Jackson v. Harvard University

Decision Date09 February 1990
Docket NumberNo. 89-1931,89-1931
Parties52 Fair Empl.Prac.Cas. 979, 53 Empl. Prac. Dec. P 39,822, 16 Fed.R.Serv.3d 1033, 59 Ed. Law Rep. 981 Barbara JACKSON, Plaintiff, Appellant, v. HARVARD UNIVERSITY, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Evan T. Lawson with whom Lawson & Weitzen, Boston, Mass., was on brief, for plaintiff, appellant.

Allan A. Ryan, Jr., with whom Daniel Steiner, Cambridge, Mass., George Marshall Moriarty, and Ropes and Gray, Boston, Mass., were on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, SELYA and CYR, Circuit Judges.

SELYA, Circuit Judge.

In 1983, Harvard University (Harvard or the University) declined to offer tenure at its Graduate School of Business Administration (the Business School) to plaintiff-appellant Barbara Jackson. Jackson sued under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e through 2000e-17 (1982), charging gender-based discrimination. She named as defendants both the University and the dean of the Business School, John McArthur. After a bench trial, the United States District Court for the District of Massachusetts ruled against her. Jackson v. Harvard Univ., 721 F.Supp. 1397 (D.Mass.1989). Having carefully considered plaintiff's arguments on appeal and digested the rather imposing record, we find no significant legal error and therefore affirm.

I. BACKGROUND

The evidence is exhaustively and accurately detailed in the opinion below, id. at 1399-1401, 1415-28, and it would be pleonastic to rehearse it here. We offer instead a synopsis designed to do no more than give needed context to the legal principles involved.

Tenure decisions at the Business School are subject to an exacting protocol. A subcommittee comprised of four faculty members measures the aspirant against the prescribed standards and presents an advisory report to the tenured faculty as a whole. The full faculty conducts its own review of the candidate. Two votes are taken by signed ballot, some weeks apart. While these tallies are not binding stricto senso, the dean will generally not recommend tenure to Harvard's president and governing boards unless a candidate commands substantial majority support within the faculty. As a practical matter, a decision by the dean not to recommend tenure is final.

Appellant began teaching at the Business School in 1973 with the rank of assistant professor. In 1977, she was promoted to associate professor. She was considered for tenure twice. At her 1981 review, she requested that certain faculty members be excluded from the first-level subcommittee. Such requests are not uncommon and are, for the most part, routinely allowed. In this instance, Jackson's wishes were honored with one exception: Professor Stephen Bradley was retained on the subcommittee despite Jackson's claim that Bradley was biased against women.

The subcommittee, including Bradley, performed its assigned functions. In general, the subcommittee's evaluation was favorable. Three of the members believed that Jackson merited tenure and that her main work, a book, met the required scholastic standards. Bradley disagreed with his colleagues' assessment of the book but voted to recommend tenure notwithstanding. At the first meeting of the tenured faculty, a substantial majority of those present favored appellant's promotion. In the final balloting, however, that majority evaporated and the faculty split rather evenly.

The Business School temporized: Jackson's appointment was extended for three years and her tenure review held in abeyance. Appellant acquiesced in this arrangement. When she was reconsidered for tenure in 1983, however, she received only a slim majority in the vote of the full faculty. Eventually, tenure was denied. This litigation followed in due season.

II. STANDARD OF REVIEW

The standard of review is crucial to the appellate task in this fact-intensive environment. "When a district court sits without a jury, the court of appeals cannot undertake to decide factual issues afresh." Reliance Steel Prod. Co. v. Nat'l Fire Ins. Co., 880 F.2d 575, 576 (1st Cir.1989). Rather, constrained by the Civil Rules, 1 we review factual findings only for clear error. Keyes v. Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir.1988); Irons v. FBI, 811 F.2d 681, 684 (1st Cir.1987); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 71 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). Fidelity to Rule 52(a) means that deference must be paid to the findings below: "It is not enough that [an appellate court] might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the district court apparently deemed innocent." United States v. Nat'l Assoc. of Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950); see also Keyes, 853 F.2d at 1020. Put bluntly, "[a]ppellate review of complex, fact-dominated issues cannot be allowed to descend to the level of Monday-morning quarterbacking." Anderson v. Beatrice Foods Co., 900 F.2d 388 at 392-393 (1st Cir. Mar. 26, 1990). At the bottom line, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

III. THE MERITS

Visualizing the record through the prism of Rule 52(a) clarifies the result we must reach. We do not pause to restate the recognized burden-shifting framework characteristic of Title VII cases involving circumstantial proof of discrimination, see, e.g., Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); Keyes, 853 F.2d at 1023, but assume the reader's familiarity with so commonplace a rule. The record leaves no doubt but that the first two steps in the Burdine pavane were accomplished: (1) appellant made out a prima facie case and (2) defendants articulated a reason (failure to demonstrate the required scholarship) which, if authentic, was nondiscriminatory and sufficient to ground the tenure denial. Plaintiff then ascended to the framework's next stage, endeavoring to show that defendants' professed reason was a pretext for discrimination.

Given this posture, the proper focus of appellate inquiry must be the district court's ultimate finding of discrimination vel non. See Dance v. Ripley, 776 F.2d 370, 373 (1st Cir.1985); Johnson, 731 F.2d at 70. And in that regard,

reviewing courts should [not] treat discrimination differently from other ultimate questions of fact. Nor should they make their inquiry even more difficult by applying legal rules which were devised to govern 'the basic allocation of burdens and order of proof' in deciding this ultimate question.

United States Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (quoting Burdine, 450 U.S. at 252, 101 S.Ct. at 1093).

Stripped of legalistic jargon, appellant's principal contentions rest squarely on this ultimate question. Her core claim reduces to the assertion that, had the facts been judged properly, she would have prevailed. In the Rule 52 milieu, this is a high hurdle to vault, especially since articulation of defendants' reasons dissipated the evidentiary force of the original presumption. See Burdine, 450 U.S. at 255, 101 S.Ct. at 1094; Keyes, 853 F.2d at 1023. The task of showing clear error is daunting--more so, perhaps, in a case like this, since courts must be mindful of the essentially subjective nature of tenure decisions and, therefore, "must take special care to preserve the University's autonomy in making lawful tenure decisions." Brown v. Trustees of Boston Univ., 891 F.2d 337, 346 (1st Cir.1989).

Appellant attempts to avoid the looming problem by claiming that the Burdine framework was inapplicable and that the burden of proof should have been allocated more favorably to her. But upon close perscrutation, this contention seems no more than an unfounded effort "to wriggle out from beneath Rule 52(a) by claiming that the district court mistook the law." Reliance Steel, 880 F.2d at 577.

If a plaintiff can provide direct evidence that gender bias infected the decisionmaking process, the Burdine framework becomes irrelevant and the burden shifts to defendant to prove that the same decision would have ensued in the absence of the alleged discrimination. See Price Waterhouse v. Hopkins, --- U.S. ----, 109 S.Ct. 1775, 1787-88, 104 L.Ed.2d 268 (1989) (plurality op.); Fields v. Clark Univ., 817 F.2d 931, 935-37 (1st Cir.1987). Jackson says her case qualifies under this rubric by reason of two key evidentiary items: (1) McArthur told her that "if [the government or the public] wanted women on the [Business School] faculty in larger numbers, they would have to impose quotas because otherwise Harvard would go through the affirmative action procedures but would not actually promote women;" and (2) she was treated differently from male applicants in that Bradley was allowed to serve as a member of the 1981 subcommittee over Jackson's objection.

Plaintiff's glass is half full. The district court, to be sure, found it "likely" that McArthur "made some version of the [attributed] statement." 721 F.Supp. at 1433. The court also found that Jackson had suffered disparate treatment in respect to Bradley's inclusion on the screening panel. Id. at 1434. Nonetheless, the glass is also half empty: calling the evidence "direct" does not make it so, but merely camouflages the terrain. Seen in context, appellant has done no more than dress two factual disputes in rather ill-fitting "legal" costumery. She does not profit by such a masquerade. See Reliance Steel, 880 F.2d at 577. What appellant's...

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