900 F.2d 464 (1st Cir. 1990), 89-1931, Jackson v. Harvard University

Docket Nº:89-1931.
Citation:900 F.2d 464
Party Name:, 16 Fed.R.Serv.3d 1033, Barbara JACKSON, Plaintiff, Appellant, v. HARVARD UNIVERSITY, et al., Defendants, Appellees.
Case Date:April 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 464

900 F.2d 464 (1st Cir. 1990)

, 16 Fed.R.Serv.3d 1033,

Barbara JACKSON, Plaintiff, Appellant,


HARVARD UNIVERSITY, et al., Defendants, Appellees.

No. 89-1931.

United States Court of Appeals, First Circuit

April 9, 1990

Heard Feb. 9, 1990.

Page 465

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.


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

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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.


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).


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...

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