On appeal from the Division of Civil Rights.
Approved for Publication August 7, 1995
Before Judges Shebell, Skillman and Kleiner. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
The opinion of the court was delivered by
Rutgers University (Rutgers) appeals an administrative determination of the Director of the Division on Civil Rights (Director) that Rutgers violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, by failing to promote Dr. Nelson Chou to the position of Librarian I. The Director found that Rutgers failed to promote Chou in retaliation for Chou filing a previous civil rights complaint, in violation of N.J.S.A. 10:5-12(d), and because of discrimination based on race, ancestry and national origin, in violation of N.J.S.A. 10:5-12(a).
Chou, an immigrant from China, has been employed by Rutgers as a librarian since 1970. During this entire period, Chou has served as the librarian of the East Asian Library (EAL), a specialized library within the Alexander Library, the main research library at Rutgers' New Brunswick campus.
Chou occupied the rank of Librarian III from 1970 through 1976. In the spring of 1975, Chou was notified that he was not going to receive tenure and that the 1975-76 academic year would be his terminal year. Chou responded to this notice in two ways. First, he filed a complaint with the Division on Civil Rights (Division) alleging that his termination constituted discrimination in employment based on national origin and ancestry. Second, he filed a grievance pursuant to the collective bargaining agreement between Rutgers and the AAUP, the faculty union, challenging his tenure denial and termination of employment. As a result of this grievance, Chou was re-evaluated for tenure as part of the 1976-77 promotion cycle, which resulted in his promotion to Librarian II with tenure, effective July 1, 1977. However, Chou continued to pursue his complaint before the Division, which ultimately resulted in a settlement on June 15, 1981, under which Rutgers agreed to pay Chou $2000 as damages for personal suffering and to refrain from taking reprisals against him for having filed a civil rights complaint. The settlement agreement stated that it did not constitute an admission of any violation of the LAD.
In the fall of 1982, Chou requested that he be evaluated for promotion to Librarian I during the 1982-83 promotion cycle. *fn1 The promotional review process with respect to a candidate like Chou commences with an evaluation by the faculty member's Department Committee, which consists of tenured librarians at or above the rank sought. The next step is evaluation by the Advisory Committee on Appointments and Promotions (the A&P Committee), which consists of four tenured librarians. The next evaluation is done by the Dean, who is the University Librarian, and is followed by a review by the Section, which has the same membership as the Department Committee. The next level of evaluation is the Promotion Review Committee (P.R.C.) consisting of the Provosts -- the chief academic officers of the New Brunswick, Newark and Camden campuses -- and four faculty members in the highest rank of Professor II. Upon completion of its deliberations, the P.R.C. forwards its recommendations to the University President for his consideration. All positive P.R.C. recommendations are required to be forwarded to the Board of Governors. The President, in his discretion, also may recommend the promotion of a faculty member whom the P.R.C. has not recommended.
The promotion process requires that all material, including the written evaluations from prior levels, be considered at each successive level of evaluation. All written evaluations and support materials constitute a candidate's promotion packet. The criteria for promotion review involves an evaluation of five categories: professional effectiveness, which is equated with the competence with which a librarian performs his or her responsibilities; scholarly or creative activity, which is equated with the attainment of academic mastery in the candidate's discipline and is evidenced by participation in the instruction and training of other professionals or publications; research accomplishment; professional activities, and general usefulness. According to Rutgers' promotion policy, a candidate for promotion to Librarian I is required to have satisfied one or more of the criteria with distinction, and to have made substantial progress beyond that for which the candidate was recognized at the Librarian II level.
The Department Committee evaluated Chou's application and approved his promotion by a vote of seven to one, with one abstention. The Department evaluated Chou as outstanding in research accomplishments and scholarly/creative activity, and above average in the remaining three categories.
The A&P Committee, the next step in the promotional review process, was evenly divided, two-to-two, as to whether to recommend Chou for promotion, which under Rutgers' procedures was deemed a vote not to promote. The A&P Committee ranked Chou's scholarly/creative activity and professional activity as outstanding and the remaining categories as above average. While the committee described Chou as an "effective professional," it concluded that his promotion packet did not document notable achievements since his promotion to Librarian II.
The next level of evaluation, the University Librarian, Hendrik Edelman, also declined to recommend promotion. He rated Chou as being average in general usefulness and above average in the remaining categories. Edelman also noted that he was working on restructuring Chou's assignments to allow more time for research and scholarly activity.
After the Section, comprised of the same membership as the Department Committee, recommended approval of Chou's promotion, the P.R.C. reviewed Chou's application and declined to recommend promotion. The P.R.C. found that while Chou "shows professional effectiveness in developing a specialized library and other professional contributions, together with intermittent scholarly and creative activity and some general usefulness[,] the promotion [to the position of Librarian I] should not be considered until further growth has been demonstrated by creative contributions to the profession."
As a result of his unsuccessful attempt at promotion, *fn2 Chou filed a grievance in September 1983 under the Rutgers-AAUP collective bargaining agreement. Chou also filed a complaint with the Division in October 1983, alleging that his failure to be promoted was due to his national origin, ancestry and race and as a reprisal for his earlier discrimination complaint against Rutgers. The Grievance Committee, composed entirely of tenured faculty members, concluded that the evaluation procedures used by the A&P Committee and the University Librarian were "arbitrary and capricious."
As a result of the Grievance Committee's finding, Chou's promotion application was remanded for reevaluation at all levels of review. The reevaluation took place during the 1984-85 promotion cycle and, by agreement, the reevaluation was based on Chou's 1983-84 promotion packet.
In the 1984-85 reevaluation, the Department Committee voted unanimously to recommend promotion. It rated Chou as outstanding in the area of professional effectiveness, scholarly/creative activity and research accomplishments and it rated him as above average in the remaining two categories.
The A&P Committee also recommended that Chou be promoted by a vote of two to one with one abstention. The A&P Committee rated Chou as outstanding in the same categories as did the Department, as above average in professional activity and as average in general usefulness.
The University Librarian, who at that time was still Edelman, again declined to recommend promotion. He found Chou to be outstanding with respect to professional effectiveness, average in general usefulness and above average in the remaining categories.
After the Section voted to approve the promotion, the P.R.C. again refused to recommend Chou's promotion. The P.R.C.'s decision of March 14, 1985, stated in part:
The total body of publication in the post-tenuring years is modest; the assessments of it in the record do not establish that it has had significant impact in the development or practice of the profession. In the Committee's judgment, the candidate's record does not sufficiently show the continuing growth in professional effectiveness and the growing recognition for scholarly leadership which are necessary to justify promotion at this time.
Chou filed a second grievance from the denial of his promotion application. As a result, the parties agreed to a third evaluation of Chou's promotion packet during the 1985-86 promotion cycle. The parties agreed that the 1984 Department Committee evaluation would be included in the packet, obviating the need for that level of evaluation.
A newly constituted A&P Committee voted unanimously to recommend Chou for promotion. The A&P Committee rated Chou as outstanding in professional effectiveness, scholarly/creative activity and research accomplishments; it rated him as above average in the remaining categories.
By the time of this third review of Chou's promotion application, Edelman had been replaced as University Librarian by Ralph McCoy, who recommended Chou's promotion. McCoy rated Chou as outstanding on professional effectiveness and above average in all other categories.
However, the P.R.C. again declined to recommend Chou's promotion, stating that:
The candidate's record in professional effectiveness shows well regarded service, particularly in the development of the collection for which he is responsible, as well as another generally useful contribution to his department and in his relationship to the teaching program. His professional activity has been appropriate to his rank. The assessments of his scholarly activity include praise for his body of scholarly translations attributed before his aware [sic] of tenure. However, the evaluations confirm that the publication record since tenuring has been modest and do not yet demonstrate the continuing professional growth or impact on the development of the profession which are necessary for this promotion.
Chou filed a third grievance from the promotion denial, and in May 1988 the Grievance Committee concluded that the P.R.C.'s decision violated promotion procedures and was "arbitrary and capricious."
In August 1988, Chou agreed to have his application for promotion evaluated by a specially constituted P.R.C., none of whose members had previously participated in his evaluations. The reevaluation would be based on Chou's 1985-86 promotion packet. The parties agreed that the P.R.C. Chair would appoint one or two external readers who would provide advice in a written report. The external readers he selected were Diane Perushek, the curator of the Gest Oriental Library at Princeton University, one of the leading oriental collections in the country, and Edward Holley, a professor and former dean at the University of North Carolina School of Information and Library Science, former Chief Librarian at the University of Houston, and a nationally recognized figure in the library and information science field. Based on the evaluation set forth in their comprehensive report, which is quoted at length later in this opinion, these readers declined to recommend Chou's promotion.
In December 1988, the specially constituted P.R.C. denied Chou's promotion. The P.R.C.'s decision, which also is quoted at length later in this opinion, concluded that "the assessments of his scholarly and creative activity ... do not demonstrate the sustained professional growth and the recognition for important contributions to the practice of the profession associated with the rank of Librarian I."
While Chou's grievance from the third denial of his application for promotion was pending, the Division issued an "agency determination" on July 10, 1987 finding "probable cause" to believe that the denial of Chou's promotion application had been for retaliatory or discriminatory reasons, see N.J.S.A. 10:5-14, but finding a lack of evidence to support Chou's claims that various administrative actions affecting him were the product of retaliation or discrimination. On February 3, 1988, Rutgers filed a motion to dismiss the complaint on the ground that it was filed beyond the 180-day limitations period provided in N.J.S.A. 10:5-18. On May 23, 1988, an Administrative Law Judge (ALJ) issued a letter opinion, denying Rutgers' motion to dismiss as well as its motion to limit the issues to the denial of promotion in the 1982-83 promotion cycle, while granting Chou's motion to amend the complaint to include promotion denials subsequent to the 1982-83 cycle.
An administrative hearing was held before another ALJ over a sixteen day period in May, June and July of 1989. After receiving post-hearing submissions from the parties, the ALJ issued a written initial decision on June 22, 1990, which found that "Henry Edelman, in his capacity as University Librarian, retaliated against Nelson Chou for asserting his civil rights with the New Jersey Division on Civil Rights in 1975 through 1981 and thereafter" and that "the prejudicial involvement of Henry Edelman at the critical Dean Evaluation Level irrevocably tainted the process requiring promotion of Nelson Chou to Librarian I" The ALJ also found that "except for Henry Edelman, the evaluators performed in accordance with their perception of applicable professional criteria." However, he went on to say that "there is no legitimate way to assess the impact of the Edelman taint on the deliberations." Based on these findings, the ALJ concluded that Rutgers' refusal to promote Chou was an act of retaliation. The ALJ therefore recommended that Rutgers be directed to promote Chou to the position of Librarian I, with seniority retroactive to the 1982-83 promotion cycle, and that he be awarded back pay and benefits retroactive to that date. The ALJ also concluded that "Nelson Chou experiences such pain and humiliation, endures such anxiety in his personal and professional life, and suffered such a deleterious affect on his career, all of which are a proximate result of [Rutgers'] retaliatory behavior and the consequences arising therefrom over a period of a decade, that the additional payment to him of $150,000 in compensatory damages is required" and that "[Rutgers'] continuing indifference, insensitivity and intentional toleration of Henry Edelman's notorious abusive retaliatory behavior requires the payment of $100,000 in punitive damages to Nelson Chou."
On February 4, 1991, the Director issued a decision, which affirmed the ALJ's May 23, 1988 decision that Chou's complaint should not be dismissed as untimely and affirmed certain of the ALJ's evidentiary rulings, but remanded to the ALJ with respect to the remaining aspects of the case "for further factual findings and legal Conclusions." The Director stated during the course of his opinion:
The initial decision in this matter ... does not meet the statutory mandate that is a procedural predicate for resolution of the merits of this contested case for the following reasons: (1) the testimony of witnesses is not summarized or analyzed, (2) the findings of fact are incomplete and do not support the Conclusions of law and (3) it is unclear whether all claims underlying Dr. Chou's complaint were fully considered.
The ALJ must address whether and to what extent the evidence, if any, revealed that Dr. Chou would have obtained the promotion to Librarian I, but for Mr. Edelman's discriminatory acts. The ALJ must also discuss whether Mr. Edelman's involvement influenced or prejudiced the PRC committee and/or Dr. Pond and what impact the outside readers may have had in their advisory role with the PRC. Was the PRC predisposed to deny the promotion to Dr. Chou because of Mr. Edelman's retaliatory behavior or did the PRC make its decision based on nondiscriminatory reasons? Were the recommendations by the outside readers conclusive on the issue of whether Dr. Chou should have been promoted in the first instance or were these recommendations merely advisory and not binding on the PRC's determination?
The Director also stated that "the ALJ must clarify whether he found that Rutgers discriminated against Dr. Chou on the basis of his race, national origin and/or ancestry with respect to his promotion denial."
After the remand from the Director, the ALJ issued a second recommended initial decision on June 27, 1991, which again failed to contain detailed findings of fact. Instead, he stated in broad Conclusionary terms:
I ADOPT complainant's position evidenced through the testimony he elicited on the record and his submissions admitted to evidence.
I found none of the testimony of [Rutgers'] witnesses credible. After considering the entire record, I cannot believe [Rutgers'] version of what occurred and do believe the complainant's reconstruction of events ...