EEOC v. Muhlenburg College, No. 04-2788 (3d Cir.)
Reply brief
Oct. 25, 2004

                           No. 04-2788
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
            _________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Appellant,
                              
     v.

MUHLENBERG COLLEGE.
          ______________________________________________

        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
          ______________________________________________

                    REPLY BRIEF OF APPELLANT
            EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
         ______________________________________________

                              
                              
                              ERIC S. DREIBAND
                              General Counsel
                              
                              LORRAINE C. DAVIS
                              Acting Associate General Counsel
                                                            
                              DANIEL T. VAIL                
                              Attorney
                                                            
                              U.S. EQUAL EMPLOYMENT 
                                OPPORTUNITY COMMISSION
                              1801 L Street, N.W., 7th Floor
                              Washington, D.C.  20507
                              (202) 663-4571

                      TABLE OF CONTENTS
                                
Table of Authorities
          
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

     A.   Muhlenberg Misconstrues the Standards for Creating a Prima Facie 
          Case of National Origin Discrimination in the Tenure Context2

          1.   Muhlenberg Misinterprets the "Qualified" Prong to Require 
               the EEOC to Show that Pan Deserved Tenure to Create a 
               Prima Facie Case. . . . . . . . . . . . . . . . .2

          2.   Muhlenberg Applies an Erroneous Categorical Rule that 
               Would Require All Comparators to Be Identically Situated 
               and from the Same Academic Department . . . . . .7

          3.   Muhlenberg Improperly Discounts the EEOC's
               Affirmative Evidence. . . . . . . . . . . . . . 11

     B.   Muhlenberg Urges This Court to Make the Same Mistakes the 
          District Court Made in Evaluating the EEOC's Evidence 
          of Pretext . . . . . . . . . . . . . . . . . . . . . 15

          1.   Stewart Is Practically on All Fours with This Case16

          2.   The EEOC Proffered Sufficient Evidence of Pretext 
               to Survive Summary Judgment . . . . . . . . . . 17

          3.   Title VII Contemplates No Special Deference 
               to Tenure Decisions . . . . . . . . . . . . . . 25
     
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Certificate of Compliance with Rule 32(a). . . . . . . . . . . 28

Certificate of Service . . . . . . . . . . . . . . . . . . . . 29

                      TABLE OF AUTHORITIES

                             Cases

Babbar v. Ebadi, 215 F.3d 1086 (10th Cir. 2000). . . . . . . . . . . . . 9

Bennun v. Rutgers State Univ., 941 F.2d 154 (3d Cir. 1991)2, 3, 5, 7, 8, 9, 10, 26

Coneen v. MBNA Am. Bank, NA, 334 F.3d 318 (3d Cir. 2003) . . . . . . . .26

Fowle v. C&C Cola, 868 F.2d 59 (3d Cir. 1989). . . . . . . . 5, 6, 7, 8, 9

Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313 (3d Cir. 2000). . . . . 26

Hall v. Kutztown Univ., 1998 WL 10233 (E.D. Pa. Jan. 12, 1998) . . . . . 9

Kunda v. Muhlenberg Coll., 621 F.2d 532 (3d Cir. 1980) . . . . . . . . .26

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . .5, 6

Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999). . . . .11

Robinson v. PPG Indus., Inc., 23 F.3d 1159 (7th Cir. 1994) . . . . . . .26

Roebuck v. Drexel Univ., 852 F.2d 715 (3d Cir. 1988) . . . . . 2, 4, 5, 22

Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995) . . . . . . . . 6

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . . 6

Stewart v. Rutgers State Univ., 120 F.3d 426 (3d Cir. 1997). 1, 15, 16, 17

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . 6

Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . .26

Waldron v. SL Indus., Inc., 56 F.3d 491 (3d Cir. 1995) . . . . . . . . .11

Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990) . . . . . . . . . . . 6
                                 

                             Rules

Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . .28

Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . .28

Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . .28

Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . . . . . .28

10th Cir. R. 36.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                                
                                

                          INTRODUCTION
     In its opening brief, Appellant U.S. Equal Employment Opportunity Commission
(the "EEOC") pointed to evidence proving its prima facie case and casting serious
doubt on the explanation Appellee Muhlenberg College ("Muhlenberg") has given for
its actions.  The EEOC demonstrated that a genuine issue of material fact exists over
whether Muhlenberg's assertion   that Da'an Pan ("Pan") was not an "excellent"
teacher   was a pretext for national origin discrimination.  EEOC thus showed that
summary judgment was inappropriate here.
     Muhlenberg makes two fundamental errors in its response brief.  First,
Muhlenberg misinterprets   and consequently misapplies   this Court's principles on
the Title VII prima facie case.  Muhlenberg mistakenly claims the EEOC must prove
Pan deserved tenure to show he is "qualified," erroneously imposes an "identically
situated" rule on prima facie comparators, and dismisses the EEOC's affirmative
evidence of cultural bias.  Second, in evaluating the EEOC's evidence on pretext,
Muhlenberg makes   and asks this Court to repeat   the same mistakes the district
court made in ruling against the EEOC at summary judgment.  It distinguishes Stewart
v. Rutgers State University unconvincingly, makes credibility determinations and
resolves inferences in its own favor, and defers inappropriately to the questionable
tenure and promotion judgments of college decisionmakers.
                            ARGUMENT
A.   Muhlenberg Misconstrues the Standards for Creating a Prima Facie Case
     of National Origin Discrimination in the Tenure Context
     
     Muhlenberg asks this Court to rule that the EEOC failed to create a prima facie
case of national origin discrimination because (1) Pan was not rated an "excellent"
teacher and was thus not "qualified" for tenure; and (2) Pan was not "similarly
situated" to any of those professors outside his protected class who were given tenure
and promoted during academic year 1998-1999.  Muhlenberg Response Brief at 15, 17-
28.  Muhlenberg apparently does not understand the prevailing standards for creating
a prima facie case of national origin discrimination in the tenure context.  Contrary to
Muhlenberg's arguments, the EEOC satisfied the traditional prima facie factors,
including the "qualified" and "similarly situated" elements.  In addition, establishing
these elements is not the only way to create a prima facie case, and the EEOC provided
enough affirmative evidence of cultural bias to raise the requisite inference of national
origin discrimination.
     1.   Muhlenberg Misinterprets the "Qualified" Prong to Require the
          EEOC to Show that Pan Deserved Tenure to Create a Prima Facie
          Case

     Muhlenberg appropriately cites the relevant test laid out by this Court in
Roebuck v. Drexel University, 852 F.2d 715 (3d Cir. 1988), and Bennun v. Rutgers
State University, 941 F.2d 154 (3d Cir. 1991)   that to be "qualified" for tenure and
promotion for purposes of the prima facie case, a professor need only be "sufficiently
qualified to be among those persons from whom a selection, to some extent
discretionary, would be made."  Muhlenberg Response Brief at 17 (quoting Bennun,
941 F.2d at 176) (emphasis added)).  Muhlenberg also accurately acknowledges that
a professor only has to be "in the middle group of tenure candidates as to whom both
a decision granting tenure and a decision denying tenure could be justified as a
reasonable exercise of discretion by the tenure-decision making body."  Muhlenberg
Response Brief at 17 (quoting Bennun, 941 F.2d at 176).  However, Muhlenberg then
misconstrues and misapplies these standards.  Muhlenberg contends that even though
Pan was eligible to be considered for tenure during academic year 1998-1999, he was
not "qualified" for purposes of the prima facie case.  Muhlenberg Response Brief at 18-
19.  Muhlenberg argues that because Muhlenberg  decisionmakers determined Pan was
not an "excellent" teacher, he could not have been in the "middle group" of tenure
candidates.  In other words, Pan was not "qualified" for tenure because he ultimately
did not get it.  Id.
     This is simply an inaccurate interpretation of applicable law.  The requisite
"middle group" is "the group whose members' bid for advancement are debatable." 
Bennun, 941 F.2d at 176 (emphasis added).  The relevant test is whether a professor
could legitimately be considered for tenure and promotion   not whether the candidate
ultimately should have been awarded these accolades.  Contrary to Muhlenberg's
assertions, the very fact that Pan was deemed eligible for tenure by Dean Dretsch was
proof that he was in the necessary "middle group."  In addition, Pan's tenure file was
replete with glowing recommendations and unqualified tenure endorsements from
students, outside peers, Muhlenberg professors, and each and every one of Pan's own
Philosophy Department colleagues.  See EEOC Opening Brief at 8-14, 45-51. 
Similarly, even though the FEC voted ultimately not to recommend Pan for tenure, the
FPPC urged President Taylor to reconsider this FEC conclusion.  Id. at 19.  Pan thus
was certainly in the "middle group" of tenure candidates as to whom "both a decision
granting tenure and a decision denying tenure could be justified as a reasonable
exercise of discretion by the tenure-decision making body."  His bid for advancement
at Muhlenberg was at the least debatable.  Cf. Roebuck, 852 F.2d at 734-35 (where this
Court concluded that "although we might well have decided the question differently de
novo, there was sufficient evidence for a jury to conclude that, but for his race, [the
university] would have rated [the professor seeking tenure] outstanding in service and
satisfactory in scholarship, and hence would have granted him tenure"); Bennun, 941
F.2d at 180 (similarly finding that "differences of opinion about [a professor's]
qualifications among the various reviewing groups were sufficient to establish that his
fitness for promotion [to full professor] was debateable").
     Under Muhlenberg's test, one could never challenge a denial of tenure as
discriminatory in a pretext case where qualifications are at issue, because the mere fact
that the professor is denied tenure would automatically defeat the prima facie case. 
Adopting Muhlenberg's view of Roebuck and Bennun would require plaintiffs to prove
a prima facie case by first disproving the employer's articulated legitimate,
nondiscriminatory reason.  This puts the proverbial cart before the horse.  On numerous
occasions, this Court has held that such an approach would place an undue and
inappropriate burden on the plaintiff at the prima facie case stage.  In Fowle v. C&C
Cola, 868 F.2d 59 (3d Cir. 1989), for instance, the Third Circuit cautioned that:
     [E]valuations that a plaintiff lacks [certain subjective] qualities are more
     susceptible of abuse and more likely to mask pretext . . . .  [I]f a plaintiff's
     failure to establish that he met such criteria could defeat his prima facie
     case, the court would not have an opportunity to examine whether the use
     of these criteria was mere pretext . . . .  [T]his result is clearly at odds
     with the mandate of McDonnell Douglas that a plaintiff be afforded a full
     and fair opportunity to demonstrate that the stated reason for rejection
     was in fact pretext.
Id. at 64 (internal citations and quotations omitted); see also Sempier v. Johnson &
Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (quoting Weldon v. Kraft, Inc., 896 F.2d 793,
798-99 (3d Cir. 1990)) (similarly noting that "to deny the plaintiff an opportunity to
move beyond the initial stage of establishing a prima facie case because he has failed
to introduce evidence showing he possesses certain subjective qualities would
improperly prevent the court from examining the criteria to determine whether their use
was mere pretext"); cf. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981) (emphasizing that the "burden of establishing a prima facie case of disparate
treatment is not onerous"); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)
(referring to the "minimal requirements of a prima facie case").
     Muhlenberg's restrictive reading of how to satisfy the "qualified" prima facie
factor poses the very dangers the Fowle Court cautioned against.  Here, Muhlenberg
is effectively claiming that the EEOC's cause of action falters at the prima facie case
stage because Muhlenberg itself has concluded that Pan was not an "excellent" teacher. 
Yet the EEOC is challenging, as discriminatory, this very conclusion.  The EEOC
asserts in this case that the FEC and/or Dean Dretsch and President Taylor determined
(or agreed) that Pan was not an "excellent" teacher   and thus should not be given
tenure   because of his national origin.  Therefore, as the Fowle Court wisely warned,
Muhlenberg should not be allowed to use its conclusions about Pan's teaching to short
circuit the EEOC's very efforts to prove that those conclusions masked discrimination. 
For this reason alone, this Court should reject Muhlenberg's flawed interpretation of
the "middle group" test, and find that Pan was "qualified" for tenure and promotion for
purposes of the prima facie case.
     2.   Muhlenberg Applies an Erroneous Categorical Rule that Would
          Require All Comparators to Be Identically Situated and from the
          Same Academic Department

     Muhlenberg contends that the EEOC failed to create a prima facie case because
it failed to show that Pan was "similarly situated" to the professors who were given
tenure and promoted in academic year 1998-1999.  Muhlenberg argues that Pan was
not "similarly situated" to these professors because (1) they were rated "excellent" in
teaching and Pan was not; and (2) they were all from different academic departments. 
Muhlenberg Response Brief at 19-27.  Again, Muhlenberg misapprehends well settled
precedent in this Circuit regarding the requirements for creating a prima facie case.
     In the tenure context, in Bennun, this Court denounced any categorical rule that
would require, as Muhlenberg would, professors to possess the same ratings on tenure
or promotion criteria to be considered "similarly situated."  There, the district court had
compared the records of two professors seeking promotion for purposes of analyzing
whether the plaintiff had proven a prima facie case of national origin discrimination. 
The plaintiff and the comparator were from the same academic department.  The
university challenged the district court's comparison, however, contending that the two
"were not similarly situated because [the comparator] was rated outstanding in two
categories , teaching effectiveness and general usefulness, and [the plaintiff] was not
rated as highly in these two categories."  Bennun, 941 F.2d at 178.  This Court rejected
the university's position.  It found that such a requirement would change "similarly
situated" to "identically situated."  Id.
     This makes sense.  Muhlenberg is arguing that Pan cannot be compared to those
it rated "excellent."  Muhlenberg Response Brief at 19-20.  By advocating a rule which
would require all professors to be rated the same by tenure evaluators to be considered
"similarly situated," Muhlenberg commits the same analytical blunder that it makes
regarding the "qualified" prong of the prima facie standard, and that this Court
criticized in Fowle.  Not surprisingly, Muhlenberg's approach would permit it to defeat
a prima facie case simply by pointing to differences in its ratings of performance which
may themselves be the product of unlawful discrimination.  Again, as in Fowle, this
would improperly insulate an employer's explanation for its adverse actions from any
scrutiny under a pretext analysis.  It would preclude the EEOC from demonstrating that
the "good" and "excellent" labels themselves may have been employed to mask
unlawful discrimination.  This Court must again reject this approach, as it did in
Bennun and Fowle.
     Similarly, this Court should repudiate Muhlenberg's contention that professors
need be in the same academic department to be prima facie comparators.  Muhlenberg
asserts that "the more pertinent inquiry aside from teaching ratings was whether Pan
and his comparators stood for tenure in the same Department at Muhlenberg." 
Muhlenberg Response Brief at 21.  Muhlenberg cites Bennun as support.
     Muhlenberg's reading of Bennun is unduly narrow, and the "same academic
department" proposition Muhlenberg attempts to extrapolate from Bennun would be
untenable in practice here.  This Court in Bennun noted that the district court had
allowed a comparison between two professors because the two (both the plaintiff and
the comparator) were biochemistry professors in the Zoology and Physiology
Department at the relevant university.  Bennun, 941 F.2d at 178.  The Bennun Court
validated the district court's comparison, but not specifically because the two
professors were from the same department.  Somewhat to the contrary, the Bennun
Court emphasized that the "propriety of [this type of professor] comparison is case-
specific."  Id.  The Bennun Court elaborated by noting, for example, that in the right
case a "teaching-oriented" professor might properly be compared with a "research-
oriented" professor.  Id.  Thus, Bennun stresses the need for a facts-and-circumstances
approach to determining whether any two (or more) professors are appropriate prima
facie comparators.
     The application of a "same academic department" principle would be particularly
inappropriate here.  Indeed, this case demonstrates the wisdom of retaining a more
flexible comparator rule.  As Muhlenberg itself acknowledges, it is rare for two
professors within the same Muhlenberg department to ever come up for tenure in the
same academic year.  If this Court adopted Muhlenberg's categorical approach and
imposed a "same academic department" requirement in this case, there would be
virtually no Muhlenberg professor who could hope to establish a prima facie case by
relying on the more favorable treatment of colleagues.  No professor could ever show
that he or she was similarly situated to any other Muhlenberg professor because no two
Muhlenberg professors from the same field or department are ever up for tenure at the
same time.  Muhlenberg's suggested application of the "similarly situated" prima facie
prong would thus innoculate Muhlenberg (and countless other smaller colleges) from
being challenged for making discriminatory employment decisions simply because their
faculties and/or academic departments are relatively smaller.  That cannot be, and is
not, the law.
     3.   Muhlenberg Improperly Discounts the EEOC's Affirmative
          Evidence

     In any event, while evidence that an employer treated "similarly situated"
individuals outside the protected group more favorably is one way of creating a prima
facie case, it is not the only way to raise a presumption of discrimination.  The requisite
showing can be made by demonstrating that a charging party was the victim of an
adverse employment action "under circumstances that give rise to an inference of
unlawful discrimination."  Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 1995);
see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999).  The
EEOC proffered substantial affirmative evidence of national origin bias, apart from
evidence of Pan's qualifications or comparators, to raise a presumption of
discrimination here.
     Muhlenberg, of course, disagrees.  It argues that "the unequivocal evidence
establishes that tenure denial was based on Pan's failure to attain teaching excellence,
whatever the cause" and that "this Court should hold that the EEOC has not presented
affirmative evidence of discrimination so as to meet its prima facie burden." 
Muhlenberg Response Brief at 28.  Muhlenberg suggests that the "only evidence the
EEOC offers is that President Taylor, Dean Dretsch, the FEC, and the FPPC
'discussed' Pan's culture during the tenure process . . . ."  Id. at 27.  It contends that
the fact that the terms "culture" or "cultural differences" were raised or discussed
during Pan's tenure review is not evidence of discrimination.  Id.; see also id. at 50, 51,
52.  And it asserts that "[n]o evidence exists to establish or even suggest that the FEC
discussed or in any way considered culture in their review or recommendation."  Id.;
see also id. at 50.
     To the contrary, there is ample record evidence, detailed in the EEOC's opening
brief, to support an inference that cultural bias was at work here.  See EEOC Opening
Brief at 17-21, 39.  All of the comments and conversations proffered were made to or
by, or took place between, Muhlenberg decisionmakers who had substantial influence
on or ultimate authority for the decision to deny Pan tenure.  Similarly, all of these
comments and conversations were made in the context of the ongoing debating about
Pan's teaching or tenure bid, specifically.
     Susan Schwartz felt compelled to seek out President Taylor and express her
concern that Pan's tenure review was tainted with a "racial overtone."  EEOC Opening
Brief at 17.  Dean Dretsch testified that he discussed with Schlecht whether Pan's
"culture" or "cultural differences" could be affecting Pan's teaching.  Id. at 18-19. 
Dean Dretsch also admitted to raising the issue of Pan's "cultural differences" at the
FPPC appeal hearing   the very purpose of which was to assess whether Pan deserved
tenure and promotion.  Id. at 18.  (Incidentally, Pan himself remembers that Dean
Dretsch told the FPPC, in unambiguous terms, that Pan's teaching "problems" were
"cultural."  Id.)  President Taylor admitted that a comment made by Christine Sistare
  that Pan was "a person of a different culture, and thus, somewhat differing manners"
  was a "red flag," and may have meant that Pan was "abrasive."  Id. at 21.  President
Taylor testified that when he met with Dean Dretsch, Schlecht, and Pan to discuss the
FEC's initial recommendation, Pan's "different culture" was again raised.  Id. at 17. 
President Taylor also admitted to telling Pan that the FEC did not understand Pan
because "they're playing . . . American chess and you're playing go" (an Asian chess-
like game).  Id.  President Taylor testified that he viewed Pan as "different," and
believed the difficulties between Pan and the FEC   and Pan's supposed failure to
adhere to the college's tenure standards   were caused by "a certain amount of Chinese
subtlety versus American directness."  Id. at 18.  Pan testified that, given the context
of his conversations with President Taylor, he was convinced President Taylor's
comments reflected a definite cultural bias.  Id.
     This is highly probative affirmative evidence that relevant tenure evaluators were
unduly influenced by impermissible considerations of Pan's national origin. 
Significantly, Muhlenberg does not deny that these comments were made or that the
relevant conversations took place.  Instead, Muhlenberg tries to downplay their
evidentiary significance with its conclusory assertion that the "mere 'discussion' of
Pan's culture in relation to his teaching is by no means evidence that discrimination
motivated the decision to deny tenure and promotion to Pan."  Muhlenberg Response
Brief at 27.  To the contrary, the totality of the evidence offered is more than sufficient
to create an inference linking Pan's national origin with Muhlenberg's decision not to
give him tenure or promote him.B.   Muhlenberg Urges This Court to Make the Same Mistakes the District
     Court Made in Evaluating the EEOC's Evidence of Pretext

     The central issue in this case on appeal is really whether the EEOC offered
sufficient evidence to create a genuine issue of material fact as to "pretext."  The
EEOC argued at length in its opening brief that it did so.  See EEOC Opening Brief
at 40-60.  Muhlenberg responds by urging this Court to make the very mistakes the
district court made in granting summary judgment in the first instance.  Muhlenberg
presses this Court to distinguish Stewart v. Rutgers State University, 120 F.3d 426 (3d
Cir. 1997), even though Stewart (in which this Court reversed a district court's grant
of summary judgment) presented strikingly similar facts.  Muhlenberg urges this Court
to discount all of the EEOC's evidence casting serious doubt on Muhlenberg's
explanation and indicating affirmatively that Muhlenberg decisionmakers might have
impermissibly considered Pan's national origin in denying him tenure and promotion. 
And Muhlenberg generally encourages this Court essentially to ignore evidence of
national origin discrimination and defer entirely to the tenure decisions of Muhlenberg
faculty and management.  In the process, Muhlenberg effectively is asking this Court,
inappropriately, to assess the credibility of key witnesses and resolve inferences in the
light least favorable to the nonmovant EEOC.
     This Court should rebuff these efforts, recognize that sufficient evidence of
pretext exists, and reverse the district court's grant of Muhlenberg's summary
judgment motion.
     1.   Stewart Is Practically on All Fours with This Case
     
     The EEOC submits, and argued extensively in its opening brief, that this case
can and should be decided under Stewart.  See EEOC Opening Brief at 42-56. 
Muhlenberg rejects the EEOC's analysis and (not surprisingly) endorses the district
court's flawed attempts to distinguish Stewart.  See Muhlenberg Response Brief at 55-
59.  For the reasons detailed in the EEOC's opening brief, the district court's, and now
Muhlenberg's, reasons for refusing to apply Stewart here are simply unconvincing. 
Even a cursory consideration of Stewart's facts and holding reveals Stewart's
applicability to this case.
     Most notably, the appeal committee in Stewart found that the original review
panel's decision to reject Stewart's tenure and promotion bid was "arbitrary and
capricious" and "could not have been reached by reasonable evaluators."  According
to the Stewart Court, these findings by the appeal committee were sufficient to raise
a genuine issue of material fact as to whether the university's explanation for denying
Stewart tenure and promotion was credible.  Stewart, 120 F.3d at 434.  Similarly here,
the FPPC concluded that the FEC had given inadequate consideration to Pan's
teaching and that the evidence in Pan's tenure file "points to a conclusion about [his]
teaching different from that of the FEC's."  The FPPC concluded that the FEC had
taken certain comments in reviews in Pan's tenure file "out of context," and that the
FEC made allegations about his teaching that were "without basis."  FPPC Chair Anna
Adams testified that the FEC's evaluation of Pan's teaching was simply "not
warranted" by his tenure file.  EEOC Opening Brief at 50-51.
     The district court ruled that the FPPC's conclusions in this case were
"substantially weaker than the unequivocal conclusion that the grievance committee
reached" in Stewart.  (DE18 at 19.)  The district court also found that the Stewart
appeal committee's criticisms of the lower panel were "more substantial than those
argued in this case."  (Id.)  Muhlenberg adopts this argument on appeal.  Muhlenberg
Response Brief at 56-58.  Notwithstanding these unconvincing attempts to distinguish
Stewart, given the factual similarities between Stewart and this case, if the appeal
committee's conclusions in Stewart were enough to prevent summary judgment there,
the FPPC's findings are enough to do so here.
     2.   The EEOC Proffered Sufficient Evidence of Pretext to Survive
          Summary Judgment

     Muhlenberg attempts to convince this Court that the district court properly
granted summary judgment by portraying the FEC's critique of Pan's teaching as
undisputed fact.  In doing so, it refuses to acknowledge, and urges this Court to
ignore, substantial proof of pretext and significant affirmative evidence of cultural
bias, from which a reasonable fact finder could determine Muhlenberg's articulated
reasons are a pretext for discrimination.
     Muhlenberg accuses the EEOC of presenting an overly-charitable view of Pan's
teaching.  Muhlenberg Response Brief at 30 n.6.  It contends that the EEOC "focuses
on the positive aspects of Pan's tenure file, ignoring and discounting the negative
evidence and the resultant dichotomy of evidence regarding Pan's teaching that
formed the basis of the FEC's determination that Pan's teaching should be rated as
'good' rather than 'excellent.'" Id. at 62-63.  Contrary to Muhlenberg's claims,
however, the EEOC did acknowledge (in conjunction with its discussion of the FEC's
findings) that Pan's tenure file contained isolated negative comments from students
and faculty members.  See EEOC Opening Brief at 15-16.  The EEOC also addressed
other objectively less favorable information in Pan's file, his SIR scores, and pointed
to evidence indicating that these scores did not cause certain Muhlenberg officials to
question Pan's teaching abilities.  See id. at 49.
     More importantly though, it is Muhlenberg, not the EEOC, that consistently
distorts the record on Pan's teaching.  Muhlenberg does exactly what it criticizes the
EEOC of doing.  It repeats, mantra-like, the FEC's assertion that there was "mixed
evidence" and a "lack of consensus" on the Muhlenberg faculty concerning Pan's
teaching, and that Pan was an ineffective teacher who failed to engage students,
communicate difficult material, organize his courses, or adjust his teaching style to
Muhlenberg.  See Muhlenberg Response Brief at 7, 11, 18, 28, 30-34, 37, 39-44, 57,
62.  Yet Muhlenberg never acknowledges just how much evidence to the contrary
there is.  As the EEOC painstakingly pointed out in its opening brief, the record is
replete with references (in a multitude of reviews from Pan's students, colleagues, and
peers, and the FPPC's report discrediting the FEC's evaluation) debunking each of the
FEC's criticisms of Pan's teaching.  See EEOC Opening Brief at 8-14, 45-51.  This
Court should resist Muhlenberg's efforts to gloss over this evidence, and recognize
that it creates a genuine issue of fact as to whether Muhlenberg's explanation for its
action was a pretext for national origin discrimination.
     This Court should also repudiate Muhlenberg's attempts to minimize the
EEOC's affirmative evidence of cultural bias.  These comments and conversations
about Pan's "culture" and "cultural differences" suffice to raise an initial inference of
national origin discrimination (as previously discussed) and to support the EEOCs
allegation that Muhlenberg's explanation for its actions is not credible.  Muhlenberg
tries to obscure the importance of this evidence.  For example:

     Muhlenberg claims several times that the discussion of "culture" or the "mere
     mention of 'cultural difference' cannot be deemed evidence of discrimination." 
     Muhlenberg Response Brief at 50; see id. at 51, 52.  The evidence suggests that
     Pan's "culture" and "cultural differences" were not "merely mentioned."  This
     issue came up over and over while decisionmakers were deliberating over Pan's
     teaching ability and tenure bid.  At summary judgment, it is up to the jury   not
     the district court or Muhlenberg   to discern the intent and tenor of these cultural
     comments and conversations, to determine whether relevant Muhlenberg
     decisionmakers viewed Pan's Chinese background positively or negatively, and
     to decide whether their view of his "culture" and "cultural differences"
     influenced their ultimate decision to deny him tenure and promotion.

     Muhlenberg discounts Susan Schwartz's conversation with President Taylor (in
     which Schwartz expressed her concern that Pan's tenure denial may have had
     a "racial overtone" to it).  Muhlenberg contends that Schwartz "offered no
     foundation for this view and was the only person to raise this issue to President
     Taylor."  Muhlenberg Response Brief at 45.  Yet a jury could find it quite
     significant that Schwartz (who had no real stake in the outcome of Pan's tenure
     bid) felt compelled to spontaneously register an objection of racial bias
     contemporaneously with the FEC's suspect evaluation.

     Muhlenberg contends that "while President Taylor, Dean Dretsch, and other
     individuals involved in the tenure review process may have raised Pan's culture
     following the FEC's negative recommendation, there is not a scintilla of
     evidence to establish or even suggest that such consideration influenced or
     formed part of the FEC's unanimous recommendation."  Muhlenberg Response
     Brief at 28; see also id. at 50.  This is just not true.  There is significant evidence
     enabling a jury to conclude that the FEC was influenced in its deliberations by
     a negative view of Pan's Chinese background or cultural characteristics related
     to it.  There is an abundance of information in Pan's tenure file and the FPPC
     report casting serious doubt on the notion that the FEC had adequate cause to
     conclude Pan was not an "excellent" teacher.  And more specifically, President
     Taylor told Pan that the FEC did not understand Pan because Pan was allegedly
     "playing" some sort of Asian chess-like game.  President Taylor himself thus
     obviously decided that Pan's culture played a role in the FEC's deliberations and
     findings.

     Muhlenberg acknowledges that Dean Dretsch considered whether Pan's alleged
     teaching "problems" might be related to his culture, but asserts that Dean
     Dretsch "did not reach a conclusion" on this issue.  Muhlenberg Response Brief
     at 51.  Rather, Muhlenberg claims, "Dean Dretsch based his review of Pan's
     tenure denial on the FEC's evidence, which established that Pan failed to attain
     teaching excellence"  Id.  A jury could quite plausibly find otherwise   that Dean
     Dretsch (who admitted to raising Pan's culture during the FPPC hearing) had
     decided that Pan's national origin was a drawback, and based his endorsement
     of the FEC's recommendation on that adverse conclusion.

     Muhlenberg derides the EEOC for pointing out an alternative interpretation of
     Anna Adams's statement (i.e., that "nobody believed that the FEC consciously
     denied [Pan] tenure because he was Chinese.")  Muhlenberg Response Brief at
     52.  Muhlenberg chastises the EEOC for highlighting that Adams chose to insert
     the word consciously in her remarks.  Id.  But a jury could reasonably wonder
     why Adams affirmatively selected this particular word, and a jury could decide
     that, in light of all the evidence, she did so because she believed subconscious
     or unconscious bias was a factor.

     Muhlenberg alleges that the "issue of national origin discrimination was never
     raised at the FPPC level."  Muhlenberg Response Brief at 47; see id. at 55.  Yet
     Dean Dretsch himself testified that he discussed Pan's "cultural differences"
     directly with the FPPC, and Pan testified that Dretsch told the FPPC that Pan's
     teaching problems were "cultural."  Thus, even though the topic of
     discrimination per se may not have come up during the FPPC hearing, a jury
     could find that an official with influence over the process   Dean Dretsch   
     expressly linked Pan's teaching "problems" to his ethnic background at the
     FPPC level (and throughout the process).

     Muhlenberg concludes that President Taylor's "acknowledgment" that Pan was
     "different" was a positive reference to Pan.  Muhlenberg Response Brief at 47. 
     A jury could easily conclude otherwise, however (especially in light of President
     Taylor's other testimony, indicating that Pan's "different culture and resulting
     different manners" might mean he was "abrasive").  Similarly, Muhlenberg
     asserts that President Taylor's use of the American Chess/ "Go" metaphor could
     not be deemed evidence of discrimination because President Taylor himself
     "testified that he did not, by this comment, insinuate bias on part of the FEC or
     himself regarding Pan's national origin."  Muhlenberg Response Brief at 49. 
     Thus, Muhlenberg's argument amounts to this:  President Taylor did not
     discriminate because he denied that he discriminated.  Yet Pan   the only other
     witness to the conversation   testified that President Taylor's use of the
     metaphor was a clear signal of cultural animus.  The jury would certainly be
     entitled to draw this reasonable inference, as well.
  
     Time and again, Muhlenberg has chosen to discount pertinent evidence, resolve
credibility determinations in the manner most helpful to its own witnesses, and draw
inferences in the light most favorable to its own case.  It would have this Court do so,
too.  This is obviously inappropriate at summary judgment.
     3.   Title VII Contemplates No Special Deference to Tenure Decisions

     Finally, Muhlenberg insists that "[s]ummary judgment in this case is especially
appropriate because Courts have repeatedly expressed reluctance to second-guess and
evaluate the tenure decisions made of colleges . . . ."  Muhlenberg Response Brief at
16.  In making this argument, and urging this Court to provide some sort of special
Title VII deference to tenure decisions, Muhlenberg cites a Fourth Circuit case, a
Seventh Circuit case, and an unpublished Tenth Circuit case.  See id.  The law in the
Third Circuit, however, could not be clearer.  In the EEOC's opening brief, we
explained (citing only this Court's cases and the Supreme Court) that any such
capitulation to the subjective tenure judgments of college decisionmakers would be
contrary to the statute and against Congressional intent.  EEOC Opening Brief at 31-
33; see also Univ. of Pa. v. EEOC, 493 U.S. 182, 190 (1990) (where the Supreme
Court explained that Congress amended Title VII in 1972 specifically "to expose
tenure determinations to the same enforcement procedures applicable to other
employment decisions").  This Court in Bennun said it succinctly:  "[N]o special
deference is to be paid to the tenure and promotion decisions of universities when they
are scrutinized under Title VII."  Bennun, 941 F.2d at 174.
     To be sure, in Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980), this
Court did caution others courts not to "substitute their judgment for that of the college
with respect to the qualifications of faculty members for promotion and tenure." 
Kunda, 621 F.2d at 548.  But the EEOC does not seek in this litigation to second-
guess the college's academic standards.  Rather, we urge this Court to reverse the
entry of summary judgment to permit a jury to decide whether Muhlenberg's asserted
justification for denying Pan tenure was a mere pretext for discrimination.
                           CONCLUSION
     For the foregoing reasons, we ask this Court to reverse the district court's grant
of Muhlenberg's summary judgment motion, and remand this case for trial.
                                   
                                   Respectfully submitted,
                                   ERIC S. DREIBAND
                                   General Counsel
                                                            
                                   LORRAINE C. DAVIS        
                                   Acting Associate General Counsel
                                                            
                                   DANIEL T. VAIL           
                                   Attorney
                                   
                                   _______________________  
                                   U.S. EQUAL EMPLOYMENT 
                                     OPPORTUNITY COMMISSION
                                   1801 L Street, N.W., 7th Floor
                                   Washington, D.C.  20507
                                   (202) 663-4571
          
          

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                                   ____________________________
                                   DANIEL T. VAIL 
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   1801 L Street, N.W., 7th Floor
                                   Washington, D.C.  20507       
                                   (202) 663-4571

October 25, 2004

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them first-class, postage prepaid, to the following:

Office of the Clerk
United States Court of Appeals for the Third Circuit
21400 U.S. Courthouse
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Philadelphia, PA  19106-1790

Nancy A. Conrad
Fitzpatrick Lentz & Bubba, PC
4001 Schoolhouse Lane
P.O. Box 219
Center Valley, PA  18034
Attorney for Muhlenberg College

                                   
                                   ____________________________
                                   DANIEL T. VAIL 
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   1801 L Street, N.W., 7th Floor
                                   Washington, D.C.  20507
                                        (202) 663-4571

October 25, 2004

____________________________________________

1  The Muhlenberg Faculty Handbook guidelines on tenure
 evaluation specifically state that [t]o be considered for
 tenure . . . there must be a tenure opening in the department
 for which the candidate is qualified in terms of the special
 needs of the department. (JA52 (emphasis added).) 

2  See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973).

3  The district court ruled that Muhlenberg had apparently
 conceded that differences in departmental affiliations or 
academic fields are not a bar to comparison.  (DE18 at 10.)
  At summary judgment, Muhlenberg did acknowledge that
 Muhlenberg does not differentiate between Departments
 when evaluating tenure candidates, and that [d]ue to
 the relatively small size of the Muhlenberg faculty, it 
is rare that two candidates from the same Department stand
 for tenure in the same year.  (DE13 at 33 n.24.)  Muhlenberg
 now attempts to dispute that this statement was any sort of
 concession.  Muhlenberg notes that at summary judgment, it
 cited authority suggesting that comparisons between candidates
 with different Departmental affiliations may be invalid. 
 Muhlenberg Response Brief at 21 (citing Hall v. Kutztown Univ.,
 1998 WL 10233 (E.D. Pa. Jan. 12, 1998), and Babbar v. Ebadi,
 215 F.3d 1086 (10th Cir. 2000)).  Muhlenberg, however, never
 affirmatively argued below that differences in departments 
would defeat comparison.  (DE13 at 33 n.24.)  Nonetheless, assuming
 for the sake of argument only that Muhlenberg has not conceded
 this point, the cases it cited at summary judgment (and cites now)
 for this proposition  Hall and Babbar  simply do not say what 
Muhlenberg says they say.  There is no statement anywhere in either
 case indicating categorically that professors must be in the same 
academic field or department to be proper prima facie comparators.  
Moreover, Babbar is an unpublished Tenth Circuit decision, and cannot 
be cited as precedential authority.  10th Cir. R. 36.3.  Hall is an 
unpublished district court case.  These cases are thus not binding 
on this Court in any event.

4  Indeed, Muhlenberg itself describes most of this evidence in its 
brief.  See Muhlenberg Response Brief at 27-28, 45, 47-52.  For instance,
 it cites deposition testimony in which President Taylor awkwardly
 describes Pan as an intellectual who is Chinese, and in which
 President Taylor ruminates over why Pan doesnt  . . . do these
 things that bring him up to the College standards.  Id. at 49. 
 [T]he only thing I could conclude, President Taylor remarked, 
was that there was a certain amount of Chinese subtlety versus 
American directness.  Id.

5  It is not at all surprising that a few students would choose to 
submit less-than-perfect reviews of Pans teaching, or that on occasion 
class participation would be less-than-scintillating.  A reasonable jury 
could find that, even so, and given the abundant favorable evidence about 
Pans abilities, Muhlenbergs assertion that Pans teaching was only 
good was not credible.

6  For example, Muhlenberg claims that the FEC gave full consideration 
to Pans entire tenure file, including evidence both laudatory and 
critical of Pans teaching.  Muhlenberg Response Brief at 57.  To be 
sure, the FEC evaluation does reference[] both positive and negative 
evidence, as Muhlenberg notes.  See id.  However, the FPPC report 
explicitly concluded that inadequate consideration was given by the 
FEC in its evaluation of [Pans] teaching.  EEOC Opening Brief at 19.

7  In any event, the EEOC does not need to prove that the FECs 
recommendation itself was tainted by a discriminatory bias.  
Muhlenberg acknowledges that ultimately, the President . . . determines
 whether the candidate has achieved the level of teaching excellence required
 for tenure.  Muhlenberg Response Brief at 30.  Thus, the EEOC only has to
 prove that the FEC, Dean Dretsch, and/or President Taylor was motivated by
 discrimination.  This Court ruled in Roebuck that a plaintiff in a
 discrimination case need not prove intentional discrimination at every 
stage of the review process.  Roebuck, 852 F.2d at 727.  [I]t plainly 
is permissible for a jury to conclude that an evaluation at any level, if
 based on discrimination, influenced the decisionmaking process and thus 
allowed discrimination to infect the ultimate decision.  Id.

8  Astonishingly, for instance, Muhlenberg asks this Court to adopt the 
district courts finding that the EEOC has offered no evidence that the
 sincerity of the FEC, in its consideration of Pans tenure file and 
recommendation against tenure, should be questioned.  Muhlenberg Response
 Brief at 59.  But the sincerity of the FEC (whose report formed the basis
 for Muhlenbergs defense in this case) is a central issue in controversy.
  If determining whether the FEC was sincere is not a quintessential jury
 function, we do not know what is.

9  This is consistent with other case law from this Circuit concluding that,
 in the employment discrimination context, summary judgment principles are 
applied with added rigor because intent and credibility are crucial 
issues.  Coneen v. MBNA Am. Bank, NA, 334 F.3d 318, 325 n.9 (3d Cir. 2003)
 (quoting Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162 (7th Cir. 1994));
 see also Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir. 2000)
 (internal quotations omitted) (warning that a trial court must be cautious about
 granting summary judgment to an employer when, as here, its intent is at issue).
  If these warnings are to mean anything, this Court should reverse the district
 courts ruling here.