224 F.3d 33 (2nd Cir. 2000), 99-7979, Weinstock v Columbia Univ.

Docket Nº:Docket No. 99-7979
Citation:224 F.3d 33
Party Name:SHELLEY WEINSTOCK, Plaintiff-Appellant, v. COLUMBIA UNIVERSITY, Defendant-Appellee.
Case Date:August 23, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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224 F.3d 33 (2nd Cir. 2000)

SHELLEY WEINSTOCK, Plaintiff-Appellant,

v.

COLUMBIA UNIVERSITY, Defendant-Appellee.

Docket No. 99-7979

United States Court of Appeals, Second Circuit

August 23, 2000

Argued: March 9, 2000

Plaintiff, who was denied tenure, appeals from an order of the United States District Court for the Southern District of New York (Keenan, J.), granting defendant's motion for summary judgment.

AFFIRMED.

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ANNE C. VLADECK, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY (Anne L. Clark, Kevin T. Mintzer, of counsel), for Plaintiff-Appellant.

Mark L. Goldstein, Goldstein & Morris, LLP, New York, NY (Andrea H. Stempel, of counsel), for Defendant-Appellee.

Beth H. Parker, Equal Rights Advocates, San Francisco, CA, for amici curiae American Association of University Women, Association for Women in Science and New York Chapter of the National Employment Lawyers Association.

Before: CARDAMONE, McLAUGHLIN, AND PARKER, Circuit Judges.

CARDAMONE, Circuit Judge, dissents in a separate opinion.

McLAUGHLIN, Circuit Judge:

BACKGROUND

This case arises from Columbia University's denial of tenure to Shelley Weinstock. Weinstock contends that the decision to deny her tenure was the result of

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discrimination on the basis of her gender. Because this is an appeal from a grant of summary judgment to the defendant, we recite the facts in the light most favorable to the plaintiff, the nonmoving party. See Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996).

Weinstock was employed by Barnard College, an undergraduate college and affiliate of Columbia, as an Assistant Professor in its Chemistry Department from July 1985 to June 1994. Weinstock became eligible for tenure during the Spring semester of the 1992 1993 academic year. Pursuant to an affiliation agreement between Columbia and Barnard, the Byzantine tenure process for Barnard faculty proceeds through the following votes.

First, (1) the faculty member's academic department at Barnard; (2) the Barnard Committee on Appointments, Tenure and Promotions; and (3) the counterpart department at Columbia, all must vote in favor of tenure. Then, Barnard's President decides whether to recommend that the process move forward. If the President of Barnard votes favorably, she forwards the nomination to the Provost of Columbia. The Provost then convenes a five-person University ad hoc committee to review the nomination. Under the terms of the affiliation agreement, the ad hoc committee consists of two faculty members designated by the Provost, two Barnard faculty members, and one faculty member from an outside institution. The tenure appointment will be made if: (1) the review of the ad hoc committee is favorable; (2) the Provost accepts that review; (3) the President of Columbia follows the advice of the Provost; and, finally, (4) the Trustees of Barnard and Columbia grant tenure.

Weinstock received the support of: (1) the Barnard Chemistry Department; (2) the Barnard Committee on Appointments, Tenure and Promotions; and (3) the Columbia Chemistry Department. The President of Barnard, Ellen Futter, who initially had reservations about Weinstock's scholarship, then recommended that Weinstock's nomination be moved forward.

As required by the affiliation agreement between Barnard and Columbia, the Provost of Columbia, Jonathan Cole, convened an ad hoc committee. He appointed Professor Alan Tall, the Chair of Columbia's Department of Medicine, as the committee's Chair. He also appointed Professor Samuel Silverstein of Columbia's Department of Physiology and Cellular Biophysics, Professor Zanvil Cohn of Rockefeller University, Professor Lila Braine of Barnard's Department of Psychology and Professor Paul Hertz of Barnard's Department of Biological Sciences, as the committee's other members.

Protocol permits the Chair of an ad hoc committee to contact committee members before their meeting to determine whether they need more information to complete the candidate's file. Tall telephoned the committee members to discuss Weinstock's file, and to determine if any committee member wanted additional information. According to committee members Braine and Hertz, Tall also told each of them on the phone that he thought there were problems with Weinstock's candidacy. Both Braine and Hertz (from the Barnard faculty) reported these remarks, which they considered as going beyond a mere inquiry about lack of information, to Barnard's Dean, Robert McCaughey.

The ad hoc committee met on April 12, 1993. Present were all the committee members, Provost Cole and Dean McCaughey. At the outset of the meeting, Dean McCaughey questioned the extent of Tall's telephone calls to Professors Braine and Hertz. Provost Cole inquired whether any of the committee members' opinions of Weinstock had been tainted by their conversations with Tall. None of the members complained that they had been influenced. Provost Cole also reminded the ad hoc committee that the standards for tenure at Columbia were high, because Columbia is an internationally renowned research university. Professor Sally Chapman, the

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Chair of Barnard's Chemistry Department, then presented Weinstock's case for tenure.

During the meeting, committee members Tall and Silverstein referred to Weinstock, whom they had never met, by her first name, "Shelley," and allegedly commented that she seemed "nice." Weinstock also alleges that she heard from Chapman and Hertz that Tall and Silverstein observed that she (Weinstock) seemed "nurturing." However, neither Hertz, Silverstein nor Tall remembers hearing the word "nurturing."

Tall and Silverstein deemed Weinstock's publications and research papers insufficient to merit tenure. In their depositions, they testified that her research lacked originality and that the journals in which she published were not first-tier scientific journals. Tall and Silverstein were also unimpressed with Weinstock's letters of recommendation. Silverstein noted that the letters were lukewarm by comparison to letters he had examined in other tenure reviews.

The committee eventually voted 3-2 to grant Weinstock tenure. Braine, Hertz, and Cohn voted for tenure; Tall and Silverstein voted against it. A 3-2 favorable vote is considered "underwhelming [in terms of] support," according to Columbia's current President, George Rupp. From 1989 to the present, at least six tenure candidates (five male, one female) were denied tenure after a 3-2 ad hoc committee vote in favor of granting tenure.

The decision to accept or reject the committee's vote moved to Provost Cole's desk. Before Provost Cole made his decision though, he contacted Ronald Breslow, a member of the Columbia Chemistry Department, for his insights. Breslow stated bluntly that, measured by intellectual strength and scientific ability, Weinstock was not in the same league as other tenured members of the Barnard Chemistry Department.

Provost Cole also discussed Weinstock's candidacy with the Chair of the Columbia Chemistry Department, Richard Bersohn. From these inquiries, as well as from a previous inquiry of Bersohn by Associate Provost Stephen Rittenberg, Cole learned that: (1) the general sentiment of the Columbia Chemistry Department was that Weinstock's work was unimaginative and that her publication record was weak; (2) the Columbia Department did not deem her worthy of tenure; but (3) the Columbia Department had voted to recommend her for tenure as a courtesy to their counterpart department at Barnard.

Provost Cole eventually recommended against tenure for Weinstock because he felt that her scholarship was not up to snuff.

The President of Columbia, Michael Sovern, who followed provostal recommendations on tenure as a matter of course, accepted Cole's recommendation and denied Weinstock tenure.

Weinstock learned in May 1993 that she had been denied tenure. Dean McCaughey from Barnard immediately objected to alleged procedural flaws in the tenure process, and requested that Provost Cole either reverse his decision and follow the ad hoc committee's recommendation to grant tenure, or reconvene the ad hoc committee to consider the additional inputs that Provost Cole had gathered from Professors Breslow and Bersohn. Dean McCaughey apparently was disturbed that the committee did not have the benefit of the information - damning as it was - that Provost Cole had collected from Breslow and Bersohn. Provost Cole though, refused to change his recommendation or to reconvene the committee.

Under the rules of the tenure process for Barnard candidates, if the Provost does not accept the vote of the ad hoc committee, he must say why. Provost Cole did this only after Professor Braine wrote two letters requesting such a clarification. In his explanation, Provost Cole stated that: (1) a favorable vote of 3-2 was not a strong

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endorsement; (2) the two Columbia members of the committee, Tall and Silverstein, felt that Weinstock's research was limited and below the quality expected of a candidate for tenure; (3) candidates from Columbia and Barnard were to be judged for tenure by the same standards; (4) Cohn, the outside member of the ad hoc committee (Rockefeller University), had stated that Weinstock would not receive tenure at a research university such as Columbia even though he conceded that her research was adequate for an institution such as Barnard; and (5) he had collected evaluations from Breslow and Bersohn confirming his assessment that Weinstock did not merit tenure.

Citing procedural irregularities in Weinstock's tenure process, Barnard President...

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