This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-835

Aparna Ganguli,

Relator,

vs.

University of Minnesota,

Respondent.

Filed December 3, 1996

Affirmed

Crippen, Judge

University of Minnesota Senate Judicial Committee

Beth Bertelson, 333 Washington Ave. North, Suite 341, Minneapolis, Minnesota 55401 (for Relator)

Julie A. Sweitzer, University of Minnesota, 325 Morrill Hall, 100 Church Street S.E., Minneapolis, Minnesota 55455 (for Respondent)

Considered and decided by Parker, Presiding Judge, Crippen, Judge and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

Crippen, Judge

For the second time, relator appeals from a University of Minnesota decision to deny her tenure. We reversed the University's first decision because a University review panel acted arbitrarily on relator's complaint that an administrator had violated University regulations in taking the action. On remand, the panel once again recommended the denial of tenure and the University President finalized this action. Relator argues that the decision is no better supported now than before the remand and that it is without merit. We affirm.

FACTS

In 1986, Aparna Ganguli was hired as a probationary, tenure-track, assistant professor in the Science, Business, and Mathematics Division of the University's General College. During 1991 she was required to submit her academic dossier for tenure consideration.

In an advisory decision, the division's tenured faculty voted in favor of awarding Ganguli tenure and promoting her to the position of associate professor. The vote was 12 to 2 in favor of tenure, and 7 to 2 in favor of promotion. At the next level of consideration, the General College tenured faculty voted 22 to 10 in favor of tenure, with one abstention, and 18 to 11 in favor of promotion, with one abstention. The Vice Provost then recommended Ganguli's tenure and promotion to Provost Ettore Infante, but acknowledged that Ganguli's teaching was "not outstanding" and that her research was "very limited" and "viewed as inadequate by a number of her colleagues in General College and adequate by others."

On February 21, 1992, the Non-Health Sciences Promotion and Tenure Review Committee voted to recommend awarding tenure to Ganguli and promoting her to the position of associate professor. The committee voted 3 to 1 in favor of tenure and promotion, with one abstention. The committee then forwarded the file to Infante for a final decision.

In reviewing Ganguli's file, Infante was disturbed by what he described as a "palpable lack of enthusiasm" in the Vice Provost's recommendation and in the contents of her file. He voiced his concerns to the Dean of General College. Although he recommended tenure, the Dean admitted to Infante that Ganguli had not completed as much scholarly work as would have been desirable. Infante decided against granting Ganguli tenure. He then informed Ganguli of this decision and the resulting termination of her teaching position in June 1993.

The University Tenure code requires that the faculty member be provided substantive reasons in writing when the University acts contrary to the academic unit making the initial tenure recommendation. University of Minn., Regulations Concerning Faculty Tenure § 7.63 [hereinafter Univ. Reg.]. But Infante's termination letter only stated:

I was not convinced * * * that your scholarship achieved the threshold of quantity or quality that I find acceptable for the awarding of indefinite tenure. Nor was the teaching record so exemplary as to compensate for limitations in the record of scholarship.

Ganguli filed a complaint with the University's Senate Judicial Committee, seeking review of Infante's decision. The committee-appointed review panel dismissed Ganguli's complaint without making any findings of fact. Ganguli then appealed to the full committee, which rejected the appeal. Ganguli's employment was terminated on June 15, 1993, and she appealed to this court.

We reversed the University review panel decision as arbitrary because Ganguli's complaint was decided without a hearing or findings. We noted that the panel should ask for a new decision of Provost Infante if it decided that his initial decision did not include an adequate statement of substantive reasons. Ganguli v. University of Minn. (Ganguli I), 512 N.W.2d 918, 923-24 (Minn. App. 1994). In the interim, Ganguli filed a complaint against the University with the Minnesota Department of Human Rights, alleging that the University had discriminated against her on the basis of her age, race, and national origin.[1]

On remand, a second hearing panel was appointed to hear Ganguli's complaint. The panel requested that Infante submit a new statement that articulated his reasons for denying Ganguli promotion and tenure. Infante responded with a six-page letter.

The second review panel conducted three prehearing conferences and extensive hearings in April and May of 1995. Following the hearings, the panel issued its findings of fact. The panel unanimously concluded that the University had not violated its tenure code in denying Ganguli tenure and that the letter submitted to them by Infante contained substantive reasons for Ganguli's dismissal. University President Nils Hasselmo adopted the review findings in their entirety and upheld the denial of tenure. This appeal followed.

D E C I S I O N

Ganguli has appealed to this court by writ of certiorari pursuant to Minn. Stat. SSSS 606.01-.06 (1994). Review in such cases is on the record, and for purposes of this appeal, the review is limited to questions affecting the regularity of University proceedings, and as to the merits of the dispute, whether the determination in the case was "arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it." Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (citation omitted). Minnesota appellate courts have been reluctant to "invade the sphere of authority reserved to the [University] regents by our constitution," according "substantial deference" to that authority. Bailey v. University of Minn., 290 Minn. 359, 360-61, 187 N.W.2d 702, 704 (1971).

The University's academic judgments, in particular, are afforded great discretion, because decisions regarding scholarship require expert evaluations not readily adapted to the procedural tools of judicial decision-making. Zahavy v. University of Minn., 544 N.W.2d 32, 36 (Minn. App. 1996), review denied (Minn. May 9, 1996); Chronopoulos v. University of Minn., 520 N.W.2d 437, 441 (Minn. App. 1994) (citing Board of Curators v. Horowitz, 435 U.S. 78, 90, 98 S. Ct. 948, 955 (1978)), review denied (Minn. Oct. 27, 1994); see also Mueller v. Regents of Univ. of Minn., 855 F.2d 555, 559 (8th Cir. 1988) (stating that district and appellate court de novo review of the University's termination decisions is inappropriate). Therefore, we can reverse the University's decision to terminate an employee only if we find a lack of substantial evidence to support that decision. Harford v. University of Minn., 494 N.W.2d 903, 909 (Minn. App. 1993), review denied (Minn. Mar. 30, 1993).

I. Procedural and Substantive Due Process

As a probationary member of the University of Minnesota faculty, Ganguli does not have a constitutionally protected property interest in tenure. See Chronopoulos, 520 N.W.2d at 443-44 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972)). But this does not mean that non-tenured faculty may be dismissed without a hearing. The University must comply with its own tenure and grievance process.

On remand, an eleven-member review panel heard the case.[2] The panel heard over forty-five hours of testimony during the proceedings. Both Ganguli and the University were represented by counsel. The panel then issued detailed findings of fact supported by reference to the testimony and relevant exhibits. While Ganguli believes that the panel lacked objectivity, this belief cannot be verified. Ganguli presented no evidence challenging the objectivity of the panel members. Because the University provided Ganguli with an impartial tribunal that issued detailed findings supported by the record, we find that the procedural defects identified in Ganguli I have been cured and that Ganguli's procedural rights were properly protected.

Ganguli contends that the university denied her substantive due process rights. Even if her complaint had constitutional stature, Ganguli's substantive complaint would be without merit unless she demonstrated that the University dismissed her arbitrarily, or that the dismissal was

such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.

Ross v. University of Minn., 439 N.W.2d 28, 34 (Minn. App. 1989) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S. Ct. 507, 513 (1985)), review denied (Minn. July 12, 1989). We will uphold the decision of an academic institution unless we find that it was not merely unwise but was beyond the pale of reasoned, academic decisionmaking. Id. at 35.

There is no evidence that the University failed to exercise professional judgment when it denied Ganguli tenure. The record demonstrates that support for Ganguli's tenure diminished at each level of voting and that the faculty was divided in its support of her position. Even those who recommended her for tenure acknowledged that deficiencies existed in her teaching and research. And Provost Infante's decision is not irrational merely because it is contrary to favorable recommendations at earlier stages of the process. The University's tenure code contemplates that the Provost may exercise his own judgment in these matters, which explains the requirement that the University provide substantive reasons in writing when rejecting a favorable recommendation on tenure from an academic unit.

Ganguli believes that Infante's decision denying her tenure was unwise. But that is not the governing standard on a substantive due process claim. Because there is no evidence that Infante failed to exercise professional judgment in his decision to deny Ganguli tenure, she has failed to show a denial of due process.

II. Violations of the Tenure Code

Ganguli contends that the University violated Univ. Reg. § 7.7(d)-(g) and that these violations make its decision arbitrary. Ganguli did not raise a violation of § 7.7(f) to the second review panel, and we must decline to consider this issue for the first time on appeal. Fredrich v. Independent Sch. Dist. No. 720, 465 N.W.2d 692, 696 (Minn. App. 1991) (holding that failure to raise an issue below precludes judicial review), review denied (Minn. Apr. 29, 1991).

A. Failure to Consider Data Available at the Time of the Decision

Ganguli argues that the University violated § 7.7(d) ("Failure to Consider Data Available at the Time of the Decision") by failing to include eight letters of recommendation from students regarding her teaching and that this failure resulted in an incomplete review of her file. But the review panel found that it was Ganguli who failed to add the letters to her file when she was given the opportunity to do so. Ganguli testified before the panel that her tenure file was complete and that there was nothing further she would have added to the file. Additionally, because a summary of the letters was given to Infante, any error that resulted from omission of the letters was harmless. The panel concluded that Ganguli failed to prove that Infante's decision was based on a failure to consider data and this conclusion is supported by substantive evidence in the record.

B. Prejudicial Mistakes of Fact

Ganguli asserts that the University violated § 7.7(e) of its tenure code because it made prejudicial mistakes of fact regarding her file. Ganguli asserts four specific factual errors: a failure to note her record of software development; misrepresentation by half of the number of University grants she received; inaccuracies with respect to the number of studies she had conducted; and misrepresentations of the opinions and recommendations of her reviewers. But if Ganguli's tenure dossier contained mistakes of fact, it is undisputed that she had an opportunity to review her file and add materials she thought were missing.

The panel identified only one possible mistake of fact regarding Ganguli's work: a letter of recommendation from someone who misunderstood Ganguli's area of expertise. But Infante testified that he placed no special emphasis on this letter. Because the panel's findings on this issue are adequately supported by the record, we agree that Ganguli failed to sustain her burden to show that the University made prejudicial mistakes of fact concerning her tenure.

C. Violations of Other University Policies

Ganguli argued to the second review panel that the University violated § 7.7(g) of its tenure code by failing to inform her of her lack of progress toward tenure during her annual performance evaluations. The panel reviewed each of the evaluations and found that several of the reviews raised concerns regarding Ganguli's scholarly activity. The record supports the panel's rejection of Ganguli's argument that she was unaware of the University's concerns.

Ganguli also argues that the University violated § 7.7(g) because it failed to circulate a copy of its decision denying her tenure to other faculty members, a violation of Univ. Reg. § 7.61. Ganguli evidently failed to raise this argument below because the panel issued no findings on the matter. We decline to consider it on appeal.

D. Substantive Reasons for the Denial of Tenure

In Ganguli I, we expressed grave doubts that the University provided Ganguli with "substantive" reasons for her dismissal, as required by Univ. Reg. § 7.63. Infante's second letter, following the remand, again refers to his dissatisfaction with Ganguli's record of teaching, service, and research, but the second letter recites the specific evidence regarding Ganguli's research, recommendations, outreach activities, and leadership ability on which he based his decision.

The panel found that Infante's second letter "thoroughly discussed [Ganguli's] academic history, her teaching record, her research, and the outside review letters that were solicited on her behalf." The panel concluded that Infante's letter was "grounded upon an extensive analysis of Professor Ganguli's research record, her teaching activities and service" and that the letter was not merely conclusory. Because we concur that Provost Infante has supported his decision denying tenure with substantive reasons, we find no violation of Univ. Reg. § 7.63.

III. Employment Discrimination

Ganguli alleges that the University discriminated against her in violation of the Age Discrimination in Employment Act, 29 U.S.C. SSSS 621-34 (1994), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1994), and the Minnesota Human Rights Act, Minn. Stat. § 363.03 (1994 & Supp. 1995). The second review panel concluded that Ganguli failed to sustain her burden of proof that the decision to deny her tenure was based in significant degree on age, sex, or national origin.

Minnesota employment discrimination cases arising under Title VII and under the Human Rights Act are analyzed under the familiar McDonnell Douglas three-part test. Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 323-24, 326 (Minn. 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94 (1981).

We will not explore here the specific requirements for a prima facie case of employment discrimination. See Dietrich, 536 N.W.2d at 323-24 (citing Sigurdson v. Isanti County, 386 N.W.2d 715, 719-20 (Minn. 1986)). If the employer produces a legitimate, non-discriminatory reason for its actions, the presumption of discrimination created by the plaintiff's prima facie case "drops out of the picture." Kobrin v. University of Minn., 34 F.3d 698, 702 (8th Cir. 1994) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749 (1993)). The plaintiff still may prevail if she shows that the employer's articulated reason is a pretext for discrimination. Id. at 702-03.

Under McDonnell Douglas, Ganguli needed to establish a prima facie case by a preponderance of the evidence, which is not an onerous task according to the governing standard. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093-94. The panel did not consider whether or not Ganguli made out a prima facie case of discrimination under McDonnell Douglas, although the Minnesota Human Rights Department found that she did. But assuming that the department view is correct, the review panel's finding that the University had substantive, non-pretextual, reasons for Ganguli's discharge is well supported by documentary evidence in the record of the proceedings. The panel concluded, based on the testimony of Ganguli's own witnesses, that the University was not motivated by age, sex, or national origin discrimination in its treatment of Ganguli. Because there is substantial evidence in the record supporting the panel's finding, we cannot set it aside.

Affirmed.

[ ]1Independent of state and federal enforcement procedures, the university guarantees freedom from discrimination as provided by state and federal law.

[ ]2Although eleven members were appointed to the panel, only ten served. The hearing officer for the second panel was involved in the 1992 hearings, but Ganguli did not strike him from the second panel, when given the opportunity to do so.