Bennun v. Rutgers State University
| Decision Date | 21 August 1991 |
| Docket Number | No. 90-5638,No. 84-4655,No. 86-621,No. 85-3491,84-4655,85-3491,86-621,90-5638 |
| Citation | 941 F.2d 154 |
| Parties | 56 Fair Empl.Prac.Cas. (BNA) 1066, 56 Fair Empl.Prac.Cas. (BNA) 746, 56 Empl. Prac. Dec. P 40,906, 60 USLW 2096, 69 Ed. Law Rep. 214 Doctor Alfred BENNUN v. RUTGERS STATE UNIVERSITY; Board of Governors of Rutgers State University; and Doctor Edward J. Bloustein, President (Civil Rights). Dr. Alfred BENNUN v. RUTGERS STATE UNIVERSITY; Board of Governors of Rutgers State University; and Dr. Edward J. Bloustein, President, Rutgers State University (Civil Rights). Dr. Alfred BENNUN v. RUTGERS STATE UNIVERSITY (Civil Rights). Rutgers, the State University; Board of Governors of Rutgers, the State University; and Dr. Edward J. Bloustein, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Irving L. Hurwitz (argued), James P. Lidon, Carpenter, Bennett & Morrissey, Newark, N.J., for appellants.
Michael H. Sussman (argued), Goshen, N.Y., for appellee.
Donald R. Livingston, Acting Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Lorraine C. Davis, Asst. Gen. Counsel, Estelle D. Franklin, Barbara L. Sloan (argued), E.E.O.C., Washington, D.C., for amicus curiae E.E.O.C.
Present BECKER and HUTCHINSON, Circuit Judges, and SMITH, District Judge *.
Rutgers, The State University of New Jersey (Rutgers) appeals from a judgment of the United States District Court for the District of New Jersey granting appellee, Dr. Alfred Bennun (Bennun) promotion to Full Professor with full back pay retroactive to the end of the University's 1980-1981 promotion review period. The back pay amounted to the difference between Bennun's earnings as a tenured associate professor and what he should have been paid as a full professor, a position the district court held Rutgers had wrongly denied him. The judgment was fashioned to give Bennun full relief from Rutgers' violations of his right to be free of unlawful discrimination under 42 U.S.C.A. § 1981 (West 1981) and his right to equal opportunity in employment under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1981). We will affirm in part. In doing so we hold that Rutgers' treatment of Bennun in the promotion review process did not violate § 1981 and will thus reverse that portion of the district court's judgment; but, as we agree with that part of the district court's order imposing liability because Rutgers' actions violated Title VII, we will affirm that part of its decision. Moreover, because all of the relief the district court granted Bennun was available to cure the Title VII violation, our partial reversal of the district court on Bennun's § 1981 claim for unlawful discrimination does not affect the remedy that the district court provided. Accordingly, we will affirm its remedial order.
Bennun filed a charge of discrimination with the Equal Employment Opportunity Commission (the Commission) in 1981. He charged that Rutgers' denial of his bid for full professorship during the 1980-81 review period was not only discriminatory, but also in retaliation for his earlier filing of discrimination charges against Rutgers when it denied him promotion to associate professor with academic tenure. The Commission's investigation of Bennun's instant charge lasted over three years and resulted in a Commission determination that there was reasonable cause to believe that Rutgers violated Title VII when it failed to grant Bennun the rank of full professor. The EEOC's right to sue letter authorized Bennun to sue in his own right, but the Commission itself decided not to sue Rutgers.
In the meantime Bennun had also filed a grievance against Rutgers' refusal to afford him the rank of full professor, as permitted by the collective bargaining agreement between Rutgers and the American Association of University Professors. In 1982 a university review panel found the 1981 decision denying Bennun tenure was arbitrary and capricious. The review panel recommended that an outside arbitrator hear the matter. Rutgers did not implement this recommendation.
Rutgers' failure to implement the review panel's recommendation led Bennun to file suit in the Superior Court of New Jersey, Chancery Division, in 1984. In that suit Bennun sought to compel Rutgers to appoint an outside neutral party to hear and decide his grievance. The Chancery Division did not grant Bennun the relief he requested, but instead remanded the matter to the university with a direction that Rutgers undertake a further evaluation of Bennun's claim. Rutgers reevaluated Bennun in March of 1985 and persisted in denying him the status of a full professor.
In November of 1984, without awaiting the results of the reevaluation the state court had ordered, Bennun started this action in the United States District Court for the District of New Jersey pursuant to the Commission's right to sue letter. In it he alleged Rutgers violated Title VII, 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a) and 42 U.S.C.A. § 1981 when it denied him the rank of full professor in 1980-81. In August 1985 Bennun filed a second federal action with allegations similar to those in his 1984 federal complaint. The 1985 federal action arose out of Rutgers' 1982-83 refusal to grant him a full professorship. An identical refusal in the 1984-85 review period led Bennun to initiate still a third federal action in February of 1986. This 1984-85 refusal was occasioned by the reevaluation ordered by the Superior Court of New Jersey's Chancery Division. Bennun's second and third federal actions were, like his first, preceded by a Commission-issued right to sue letter.
All three federal actions were consolidated by the district court. Rutgers moved for partial summary judgment claiming, among other things, that Bennun had no standing to maintain his § 1981 claims because he was not Hispanic and that Bennun's 1984 state-court action precluded his claims based on the 1980-81 and 1982 promotion denials because of New Jersey's entire controversy doctrine. The district court denied Rutgers' motion on these points, although it did grant other relief on points not material to this appeal.
After a bench trial, the district court held that Bennun's denial of promotion to full professor was actionable under § 1981. See Bennun v. Rutgers, The State University, 737 F.Supp. 1393, 1397-98 (D.N.J.1990). It then denied Bennun's retaliation claim under § 1981 and Title VII, but found that Bennun had proven his disparate treatment claims under both statutes. Id. at 1400-01, 1408-09. In its disparate treatment analysis, the district court compared Bennun's review packets with those of Dr. Ethyl Somberg, a professor in the same department as Bennun. Somberg had been promoted from Associate Professor to Full Professor in 1979. Id. at 1404-1409. Relying in part on its comparison of Somberg's academic credentials with Bennun's, the district court held that Bennun had made out a prima facie case of disparate 1. A different standard was applied to Bennun in terms of number of publications. (Bennun with more publications was [found] moderately active while Somberg[, with less,] was [found] excellent in quantity.)
treatment and that Rutgers' proffered nondiscriminatory reason, failure to meet the university's high standards for full professorship in the judgment of his peers, was a pretext for discriminatory denial of the promotion Bennun requested. In support of its decision the district court, comparing Bennun's promotion treatment with that of other tenured associate professors, in particular, with that of Somberg, found the following facts
2. A different standard was applied to Bennun concerning what level of achievement was necessary to be promoted. (Bennun was required to become an international leader while other promoted candidates, whose letters indicated they were not international leaders, were promoted.)
3. A different standard was applied concerning grant support. (For Bennun this was a negative factor, for Somberg it was not relevant.)
4. A different standard was applied concerning the level of specificity required by peer reviewers. (Bennun's [letters] were not specific while other candidates had none.)
5. A different standard was applied concerning the age of the peer review letters.
6. A different standard was applied concerning the number of peer review letters. (The University inferred a lack of interest in Bennun but not in others who did not have the continued support evidenced in Bennun's packet.)
7. The [Appointments & Promotions] committee sua sponte concluded, without any evidence, that a damning letter was being withheld from Bennun's packet. No such inference was drawn with reference to other candidates with similar or less substantial peer review packets.
8. Somberg's research was considered in light of her teaching. Bennun who taught a similar load was not so evaluated.
9. The University's explanation that Bennun's research was inadequate is not worthy of credence in light of a comparative analysis with other promoted candidates whose research qualifications were judged excellent.
Id. at 1409. The court ordered that Bennun be granted the rank of full professor retroactive to July, 1981, with full back pay and benefits. Id. This timely appeal by Rutgers followed.
Promotion and tenure decisions at Rutgers are made on the basis of five criteria as set out in University Regulation 3.30. These five criteria are: teaching effectiveness; scholarly/creative activity; research accomplishments; professional activity/public service; and general usefulness. In Regulation 3.30 Rutgers also sets forth a standard for application of the criteria when tenured associate professors...
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