721 F.Supp. 1397 (D.Mass. 1989), Civ. A. 84-4101, Jackson v. Harvard University

Docket Nº:Civ. A. 84-4101
Citation:721 F.Supp. 1397
Party Name:Jackson v. Harvard University
Case Date:August 14, 1989
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 1397

721 F.Supp. 1397 (D.Mass. 1989)

Barbara JACKSON, Plaintiff,


HARVARD UNIVERSITY and John H. McArthur, Defendants.

Civ. A. No. 84-4101-WD.

United States District Court, D. Massachusetts.

Aug. 14, 1989

Page 1398

Evan T. Lawson, Lawson & Wayne, Boston, Mass., for plaintiff.

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Allan A. Ryan, Jr., Office of the Gen. Counsel, Cambridge, Marc Goodheart, Hill & Barlow, Boston, Mass., for defendants.


WOODLOCK, District Judge.

Barbara Jackson brings this sex discrimination case pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against Harvard University and John H. McArthur, Dean of the University's Graduate School of Business Administration (the "Business School"). Ms. Jackson was denied tenure in the Marketing Area at the Business School in 1983. She alleges that the process by which she was denied tenure was tainted with sexual discrimination.

The case was tried without a jury over an eight-day period, and the evidence was thereafter reopened to receive documents belatedly produced by defendants. For the reasons presented below, I find the evidence fails to establish discrimination against Ms. Jackson on account of her gender. Accordingly, judgment will enter for the defendants.

This memorandum sets forth the findings of fact and conclusions of law required for resolution of this nonjury matter. See Fed.R.Civ.P. 52(a).

Before turning to a detailed presentation of the findings and conclusions, however, it will be useful to provide as an overview a concise statement of my determinations in this case.



This case concerns a faculty tenure decision upon which reasonable people could and did disagree. The plaintiff Jackson, although a talented academic, failed on two occasions to convince a critical mass of the tenured faculty at the Business School that she should herself be admitted to tenured status. Lacking that critical mass of support, Ms. Jackson's candidacy did not receive the necessary support of the defendant Dean McArthur.

The evidence presented satisfies me that the judgment not to recommend Ms. Jackson for tenure was not infected by considerations of gender in any way. It was instead a determination on the merits as to which a large number of people of good will differed without reference to improper considerations. There was no direct evidence of discrimination presented; indeed, none of Ms. Jackson's supporters for tenure--numbering slightly over half the tenured faculty who participated at the critical meetings--came forward to testify that gender considerations played any role in the rejection of their position. Nor does any of the circumstantial evidence adduced by Ms. Jackson provide an alternative basis for finding a discriminatory cause in the denial of tenure.

Given the state of the evidence, the resolution of this case should have been relatively prompt and the determination clear in favor of the defendants. However, given the lack of assistance from the parties in producing relevant evidence, the judicial decision-making process was rendered time consuming and laborious. But at the conclusion of that process the proper outcome continues to be clear. Nothing in the lengthy evaluation given the record in this case has disclosed any reason to believe that Ms. Jackson's gender played a part in the decision of the defendant Harvard, acting through its agent Dean McArthur, to deny her tenure at the Business School.

The tenure process at the Business School makes Dean McArthur the pivotal figure. His decision to recommend or not to recommend an individual for tenure to the President and governing bodies of Harvard is effectively dispositive. But the Dean's decision itself turns upon whether a substantial majority of the tenured faculty favor tenure for the individual under consideration. In the case of Ms. Jackson, there was no substantial majority for tenure; rather, the faculty was about evenly split on the question when it was presented to them for a final vote, first in 1981, and again in 1983.

The tenure process for Ms. Jackson followed the traditional pathway in 1981. A

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Subcommittee, formed to review her work, generated a detailed report and made its own recommendation. By a 3-1 vote the Subcommittee found Ms. Jackson met the standards for tenure. The one dissenter took the position that while she did not meet the standards she should nevertheless be granted tenure as an exceptional case.

The tenure question was then taken up by the tenured faculty as a whole. Following customary practice, a preliminary vote was taken after a preliminary discussion of Ms. Jackson's qualifications, and she received a substantial majority in support of tenure. However, when the final vote was taken less than a month later, Ms. Jackson's substantial majority had evaporated and only a slight majority continued to support her tenure candidacy. Although obviously relevant, this rapid evaporation of support was not the topic of any evidence adduced by the parties at trial.

Faced with only this slight majority of support for Ms. Jackson after the 1981 tenure votes, Dean McArthur chose a somewhat unusual approach. Rather than employing the customary one-year termination appointment ordinarily extended tenure candidates who fail to obtain substantial faculty support, the Dean organized a series of meetings designed to fashion a strategy to meet the perceived deficiency in the record Ms. Jackson presented: her lack of sufficient creativity. During the spring of 1982 interested members of the faculty met with her to define a project which would satisfy those who had opposed her tenure candidacy.

Such a project was developed that spring. And despite reservations about the definition given it, Ms. Jackson--who was relieved of any classroom responsibilities to allow her to devote full time to the project--began her work. Dean McArthur made clear that the project did not need to be completed before the end of February 1984. He further indicated that the final deadline could be extended to the late summer or fall of 1984. Nevertheless, Ms. Jackson decided to complete the project as quickly as possible. She submitted a draft to certain tenured professors in her Area over the summer of 1983. In memoranda delivered in early August, two of the reviewers criticized this draft severely because of its superficiality. Heedless of these harbingers that her performance on the project was not meeting with support from interested representatives of the group whose substantial support she would need to achieve tenure, Ms. Jackson submitted her final version at the end of August 1983, within a month after receiving the severely negative comments and well before any deadline for submission.

Predictably, Ms. Jackson's rush to judgment in the face of adverse comments did not improve her tenure chances. The 1983 Subcommittee recommended unanimously against tenure for Ms. Jackson and the full tenured faculty voted in favor of tenure for her by only a modest majority, well short of the substantial majority Dean McArthur considered necessary before he would recommend tenure. At this point, Dean McArthur offered the termination appointment; Ms. Jackson left the Business School and this litigation ensued.

On their face, nothing in these proceedings fairly suggests Ms. Jackson was discriminated against on the basis of her sex in the Business School's tenure decision. I have found nothing in the direct evidence concerning that process to support such a claim. Ms. Jackson, however, has also raised a collection of circumstantial matters which she maintains support her contention. Broadly stated, these circumstantial matters relate to the environment at the Business School, purported irregularities in its procedures as applied to Ms. Jackson's candidacy, and alleged disparate treatment of male tenure candidates. I have analyzed these matters in great detail and find nothing beneath the surface which supports Ms. Jackson's position. The circumstantial matters reduce to a collection of attenuated, dated, and immaterial incidents and stray remarks, de minimis procedural anomalies, and inapposite comparisons with other tenure candidates.

Viewing the appropriate judgment as extraordinarily clear, I was prepared to decide this case from the bench adversely to

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the plaintiff with an ore tenus decision dictated into the record. During the course of trial it also became clear, however, that the defendants, in addition to a very strong case, were benefitting improperly from their own discovery misconduct and the operation of certain misconceived pre-trial discovery rulings. Prior to trial the defendants destroyed documents they were under a court order to produce. They also availed themselves of a spurious privilege not to disclose the particulars of tenure discussions and evaluations. When it developed that the defendants had in addition not responded fully to pre-trial document demands, I offered the plaintiff sua sponte the opportunity to conduct further discovery to counteract these evidentiary limitations. She rejected this opportunity to adduce additional relevant evidence and pressed only for sanctions which would relieve her of the burden of proving her case by the introduction of evidence. The imposition of such sanctions, however, was unacceptable to me as a means of resolving factual disputes.

In deciding this case I found an absence of evidence which the parties should have adduced but for various reasons neither proposed to offer nor ultimately even sought to discover. Concerned that the defendants not benefit unfairly by their own misconduct and what I came to conclude were erroneous pre-trial privilege determinations, I found it...

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