Bennun v. Rutgers, The State University

• Decision Date: 23 May 1990
• Docket Number: Civ. A. No. 84-4655.
• Citation: 737 F. Supp. 1393
• Parties: Dr. Alfred BENNUN, Plaintiff, v. RUTGERS, THE STATE UNIVERSITY, Defendant.
• Court: U.S. District Court — District of New Jersey

737 F. Supp. 1393

Dr. Alfred BENNUN, Plaintiff, v. RUTGERS, THE STATE UNIVERSITY, Defendant.

Civ. A. No. 84-4655.

United States District Court, D. New Jersey.

May 21, 1990.

As Amended May 23, 1990.

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Michael H. Sussman, Goshen, N.Y., for plaintiff.

Irving L. Hurwitz, James P. Lidon, Carpenter, Bennett & Morrissey, Newark, N.J., for defendant.

OPINION AND ORDER

POLITAN, District Judge.

Plaintiff, Dr. Alfred Bennun, is an associate professor of Biochemistry at Rutgers, The State University. He instituted this action on November 13, 1984 alleging that the University failed to promote him to the rank of full professor in 1981, 1982, and 1985 because of discrimination on the basis of his national origin and in retaliation for prior litigation against the University. Specifically, Bennun charges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981. The following constitutes my findings of fact and conclusions of law.¹

Plaintiff is Hispanic, born and educated in Argentina. He earned his PhD in Biochemistry at the University of Cordoba in 1963. He completed post-doctoral research at the University of Buenos Aires, Duke University, the Weitzman Institute, Cornell University and the Public Health Institute in New York. He joined Rutgers' Department of Physiology and Zoology in August 1969 as an Associate Professor without tenure. In November 1970 Bennun's department unanimously recommended that he be given tenure. A variety of controversies thereafter arose and Bennun was not promoted but was rather given a "terminal" contract for one year. In 1972 Bennun initiated litigation against Rutgers and several professors alleging that they had maliciously interfered with his right to contract. In June 1972 Bennun was given tenure.

Between 1975 and 1978 Bennun either initiated or participated in numerous EEOC and civil actions against the University charging it with a variety of discriminatory practices against Bennun and other Hispanics. In particular, Bennun complained that he was consistently given inadequate office space in retaliation for his actions against Rutgers. In 1978 Associate Dean Rafael Caprio was assigned to investigate the substance of Bennun's office space complaints. Caprio found that Bennun had been provided with office and research space significantly less than other members of his department in his discipline.

In 1979, 1981, 1982 and 1985 Bennun sought promotion to full professor and was denied. In 1981 Bennun filed a grievance alleging that the 1980-1981 evaluation was arbitrary and capricious, based on personal prejudice and discrimination. The Grievance Committee recommended that Bennun be evaluated by an outside arbitrator. Bennun thereafter instituted a civil action in New Jersey Chancery Division. Judge David Landau found that the Grievance Committee lacked authority to make such a recommendation and ordered that a remanded evaluation be conducted. The remanded evaluation occurred in 1984-1985.

Rutgers' promotion procedures are set forth in University Regulations issued by the Board of Governors.² Promotion and evaluation procedures are established annually by the Executive Vice President and academic officer. A promotion candidate's "promotion packet" consists of a statement of the candidate's qualifications set forth on a form, outside confidential letters of evaluation and evaluation forms added at each succeeding level of evaluation. The candidate's promotion packet is first evaluated by the tenured faculty in his or her department who are at or above the rank for which the candidate is being considered. Starting in academic year 1983-1984, there was a separate evaluation by the department chair.

Separate copies of the promotion packet, containing the statement of qualifications, outside letters and department and chair evaluations, go to the academic unit's Appointment and Promotion Committee ("A & P") and the appropriate section. The Appointment and Promotions Committee consists of four faculty members, two of whom are elected by the faculty and two of whom are appointed by the Dean. The Committee is advisory to the Dean. It evaluates the candidate on the basis of the promotion packet.

The section is a University-wide group of all faculty members in a discipline. Prior to March 1989, the section evaluated candidates for promotion. The promotion packet reviewed by the section contains the statement of qualifications, the department evaluation and the outside letters. It does not contain the A & P Committee or the Dean evaluations. The section's evaluation is limited to research and scholarly activity.

The Dean conducts a separate evaluation. The promotion packet he reviews contains the statement of qualifications, department and A & P evaluations and the outside letters. The Dean does not have the Section evaluation.

The function of the Promotion Review Committee ("PRC") is to advise the President on promotions within the tenured ranks. Its membership consists of the three campus provosts and four senior faculty members who are appointed by the President. The PRC Committee is chaired by the Executive Vice President and Chief Academic Officer who serves without vote. The PRC reviews the full promotion packet, including all previous evaluations, and makes a recommendation to the President.

The promotion procedure for any particular year and the role of each valuative body is set forth annually by the Executive Vice President and Chief Academic Officer in Academic Reappointment/Promotion Instructions. These instructions contain the promotion schedule, the forms to be used in the process, and explanation of the responsibilities of the candidate and each valuative body, information regarding outside letters and information concerning the materials and standards to be used in the promotion process.

The first issue before the Court concerns whether plaintiff has stated a cognizable claim for relief under § 1981.³ In Patterson v. Mclean Credit Union, 491 U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court dramatically limited the scope of § 1981 holding it inapplicable to a vast array of post contract discriminatory practices. Nevertheless, the Court left open the possibility that certain discriminatory promotion claims would still be actionable under § 1981. The Court wrote:

The question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer's refusal to enter the new contract is actionable under § 1981.... Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981. Cf. Hishon v. King & Spalding, 467 U.S. 69 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (refusal of law firm to accept associate into partnership).

The dispositive inquiry is, therefore, whether promotion from associate professor to full professor would have created a new and distinct contractual relation between Bennun and Rutgers. The Court finds that it would have for a variety of reasons.

First, there are significant and substantial differences between the associate and full professor in terms of prestige and perception. Within the academic community the unqualified title of professor is one of the ultimate goals of the academician. The professor may at times publish in the same journals and perhaps teach the same courses as an associate professor but, like the partner in a law firm, the full professor is regarded with a greater degree of respect and deference than is the associate professor. His academic opinion and judgment is simply accorded more weight than the associate. This difference is also manifest in the lay community where the title professor, like the title "Doctor" or "Counselor", is one of reverence and respect. It is a title far more significant than associate professor or associate lawyer. Differences in terms of perception and prestige are directly relevant to a § 1981 inquiry.

There are also significant differences in terms of function between the associate and full professor. The professor participates to a greater extent in University governance and can, if so qualified, advance on the ladder of academic achievement. At Rutgers, the professor can serve on the PRC, the A & P committee and can also review associate professors within the individuals own department for promotion. The full professor is, therefore, a full partner and participant in University governance. The associate professor is, as the title suggests, a junior participant in all aspects of University life. He cannot participate in the higher review committees which, as is amply manifest in this litigation, exercise great power over the future of the University. These differences clearly indicate that the professor has a new and distinct contractual relation with his employer. Like the associate elevated to the status of partner, the professor becomes a participant in the management of the organization.

Two other points illustrate the significant contractual differences between the two positions. First, Rutgers has created an elaborate promotion procedure which is designed to insure that only the most qualified individuals are elevated to exalted rank of professor. The Court recognizes that the process created to separate two positions should not be the determinative factor in the § 1981 analysis. Yet the process surely bespeaks something of the difference and the value placed by the university on the position this process is created to serve. The testimony establishes that the process did not exist, in a vacuum, to serve itself. Rather, it indicates that the process was so elaborate because the University...