Yong-Qian Sun v. Board of Trustees of the University of Illinois

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2438

YONG-QIAN SUN,

Plaintiff-Appellant,

v.

THE BOARD OF TRUSTEES OF

THE UNIVERSITY OF ILLINOIS;

RICHARD HERMAN; DAVID E. DANIEL;

ROBERT AVERBACK; JOHN H. WEAVER;

IAN M. ROBERTSON; AND JOSEPH E. GREENE,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 03-CV-2221—Michael P. McCuskey, Chief Judge.

____________

ARGUED DECEMBER 5, 2006—DECIDED JANUARY 16, 2007

____________

Before FLAUM, WOOD, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. The University of Illinois did not

grant Yong-Qian Sun tenure after numerous committees

and faculty members considered his case. Alleging var-

ious procedural irregularities and nefarious motives, Sun

filed suit against the Board of Trustees of the University

as well as members of its faculty. After the defendants’

counsel failed to comply with discovery and the court

granted several motions to compel discovery, it entered

2 No. 06-2438

default judgment against the defendants. Soon after, the

court vacated the default, and, eventually, granted sum-

mary judgment in favor of all defendants. Sun appeals

both the vacation of the default judgment and the

court’s grant of summary judgment. For the following

reasons, we affirm.

I. BACKGROUND

The University of Illinois (“University”) hired Yong-Qian

Sun, a native of China, as an assistant professor in August

1997. He worked in the University’s Department of

Materials Science and Engineering in the College of

Engineering (“the Department”). The Department evalu-

ates assistant professors in their fifth year of employment

for promotion to associate professor with tenure. If the

Department decides to deny promotion and tenure, it

issues the tenure applicant a notice of nonreappointment

and ultimately terminates the professor’s employment.

In 2001, a year before his tenure review commenced, Sun

received the Donald Burnett Teacher of the Year Award.

The winner of the award was announced in College and

Department publications and received $8,000. In keeping

with Department tradition, Sun and Pascal Bellon, a

previous award recipient, were slated to choose the 2002

award winner. John Weaver, the Department Head,

strongly suggested that Sun consider him for the award.

Despite the suggestion, Sun and Bellon selected another

faculty member, Robert Averback, as the winner. On April

9, 2002, when Sun sent Weaver an e-mail recommending

that Averback be given the award, Weaver became ex-

tremely upset with Sun. The following month, Weaver

informed Sun that he would no longer receive income

generated by his online teaching, due to a change in

Department policy. Interestingly, the policy change

affected only Sun.

No. 06-2438 3

In the Spring of 2002, the Department was consider-

ing Sun’s candidacy for tenure and promotion. At that

time, John Weaver was Department Head and David

Daniel was Dean of the College of Engineering. Robert

Averback, Joseph Greene, and Ian Robertson were ten-

ured faculty members in the Department. Richard Herman

was the Provost of the faculty for the University. To aid

the process, the Department’s Promotion and Tenure

Committee (“PTC”) prepared and collected information

about tenure candidates. The PTC obtained biographical

information from the candidate, obtained written evalua-

tions from selected scholars outside of the University,

and compiled internal evaluations of the candidate’s

teaching, research, and public service. That information

was compiled in a document known as a dossier. Averback

and Greene served as two of the PTC’s four members, and

Averback acted as chairman.

Members of the faculty considered Greene powerful and

influential because he controlled federal block funding

ranging from $8 to $9 million per year, which meant that

many professors in the Department relied on Greene’s

allocations to support their research. At a May 15, 2002

faculty meeting, during a recruitment discussion, Greene

said that he would not accept any Chinese graduate

students and that he would not interview them. Following

the meeting, Weaver asked Greene about the comment.

Greene said it was a stupid remark and that he had no

problems dealing with Chinese people. Greene later called

his comment a “throwaway remark,” made to express

his dissatisfaction with the length of a discussion on

recruiting international students, including those from

Asia. Greene had previously accepted and worked with two

Chinese graduate students.1

1

Greene’s remark resulted in an exchange of e-mails, including

an e-mail from Weaver to all of the professors in the Depart-

(continued...)

4 No. 06-2438

The PTC placed Averback in charge of obtaining ex-

ternal evaluators for Sun. This task was governed to a

large degree by Provost Communication No. 9, a document

that set out instructions for preparing a candidate’s

dossier. It provides, among other things, that evaluation

letters must be sufficient in number, from appropriately

selected individuals at peer institutions, and from objec-

tive evaluators without conflicts of interest. The candidate

must be provided with an opportunity to nominate external

evaluators, but the department must also seek letters from

evaluators other than those suggested by the candidate.

Communication No. 9 states that a “majority of the

external evaluations should come from the department’s,

rather than the candidate’s, nominations.” It also states

that the “candidate has no privilege of vetoing external

reviewers, but may indicate individuals whom he or she

considers inappropriately biased.” However, the “candidate

cannot reasonably request avoidance of more than one or

two individuals.” Communication No. 9 states that the

external evaluations “are critical components of the

dossier and play a major role in the decision-making

process.”

1

(...continued)

ment which stated, “Friends, This is to reaffirm something

that should be part of our department culture—that we wel-

come people from all lands, of all backgrounds, and that we

seek to provide a supportive atmosphere for them to do the

best work that they can.”

Greene responded with an e-mail which stated that “[w]e

should have agreed upon departmental [guidelines] (not strict

numbers!) regarding the fraction of US/foreign graduate stu-

dents we admit. I suggest that a reasonable goal would be 2/3

U.S. and 1/3 foreign with a ‘maximum’ of 50% foreign.” (emphasis

in original).

No. 06-2438 5

On May 21, 2002, Sun suggested, in writing, five exter-

nal evaluators. Averback found three of the suggested

evaluators inappropriate because they were from outside

of the University’s peer rank.2 Averback gave the names

of the other two suggested evaluators to Weaver, and

Weaver formally requested the evaluations. One of the

suggested evaluators provided an evaluation that was

included in Sun’s dossier. The other wrote back and, in his

response, included a comment very critical of a paper co-

authored by Sun. Averback determined that, based upon

this comment and the fact that the evaluator resided

outside of the U.S., the PTC would not include the letter

from him.

Sun provided one name, in writing, of an evaluator he

did not want used, and the PTC did not solicit a letter from

that evaluator. Sun also orally informed Averback of

additional persons that might be biased against him.3

Averback testified that, because of problems he encoun-

tered with obtaining a sufficient number of qualified

external evaluators, he eventually requested and ob-

tained letters from the potentially biased evaluators—

Michael Mills and Patrick Veyssiere.4 Averback obtained

a total of seven external evaluation letters. While several

faculty members stated that they felt the letter from Mills

2

The Department is one of the highest ranked departments of

its kind in the country, and the University’s College of En-

gineering is among the highest ranked Colleges of Engineer-

ing. This limited the number of evaluators who could be con-

sidered appropriate based upon Communication No. 9.

3

Sun thought the two professors might be biased against him

because he had negatively reviewed articles they had submitted

for publication.

4

Sources inside and outside of the Department recommended

Mills as an external evaluator.

6 No. 06-2438

was somewhat weak, the majority of the faculty mem-

bers who expressed an opinion stated that the external

evaluation letters included in Sun’s dossier were good.

Prior to 2000, the PTC was solely responsible for vot-

ing on tenure candidates and recommending to the Depart-

ment Head whether tenure should be awarded. After

Weaver became Department Head, this procedure changed

so that the recommendation to the Department Head was

based upon the vote of all tenured faculty in the Depart-

ment rather than just the four members of the PTC. The

first candidate for tenure subject to this procedure was

Pascal Bellon, who was up for promotion and tenure in

2001. In Bellon’s case, after two faculty meetings, ten

faculty members voted in favor of tenure, ten faculty

members were opposed to tenure, and one faculty mem-

ber abstained. On September 27, 2001, Weaver wrote to

Bellon and advised him that he would not be recommended

for promotion. However, after Bellon appealed this decision

to faculty and took various steps to explain and improve

his dossier, he was recommended for tenure by a vote of

17-4.

In Sun’s case, the first faculty meeting to discuss his

candidacy for tenure was held on September 20, 2002. As

the new Chairman of the PTC, Averback presided over the

meeting. He began the meeting by discussing the neces-

sary qualifications for tenure, noting that Sun did not meet

the Department’s standards in some areas. Weaver told

the faculty that if they weren’t certain about how to vote,

they should vote “no.” The Department selected Bellon to

present Sun’s case, and Bellon gave a positive presenta-

tion. During the meeting, both Weaver and Greene made

remarks critical of Sun and Weaver downplayed the

importance of teaching in a tenure decision.

On September 23, 2002, pursuant to the University’s

tenure evaluation process, Sun presented a colloquium

No. 06-2438 7

in which he discussed the research he had done at the

University and answered questions. Prior to the collo-

quium, Sun met with Ian Robertson, another faculty

member, to present a “rehearsal” of his colloquium mate-

rial. Robertson urged Sun to revise the colloquium to

make it resonate with faculty that were not experts in

Sun’s field. Because of these late revisions, Sun replaced

some of his presentation slides with handwritten transpar-

encies, which Weaver subsequently criticized.

On October 2, 2002, another meeting was held in which

the faculty discussed Sun’s qualifications and voted on

whether he should be recommended for tenure. Prior to the

vote, Weaver discussed Sun’s candidacy with some mem-

bers of the faculty and made negative comments. For

example, Weaver asked Bellon how he was going to vote

and suggested that Sun was not the kind of person he

would want to be stuck with for 25 years. Bellon disagreed

and walked away, although he felt pressured by Weaver.

Ultimately, Bellon voted in favor of tenure. James Econ-

omy, the former head of the Department, testified that

Weaver approached him two to three times to make

negative comments about Sun and also discouraged him

from voting. Despite his attempts, Weaver was not suc-

cessful in influencing Economy’s vote. The faculty voted

by secret ballot, thirteen against tenure and six in favor.

Shortly thereafter, Weaver asked for a vote of the PTC,

which voted 4-0 against tenure. Weaver then notified Sun

that he intended to recommend against tenure and that

Sun had a right to appeal.

Sun asked the faculty to reconsider their decision and

circulated a written appeal document. Prior to the faculty’s

appeal meeting, persons outside of the University, some

of them very well-known in Sun’s field, submitted ap-

proximately 21 letters in support of his candidacy. Weaver,

after consulting with Dean Daniel, sent everyone in the

Department an e-mail suggesting that the letters were not

8 No. 06-2438

appropriate and that they should not be considered.

Despite Weaver’s recommendation, the letters were

provided to all members of the faculty before the ap-

peal meeting.

On October 16, 2002, Sun asked a Department secretary

for Donald Burnett’s telephone number.5 This prompted

Weaver to enter Sun’s office yelling, among other things,

“Don’t fuck with people outside the University!”; ” Don’t

fuck with alumni!”; “You are screwing yourself!”; and “Five

minutes ago I thought you had a good brain to pass on to

your children. I don’t think so anymore!” After Weaver

left Sun’s office, Sun wrote him a letter setting out these

statements and protesting his behavior.

On October 28, 2002, Sun spoke with Dean Daniel and

complained that his unsuccessful bid for tenure was a

result of Weaver inappropriately influencing the faculty

in retaliation for not receiving the teaching award. Sun

requested that a different committee hear his appeal.

Subsequently, Dean Daniel spoke to four members of the

Department, all of whom thought Weaver’s behavior was

appropriate. Weaver admitted that he remarked to Sun

that the Department Head should be eligible for teaching

awards. Weaver also admitted using profanity when he

spoke to Sun on October 16, but denied any inappropri-

ate attempt to influence the faculty vote. On October 30,

2002, Daniel advised Sun via e-mail that Weaver’s behav-

ior was not inappropriate and that Sun’s appeal would

be heard by the original decision makers, i.e., the Depart-

ment faculty.

On October 30, 2002, the faculty met to reconsider their

recommendation. Weaver chaired the meeting, and Bellon

5

Burnett is an influential alumnus of the University for whom

the teaching award is named.

No. 06-2438 9

presented some of the information contained in Sun’s

additional letters of support. The faculty voted by secret

ballot, returning nine votes in favor of tenure, nine votes

against, and one abstention. Weaver advised Sun that the

Department intended to affirm its original decision.

On November 5, 2002, Sun wrote to Gerald J. Janusz,

the chairman of the Faculty Advisory Committee (“FAC”),

a committee comprised of representatives elected from

the entire University faculty, asking that the FAC con-

sider his grievance over the denial of tenure. On November

14, 2002, Janusz appointed a subcommittee to investigate

the procedures related to Sun’s denial of tenure. (The FAC

did not undertake any substantive review.) After Sun filed

another grievance with the College of Engineering, the

FAC subcommittee decided to defer its consideration of his

appeal until the other investigation concluded.

On November 22, 2002, Sun filed a grievance with the

College of Engineering Grievance Committee. In his

grievance, Sun asked the College Grievance Committee

to investigate misconduct during the evaluation of his

promotion in the Department. Specifically, Sun alleged

that: (1) Averback asked for negative comments from

external evaluators and biased the evaluators against him;

(2) Weaver was prejudiced against him because he did

not nominate Weaver “for an award he did not deserve”; (3)

Weaver verbally abused him and his children; (4) Weaver

inappropriately influenced the committee meetings on his

promotion by misrepresenting his contributions; (5)

Weaver treated proxy votes unfairly by accepting negative

votes and discarding positive votes; and (6) the same

committee was improperly used to evaluate his appeal. The

Grievance Committee investigated the procedures in Sun’s

case, and, on December 27, 2002, issued a six-page report,

which stated:

The Grievance Committee finds that while there were

certain areas in which departmental procedures, as

10 No. 06-2438

well as the Department Head’s handling, of Prof. Sun’s

promotion case could have been improved, it is our

view that there were no procedural problems that

ultimately resulted in an unfair or tainted adjudica-

tion of Prof. Sun’s promotion case by the faculty of the

Materials Science and Engineering Department.

Consequently . . . we do not recommend that Prof.

Sun’s promotion case be reviewed in a second appeal.

In its report, the Grievance Committee discussed the

specific allegations of misconduct, concluding that the

evidence did not support many of the allegations. The

Committee said, “while there is a perception on the part

of some MatSE faculty members that Prof. Weaver was

too forceful in his attempts to sway faculty voting, par-

ticularly given his role as head of the department, there is

no evidence that Prof. Weaver’s actions were the reason

that the voting faculty of MatSE ultimately did not support

the promotion of Prof. Sun in either the original or appeals

votes on his case.” The Grievance Committee also found no

evidence that the use of the same committee to evaluate

Sun’s appeal resulted in a biased review.

Finally, the Grievance Committee report discussed Sun’s

allegations of verbal abuse by Weaver, stating, “there is

evidence in this case that aspects of the ‘Professionalism

in the Work Place’ memorandum distributed by the

Dean on 9/18/02 were violated, particularly with respect

to the use of disrespectful language and the display of

unprofessional conduct.” Nonetheless, the Grievance

Committee concluded that Sun’s allegations of verbal

abuse were unrelated to his procedural allegations, since

there was no evidence that the incident resulted in an

improper handling of his promotion case. On January 22,

2003, Weaver resigned as Department Head, but re-

mained a tenured member of the faculty. On January 24,

2003, Dean Daniel wrote to Sun, stating that, based upon

No. 06-2438 11

the Grievance Committee’s report, he affirmed his pre-

vious recommendation that Sun be issued a notice of

nonreappointment.

On March 20, 2003, Ian Robertson became the Interim

Department Head. In April, he met with Sun and sug-

gested that Sun resign from the selection committee for

the Burnett Teacher of the Year Award because he had

taken actions against the Department. Sun refused to

resign, stating that he could be fair in his considera-

tions, and pointed out that he represented only one of

four votes. Robertson agreed with Sun, and Sun helped

select the 2003 award winner.

Soon thereafter, the FAC resumed its investigation of

Sun’s complaint. On May 15, 2003, the FAC issued a six-

page report to Provost Herman, which concluded that

Sun’s promotion and tenure dossier was not fairly con-

sidered. In reaching its conclusion, the FAC found that

the “Department Head inappropriately tried to negatively

influence the promotion and tenure vote on Professor Sun’s

dossier.” However, the FAC further stated that “proof that

he actually influenced a faculty member into changing

his/her positive vote to a negative one is absent.” Neverthe-

less, the FAC determined that there was “convincing

evidence to conclude that Professor Sun’s dossier did not

get a fair hearing.” The report noted other procedural

irregularities, such as inconsistent treatment of absentee

ballots, different and more exacting standards compared to

previous candidates, and Weaver’s presiding over the

faculty appeal. The FAC recommended to Provost Herman

that “a more fair and impartial evaluation of Professor

Sun’s promotion and tenure dossier be undertaken.”

Although it recognized that certain aspects of Sun’s

evaluation may have been unfair, the FAC rejected the

allegation that Averback tried to influence the outcome of

Sun’s case. It concluded that Averback was “entitled to

12 No. 06-2438

make negative evaluative comments about a candidate

since he is a member of the faculty.” The FAC noted that

Averback’s comments were made at an open faculty

meeting. In addition, the FAC did not agree with Sun’s

allegation that Averback deliberately solicited letters

from external evaluators who were biased. It stated

that the “solicitation of an ‘excluded’ individual as an

evaluator is consistent with Communication No. 9 which

says that individuals cannot be excluded.” After receiving

the report of the FAC, Provost Herman decided that

Sun’s case should be reconsidered. Provost Herman,

Dean Daniel and Robertson agreed that, because the

faculty governance structure dictated that the faculty

themselves decide promotion and tenure, the faculty

should determine whether they could render a fair and

impartial decision. If the faculty determined they could

not be fair, an external committee would decide the

matter.

On July 8, 2003, the faculty reconsidered Sun for tenure.

Prior to this meeting, Sun provided Robertson with in-

formation about his professional activities since October

2002. Robertson considered this additional information

to be marginal at best, so he decided not to add the

material to Sun’s dossier. According to Sun, he had a

significant number of publications and accomplishments

during this time which should have been added to his

dossier. Despite the exclusion of the information, all

questions about Sun’s activities since the previous fall

were answered during the discussion leading up to the

vote. At the meeting, Robertson told the faculty that the

FAC had determined that some of Weaver’s activities

were improper and may have tainted the decision. He

also stated that it was determined by the FAC that

there was no improper conduct regarding the outside

evaluators. Robertson then polled the faculty members on

whether they could fairly reconsider Sun’s application for

No. 06-2438 13

tenure. The faculty voted 13-4 that they could render a fair

and impartial decision.

After this vote, Bellon made a presentation and a

discussion followed. The faculty then voted eight in favor

of tenure and ten against tenure, with one abstention.

Weaver, who was not at the meeting, provided a proxy

vote, but Robertson did not count it. Robertson then asked

the faculty to vote on whether they believed the matter

should be referred to an outside committee. The vote

was five in favor and six against, with two abstentions.

On July 10, 2003, Robertson wrote a letter to Dean Daniel

which he forwarded with Sun’s dossier. In the letter,

Robertson described what happened at the faculty meet-

ing and included a paragraph that stated:

While it is clear that Yong-Qian Sun is an excellent

teacher and has . . . produced high-quality work, he

has not been able to establish and sustain a high-

quality research program at the University of Illinois.

The usual indicators of high-quality work (number of

invited presentations at international and national

meetings, invitations to join conference organizing

committees, research funding etc.) are missing. . . .

[Sun’s] total level of funding over a six-year period is

$462,501, which comes to less than $80,000 per year.

To put this in perspective, the average annual funding

level per faculty in Materials Science and Engineer-

ing is in excess of $250,000. . . . While total funding

should not be and was not an issue, Sun continues

to resubmit proposals on similar topics, he does not

appear to have learned from his failure, and he has not

changed his approach to seeking funds from external

agencies. . . . I recommend against the promotion of

Yong-Qian Sun to the rank of Associate Professor

with tenure.

14 No. 06-2438

On July 11, 2003, Dean Daniel forwarded Sun’s dossier to

the College Promotion and Tenure Committee for review.6

Robertson’s paragraph regarding his recommendation

was included as part of the dossier.

The College Promotion and Tenure Committee (“Commit-

tee”) consisted of six members, one of whom was Weaver.

However, Weaver and another member of the Committee

were not involved in the review of Sun’s dossier. Two of the

four remaining members had been on the Grievance

Committee that considered Sun’s case, a fact about

which Sun complained to Dean Daniel on July 16, 2003.

Although Sun complained about the Committee’s composi-

tion, Daniel let it proceed because he wanted to see its

report, particularly since it was the only appointed entity

to evaluate promotion cases.

On July 17, 2003, the Committee sent a seven-page

report to Dean Daniel. The report stated that, following

the Committee’s review, it concluded that the decision by

the Department “to not promote Prof. Sun was ‘reasonable’

in the sense that it was consistent with not only the

current standards and past practices established by the

MatSE department, but also with the guidelines and

procedures established by the Provost for promotion and

tenure cases.” The report then detailed the conclusions it

reached following its review of Sun’s record and its com-

parison of Sun’s case to Bellon’s. The report stated that the

“negative departmental votes in the Bellon case indicate to

us that the Bellon case was near the borderline of what is

acceptable to the MatSE faculty for promotion to associate

professor with tenure” and thus “offers an important point

of reference for the Sun case.” The Committee concluded

6

The College Promotion and Tenure Committee is an entity

distinct from the PTC, which represented Sun’s department only,

rather than the entire College of Engineering.

No. 06-2438 15

that: (1) there was no substantive difference in the format-

ting of the two dossiers; (2) the credentials of the external

evaluators for Plaintiff and for Bellon were roughly

comparable, although the overall credentials of Bellon’s

letter writers were perhaps slightly stronger than those

writing for Sun; (3) the two cases were nearly equivalent

as to classroom teaching; (4) although both cases were

somewhat below average in graduate student supervision,

Bellon’s case was slightly stronger because he had super-

vised one Ph.D. student to completion and had published

a larger number of journal articles with his students; (5)

the quantity and quality for journal publications was

roughly similar; (6) Bellon had a better record as to invited

presentations, particularly those that were international

in scope; (7) Bellon had a significantly better record of

research funding; (8) the strength of the external evalua-

tion letters was similar for both Sun and Bellon; and (9)

the level of service in the two cases was comparable and

satisfactory. The Committee concluded that the cases of

Bellon and Sun were very similar in many categories, but

Bellon’s case was stronger in the areas of visibility,

number of students graduated, impact of recent work, and

record of research funding. It stated that there were no

areas where Sun’s case was superior to Bellon’s and also

concluded that the process by which the faculty arrived at

their decision was reasonable.

After receiving the report, Dean Daniel conducted his

own review of Sun’s dossier, and he agreed with the

Committee’s evaluation. On July 21, 2003, Dean Daniel

sent a letter to Provost Herman explaining the proce-

dures followed in reviewing Sun’s case after the FAC’s

report. Daniel informed Herman that his own reassess-

ment of the Sun’s case convinced him that he “does not

meet the expectations for promotion and tenure in the

College of Engineering.” That same day, Herman wrote to

Sun, informing him that a letter of nonreappointment

would be forthcoming.

16 No. 06-2438

In August 2003, the Chairman of the FAC informed

Provost Herman that two members of the College Promo-

tion and Tenure Committee had also been members of the

Grievance Committee that considered Sun’s appeal. In an

abundance of caution, Herman agreed to appoint an ad hoc

committee at the University level to review the case.

Herman selected the ad hoc committee and Sun found the

proposed group acceptable. On October 14, 2003, Herman

sent a letter to each of the members of the ad hoc com-

mittee. Herman enclosed a copy of Sun’s dossier that

included Robertson’s comments. Herman also enclosed

additional material Sun provided updating his dossier. He

asked the ad hoc committee to determine whether the

unfavorable recommendation was justified on the merits of

the case or warranted higher levels of review. The ad hoc

committee did not review the additional letters received

following the initial Department vote.

Charles Tucker, a member of the ad hoc committee,

stated in an affidavit that, in his three years on the

Campus Promotion and Tenure Committee, he had the

opportunity to review hundreds of dossiers for tenure

candidates. Although Tucker and other committee mem-

bers read Robertson’s attached comments and considered

them, Tucker said the comments were but one of several

factors, and not the most important factor, in his evalua-

tion of Sun’s dossier. Instead, the discussions of the ad hoc

committee “centered around the quality of the work of

Professor Sun as reflected in his dossier with updates, and

the traditional factors of service, teaching and research

which are the bases for making determinations about

tenure.” Based upon his evaluation of the dossier and the

other materials provided by Sun, Tucker thought he “was

not deserving of tenure in the Materials Science and

Engineering Department, one of the top two or three

departments in the United States.” The vote of the ad hoc

committee was 3-1 against granting Plaintiff tenure.

No. 06-2438 17

On November 7, 2003, Provost Herman wrote a letter to

Sun affirming the negative recommendation and recom-

mending nonreappointment. On November 19, 2003, Sun

appealed to Chancellor Nancy Cantor, complaining of

procedural irregularities. The FAC also wrote to Chancel-

lor Cantor and Herman to record their continuing con-

cerns with the procedures followed. On November 24,

2003, Herman wrote Chancellor Cantor a four-page letter

regarding the “long history” of Sun’s case. In December

2003, Sun advised Herman that his list of 21 conference

proceedings was not included in the dossier that was

provided to the ad hoc committee. Herman thought that

conference proceedings were not a significant part the

dossier and their presence or absence was insignificant.

Weaver, Daniel, Robertson, Averback and Greene all

agreed that conference proceedings were not a significant

part of the dossier. Even, Jian Ku Shang, Trudy Kriven,

and James Economy, faculty members who were very

supportive of Sun’s tenure and felt that Sun was unfairly

denied tenure, agreed that conference proceedings were

not an important part of the dossier. On December 8, 2003,

Chancellor Cantor wrote to Sun, advising him that she

found no grounds for reversing the tenure decision.

On January 12, 2004, Sun filed his amended complaint

in this case, alleging employment discrimination in

violation of Title VII of the Civil Rights Act as well as

violations of his rights under 42 U.S.C. § 1981 and 42

U.S.C. § 1983. During the discovery phase, Sun had a

difficult time obtaining answers to interrogatories from

the defendants, which resulted in two orders to compel

discovery as well as sanctions. Upon granting a third

motion to compel, the district court entered a default

judgment against the defendants. Soon after, the defen-

dants engaged new counsel and moved the court to vacate

the default judgment, arguing, among other things, that

their former lawyer’s medical condition prevented him

18 No. 06-2438

from complying with discovery and that the defendants’

other attorney and the defendants themselves were

unaware of the situation. Although the court expressed

skepticism about the reasons offered by the defendants, it

granted the motion to vacate. After discovery closed, the

defendants moved for summary judgment and the court

granted it on all counts. Sun appeals both the vacation of

the default judgment and the entry of summary judgment.

II. DISCUSSION

Sun presents three primary arguments on review. First,

he claims that the court abused its discretion when it

vacated the entry of default judgment against the defen-

dants. Second, Sun contends that issues of material fact

remain as to whether he was denied tenure on the basis

of race or national origin. Finally, he argues that the

district court erred in granting summary judgment in favor

of the defendants on his First Amendment claim.

A. Default Judgment

On June 23, 2005, the district court granted Sun’s third

motion for sanctions, striking the pleadings of all defen-

dants, defaulting them, and allowing Sun to proceed to

trial on damages only. Then, on August 8, 2005, it granted

defendants’ Motion to Vacate Default Judgment. Sun

claims that the court abused its discretion when it

granted the motion, and he asks this Court to reverse the

judgment of the district court, reinstate the defaults

entered against all defendants, and remand this cause for

trial on damages only. In order to have an entry of default

vacated, the moving party must show: (1) good cause for

the default; (2) quick action to correct it; and (3) a merito-

rious defense to the complaint. Pretzel & Stouffer, Char-

tered v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir.

No. 06-2438 19

1994). Whether or not to vacate a default is in the sound

discretion of the district court, and we will reverse such a

determination only if the district court abused its discre-

tion. See Robinson Eng’g Co. Pension Plan and Trust v.

George, 223 F.3d 445, 448 (7th Cir. 2000).

In their Motion to Vacate Default Judgment and their

memorandum accompanying it, defendants’ new counsel

offered a litany of excuses. They asserted that the defen-

dants were personally innocent of any misconduct; that

the district court should have given the individual defen-

dants direct notice of the earlier sanctions; that they had

a complete defense and should be allowed to present it;

that the court’s interest in deciding cases on the merits

would best be served by vacating the defaults; and that one

of the defendants’ prior attorneys had medical condi-

tions which interfered with his ability to manage the

defense of the case.

One of the defendants’ attorneys, Michael Cornyn, stated

in his affidavit that he was in charge of coordinating

and finalizing the discovery compliance of all defendants,

and the defendants fully cooperated. Although he informed

University Counsel of the first Motion to Compel and

attendant sanctions, he did not inform them of the sec-

ond or third. Moreover, he stated that he had been diag-

nosed recently as suffering from “two serious conditions”

that had lasted at least for six months. A letter from

Cornyn’s treating doctor was produced under seal. Cornyn

stated his belief that the medical conditions from which he

suffered interfered with his ability to properly manage the

defense to the defendants’ detriment. William J. Brink-

man, the other attorney of record for the defendants,

swore that he had no personal knowledge of the second or

third motions to compel. Another attorney, Mark Henss of

the University’s Office of University Counsel, likewise

swore that he had no knowledge fo the second or third

motions.

20 No. 06-2438

Sun challenged the excuses, first pointing out that the

individual defendants had not even printed out some

requested documents until after the default judgment

was entered. Moreover, Sun noted that Cornyn’s behavior

was not out of character for him, because he had handled

discovery requests in a similar fashion in another case,

which also resulted in the entry of a default judgment

against his client. See Robinson v. City of Champaign,

Case No. 00-CV-2315 (C.D. Ill. 2002) (defendant’s failure

to provide answers to written interrogatories for more

than six months resulted in default judgment). Sun also

cited Tango Music, LLC v. DeadQuick Music for the

proposition that an attorney’s illness (in that case, depres-

sion) did not excuse his client from proceeding with a case.

348 F.3d 244, 247-48 (7th Cir. 2003). In Tango, we recog-

nized that a client has “to take responsibility for the

actions of is agents, including the lawyers whom it hires.”

Id. at 247. Finally, Sun pointed out that Brinkman had

registered with the Electronic Case Filing System of the

Central District of Illinois so that he received an elec-

tronic copy of each and every motion, order, and docket

entry in this case.

In its opinion filed on August 8, 2005 the district court

quickly disposed of defendants’ contention that the court

should have given them direct notice of their counsel’s

failures, calling it “completely outrageous.” Sun v. Bd. of

Trs. of the Univ. of Ill., 229 F.R.D. 584, 590 (C.D. Ill. 2005).

It also found that the individual defendants were not

innocent of misconduct, because they “did not provide

documents and answers to interrogatories until months

and months after the deadline.” Id. The court

also expressed reservations about whether Cornyn’s

conduct was the result of his alleged medical conditions,

noting the remarkable resemblance between the present

case and the Robinson case. Id. Moreover, the court said,

that “Brinkman’s claims of lack of knowledge ring hollow.”

No. 06-2438 21

Id. In short, the court concluded, “Defendants have not

convinced this Court that the entry of default judgment

was not warranted in this case.” Id. at 591. Nonetheless,

it added that “as much as [the] court finds all of these

arguments lacking in merit, it does have an interest in

having cases decided on the merits and concludes that

sanctions lesser than default may be appropriate in this

case.” Id. It then granted the defendants’ Motion to Vacate

Default Judgment, but ordered serious sanctions against

defendants’ (former) attorneys.

Sun is likely correct that a district court abuses its

discretion when it vacates a properly entered default

judgment absent an explicit finding that the party seek-

ing to vacate the judgment showed good cause for the

default. After all, the language of our case law is manda-

tory, stating that a party seeking to vacate a default

judgment must make the required showings. See Pretzel &

Stouffer, 28 F.3d at 45. Unfortunately, both parties gloss

over the antecedent issue of whether the entry of default

judgment was proper in the first place. Federal Rule of

Civil Procedure 55(a) provides that “when a party against

whom a judgment for affirmative relief is sought has failed

to plead or otherwise defend as provided by these rules . . .

the clerk shall enter the party’s default.” We conclude

that default judgment was an unduly harsh sanction in

this case.

This Circuit has a well established policy favoring a

trial on the merits over a default judgment. C.K.S. Eng’rs,

Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205

(7th Cir. 1984) (collecting cases). For that reason, a de-

fault judgment should be used only in extreme situa-

tions, or when other less drastic sanctions have proven

unavailing. Id. Although a district court has the default

judgment “readily available within its arsenal of sanc-

tions,” id. at 1206, it is a weapon of last resort, appropriate

only when a party wilfully disregards pending litigation.

22 No. 06-2438

See, e.g., id. at 1204 (district court would not vacate

default where it concluded that defendants “believed they

could ignore this case and throw themselves upon the

mercy of the court by contending that their local counsel

was incompetent”); Calumet Lumber, Inc. v. Mid-America

Indus., Inc., 103 F.3d 612 (7th Cir. 1997) (holding that

entry of default judgment was proper where counsel

knowingly skipped a hearing and failed to answer a cross-

claim altogether); Pretzel v. Stouffer, 28 F.3d at 44 (hold-

ing entry of default proper where party did not file its

answer or attend a status hearing).

As the district court likely realized when it vacated its

entry of default, this case does not represent one of those

rare situations in which entry of default is appropriate.

While defendants’ attorneys were by no means paragons

of responsible lawyering, their involvement in the discov-

ery process was consistent and ongoing. Although coun-

sel should have promptly complied with the court’s orders

to answer outstanding interrogatories, their delay was

not so extreme as to warrant an entry of default. Like-

wise, although the district court tried to use less drastic

sanctions by twice imposing monetary penalties, it brought

out the heavy artillery too soon. Instead of entering a

default, punishing the defendants and giving the plaintiff a

windfall, the district court should have imposed increased

monetary sanctions against the attorneys who had caused

the discovery delays. Accordingly, we affirm the district

court’s decision to vacate its improvidently granted entry

of default judgment.

B. Race/National Origin Discrimination Claim

Sun next contends that the district court improperly

granted summary judgment in favor of the defendants on

his Title VII claim. We review a district court’s grant of

summary judgment de novo. Summary judgment is

No. 06-2438 23

appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled

to a judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In

ruling on a motion for summary judgment, a district

court has one task: to decide whether there is any mate-

rial dispute of fact that requires a trial. Waldridge v. Am.

Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In mak-

ing this determination, we draw reasonable inferences

from the underlying facts in the light most favorable to

Sun. Carreon v. Ill. Dep’t of Human Servs., 395 F.3d 786,

790 (7th Cir. 2005).

Sun argues that the defendants denied him promotion

and tenure on the basis of his race and national origin, in

violation of Title VII of the Civil Rights Act. To establish

a claim of disparate treatment, a plaintiff may pro-

ceed under the direct or indirect method. We consider

Sun’s Title VII claims under each method.

1. Direct Method

In order to establish a prima facie case of race or na-

tional origin discrimination under the direct method, Sun

must prove that the defendants were motivated by

animus based upon his race or national origin when he was

denied promotion and tenure. See Sylvester v. SOS Chil-

dren’s Vills. Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006);

Mosley v. Maytag Corp., 2006 WL 213950, at *4 (C.D. Ill.

Jan. 27, 2006). A plaintiff proceeding according to the

direct method may rely on either direct or circumstantial

evidence. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,

720 (7th Cir. 2005).

Sun argues that the voting record of the PTC and

Greene’s comment about Chinese students provide cir-

24 No. 06-2438

cumstantial evidence of discrimination sufficient to raise

a genuine issue of material fact under the direct method.

Circumstantial evidence of discrimination is evidence

which allows the trier of fact to infer intentional discrimi-

nation by the decisionmaker. Id. This Circuit has recog-

nized three types of “circumstantial” evidence of inten-

tional discrimination: (1) suspicious timing, ambiguous

oral or written statements, or behavior toward or com-

ments directed at other employees in the protected group;

(2) evidence, whether or not rigorously statistical, that

similarly situated employees outside the protected class

received systematically better treatment; and (3) evidence

that the employee was qualified for the job in question

but was passed over in favor of a person outside the

protected class and the employer’s reason is a pretext

for discrimination. Id. at 720-21. Sun’s evidence falls

into the first two categories.

Sun emphasized that, between the years of 1993 and

2003, the four members of the PTC voted on 19 promotion

candidates, two of whom were Asian and from China and

17 of whom were Caucasian. According to Sun, the PTC

voted unanimously against him and the other Chinese

candidate and, in almost every case, voted unanimously

in favor of the Caucasian candidates.7 The district court

disregarded this evidence, stating that it did not con-

stitute “statistical” evidence that similarly situated em-

ployees outside the protected class received systematically

better treatment. See Mosley, 2006 WL 213950, at *5-6.

Although the sample size is insufficient to provide statisti-

cally reliable evidence, the PTC’s voting pattern has some

probative value regarding discriminatory employment

practices. After all, Rudin recognizes pattern evidence of

7

The other Chinese candidate was eventually given tenure and

promoted—although not by the Department.

No. 06-2438 25

disparate treatment “whether or not rigorously statistical.”

420 F.3d at 720. We do not hold, however, that a ques-

tionable pattern of promotion, standing alone, is sufficient

evidence to withstand summary judgment.

Although Sun concedes that Greene’s remark is not

direct evidence of discrimination against him because

Greene referred to “students” and not “professors,” he

argues that it shows that Greene harbored prejudicial

views about Chinese people. Moreover, Sun asserts, the

suspect remark was contemporaneous with the adverse

employment action because the remark occurred at the

time the PTC, of which Greene was a member, was

discussing Sun’s case and selecting external evaluators.

Defendants contend, however, that Greene’s remark

about Chinese students was a “stray workplace remark”

that is not evidence of discrimination. We have held that

stray remarks that are neither proximate nor related to

the employment decision are insufficient to defeat sum-

mary judgment. Bahl v. Royal Indem. Co., 115 F.3d 1283,

1293 (7th Cir. 1997). At the same time, though, the state-

ments of a person who lacks the final decision-making

authority may be probative of intentional discrimination

if that individual exercised a significant degree of influence

over the contested decision. Porter v. State of Ill., Dep’t of

Children & Family Servs., 987 F. Supp. 667, 673 (N.D. Ill.

1997), aff ’d, 165 F.3d 32 (7th Cir. 1998).

If the PTC had made the final decision in Sun’s case, its

voting record coupled with the discriminatory remarks of

one of its four members may have created a genuine issue

of material fact. We need not decide that issue, though,

because we have previously held that “when the causal

relationship between the subordinate’s illicit motive and

the employer’s ultimate decision is broken, and the

ultimate decision is clearly made on an independent and

a legally permissive basis, the bias of the subordinate is

not relevant.” Willis v. Marion County Auditor’s Office, 118

26 No. 06-2438

F.3d 542, 547 (7th Cir. 1997). As the district court noted,

“the final decision in this case was made by Herman, after

multiple layers of review, including the review by the

ad hoc committee.” Sun v. Bd. of Trs. of the Univ. of Ill.,

429 F. Supp 2d 1002, 1023 (C.D. Ill. 2006). The numerous

levels of review, particularly those conducted by indepen-

dent and University-wide committees broke any connec-

tion between Greene’s possible discriminatory motive and

the ultimate decision.

Sun claims that Greene’s illicit motives infected the

entire process and points to a Third Circuit case in

which the court stated that “a plaintiff in a discrimination

case need not prove intentional discrimination at every

stage of the review process.” Roebuck v. Drexel Univ., 852

F.2d 715, 727 (3d Cir. 1988). Sun’s reliance on Roebuck

is misplaced, however, because each evaluator in that

case considered reports from the previous evaluators,

thus tainting subsequent reviews and leaving the causal

chain in tact. Id. By contrast, in Sun’s case, subsequent

reviewing committees had no report from the PTC commit-

tee that could have tainted their reviews or ultimate

decisions. In addition, Sun’s case is distinguishable from

Russell v. Bd. of Trs. of Univ. of Ill. at Chicago, in which

we concluded that the improper motives of the plaintiff ’s

supervisor “had to be imputed to the other members of the

disciplinary committee because of [the supervisor’s]

extensive role in initiating and carrying out the disciplin-

ary process.” 243 F.3d 336, 342 (7th Cir. 2001). Again,

given the numerous reviews, both substantive and proce-

dural, by committees outside of the Department and far

removed from Greene’s alleged influence, Greene could

not be said to have an “extensive role” in making the

tenure decision. Therefore, Greene’s possibly improper

motives cannot be imputed to the final decisionmaker.

Accordingly, the district court correctly determined that

No. 06-2438 27

no genuine issue remained with regards to Sun’s direct

method claim.

2. Indirect Method

Sun also attempts to show that issues of fact remain

under the McDonnell Douglas indirect method. Under this

method, Sun must first establish a prima facie case of

discrimination by showing that: (1) he is a member of a

protected class; (2) he was qualified for tenure; (3) he was

denied tenure; and (4) a similarly situated applicant not

in the protected class was granted tenure. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

Namenwirth v. Bd. of Regents of Univ. of Wis. Sys., 769

F.2d 1235, 1240 (7th Cir. 1985); Sinha v. Bd. of Trs. of

Univ. of Ill., 2001 WL 921718, at *14 (N.D. Ill. Aug. 15,

2001). If Sun establishes a prima facie case, the burden of

production shifts to the defendants to articulate a non-

discriminatory reason for denying Sun’s tenure. See

Namenwirth, 769 F.2d at 1240. If the defendants produce

a nondiscriminatory reason for the decision, Sun must

then prove that the stated reason is merely a pretext

for discrimination based upon race and national origin.

Id. This is an extremely difficult burden to carry “[d]ue to

the layered and subjective nature of the tenure process,

and the courts’ recognition that such decisions are based

on the fine ‘distinction between competent and superior

achievement.’ ” Sinha, 2001 WL 921718, at *14, quoting

Kuhn v. Ball State Univ., 78 F.3d 330, 331 (7th Cir. 1996).

With respect to the prima facie case of discrimination, it

is undisputed that Sun is Chinese and was subject to an

adverse employment action, i.e., the denial of tenure

and promotion. As usual, it is the second and fourth prongs

that are at issue. Because the second prong is inextricably

intertwined with the pretext analysis, we address prong

four first—the identification of similarly situated individ-

28 No. 06-2438

ual who was treated more favorably. Sun identifies Pascal

Bellon as a similarly situated, non-Chinese tenure candi-

date who was promoted and granted tenure. Bellon was in

the same department as Sun and was a candidate for

promotion and tenure one year before Sun. The FAC

committee found that “different and more exacting proce-

dures and standards were applied” in Sun’s case, which

could satisfy the fourth prong of the prima facie case. On

the other hand, the College Promotion and Tenure Com-

mittee actually conducted a detailed comparison between

Bellon and Sun, concluding that Bellon’s dossier was

superior to Sun’s in a number of ways, including funding

and invited presentations. That comparison identifies

differences between the candidates, but does

not necessarily show that they were not at least “similarly

situated.”

Assuming that Sun could, in fact, establish a prima facie

case, the defendants have articulated a non-discriminatory

reason for denying him tenure that is not pretextual.

Specifically, they contend that Sun’s dossier was simply

inadequate, and multiple groups and individuals deter-

mined that he did not deserve tenure. This court has

recognized that tenure cases require something more

than mere qualification; the department must believe

the candidate has a certain amount of promise. Namen-

wirth, 769 F.2d at 1242. Given the nuanced nature of such

decisions, we generally do not “second-guess the expert

decisions of faculty committees . . . .” Vanasco v. Nat’l-

Louis Univ., 137 F.3d 962, 968 (7th Cir. 1998).

In this case, the University’s proffered reason is non-

discriminatory, as it identifies weaknesses in Sun’s dossier

related to funding, scholarship, and supervision of gradu-

ate students. We know that the proffered reason is legiti-

mate and not pretextual because Sun’s dossier was

considered numerous times by multiple committees,

No. 06-2438 29

including committees that had no interaction whatso-

ever with Greene, Weaver, or Averback.

Ultimately, the indirect method of proving discrimina-

tion attempts to isolate the cause of an adverse employ-

ment action in order to determine whether it was moti-

vated by discrimination. Where, as here, a plaintiff is

afforded process sufficient to eliminate potentially discrim-

inatory motives, summary judgment in favor of the

defendants is proper. Although some of the defendants’

actions early in the process may have caused Sun to lose

faith in the fairness and integrity of the University’s

tenure and promotion decision, no reasonable jury could

find that the final decision was based on Sun’s race or

national origin. To hold otherwise would discourage

employers from identifying and correcting potentially

unfair or discriminatory employment proceedings without

legal intervention.

C. First Amendment Claim

Sun’s final claim is that the individual defendants

violated his First Amendment right to free speech, and

that he was retaliated against for asserting those rights.8

Specifically, he claims that his selection of the recipient

of the teaching award constituted protected speech, as

did his subsequent grievance against Weaver. To establish

such a claim, Sun must show that 1) his speech was

constitutionally protected and 2) that speech motivated

the defendants’ actions. Vukadinovich v. Bd. of Sch. Trs.

of N. Newton Sch. Corp. 278 F.3d 693, 699 (7th Cir. 2002).

If Sun establishes these two elements, the burden shifts to

the University to show that its interest in efficient man-

8

This claim is primarily against Weaver, although Sun makes

some allegations against Robertson.

30 No. 06-2438

agement outweighed Sun’s interest in freedom of expres-

sion, or that it would have denied Sun tenure regardless

of the speech. Miller v. Jones, 444 F.3d 929, 935 (7th Cir.

2006).

Employee speech is protected when it relates to matter

of “political, social, or other concern to the community.” Id.

This Court considers the content, form, and context of

employee speech to determine whether it is on a matter

of public concern, with the primary emphasis on content.

Id. The defendants contend that Sun’s decision not to

nominate Weaver for the award was not speech on a

matter of public concern. In response, Sun notes that

educational improvement in public schools is a matter of

public concern, citing Klug v. Chicago Sch. Reform Bd. of

Trs., 197 F.3d 853, 858 (7th Cir. 1999). He also asserts

that his complaint to the FAC about Weaver’s behavior

was protected speech. The district court noted that this

was a close question, but found the speech protected. We

need not decide this question, however, because Sun’s

speech did not motivate the denial of tenure, and it is clear

that the Department would have denied Sun’s tenure

regardless of his speech.

The district court noted that even if Weaver took retalia-

tory actions against Sun and attempted to influence the

faculty regarding Sun’s tenure and promotion, there is no

evidence that anyone was actually influenced. Sun dis-

agrees, stating that Weaver’s influential position as

Department Head and his attempts to exert that in-

fluence constitute circumstantial evidence that he influ-

enced the vote. Although a reasonable jury could con-

clude that Weaver influenced some faculty members, the

numerous subsequent reviews by independent decision

makers once again break any causal chain between any

retaliatory conduct and the ultimate decision not to

promote Sun. Regardless of Weaver’s alleged improper

behavior, committee after committee found Sun’s qualifica-

No. 06-2438 31

tions unworthy of tenure and promotion. Therefore, it

cannot be said that Sun’s speech motivated the decision.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment on all counts.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-16-07