Breach of Contract Cases

Massachusetts Bay Transportation Authority vs. Boston Carmen’s Union, Local 589, Amalgamated Transit Union (and a companion case). Suffolk. March 3, 2009. June 4, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Employment, Handicap, Seniority. Contract, Collective bargaining contract. Public Employment, Collective bargaining. Employment, Discrimination. Arbitration, Arbitrable question, Collective bargaining, Judicial review. Massachusetts Bay Transportation Authority. Public Policy. An arbitrator did not exceed her powers under G. L. c. 150C, § 11 (a) (3), by hearing a grievance filed by a union against the Massachusetts Bay Transportation Authority (MBTA), in which the union alleged a violation of a collective bargaining agreement (agreement) arising from the MBTA’s grant of retroactive seniority and the corresponding hourly wage to a handicapped employee as part of a settlement agreement in a failure-to-hire employment discrimination matter, as matters such as seniority and wages were among those that both the Legislature and the agreement had identified as proper subjects of collective bargaining, and did not fall within the MBTA’s inherent management rights [23-25]; however, the well-defined and dominant public policy against handicap discrimination, as set forth in G. L. c. 151B, required that the arbitrator’s award in favor of the union be vacated, as the most meaningful remedy for such discrimination in hiring was retroactive seniority, even in the absence of an adjudication of discrimination, where, as here, the MBTA satisfied its burden of showing a substantial and reliable basis to believe that illegal discrimination had occurred, a showing that the union failed to rebut [25-30]. An arbitrator correctly concluded that a dispute arising from the actions of the Massachusetts Bay Transportation Authority (MBTA) in unilaterally eliminating a “spare inspector” list (from which certain bus drivers were given opportunities to work temporarily in a higher job classification based on seniority) and creating a new list without union consent was arbitrable [34-35]; further, a Superior Court judge correctly confirmed the arbitrator’s award, which ruled that the MBTA had violated the terms of the union’s collective bargaining agreement, where, although there was no suggestion of bad faith on the part of the MBTA, there was no factual basis to support the MBTA’s concern that the list might be based on a discriminatory practice [35-36], Civil actions commenced in the Superior Court Department on February 27 and July 31, 2006. After consolidation, the cases were heard by Diane M. Kott-myer, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mary Jo Harris (Philip G. Boyle with her) for the plaintiff. Douglas Taylor for the defendant. Spina, J. The Massachusetts Bay Transportation Authority (MBTA) appeals from judgments of the Superior Court confirming two separate awards by the same arbitrator in cases that were consolidated by virtue of a common issue, namely, whether an arbitrator’s decision must be vacated on the ground that it violates public policy, where the arbitrator found against an employer who acted to remediate its own perceived illegal discrimination, but contrary to the terms of a collective bargaining agreement. In the first case (Wick), the MBTA settled a handicap discrimination case (refusal to hire) without consent of the Boston Carmen’s Union, Local 589, Amalgamated Transit Union (union), after a finding of probable cause by an investigating commissioner of the Massachusetts Commission Against Discrimination (MCAD). The settlement included a payment to William Wick, the claimant, in the amount of $16,000, a grant to Wick of seniority under the collective bargaining agreement that was retroactive to the date he was first offered the job, and the grant of a rate of pay under the collective bargaining agreement at the top of the progressive pay scale based on months of service. The arbitrator concluded that the grant of retroactive seniority and the corresponding hourly wage violated the collective bargaining agreement, and because there had been no finding of discrimination by the MCAD, the settlement was a “private” agreement that must yield to the collective bargaining agreement. She found against the MBTA, and the Superior Court judge confirmed the decision of the arbitrator. We conclude that a presumption of legitimacy arose from the settlement agreement that the union did not rebut by showing that the settlement was an attempt to subvert the collective bargaining agreement, and that because retroactive seniority is a presumptive remedy for discrimination in hiring, public policy requires the arbitrator’s award be vacated. In the second case, the MBTA, concerned that its “spare inspector” list (from which certain bus operators were given opportunities to work temporarily in a higher job classification based on seniority) might be based on a discriminatory practice, unilaterally eliminated the list and created a new list without union consent. Although there was no suggestion of bad faith, the arbitrator found there was no factual basis to support the MBTA’s concern of discrimination, and concluded the MBTA violated the collective bargaining agreement. We affirm the judgment in that case. I The Case of William Wick The facts are not in dispute. In 1999, William Wick applied to the MBTA for a position as rail repairer. On December 18, 1999, he was offered a position on condition that he pass a physical examination. Wick wears hearing aids, but the test was conducted without allowing him to use his hearing aids. On February 19, 2000, the MBTA notified Wick that he failed the hearing test and it withdrew the offer of employment. Wick filed a complaint with the MCAD in which he alleged discrimination (refusal to hire) based on his handicap, in violation of G. L. c. 151B, § 4 (16). In particular he alleged that he should have been accommodated by the reasonable measure of allowing him to wear his hearing aids at work. On January 13, 2001, an investigating commissioner with the MCAD found probable cause and scheduled a settlement conference. The matter did not settle and the case proceeded. On June 24, 2004, the MBTA and Wick entered into a settlement agreement whereby, in exchange for a general release, the MBTA would employ Wick as a rail repairer at the top hourly rate with seniority retroactive to December 18, 1999, the date of the MBTA’s initial offer of employment. The MBTA also agreed to pay him $16,000. The MBTA made no admission of discrimination. Wick commenced work as a rail repairer on July 1, 2004. The union had not been informed of the settlement negotiations and did not approve the settlement. The union filed a grievance on behalf of an employee who lost a bid for a posted vacancy on the day shift to Wick, asserting that the employee had greater seniority than Wick. The union claimed that in the absence of a finding of discrimination or its consent, the MBTA did not have the right unilaterally to set wages and seniority of new employees, and Wick in particular, contrary to the terms of the collective bargaining agreement. Section 516 of the collective bargaining agreement provides that seniority ratings would be established when an employee first enters a classification, e.g., rail repairer, and that employees newly entering a classification would start at the bottom of the list. Section 601 of the collective bargaining agreement establishes a progressive pay scale based on months of actual service. The MBTA rejected the grievance and the union proceeded to arbitration under the terms of the collective bargaining agreement. The union sought an order prohibiting the MBTA generally from negotiating with any individual or group to establish terms and conditions of employment without the consent of the union, even in the context of a civil rights complaint against the MBTA. The union further sought readjustment of Wick’s seniority to August, 2004, when he actually entered the department and was classified as a rail repairer, so that he would not have seniority rights greater than employees who actually worked longer than Wick. It also sought retroactive pay adjustments for fellow bargaining unit members subject to wage progression under the collective bargaining agreement between August, 2004, and August, 2006, amounting to the difference between their actual pay and the pay they would have received if their hourly rate had been at the top rate for rail repairers. The MBTA argued before the arbitrator that the grievance is not arbitrable because the MBTA has unfettered discretion under G. L. c. 161 A, § 25, to set terms and conditions of compensation and seniority for new employees. Alternatively, the MBTA argued that it did not violate the collective bargaining agreement by hiring Wick under the terms of the settlement agreement because, under § 102 of the agreement, the MBTA has “the exclusive right ... to manage its business in the light of experience, good business judgment and changing conditions.” The MBTA asserted it thus had the right to end the litigation and settle with Wick in a way that minimized its losses and made him “whole” for an alleged discriminatory failure to hire him in December, 1999, namely, give him the seniority status and the rate of pay that he would have attained had he been hired at that time. The MBTA further argued that public policy against discrimination, set forth in G. L. c. 15IB, required this result. The arbitrator concluded that the case was arbitrable because the dispute involved issues of seniority and wages, which are not management prerogatives. She also rejected the MBTA’s public policy argument, ruling that absent an adjudication of discrimination the MBTA was obligated to set Wick’s compensation and seniority conformably with the terms of the collective bargaining agreement as of the date he actually commenced work. She reasoned that because Wick’s discrimination complaint was settled by private agreement he must be regarded as having no greater rights than any other individuals that the MBTA might have hired; and that when the MBTA settled Wick’s case it could have compensated Wick for its mistake in ways other than granting him rights under the collective bargaining agreement to which he was not entitled. The Superior Court judge agreed with the arbitrator’s analysis, determined that the award did not violate public policy, and confirmed the award. Discussion. The MBTA first contends that, because it has the exclusive and inherent management right to “appoint[] and employ . . . employees and to determine the standards therefor” under G. L. c. 161A, § 25, this matter is not arbitrable. See G. L. c. 150C, § 11 (a) (3) (arbitrator’s award may be vacated if she “exceeded [her] powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law”); School Comm. of Hanover v. Curry, 369 Mass. 683 (1976). The union acknowledges in section 102 of the collective bargaining agreement that the MBTA has the exclusive right to manage its own business. The union does not dispute that under G. L. c. 161A, § 25, the MBTA may employ whom it pleases, or that it may set employment standards. Cf. School Comm. of Holbrook v. Holbrook Educ. Ass’n, 395 Mass. 651, 652, 655 (1985) (“G. L. c. 71, § 38 . . . provides school committees with exclusive authority to determine the qualifications of teachers”). Rather, the union argues that seniority and wages are matters for collective bargaining, they are covered in the collective bargaining agreement, and the MBTA unilaterally may not set the wages and seniority of new employees. There are two distinct issues before us. The first is whether the arbitrator “exceeded [her] powers” under G. L. c. 150C, § 11 (a) (3), by intruding on a nondelegable authority of the MBTA. See School Comm. of Southbridge v. Brown, 375 Mass. 502, 505-506 (1978). The second is whether arbitration of this dispute was contemplated by the collective bargaining agreement. Id. at 504. These are questions for a court to decide. Id. at 504, 506. We answer the first question in the negative, and the second in the affirmative. “[W]ages, salaries, hours, working conditions, the assignment of work schedules and work locations on the basis of seniority” are matters that the Legislature has identified as proper subjects of collective bargaining between the MBTA and the union. G. L. c. 161A, § 25. By implication, these matters do not fall within the MBTA’s inherent management rights. See School Comm. of Braintree v. Raymond, 369 Mass. 686, 690-691 (1976); Lynn v. Council 93, Am. Fed’n of State, County, & Mun. Employees, Local 193, 51 Mass. App. Ct. 905, 906 (2001). The first question was not beyond the powers of the arbitrator. Section 516 of the collective bargaining agreement expressly states: “Seniority shall be measured . . . upon first entering a classification . . . [and shall] start at the bottom of the respective lists.” In addition, the progressive pay schedule in § 601 of the collective bargaining agreement requires employees to be paid initially at the lowest level of pay agreed on, with specified pay increases to be received based on the number of months actually worked. Section 100 of the collective bargaining agreement provides for arbitration of disputes over matters covered by that agreement, which includes disputes over seniority and wages. The second question was not beyond the powers of the arbitrator. Whether the MBTA conferred seniority status on Wick and agreed to pay him a starting hourly rate contrary to the terms of the collective bargaining agreement is distinct from the question of employment standards, and it constitutes a classic labor dispute that is arbitrable. See School Comm. of Holbrook v. Holbrook Educ. Ass’n, supra at 657. The arbitrator next ruled that the MBTA violated the terms of the collective bargaining agreement when it gave Wick seniority retroactive to the date of its initial offer of employment, together with a corresponding hourly rate of pay, without the consent of the union. “[W]e are strictly bound by the arbitrator’s factual findings and conclusions of law, even if they are in error.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758 (2003). The MBTA argues that the arbitrator’s award must be vacated because it violates public policy. Specifically, the MBTA argues that the award requires the MBTA to continue the effects of a likely discriminatory practice in violation of G. L. c. 15 IB, § 4 (16), which proscribes handicap discrimination in employment. Although arbitration, particularly of labor disputes, is strongly favored in the Commonwealth as a matter of public policy, see School Comm. of Pittsfield v. United Educators of Pittsfield, supra at 758, an arbitral award must be vacated on proof of one of the grounds enumerated in G. L. c. 150C, § 11. Id. Section 11 (a) (3) requires the Superior Court to vacate the award of an arbitrator that “exceeded [her] powers or. . . requires a person to commit an act or engage in conduct prohibited by state or federal law.” An award that violates public policy is such an award. See Massachusetts Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1995). “[T]he question of public policy is ultimately one for resolution by the courts.” Id. at 16 n.5, quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). Before an arbitral award may be vacated as violating public policy, the policy must be shown to be “well defined and dominant, and is to be ascertained ‘by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” W.R. Grace, supra, quoting Muschany v. United States, 324 U.S. 49, 66 (1945). That analysis has been adopted in our Commonwealth. See Massachusetts Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, supra. The public policy in this case is “well defined and dominant.” It is the overriding governmental policy proscribing various types of discrimination, set forth in G. L. c. 15IB. General Laws c. 151B, § 9, states: “This chapter shall be construed liberally for the accomplishment of its purposes, and any law inconsistent with any provision of this chapter shall not apply . . .” (emphasis added). The specific antidiscriminatory policy involved in this case is set forth in G. L. c. 151B, § 4 (16), which states: “It shall be an unlawful practice: . . . (16) For any employer ... to dismiss from employment or refuse to hire ... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” The most meaningful remedy for discrimination in hiring is retroactive seniority. It is designed to make the injured person whole, or put him in nearly the same position he would have enjoyed if he had not been rejected from employment for discriminatory reasons. “Without an award of seniority dating from the time when he was discriminatorily refused employment, an individual. . . will never obtain his rightful place in the hierarchy of seniority according to which . . . various employment benefits are distributed.” Franks v. Bowman Transp. Co., 424 U.S. 747, 767-768 (1976). See id. at 763-766. Retroactive seniority is presumptively awarded in Title VII cases. Id. at 775 n.34, 779 n.41. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399 (1982) (District Court may award retroactive seniority to discriminated class members in Title VII suit over objection of “innocent” union not been found guilty of discrimination). There is no reason to treat cases under G. L. c. 15 IB differently, and neither the union, the arbitrator, nor the judge suggested otherwise. The MBTA contends that the grant of retroactive seniority and the corresponding hourly wage in the settlement agreement was necessary to make Wick whole. The union acknowledges that a court or the MCAD could have ordered retroactive seniority as a remedy, but only if there had been a finding that the MBTA discriminated against Wick. See G. L. c. 151B, § 5, second par. (MCAD may order “such affirmative action ... as, in the judgment of the [MCAD], will effectuate the purposes of this chapter”); Heraty vs. Atlas Oil Co., MCAD No. 86-BEM-0123 (1994); Moreau vs. Haverhill, MCAD No. 88-BEM-0966 (1993). Cf. Franks v. Bowman Transp. Co., supra at 762-770 (retroactive seniority available remedy under § 706[g] of Title VII of Civil Rights Act of 1964). The focus of the union’s argument, and the centerpiece of the decisions of the arbitrator and the Superior Court judge, is the absence of an adjudication of discrimination, without which, they maintain, the public policy exception does not apply. Although neither a finding nor an admission of discrimination was made here, the union has cited no case that holds either must be made before the terms of a collective bargaining agreement must yield. Nor has it cited any authority for its claim that settlement of an individual complaint, as here, requires the approval of the tribunal before whom the discrimination complaint is pending as a precondition to overriding the terms of a collective bargaining agreement. An adjudication of discrimination and a tribunal’s order for retroactive seniority may indeed be outcome de

CHEN v WAYNE STATE UNIVERSITY Docket Nos. 283420 and 283575. Submitted May 12, 2009, at Detroit. Decided June 2, 2009, at 9:10 a.m. Dr. Kuo-Chun Chen brought an action in the Wayne Circuit Court against Wayne State University, seeking damages and other relief related to his treatment while working as a professor and to the University’s handling of his personal property and a patent. The plaintiff specifically alleged that he was discriminated against because of his national origin, age, and a disability and that he was retaliated against for protesting the discrimination. He also pleaded a claim and delivery count seeking the return of his personal property, a count alleging violation of the Freedom of Information Act, MCL 15.231 et seq., and a count alleging breach of contract. The plaintiff stipulated the dismissal of the counts for breach of contract and claim and delivery, and the court, Robert L. Ziolkowski, J., dismissed those claims without prejudice. The plaintiff then filed those claims in the Court of Claims. At some point, the case in the Court of Claims was consolidated with the case in the circuit court and Judge Ziolkowski heard both cases. The plaintiff was permitted to amend his complaints, but he did not state a claim based on the Freedom of Information Act. The Court of Claims then dismissed the claims of breach of contract and claim and delivery, but allowed the plaintiff to amend the complaint in the Court of Claims action to add as defendants the current chairperson and two former chairpersons of the University’s department of biological sciences and to allege gross negligence against the individuals and negligence against the University with regard to the handling of the plaintiffs property. The Court of Claims then dismissed the negligence claims against the individual defendants and, on May 16, 2006, entered an order dismissing the negligence claim against the University. The order stated that the order resolved the last pending claim in the Court of Claims and closed the case. Judge Ziolkowski dismissed the circuit court claims on March 15,2007, and denied reconsideration of that order on May 3, 2007, and May 8, 2007. The Court of Appeals dismissed the plaintiffs appeals in both cases for lack of jurisdiction because they were not timely filed. Unpublished orders of the Court of Appeals, entered August 30, 2007 (Docket Nos. 278332,278333). The plaintiff applied for leave to appeal both cases, and the Court of Appeals granted leave to appeal both the circuit court order (Docket No. 283420) and the Court of Claims order (Docket No. 283575) in unpublished orders entered August 20, 2008. The appeals were consolidated. The Court of Appeals held: 1. The consolidation of the two cases at the trial court level did not merge the two cases and both retained their separate identities. Therefore, the time to appeal each individual case is determined by reference to the final judgment or order in each case. The application for leave to appeal the Court of Claims case was not filed within one year of the May 16, 2006, final order in that case, as required by the version of MCR 7.205(F)(3)(a) in effect at the time the application was granted. Therefore, the Court of Appeals did not have the discretion to grant the application. The appeal in Docket No. 283575 must be dismissed for lack of jurisdiction. The application for leave to appeal the circuit court case, Docket No. 283420, was timely filed. 2. The plaintiff was required to show that he suffered an adverse employment action in order to establish his discrimination and retaliation claims under the Civil Rights Act, MCL 37.2202(1) and 37.2701. An adverse employment action must be materially adverse to the employee, that is, it must be more than a mere inconvenience or minor alteration of job responsibilities. Materially adverse employment actions are akin to the termination of employment, a demotion shown by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. There must be an objective basis for demonstrating that the employment action is adverse because a plaintiffs subjective impressions are not controlling. 3. There was no objective evidence presented to show that the alleged refusal to assign the plaintiff a new lab constituted an adverse employment action. 4. The plaintiff failed to present any evidence that a department chairperson’s threat to revoke the plaintiffs tenure resulted in a materially adverse change in the terms or conditions of his employment. The threat did not rise to the level of an adverse employment action. 5. There was no evidence that the changes that occurred to the plaintiffs teaching duties amounted to an adverse employment action. 6. There was no evidence that a department chairperson’s actions or omissions with regard to not restoring the plaintiffs regular graduate faculty status or allowing the plaintiff to supervise a graduate student had any effect on the plaintiffs employment. 7. The plaintiff abandoned on appeal his claims regarding merit increases and other miscellaneous adverse actions. 8. The circuit court did not err in granting summary disposition in favor of the University with regard to the claims based on discrimination and retaliation. The order in Docket No. 283420 must be affirmed. Appeal in Docket No. 283575 dismissed and order appealed in Docket No. 283420 affirmed. 1. Actions — Consolidation op Actions — Appeal op Consolidated Actions. Where two cases involve claims that could not have been brought as separate counts in a single complaint, but are nevertheless consolidated for administrative convenience, the consolidated cases are not merged and both cases retain their separate identities; a circuit court case and a Court of Claims case that are joined for trial are not merged and both cases retain their separate identities, and the time to appeal each case must be determined by reference to the final judgment or order for each case (MCL 600.6421). 2. Civil Rights — Employment Discrimination — Adverse Employment Actions. A plaintiff who brings a discrimination or retaliation claim against an employer under § 102 or § 701 of the Civil Rights Act must establish that he or she suffered an adverse employment action; what might constitute an adverse employment action in one employment context might not be actionable in another; an employment action must be materially adverse to the employee, not a mere inconvenience or minor alteration of job responsibilities in order to be actionable; there must be an objective basis for demonstrating that an employment action was adverse because an employee’s subjective impressions are not controlling (MCL 37.2202, 37.2701). Eisner & Mirer, EC. (by Jeanne Mirer and Eugene Eisner), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Donna J. Donati and Megan P. Norris), for the defendants. Before: BORRELLO, EJ., and MURPHY and M. J. KELLY, JJ. PER CURIAM. In these consolidated appeals, plaintiff Dr. Kuo-Chun Chen appeals by leave granted the trial court’s orders granting summary disposition in favor of defendant Wayne State University (the University). In Docket No. 283420, Chen argues that the trial court, which was sitting as the circuit court, erred when it dismissed under MCR 2.116(0(10) Chen’s claims of age and national origin discrimination and retaliation. In Docket No. 283575, Chen argues that the trial court, which was sitting as the Court of Claims, erred when it refused to permit him to amend his complaint to add new parties and new theories of recovery. We conclude that we lack jurisdiction to hear Chen’s claims of error in Docket No. 283575 and that the trial court did not err when it dismissed Chen’s claims in Docket No. 283420. For these reasons, we dismiss the appeal in Docket No. 283575 and affirm in Docket No. 283420. I. FACTS AND PROCEDURAL HISTORY A. BASIC FACTS This case has its origins in the progression of Chen’s career at the University over a period of more than 25 years. Chen is a citizen of the United States, but was born in China and speaks English with a Chinese accent. The University hired Chen as an associate professor for its department of biological sciences in 1968. Chen’s field of study is genetics. He became a tenured associate professor in 1971. Before joining the University’s faculty, Chen began the development of a device, which he called the Microwave Guide Exposure System (the Microwave Device), with his former roommate at graduate school. Chen completed the Microwave Device with the help of others after he joined the University. He assigned his patent rights to the University, which obtained a patent for it in 1982. The University released the patent to Chen in 1995. Chen apparently did not have any serious difficulties at the University until after Dr. Albert Siegel became the department’s chairperson in 1972. Dr. John Taylor, who joined the department’s faculty in the same year as Chen, testified that Chen apparently did not like Siegel. Taylor said that Siegel treated Chen as though he were a “pseudo molecular biologist” and believed that Chen’s courses were “out-of-date or just plain wrong.” Indeed, Taylor stated that Siegel and some other faculty members had their graduate students leave Chen’s courses. In a memo written some years after Siegel’s chairmanship, Taylor stated that Siegel tried to “change [Chen], then isolated him and then gave up.” Siegel testified that the problems he had with Chen were related to Chen’s ability to get things done on his own. Siegel explained that other professors who had inadequate space worked hard at improving their space, “got their research programs well funded and started right in working and attracting graduate students and did the best they could under the circumstances.” Siegel stated that the problem with Chen was that he “was not of that nature. He didn’t try to help himself.” Chen testified at his deposition that Taylor was apparently jealous of Chen’s achievements and status and alleged that Taylor used his position to impede Chen’s efforts at the University. Specifically, Chen noted that Taylor was apparently bothered by the fact that the University hired Chen as an associate professor whereas the University hired Taylor as an assistant professor. Although Chen started as an associate professor, Taylor eventually surpassed Chen and became a full professor. In addition, in 1974, Taylor replaced Siegel as the department’s chairperson. Taylor testified that he was not jealous of Chen and that he and Chen were originally friends. He stated that they spent a significant amount of time together when they first joined the University. Taylor also stated that he supported Chen by acting as an intermediary in the acquisition of devices for Chen’s lab. Taylor testified that, after he became the department’s chairperson, he met with Chen and recognized that Chen had inadequate lab space. Taylor stated that he tried to help Chen by moving him to a better lab and also tried to obtain funds to modernize Chen’s lab. However, he was unable to help Chen because Chen’s “tastes were always better than what I could afford” and Chen would not compromise. Taylor stated that he eventually gave up trying to help Chen. Chen also testified that Taylor was biased against him because of his Chinese national origin, which was shown by the fact that Taylor referred to him as being “Chinese Mafia.” Taylor admitted that he had used the phrase “Chinese Mafia,” but said that he did not direct it at Chen. Taylor explained that Chen had asked him for assistance in a business matter involving his brother-in-law, who lived in Taiwan. Taylor stated that he referred Chen to a friend who was Chinese for help with the business matter. Taylor said that his friend called him and indicated that Taylor and Chen might want to avoid dealings with Chen’s brother-in-law. After that, Taylor stated that he would use the phrase “Chinese Mafia” in connection with discussions concerning Chen’s brother-in-law. Dr. David Adamany, who was the University’s president, testified that Taylor was a productive researcher and that he was appointed to chair the department in an effort to strengthen the department’s research program. Adamany stated that faculty members who were not active researchers resisted Taylor’s efforts. He stated that the relations between Taylor and those faculty members eventually deteriorated to the point that the department was no longer able to make progress on improving research. Dr. Robert Arking testified that he was a full professor in the department and that he had served on various committees. He stated that Taylor had favorites on the faculty and that Chen was not one of them. Arking said that the faculty committee eventually asked Taylor to step down as chairperson because of issues with hiring, the budget, and faculty relations. About 1980, Chen requested a promotion to full professor. Chen testified that Taylor handled the request and deliberately refused to submit Chen’s request to the faculty. Chen admitted that there was an advisory committee that considered his request, but stated that Taylor controlled this committee. Arking testified that it was possible to get promoted without the support of the chairperson, but that it would be more difficult. Taylor stated that the committee considered Chen’s promotion to full professor in 1980 and 1981 and decided not to recommend promotion to the faculty in both years. Taylor stated that he did not oppose Chen’s promotion. Chen testified that he also had a condition that caused an irregular heartbeat. According to Chen, starting in about 1980, the stress of his job triggered problems with his condition. Chen stated that this condition sometimes interrupted his work and that he even collapsed once during class and had to be rushed to the hospital. Chen testified that Taylor was aware of his condition. He ultimately had the condition surgically corrected in 1991. In 1987, Siegel again briefly served as the chairperson for the department. During that time, Siegel wrote a memo to Chen noting that Chen had made a conscious decision to stop researching and advising Chen that, for that reason, he would have to teach more classes. Siegel testified that after he assigned Chen more classes, there was a constant stream of complaints by undergraduate students concerning the students’ ability to understand Chen. On the basis of these complaints, Siegel recommended that Chen seek help at the University’s English Language Institute, but Chen refused. Siegel stated that Chen did not acknowledge a problem and blamed the students. Dr. Stanley Gangwere replaced Siegel as the department’s chairperson later in 1987. Gangwere testified that Taylor was a controversial chairperson and, for that reason, he tried to “separate” himself “from any association” with Taylor’s policies. Chen testified that Taylor appeared to have a good relationship with Gang-were. Chen further testified that, from the beginning, Gangwere refused to support him and Chen opined that this must have been the result of Taylor’s influence over Gangwere. Gangwere stated that Taylor did not advise him and that he had official and unofficial complaints about Chen by students concerning their ability to understand Chen’s English. In 1988, the University began a renovation and construction project. To accommodate the renovations, the department temporarily rearranged the lab and office assignments for the faculty. Gangwere asked Chen to vacate his current lab and office so that Taylor could occupy it along with some adjacent space that Chen had requested earlier. Gangwere temporarily assigned Chen space in the natural sciences building. Because the new lab space was smaller, Gangwere gave Chen, as he did every professor, the option of placing some of his property in storage for the duration of the renovation. Chen elected to have his Microwave Device placed into storage. Chen disliked the new lab and refused to use it. He indicated that the lab was too small and had large vent fans that made it unacceptable for use as a lab. Arking testified that Chen’s new lab was very small, but had adequate utilities and could be used for research. Gang-were testified that almost every professor lost space during the renovation period. Indeed, Dr. Dwight Freeman testified that he too was moved during the renovation and that he was moved into an old dealership from the 1920s that was “abysmal.” The University hired Dr. E Dennis Smith to replace Gangwere as the department’s chairperson in 1989. Chen stated that Smith did not show much interest in him and, from this, he concluded that the previous chairpersons — Taylor, Siegel, and Gangwere — must have influenced Smith to form a negative opinion about him. Chen testified that Smith brought in new professors without regard to their ability to teach specific courses because it was hoped that these teachers would bring in grant money. However, when these professors failed to obtain the expected grant money, Smith assigned some of Chen’s teaching responsibilities to these professors. Chen said that Smith criticized Chen’s accent and indicated that he had received student complaints. Chen stated that he thought Smith wanted to take his tenure away and get rid of him. Smith testified that he had numerous student complaints about Chen’s ability to communicate. As a result, Smith decided to sit in on one of Chen’s classes. Smith wrote a memo describing his review of the class. In the memo, Smith stated that Chen appeared to know the material well but the students appeared to have trouble following the lecture. Smith also noted frustration on the part of students who attempted to pose questions to Chen. Smith testified that he advised Chen to get help from the language institute and suggested using more visual aids in teaching the course. In 1991, the University finished its construction of its biological sciences building. Smith assigned Chen office and lab space, but Chen refused to use either room. Chen claimed that the office was contaminated from the use of radioactive isotopes in the rooms. However, Chen did not investigate whether the rooms were unusable and did not ask to have them decontaminated. Instead, Chen continued to use the office temporarily assigned to him during the renovations. Smith testified that the room at issue likely was not radioactive, but had only been used for some sort of radiometric counter. He also stated that, had Chen brought up the issue with him, he would have followed up on the problem. Smith said that he thought that Chen had just given up on research. Smith also testified that he was aware that Chen refused to move and had continued to use his old office. Chen later obtained permission from Linda Van Thiel to use another office in the same building that housed his current office. Van Thiel testified that Chen wanted the office for additional space. The office was part of a suite of offices in Room 309. She stated that the agreement was informal and that she never got permission or told anyone about the arrangement. She also testified that she informed Chen that if a particular funding request came through, the space would be renovated into a computer lab. She said that she informed Chen when the funding finally came through. In July 1994, Dr. Jack Lilien replaced Smith as the chairperson. Shortly after the change, Chen sent Lilien a letter notifying Lilien that he felt he was not in a position to do research and requesting help. Chen later had a meeting with Lilien. Chen testified that he told Lilien about his past unfair treatment by previous chairpersons and told him that he did not have an office or space for research. Chen said that he initially got along well with Lilien. Lilien testifie