Blasdel v. Nw. Univ., 11–2075.

Citation115 Fair Empl.Prac.Cas. (BNA) 837,687 F.3d 813
Decision Date20 August 2012
Docket NumberNo. 11–2075.,11–2075.
PartiesIsabelle BLASDEL, Plaintiff–Appellant, v. NORTHWESTERN UNIVERSITY, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

OPINION TEXT STARTS HERE

M. Megan O'Malley (argued), Attorney, O'Malley & Madden, P.C., Chicago, IL, for PlaintiffAppellant.

Anneliese Wermuth (argued), Attorney, Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL, for DefendantAppellee.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

This is a Title VII suit for employment discrimination on grounds of the employee's sex. After dismissing as untimely the first count of a two-count complaint, the district judge granted summary judgment in favor of the defendant on the second count and so dismissed the entire suit, precipitating this appeal.

The first count had alleged a series of discriminatory acts beginning when the plaintiff was hired in 2003 by Northwestern University, the defendant, and ending with the termination of her employment in 2008. The second count was confined to her denial of tenure in 2007 and the ensuing termination, which the parties treat as the inevitable consequence of the denial of tenure. The judge dismissed the first count on the ground that liability for all but the acts charged in the second count was time-barred. 2009 WL 5166218 (N.D.Ill. Dec. 23, 2009). For only the denial of tenure occurred within the 300–day window for filing a charge of discrimination, 42 U.S.C. § 2000e–5(e), though if she proved that the denial of tenure was unlawful this would void the termination as well, assuming as we do that it was the automatic consequence of the denial of tenure. We think the judge's dismissal of the first count was correct for the reasons he gave, and do not think it necessary to add our two cents' worth to his analysis. All we'll decide is whether the plaintiff is entitled to a trial on her claim that she was denied tenure because she is a woman.

University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), in rejecting a claim that materials submitted for consideration in a tenure determination should be subject to a privilege grounded either in federal common law or in the free-speech clause of the First Amendment, held Title VII fully applicable to such determinations. The Court explained that the elimination in 1972 of an exemption in the original Act for employment decisions by educational institutions had “expose[d] tenure determinations to the same enforcement procedures applicable to other employment decisions.” Id. at 190, 110 S.Ct. 577.

But although the legal standard is the same whether the plaintiff in an employment discrimination case is a salesman or a scientist, practical considerations make a challenge to the denial of tenure at the college or university level an uphill fight—notably the absence of fixed, objective criteria for tenure at that level. Vanasco v. National–Louis University, 137 F.3d 962, 968 (7th Cir.1998) (“such decisions necessarily rely on subjective judgments about academic potential”); Namenwirth v. Board of Regents of University of Wisconsin System, 769 F.2d 1235, 1243 (7th Cir.1985) ( “tenure decisions have always relied primarily on judgments about academic potential, and there is no algorithm for producing those judgments”); Fisher v. Vassar College, 70 F.3d 1420, 1435 (2d Cir.1995) (“it is difficult to conceive of tenure standards that would be objective and quantifiable”), abrogated on other grounds, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147–48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Zahorik v. Cornell University, 729 F.2d 85, 92–93 (2d Cir.1984) (“the particular needs of the department for specialties, the number of tenure positions available, and the desired mix of well known scholars and up-and-coming faculty all must be taken into account.... [T]enure decisions are a source of unusually great disagreement.... [T]he stakes are high, the number of relevant variables is great and there is no common unit of measure by which to judge scholarship”).

And we must not ignore the interest of colleges and universities in institutional autonomy. Grutter v. Bollinger, 539 U.S. 306, 328–30, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Regents of University of Michigan v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985); Hosty v. Carter, 412 F.3d 731, 736 (7th Cir.2005) (en banc) (“academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, including the courts); Piarowski v. Illinois Community College District 515, 759 F.2d 625, 629–30 (7th Cir.1985); Urofsky v. Gilmore, 216 F.3d 401, 412–15 (4th Cir.2000) (en banc). Although the Supreme Court in University of Pennsylvania v. EEOC, supra, 493 U.S. at 195–201, 110 S.Ct. 577, was emphatic that academic freedom does not justify immunizing materials submitted in the tenure process from the EEOC's subpoena power, courts tread cautiously when asked to intervene in the tenure determination itself. They must be mindful that, as Judge Friendly said in Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir.1980), “to infer discrimination from a comparison among candidates is to risk a serious infringement of first amendment values. A university's prerogative ‘to determine for itself on academic grounds who may teach’ is an important part of our long tradition of academic freedom. Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., joined by Harlan, J., concurring in the result) (citations omitted).”

A disappointed candidate for tenure at a college or university may well be the best possible candidate along one dimension but not others. If A publishes an excellent academic paper every five years on average, is she better or worse than B, who publishes a good but not excellent paper on average every six months, so that at the end of five years he has published 10 papers and she only 1? Quantity and quality are (within limits) substitutes. A company that made the finest automobile in the world, but made only one a year, would not be the world's best automobile manufacturer. Or suppose Professor C used to publish a paper every six months, but she has slowed down, while D, who is younger, has not. That is an ominous sign from the standpoint of granting C tenure, because a tenured professor is very hard to fire even if he or she has ceased to be a productive scholar. With mandatory retirement now unlawful, the grant of tenure is often literally a lifetime commitment by the employing institution, barring dementia or serious misconduct.

In some academic fields, moreover—including as it happens physiology—research requires costly laboratories financed by grants from the federal government or from foundations. Proficiency in obtaining grants is a highly valued capability in such fields; and scholars differ in their ability to obtain grants. Then too, office politics frequently plays a role in the award or denial of tenure; friendships and enmities, envy and rivalry—the stuff of such academic novels as Publish and Perish: Three Tales of Tenure and Terror, by James Hynes, or Randall Jarrell's Pictures from an Institution—can figure in tenure recommendations by the candidate's colleagues, along with disagreements on what are the most promising areas of research. In addition, many academics are hypersensitive to criticism, especially by younger academics, whom they suspect, often rightly, of wanting to supplant them. Although office politics and professional jealousy are bad reasons for denying tenure, an erroneous denial of tenure, as such, does not violate Title VII. Namenwirth v. Board of Regents of University of Wisconsin System, supra, 769 F.2d at 1242;Lieberman v. Gant, supra, 630 F.2d at 67–68; cf. Anderson v. University of Wisconsin, 841 F.2d 737, 741–42 (7th Cir.1988).

The decisionmaking process in an academic hierarchy creates further complication. Granting tenure, like appointing a federal judge, is a big commitment. The final decision may be made by a committee, or an official such as a university provost or president, remote from the chairman and the other members of a candidate's department. Even if invidious considerations play a role in the department's recommendation for or against tenure, they may play no role in the actual tenure decision, made at a higher level. In the present case the tenure decision was made by Northwestern's provost, and there is no evidence that he was influenced by the fact that Blasdel is a woman. So she can prevail only by showing that the provost's decision was decisively influenced by someone who was prejudiced. Sun v. Board of Trustees of University of Illinois, 473 F.3d 799, 812–13 (7th Cir.2007); Qamhiyah v. Iowa State University of Science & Technology, 566 F.3d 733, 745–46 (8th Cir.2009); cf. Schandelmeier–Bartels v. Chicago Park District, 634 F.3d 372, 378–79, 383–84 (7th Cir.2011); Adelman–Reyes v. Saint Xavier University, 500 F.3d 662, 667 (7th Cir.2007).

And finally, because so many factors influence the tenure process and because statistical inferences of discrimination are difficult to draw when there is only a small number of observations (tenure appointments in a particular department may be few and far between), it can be difficult to infer the presence of an invidious influence such as the sex of the candidate merely by comparing successful and unsuccessful tenure applicants.

Isabelle Blasdel was hired by Northwestern's medical school to be an assistant professor in the physiology department beginning in 2003. She is an electrophysiologist—that is, she studies the electrical activity of the brain. She was 42 years old when hired by Northwestern and before that had worked for eight years as a...

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