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March 11, 1985

SUEYUN PYO, Plaintiff,

The opinion of the court was delivered by: GERRY

 This is a Title VII employment discrimination case. The plaintiff was an assistant professor in the Department of Art at Stockton State College. In December 1981, plaintiff was denied tenure by the college, and her employment was terminated. She alleges that the decision not to grant her tenure was the product of sex and/or race (Asian) discrimination. Among the relief sought by plaintiff is a judicial award of tenure. It is certainly within the court's power to award tenure under appropriate circumstances.

 The defendant is moving for partial summary judgment. The motion is a very limited one. The defendant merely seeks an order striking a judicial award of tenure as a possible remedy in this case. The defendant, in this motion, does not seek to argue whether or not the college's decision to deny tenure was discriminatory. The college's position is that even if the tenure decision was the product of discrimination, a judicial award of tenure, under the undisputed facts of the case, is still inappropriate. The appropriate remedy, the only appropriate remedy, for discrimination (if proved) is a "remand" back to the college for a de novo decision, it is argued. This relief is especially appropriate, it is stated, because all of the upper-level personnel who may have acted discriminatorily have since left the college. Thus, an impartial decision is said to be possible. The plaintiff takes the position that whether an award of tenure is an appropriate remedy is rather intimately intertwined with the question of whether there was, in fact, discrimination. If there was discrimination, it is argued, an award of tenure may be appropriate, although the appropriateness of the remedy would depend on, perhaps, the nature of the discrimination and the level of the decision-making process at which the discrimination occurred. The plaintiff urges that further discovery is thus necessary.

 So, in essence, for the purposes of this motion, we may assume some discrimination, although this assumption itself is not one capable of precise definition under the complex circumstances of the tenure decision process. (This will presently become clearer.)

 The third step is the recommendation of the dean of the appropriate division. The dean's recommendation is based on the candidate's file and the recommendation of the Faculty Review Committee, as well as on his own independent evaluation of the candidate and the needs of the division. The fourth step is the submission of the candidate's file and the prior recommendations to the vice president of Academic Affairs. The vice president makes his own recommendation, based on the record below and the needs of the college, as he perceives them. The fifth step is the submission of the record below to the college president. If the president decides against tenure, that is the end of the matter. If the president decides to recommend tenure, then the matter is passed on to the college board of trustees for final decision.

 In the present case, the plaintiff, as required, prepared a tenure file. The file contained 15 peer evaluations. According to the affidavits of the dean, vice president and president, 15 evaluations is a relatively low number: 30 are not uncommon. Moreover, plaintiff only submitted four letters from faculty outside her program, also allegedly a small number. Of the 15 evaluations, 11, recommending tenure, were very positive (making reference, e.g., to plaintiff's talent as a sculptor, her strong teaching ability, and her contributions to the revitalization of the Art Department); two, although positive, declined to take a position due to insufficient opportunity to observe; and two were negative. Of these, one (Lemakis) faults plaintiff for lack of self-confidence, leadership and service to the college. The other (Metcalf) faults plaintiff for failing to honor a commitment to put on a show of her work at the college art gallery, and for being inaccessible and more demanding of students than she was of herself. The student evaluations (statistical summaries of responses of students to plaintiff's courses) were slightly below average: the median score is allegedly 5.5 - 5.6 (1 - 7 scale), whereas plaintiff's average score was 5.3. The court is not sure the statistics exactly equate with each other, however.

 Based on the tenure file, the Faculty Review Committee voted to recommend tenure, by a vote of 7 in favor, 2 opposed, and 1 abstention. According to affidavits, this was no more than lukewarm support.

 The dean of plaintiff's division, Martin Jones, recommended against tenure. Although Jones had nice things to say about Ms. Pyo, he mentioned her failure to put on the aforementioned solo show as "disappointing," and found her to lack leadership or college service potential. Vice President Nanzetta recommended against tenure as well, in a very cursory manner, relying on the "mixed reviews" of the Faculty Review Committee and the negative recommendation of the dean. The president followed the recommendations of the dean and vice president and decided not to recommend Pyo for tenure to the Board of Trustees. Thus, plaintiff was not reappointed to the faculty of the college.

 At three of the four levels, the recommendation was to deny tenure, and support for tenure in plaintiff's file and at the committee level was less than unanimous. Certainly, there are no indications on the face of any of the evidence to suggest discrimination. For the purposes of this motion, discrimination is assumed, however. Does this mean discrimination is assumed at all levels, including among the students whose comments furnished the basis for statistical summaries?

 Legal Argument

 1. When Title VII was enacted in 1964, Congress exempted educational institution employees engaged in educational activities from the statute's requirements. Not until 1972 did Congress extend Title VII to higher educational institutions. The legislative history could not be clearer that Congress was concerned with discrimination in university settings. The House Committee Report states:

Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment.
The committee feels that discrimination in educational institutions is especially critical. The committee cannot imagine a more sensitive area. . . . To permit discrimination here, more than in any other area, would tend to promote ...

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