Kumar v. Board of Trustees, University of Massachusetts, s. 84-1469
| Decision Date | 30 September 1985 |
| Docket Number | Nos. 84-1469,84-1470,s. 84-1469 |
| Citation | 774 F.2d 1 |
| Parties | 38 Fair Empl.Prac.Cas. 1734, 38 Empl. Prac. Dec. P 35,533, 54 USLW 2231, 27 Ed. Law Rep. 1051 Prem KUMAR, Plaintiff, Appellee, v. BOARD OF TRUSTEES, UNIVERSITY OF MASSACHUSETTS, Defendant, Appellant. Prem KUMAR, Plaintiff, Appellant, v. BOARD OF TRUSTEES, UNIVERSITY OF MASSACHUSETTS, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Lawrence T. Bench, First Associate Counsel, University of Massachusetts, Boston, Mass., for Bd. of Trustees, University of Massachusetts.
Richard M. Howland, Amherst, Mass., with whom Patricia S. Martin and Howland & Sheppard, P.C., Amherst, Mass., were on brief for Prem Kumar.
Before CAMPBELL, Chief Judge, COFFIN, Circuit Judge, and WYZANSKI, * Senior District Judge.
This is primarily an appeal by the Board of Trustees of the University of Massachusetts ("the University") from a judgment based on the district court's finding that the University, in denying professorial tenure to Prem Kumar, discriminated against him because of his race and national origin and on that court's conclusion that in so discriminating the university violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Kumar v. Board of Trustees of University of Massachusetts, 566 F.Supp. 1299 (D.Mass.1983).
We need not fully recite the terms of the relief awarded by the court nor repeat either all of the University's objections thereto or the plaintiff's objection which has led to his cross-appeal, for, in our opinion, there is, as a matter of law, no evidence to support the court's finding of discrimination.
The following summary of our opinion seeks to point a path through a complicated record.
The University's denial of tenure for the plaintiff is embodied exclusively in the May 14, 1976 negative decision of the chancellor.
There is no evidence that the chancellor had made with respect to the plaintiff or any other person at any time any statement indicating racial bias, a term we use in this opinion to embrace bias on account of national origin as well as bias on account of race. Nor is there any evidence that the chancellor ever has been accused of racial bias in any case other than this plaintiff's. Nor is there any evidence that racist statements about Kumar were known to the chancellor before he decided not to recommend tenure for Kumar. Nor were such statements referred to in any part of Kumar's file as reviewed by the chancellor in 1976.
The district court's ultimate finding of racial discrimination is based on what seem to us illogical and unsound inferences.
We now turn from the summary of our opinion to a more elaborate recital of the facts. Except when we note otherwise, we rely upon the findings of the district court.
On February 23, 1970 the University appointed for one year Prem Kumar, who had been born in 1943 in Rawalpindi, India--now Pakistan--to the non-tenured position of Assistant Professor of General Business and Finance in the School of Business Administration of the University of Massachusetts at Amherst.
In 1975-76 Kumar came up for a tenure decision. The University's regulations governing tenure were set forth in a brochure entitled "Academic Personnel Policy", of which there were editions in 1975 and 1976, not different in any respect material to this case. The texts are set forth in the district court's opinion. One relevant section provides that "Consideration of a candidate for tenure shall be based on ... [c]onvincing evidence of excellence in at least two, and strength in the third, of the areas of teaching; of research, creative or professional activity; and of service ..." The regulations provide that evaluation of the candidate is made successively by the candidate's own department, the department chairman, the faculty personnel committee of the school, the dean of the school, the provost of the campus, and the chancellor of the campus. In those successive reviews each reviewing authority has before it a file with respect to the candidate. That file should (1) contain the annual evaluations made of the candidate which summarize student opinion as well as faculty opinion of the candidate's teaching ability, (2) set forth what scholarly work the candidate has published and is engaged in, (3) report on his service activities, and on his publications, (4) include the letters commenting on the candidate and (5) transmit the judgments expressed by those who have already reviewed the file. In general, each review is an appellate, not a de novo proceeding. Emphatically this is so at the "campus level" of review--the only one we need consider in depth. The following provisions, of which paragraph 3 deserves special note, govern:
At the campus level, there shall be a review of the college or school recommendation that is based on all the evidence in the basic personnel file. The following considerations shall apply to the campus review, recommendation, and, where appropriate, decision:
1) Prior to a recommendation or decision that may be contrary to the recommendation from the next lower level, the Provost and Chancellor shall invite the officer at that level to provide additional information for the basic file or clarification of the recommendation.
2) Review of the recommendation shall take into consideration the qualifications of the individual, and, for ... the award of tenure, the justification of the recommendation within the context of campus long-range plans.
3) When the Provost and Chancellor make a recommendation or decision contrary to the recommendation from the next lower level, it shall be only for compelling reasons, written in detail, which shall specifically address the content of the recommendations and the established criteria.
When Kumar's file reached the campus level and was delivered to Associate Provost Bischoff, it contained a 5-2 favorable vote by the plaintiff's department, a favorable recommendation by the departmental chairman, Sidney Sufrin, a 6-0 favorable recommendation by the School of Business Administration Personnel Committee, a favorable recommendation by that school's dean, George S. Odiorne, the six salmon-colored annual reviews of Kumar's performance from October 1, 1970 through August 31, 1975, copies of the three full-length scholarly articles and various shorter reviews published by the plaintiff, letters by Associate Dean Wolf, and a recommending letter from the chairman of the Department of Economics at Princeton University--a former colleague of the plaintiff and an attendant at some of his lectures.
In Dean Odiorne's December 17, 1975 memorandum of recommendation there are included these paragraphs:
There is a note of concern about his teaching, which was communicated to the Dean and Associate Dean, as noted in Dr. Wolf's letter. Kumar is foreign born, and his modes of communication are not that of the native born American. He is perfectly lucid in his language, but combined with one of the most technical and difficult courses tends to produce lower ratings among non-majors in core courses. He is concerned about it and works at improving this dimension. The content of his courses is impeccable, his rigour [sic] unmatched, and the best students praise him highly. In technical sessions for his peers he is articulate and they have no problem.
When the chairman of the economic [sic] department at Princeton states a firm recommendation and indication from other persons of equal competence and prestige suggests that he would merit tenure at any institution, I would suggest that it would be a serious error to let him get away from us. The peronnsel [sic] committee deliberated upon his teaching and concluded that rigor and competance [sic], specially [sic] at the advanced level would merit a unanimous recommendation. The possibilities that he may gravitate toward graduate courses where he is more successful and less in the basic introductory courses where the non-majors and less quant [sic] competent students find him less pleasing is a possible solution. I concur with his chairman, his personnel committee, the school's personnel committee, and recommend approval of tenure and promotion.
With that background, Associate Provost Bischoff, in an April 9, 1976 memorandum, informed Dean Odiorne that the Kumar file "exhibits strength, possibly excellence, in research/scholarship, but I cannot find convincing evidence for strength in either teaching or service." [Ex. 88]. Bischoff requested Odiorne's reaction to Bischoff's
On April 23, 1976 Dean Odiorne replied with a memorandum, well over a thousand words long, which concluded that he, the departmental faculty, and the school personnel committee all recommended that Kumar be given tenure. However, the text is filled with negative data including the following passage which the district court's findings omit. (See 566 F.Supp. at p. 1310):
In addition to the departmental committee, the Dean's Office has studied Kumar's case further and the following information [was] generated.
1. Dean Wolf at my request with students of the Graduate Business Association, in conference on levels of teaching in the School found discontent among them about Master's level course teaching. Wolf suggested a written evaluation instrument for all MBA students, unlike the regular questionnaire asking MBA's rated the five highest and five lowest teachers. Kumar appeared among the lowest more than a dozen times and was listed among the top five only once. (See the Wolf report attached)
2. The reasons for this rating are given, and personal interviews with members of the Student Cabinet and MBA association indicated that he is seen by these...
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