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Jay Jian-Qing Wang v. Mary Ann Swain; Eric J Cotts

March 14, 2011


The opinion of the court was delivered by: Thomas J.McAVOY, Senior United States District Judge



Plaintiff, a former professor at the State University of New York at Binghamton, commenced this action asserting claims of unlawful age, race and national origin discrimination in violation of 42 U.S.C. §§ 1981, 1983 and 1985 after he was denied tenure. See Compl. [dkt. # 1]. *fn1 Defendants move for summary judgment seeking to dismiss Plaintiff's claims en toto . See dkt. # 45 & # 47. Plaintiff opposes the motion, see dkt. # 48, and Defendants have filed a reply to that opposition. See dkt. # 50. For the reasons that follow, Defendants' motion is granted.


On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the Court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). While the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor, Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002), a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994); Fed. R. Civ. P. 56(e).

The Local Rules of the Northern District provide a procedure for the efficient resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This places the onus on the parties to present the evidence that either supports or defeats the motion. A movant must set forth the undisputed facts that, it contends, entitles it to summary judgment in a Statement Of Material Facts. See N.D.N.Y.L.R. 7.1(a)(3). "Each fact listed shall set forth a specific citation to the record where the fact is established." Id.

Once a properly supported Local Rule 7.1(a)(3) Statement of Material Facts is submitted, the non-moving party must "file a response to the [movant's] Statement of Material Facts." Id. This requires a statement that "mirror[s] the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs." Id. "Each denial shall set forth a specific citation to the record where the factual issue arises." Id. Conclusory denials unsupported by specific citations to the record are insufficient. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 648-49 (2d Cir. 2005). *fn2 Likewise, a simple citation to an "exhibit" consisting of numerous documents, or citation to a deposition without a pinpoint citation to where in the deposition support for the denial is contained, is insufficient. See Bronner v. Catholic Charities of Roman Catholic Diocese of Syracuse, Inc., 2010 WL 981959, at *1 (N.D.N.Y. March 15, 2010); *fn3 Riley v. Town of Bethlehem, 5 F. Supp.2d 92, 93 (N.D.N.Y.1998). *fn4 The Court is not required to search the record for evidence that the parties fail to point out in their Local Rule statements. See Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002); *fn5 Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000). *fn6 The Court shall deem admitted properly facts set forth in a movant's Statement of Material Facts that the opposing party has not specifically or properly controverted. N.D.N.Y.L.R. 7.1(a)(3).

With these standards in mind, the Court will address the pending motion.


Jay Jian-Qing Wang ("Plaintiff") is a fifty-year old male born in China of Asian descent. He was awarded a Ph.D. in Condensed Matter Physics from the University of Science and Technology of China in 1991. In September 2001, Plaintiff was hired by the State University of Binghamton ("Binghamton University" or "University") as an Assistant Professor of Physics.

Defendant Mary Ann Swain was the Provost and Vice President for Academic Affairs at the University at all times relevant to this action. Defendant Eric J. Cotts is and was the Chair of the Department of Physics at the University. Defendant Robert L. Pompi was the Chair of the Initiating Personnel Committee ("IPC") and a member of the University Personnel Committee ("UPC") which reviewed Plaintiff's tenure application. Defendant M. Stanley Whittingham was the Director of Materials Science and Engineering at the University. Defendant Jean-Pierre Mileur was a former college Dean at the University. Id. ¶ 12.

In the 2003-2004 academic year, Plaintiff underwent his first review by the Initiating Personnel Committee ("IPC"). After conducting a standard review of his case, the IPC voted to recommend a three year renewal for Plaintiff.

Faculty members employed at Binghamton University in a tenure track position for 6 years must participate in a mandated review for purposes of tenure and promotion consideration. Each of the steps in this review is mandatory unless the applicant voluntarily withdraws his name for consideration for tenure. Professor Wang was notified that he was being considered for tenure in September 2006. He did not withdraw his name for consideration so his review proceeded in accordance with the University's procedure for promotion and tenure consideration. First, Professor Wang was given a document submission deadline of September 11, 2006. After Professor Wang submitted documents, the Initiating Personnel Committee ("IPC"), comprised of persons within the same department as the applicant, convened to decide if the committee will recommend tenure. This decision in all such cases is based on review of the submitted documentation, written recommendations by persons (some solicited by the applicant), and any discussion had by the Committee. The IPC also takes into account the personal knowledge of the applicant.

The IPC committee in the Plaintiff's case was comprised of faculty members Robert Pompi, Masatsugu Suzuki, Eric Cotts, Tsu Ming Wu, Newton Greenberg, Srinivasa Venugopalan and Charles Nelson. The deliberations of the IPC Committee involved the examination of the issues of research, teaching, and service. It was determined that Professor Wang's service was at an acceptable level for a junior faculty member. However, even though Plaintiff had received some positive teaching evaluations from some students and supportive responses from colleagues, see Pl. Ex. A, parts 1-2, his teaching evaluations were widely criticized and considered unacceptable. See IPC March 14, 2007 Report to UPC, Def. Ex. A, pp. 11-14. Furthermore, the IPC concluded that the most severe weakness in Professor Wang's portfolio came from the evaluation of his research efforts. Id. The IPC committee found it problematic that, as to his research endeavors, Plaintiff had published only 4 papers based on his work at the University. Id.

Reports from outside evaluators who provided their input during the tenure application process, some requested to participate by the University and some by Plaintiff, were also considered. In the whole, these reports were equivocal as to the promotion and tenure determination. See Def. Ex. C. One evaluator considered Plaintiff's case for promotion and tenure "to be marginal due mainly to the lack of publication," Def. Ex. C-1; one evaluator recommended Plaintiff for promotion and tenure based upon his research although the evaluator did not "know anything about [Plaintiff's] teaching" performance, Def. Ex. C-2; one evaluator noted that Plaintiff was well known for his research, appeared (based on his CV) to have "a functioning laboratory that involves graduate students and post-docs," seemed to have "secured significant external funding," and appeared to have been "quite successful in establishing a research program at Binghamton University," but the evaluator did not comment on Plaintiff's teaching performance and did not make a recommendation for or against tenure, Def. Ex. C-3; one evaluator noted that Plaintiff was "apparently successful in attracting grants and contracts for his research" but opined that Plaintiff's "research accomplishments at Binghamton University would be too weak for promotion in most universities," and concluded that "[u]ltimately, his promotion will be decided . . . based on his teaching performance and research accomplishments at Binghamton University," Def. Ex. C-4; one evaluator concluded that he/she would not support Plaintiff for promotion if Plaintiff were a candidate at that evaluator's university, Def. Ex. C-5; and one evaluator concluded that Plaintiff's case "presents a strong case for promotion to a tenured associate professor" based upon Plaintiff's "scholarly productivity and originality" and his success at obtaining external funding, but the evaluator did not comment upon Plaintiff's teaching abilities or performance. Def. Ex. C-6.

The IPC, after review, recommended against granting tenure for Plaintiff. The vote was 6 against tenure, none for, and one abstaining. The IPC decision was sent to the Chair of the Physics Department. The Chair, Defendant Cotts, reviewed the submitted documentation and decision of the IPC and, by letter dated March 9, 2007, concurred with the IPC and recommended against tenure.

Cotts' recommendation was then forwarded to Defendant Jean-Pierre Mileur, as college Dean, for review and recommendation. Dean Mileur, as permitted by the process, requested a Formal Review on May 3, 2007. A Formal Review is an optional step, conducted by a University Personnel Committee ("UPC") comprised of faculty members from across the University. The UPC conducts a review of the submitted documentation, including the recommendations for/against tenure; interviews the candidate and any persons the candidate invites for an interview; and considers the recommendation from the chair of the applicant's department. Members of the IPC attended the meeting with the UPC.

The UPC conducted and completed its formal review, consisting of review of the submitted documentation, the recommendations received from the IPC and the Physics Department Chair, input from the Provost, interviews with Prof. Wang, and, at Prof. Wang's invitation, interviews with professors Jaye Fang, Stanley Whittingham, *fn8 Wayne Jones and Paul Parker. On May 22, ...

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