Stewart v. Rutgers, The State University

Decision Date25 July 1997
Docket NumberNo. 96-5354,96-5354
Citation120 F.3d 426
Parties74 Fair Empl.Prac.Cas. (BNA) 545, 71 Empl. Prac. Dec. P 44,849 Janice P. STEWART, Appellant, v. RUTGERS, THE STATE UNIVERSITY; Joseph J. Seneca, Chair, Promotion and Review Committee; Francis L. Lawrence, President, Rutgers University.
CourtU.S. Court of Appeals — Third Circuit

Michael H. Sussman (argued), Law Offices of Michael H. Sussman, Goshen, NY, for Appellant.

Irving L. Hurwitz (argued), Carpenter, Bennett & Morrissey, Newark, NJ, for Appellees.

Before: NYGAARD and LEWIS, Circuit Judges and SCHWARZER, * District Judge.


LEWIS, Circuit Judge.

Janice P. Stewart appeals from the district court's grant of summary judgment in favor of Rutgers, the State University of New Jersey; Joseph J. Seneca, chair of its Promotion and Review Committee ("PRC"); and Francis L. Lawrence, president of Rutgers (collectively "Rutgers") on her racial discrimination claim initiated pursuant to 42 U.S.C. § 1981(c), and her Equal Protection claim brought pursuant to 42 U.S.C. § 1983. She argues that the record contains evidence from which a jury could conclude: (1) that the rejection of her 1994-95 tenure bid was motivated by racial discrimination; and (2) that Rutgers' proffered legitimate nondiscriminatory reasons for not granting tenure to her are not worthy of credence.

For the reasons that follow, we will reverse the district court's grant of summary judgment as to both of Stewart's claims.


Dr. Janice P. Stewart, who is black, was an Assistant Professor in the Department of Learning and Teaching at the Graduate School of Education at Rutgers University, New Brunswick campus. From the 1990-1991 academic year to the 1994-1995 academic year, Rutgers considered 368 faculty members for tenure, of whom 238 were granted tenure, a success rate of sixty-five percent. During Stewart's employment at Rutgers, no black person was ever granted tenure in her department. Joint Appendix ("JA") at 695. The only black person to be granted tenure in the Department of Learning and Teaching was a professor who was hired from another university with tenure. Id. Except for that person, there has not been a tenured black member of the department for over twenty years. JA at 797.

Rutgers makes tenure decisions by considering the teaching, service and scholarship of the tenure applicant. Several factors are considered when evaluating scholarship: peer evaluations, research, presentation of papers, fellowship and grant awards and publication of books and articles. No single factor is dispositive.

Rutgers' procedure for considering applicants for the position of Associate Professor with tenure, described in the 1994-95 "Academic Reappointment/Promotion Instructions," 1 requires that an applicant prepare a description of his or her qualifications, including scholarly accomplishments. This information is compiled on "Form a-1." Form a-1 and supplementary materials consisting of confidential letters of recommendation and other evaluation forms comprise the applicant's "Promotion Packet."

The Promotion Packet is first evaluated by tenured members of the candidate's department. The department produces an evaluation which reflects majority and minority views on the substance of the candidate's application. JA at 66. The Promotion Packet is also evaluated by the Appointments and Promotions Committee ("A & P Committee"), which is composed of faculty members of the candidate's institution. The department's and the A & P Committee's evaluations are then considered by the dean, who makes an independent recommendation.

The next review is performed by the PRC. The PRC is charged with making promotion recommendations to the president of Rutgers. The PRC's purpose is to guard the integrity of the tenure review process by ensuring that evaluations of candidates have been made by leaders in their academic fields and that "appropriate evidence and analysis have been presented of accomplishment and impact on the field to support these judgments." JA at 67. After the PRC makes such an assessment, it then makes a recommendation to the president of the university. After review of all materials relating to the applicant, the university's president makes a recommendation to the Board of Governors, which makes the final decision to grant or deny tenure. Each candidate for tenure is reviewed independently by the PRC, without respect to the credentials of other candidates.

Stewart first applied for tenure during the 1992-1993 academic year and was unsuccessful. Stewart's Promotion Packet contained evaluations from nine referees, who were faculty members at other universities. The referees were asked to assess Stewart's scholarship, evaluating the "originality and quality of [her] achievements, their impact upon the field and the value of [her] contributions to the profession," and her accomplishments "relative to others in comparable positions in the discipline nationally and internationally." JA at 246. The referees' responses were varied.

The Department of Learning and Teaching recommended Stewart for promotion to Associate Professor with tenure by a vote of eleven to one. However, the department observed that Stewart had not fully demonstrated peer acceptance and recognition of her work because she had failed to publish in refereed journals. The department also noted that most of Stewart's work was collaborative, and that only recently did she develop an independent line of research.

The A & P Committee recommended against promotion and tenure by a two to one vote. JA at 345-46. Specifically, the Committee stated that Stewart was a not a strong candidate, but demonstrated potential for being a productive, nationally visible scholar. Id. at 345. After considering the recommendations from the department and the A & P Committee, acting Dean Nobuo Shimahara recommended granting tenure. Id. at 349. The dean's decision was based on seven of the nine peer reviews which commended Stewart's scholarship. Id. at 347. The dean noted that although many of Stewart's works were collaborative and that she had only one publication in a refereed journal, he viewed her work as "definitely substantial and meritorious" and "broadly recognized." Id. at 348.

In contrast, the PRC recommended that Stewart be denied tenure. Id. at 350. It noted that reviewers of Stewart's work found a lack of substantive contribution in scholarship and that the independence and quality had been questioned. Id. The PRC concluded that based on the record, Stewart "had not achieved a level of scholarly accomplishment to justify promotion to the level of Associate Professor with tenure." Id. President Lawrence concurred with the PRC's recommendation and so informed the Board. The Board thereafter denied tenure. Stewart was informed of the Board's decision by letter dated April 2, 1993.

Stewart filed a grievance concerning the decision to deny tenure. She claimed that the PRC's conclusion contained material factual errors. Stewart alleged that the decision was arbitrary and capricious and that procedural violations occurred. She also alleged racial and gender discrimination.

The grievance committee found that the PRC's report contained material factual inconsistencies and that the PRC's decision had been made arbitrarily and capriciously. It remanded Stewart's application for full re-evaluation with an opportunity for Stewart to update relevant information. Id. at 109. The committee found that the PRC's report was not fully accurate on three points: (1) it failed to mention that six of the nine peer reviews stated that Stewart's work was more than merely promising, (2) it failed to reflect that six of the peers were highly positive of Stewart's written work and (3) the peer reviewers did not question the independence or quality of Stewart's work. The committee then concluded that Stewart's 1992-1993 rejection "could not have been reached by reasonable evaluators." However, the committee found no pattern of race or gender discrimination. Id. at 109, 113. Though the committee found no pattern of discrimination, it noted that:

[t]here was no apparent pattern of racial or sexual discrimination, but serious deficiencies in the areas of supervision, advice, mentoring, and assignment of duties were apparent ... The obvious and traditional University concern with providing special support for minority faculty was not evident in materials presented at the hearing for this candidate. The [Graduate School of Education] did not seem to carry out expectations of affirmative action ... [Stewart's allegations of racial discrimination] were not proven in the technical sense, but the [Promotion Review Committee] should be apprised of the setting for this candidate's probationary years at Rutgers in the context of the University's commitment to affirmative action.

JA at 112. 2

Stewart applied for tenure again during the 1994-1995 year. In this evaluation, individuals outside Rutgers again submitted peer review recommendations. The peer review comments were generally positive. Some stated that Stewart likely would be granted tenure at their respective institutions. In general the comments commended Stewart's contributions and position of authority in the field. One review was less favorable. It expressed the view that Stewart's productivity was weak because she had published three articles as first author in mediocre journals which are not research-oriented. JA at 433.

The department unanimously recommended Stewart for promotion. Id. at 446. Faculty members rated Stewart's scholarship from outstanding to average, with seven of ten rating her "above average." Id. at 445. The department's report stated that referees were extremely positive but noted areas of concern. Id. at 444.

The A & P Committee assessed Stewart's scholarship as somewhat limited, but passable. It also noted that Stewart "ha[d]...

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