affenito

met on April 9, 2018, and by letter dated April 20, Provost Affenito denied Mr. Li’s

appeal. The letter states, in relevant part, as follows:

Thank you for the opportunity to meet with you on April 9, 2018 regarding your appeal of the recommendation made by the [UPTC] against your promotion to Associate Professor with tenure.

My comprehensive appellate review of your portfolio and the supplemental oral and written testimony you submitted did not demonstrate adequate evidence of teaching excellence and professional development to support tenure. The [UPTC] review of your dossier noted that while you made efforts during your employment at Norwich University to enhance your effectiveness as an educator and to generate scholarly work, your performance was not sufficient to satisfy our high standards for tenure. I concur. Therefore, I affirm the [UPTC] recommendation to not advance your application for promotion and tenure.

Letter from Dr. Affenito to Mr. Li (dated April 19, 2018). According to the tenure

process as described in the Faculty Manual, Dr. Affenito’s appeal decision then

became final. Faculty Manual § 2.3.8.

III. The Employment Agreement Claims

Mr. Li claims that the annual review, pre-tenure process, and tenure process

employment policies described above are binding on Norwich, and that Norwich

breached those obligations (1) by failing to implement the annual review and pre-

2 Dr. Affenito is an ex officio member of the UPTC.

6 tenure process so as to effectively inform him of what would become the bases for

his denial of tenure, and (2) by improperly using or calculating his student

evaluation scores.

A. Binding Nature of the Employment Policies

Mr. Li’s employment was not “at will.” It was a tenure-track appointment

that would lead either to tenure or to separation. Faculty Manual § 2.3.1. In the

meantime, it was subject to a “just or sufficient cause” limitation on termination.

Id. The annual review, pre-tenure process, and tenure process provisions are

neither vague nor aspirational. They clearly are material terms of the employment

relationship and were binding on Norwich. Neither Norwich nor Mr. Li were at

liberty to disregard them.

Norwich does not argue otherwise. Its sole argument on this matter is to the

effect that there is no obligation in the policies to award tenure based on the content

of annual reviews or the pre-tenure process. Those processes do not bind the tenure

decision. As described above, the various levels of tenure decisions are independent

and subject to the judgment of the reviewer. Under the policies, tenure is never

guaranteed. Mr. Li’s response to this argument is to clarify that he is not arguing

that Norwich was obligated to award tenure to him. Rather, he explains, his claim

is that he was entitled to be informed of his deficiencies as those may affect the

tenure decision and, in his view, Norwich breached this duty to inform.

Thus, the parties may dispute precisely what the annual review and pre-

tenure processes required of Norwich, but there is no dispute that these and related

7 provisions were binding and enforceable. Perceiving no controversy as to this issue,

the Court declines to address it further.

B. The Duty to Inform Claim

As described above, the annual reviews and pre-tenure process are intended

to inform the candidate of deficiencies and facilitate the candidate’s progress

towards tenure. Mr. Li argues that Norwich breached this “duty to inform” insofar

as he ultimately was denied tenure due to perceived deficiencies in teaching

excellence, scholarship, and service, and he does not believe that he was adequately

warned of those deficiencies in his annual and pre-tenure reviews. In other words,

Mr. Li looks to the asserted reasons for the denial of tenure and reasons backwards

that his annual and pre-tenure reviews therefore failed to apprise him sufficiently

that he had the deficiencies that ultimately would result in the denial of tenure.

See Mr. Li’s Statement of Facts ¶¶ 8–16 (filed Jan. 3, 2020).

The Court rejects this claim. The tenure decision is based on several levels of

review. Each positive tenure recommendation leads to the next level of review.

Each subsequent, higher review is made independently and, though guided by the

tenure standards, is subject to the reviewer’s judgment and discretion. There is no

necessary contradiction in a candidate receiving a positive pre-tenure review but

still failing to achieve tenure. Those who conduct the annual reviews and the pre-

tenure review bring to the process their own experience, discretion, and judgment.

But that experience, discretion, and judgment does not bind subsequent decision

makers, who are free to make their own determination. The employment policies do

8 not guarantee that the annual reviews and pre-tenure process will be undertaken in

a manner that accurately predicts how tenure decision making will be made. Thus,

it is insufficient to point to the reasons for the denial of tenure and conclude ipso

facto that there must have been a breach of the duty to inform during the annual

review and pre-tenure processes, yet that is how Mr. Li has framed his claim. The

tenure decision itself cannot be the measure of Norwich’s compliance with the

annual and pre-tenure review processes.

Otherwise, Mr. Li does not explain how his annual and pre-tenure reviews

deviated from a proper standard by which to measure Norwich’s obligations. The

summary judgment record includes substantial evidence that appears to reflect on

its face that his annual reviews and pre-tenure review were conducted robustly and

in good faith, and there is no allegation that they simply did not occur, were

undertaken in bad faith or by unqualified persons, etc. Though his advocates,

including Department Chair Frances Chevalier, passionately disagreed with how

tenure discretion ultimately was exercised, that and similar advocacy in Mr. Li’s

favor may point out the breadth of discretion involved in the tenure assessment, or

that those higher decision makers may have been influenced by other factors, but it

does not demonstrate that there was some actionable breakdown in the annual and

pre-tenure reviews amounting to a breach. This is so even though the eventual

tenure decision reflects what may amount to disagreements with those who

9 undertook the earlier reviews as to whether Mr. Li was on track to be tenured or

ought to be tenured.

Norwich is entitled to summary judgment on this claim.

C. The Student Evaluation Claim

Mr. Li also claims that Norwich breached its obligations by miscalculating

average scores of his student evaluations. He argues that some of his scores should

have been eliminated from the calculation because they were statistically unusable

due to too few evaluations from a particular class. He claims that, if his average

scores were calculated correctly, they would have shown that he received above

average evaluations rather than below average evaluations. He also argues

generally that the whole student evaluation process was known to have little value

as a reflection on teaching excellence.

This claim has no merit. Nothing in the manuals entitled Mr. Li to any

particular methodology for calculating his average student evaluation scores or to

any particular weight on this criterion as one among many for assessing teaching

excellence. While evaluation scores were mentioned in the denial letter from the

UPTC, its assessment of teaching excellence was based on a “comprehensive review

of materials from your portfolio, student course evaluations, and annual

assessments.” Altogether, that comprehensive review “did not demonstrate

adequate evidence of teaching excellence.” There is no showing that Mr. Li was

entitled to any particular treatment of his annual evaluations or that any different

10 calculation of his averages would have had any material impact on the UPTC’s

broader determination of teaching excellence.

IV. The Promissory Estoppel Claims

Mr. Li asserts the claims addressed above alternatively framed under the

doctrine of promissory estoppel, exclusively in the event that the relevant policy

provisions are determined to not be binding on Norwich. See Complaint ¶ 177 (filed

Oct. 15, 2018). Otherwise, there is no difference in substance between the contract

claims and the promissory estoppel claims, which are purely duplicative.

As the Vermont Supreme Court has explained, the law of Vermont in the

area of employment agreements “draws on aspects of both unilateral contract

formation and promissory estoppel.” Taylor v. National Life Ins. Co., 161 Vt. 457,

464 (1993); see also Restatement of Employment Law § 2.05 (explaining that

traditional contract principles are a “conceptually awkward fit” in this context). It

is often unnecessary or unhelpful to distinguish between them in this context.

Here, there is no dispute that the relevant provisions of the employment agreement

are binding, and thus there is no reason to separately analyze Mr. Li’s claims under

the doctrine of promissory estoppel.

Norwich is entitled to summary judgment on Mr. Li’s employment agreement

claims.

V. Discrimination

Mr. Li also claims that his denial of tenure reflects discrimination against

him on the basis of race and national origin in violation of Vermont’s Fair

11 Employment Practices Act, 21 V.S.A. §§ 495–496a. Norwich seeks summary

judgment on this claim. It argues that the record includes no evidence of any such

discrimination and, to the contrary, it includes general, affirmative evidence that it

does not discriminate against Chinese professors or other employees. Mr. Li argues

that the record includes ample evidence of disparate treatment, whether viewed

under “mixed motive” law or “pretext” law, to demonstrate a dispute of fact on this

claim, and he notes that relevant discovery requests, which remain pending, are

targeted at revealing additional such evidence.

Norwich filed a motion to stay discovery on the same day that it filed its

summary judgment motion. At the time, Mr. Li had sought, among other things,

files relating to the tenure processes of other professors, which presumably might

reveal evidence that Mr. Li was held to an unusually demanding standard or

otherwise treated unfavorably. Norwich argued that the discovery would be

burdensome, tangential at best to the issues of the case, and at least should await

the determination of its summary judgment motion. The Court granted the motion

to stay to that extent. Accordingly, Mr. Li’s discovery requests remain outstanding.

Vermont discrimination law incorporates the prevailing federal “proof

structures” for discrimination claims, commonly known by reference to Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989) (“mixed motive” structure), and

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (“pretext” or “single motive”

structure). See Graff v. Eaton, 157 Vt. 321, 324 (1991); 1 Employment

Discrimination Law and Litigation § 2:2 (describing Price Waterhouse and

12 McDonnell Douglas as alternative “proof structures” and explaining that “mixed

motive” and “single motive” descriptors are misleading and “it is no longer

appropriate to use these words to describe separate claims”). Under Price

Waterhouse, if the plaintiff can prove that a discriminatory motive played a role in

the employment decision, then the burden of persuasion switches to and remains

with the employer to prove that it would have made the same decision regardless.

See Graff, 157 Vt. at 324. If the plaintiff cannot make that predicate showing of

improper motive, a more traditional approach ensues. If plaintiff is in a protected

class, is qualified for a job, and is denied employment, the burden shifts to

defendant to provide nondiscriminatory reasons for the failure to hire. If defendant

meets that burden, the ultimate burden of persuasion returns to the plaintiff to

show that the nondiscriminatory reason for the employment decision promoted by

the employer was a pretext for discrimination.3 See id. n.3; see also Gallipo v. City

of Rutland, 163 Vt. 83, 89 n.2 (1994) (“If the plaintiff fails to establish that an

impermissible factor played a motivating part in the employment decision, then the

McDonnell Douglas analysis applies.”).

3 The Court notes that while the burden of persuasion under McDonnell Douglas

always remains with the plaintiff, the burden of production switches back and forth in pretrial proceedings to aid the court’s determination of whether the claim should reach the jury. The shifting burden of production, however, is a matter for the court. Juries are not properly instructed to consider such issues. See Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 154 (2d Cir. 2010); Lewis v. City of Chicago Police Dep’t, 590 F3d 427, 439 (7th Cir. 2009); Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240, 249–50 (3d Cir. 2006).

13 In this case, Mr. Li points to evidence in the record that could be marshalled

in favor of a showing, by inference or otherwise, that a discriminatory reason could

have had a role in the denial of his tenure or that the nondiscriminatory reason for

the denial of his tenure urged by Norwich was a pretext for discrimination. Such

evidence includes, among other things, statements by witnesses, who presumably

had a basis to know, that Mr. Li was held to a higher standard than other

candidates, that his student evaluations were interpreted in a contrived way to his

detriment, that his scholarship was inexplicably devalued, and that, against

convention, he was denied tenure even though the CoLA PTC and CoLA Dean

recommended him for tenure.

In light of such evidence, Norwich’s argument in favor of summary

judgment—essentially, that because it employs and has tenured other Chinese

employees there is no reason to think it would discriminate against Mr. Li—is

especially unconvincing. The mere fact than an employer has employed more than

one Chinese employee, and has promoted some of them, does not necessarily

indicate anything about whether a particular Chinese employee has been

discriminated against.

At this point, the Court needs not engage in a more probing review of the

evidence. It is clear that Mr. Li does not completely lack evidence that can be

marshalled to show possible discriminatory treatment, and Norwich’s response does

not establish a defense as a matter of law. Further, relevant discovery is

14 outstanding. This is sufficient to warrant the denial of summary judgment on this

claim, at least at this stage, and to allow discovery to proceed.

Conclusion

For the foregoing reasons, Norwich’s Motion for Summary Judgment is

granted, in part, and denied, in part. Norwich shall respond to outstanding

discovery requests within 30 days.

Dated this __ day of May 2020 at Montpelier, Vermont.

_____________________________ Timothy B. Tomasi Superior Judge