Villanueva v. Wellesley College

• Decision Date: 05 February 1991
• Docket Number: No. 90-1898,90-1898
• Citation: 930 F.2d 124
• Parties: 55 Fair Empl.Prac.Cas. 1058, 56 Empl. Prac. Dec. P 40,723, 59 USLW 2726, 67 Ed. Law Rep. 64 Tino VILLANUEVA, Plaintiff, Appellant, v. WELLESLEY COLLEGE, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 124

930 F.2d 124

55 Fair Empl.Prac.Cas. 1058,

56 Empl. Prac. Dec. P 40,723, 59 USLW 2726,

67 Ed. Law Rep. 64

Tino VILLANUEVA, Plaintiff, Appellant, v. WELLESLEY COLLEGE, Defendant, Appellee.

No. 90-1898.

United States Court of Appeals, First Circuit.

Heard Feb. 5, 1991.

Decided April 19, 1991.

Jonathan Shapiro, with whom Stern & Shapiro, Boston, Mass., was on brief for plaintiff, appellant.

John H. Mason, with whom Philip C. Curtis and Ropes & Gray, Boston, Mass., were on brief for defendant, appellee.

Before BREYER, Chief Judge, CAMPBELL and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal presents an intersection of three areas of law: the summary judgment standard; the burden-shifting analysis in employment discrimination cases; and the special considerations relevant to employment discrimination in the milieu of academic tenure decisions. Our negotiation of this junction leads us to affirm the grant of summary judgment in favor of defendant-appellee Wellesley College.

BACKGROUND

Tino Villanueva, a poet and a specialist in Chicano ¹ literature, joined the Wellesley faculty in 1974 as a part-time instructor in the Spanish Department. After completing the requirements for a Ph.D. in 1981, he was promoted to a full-time, tenure-track assistant professorship. In 1985 he became eligible for tenure. The Spanish Department Reappointment & Promotions Committee ("R & P Committee"), comprising the tenured members of the department, recommended against granting Villanueva tenure by a vote of three to one, with only the department chair dissenting. The Committee on Faculty Appointments ("CFA"), composed of representatives from the entire college and responsible for final tenure decisions, voted to accept the R & P Committee's recommendation and, upon Villanueva's request for reconsideration, again voted against tenure. In accordance with its usual procedure when tenure has been denied, Wellesley terminated Villanueva's employment effective at the end of a one-year terminal appointment.

Villanueva filed charges with the Equal Employment Opportunity Commission ("EEOC") and the Massachusetts Commission Against Discrimination ("MCAD") alleging that Wellesley had denied him tenure and terminated his employment on account of his race, color, national origin, sex and age. The EEOC informed Villanueva that it found no reasonable cause to believe that his allegations were true and that he had a right to commence suit; the MCAD also issued a lack of probable cause finding.

This action followed. Villanueva's amended complaint stated violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981; the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 et seq.; and the employment discrimination provisions of Massachusetts law, Mass.Gen.L. ch. 151B, Secs. 4(1) and (1B). ² After completion of discovery, Wellesley filed motions for summary judgment on all claims. The case was referred to a magistrate who, in a comprehensive written opinion, recommended that the court grant Wellesley's motions for summary judgment. The district court agreed and entered judgment for Wellesley. Villanueva appealed.

THE LEGAL STANDARDS

Summary judgment is to be:

rendered forthwith if the pleadings, depositions, answers or interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56. We exercise plenary review of summary judgment. Olivera v. Nestle Puerto Rico, Inc., 922 F.2d 43, 45 (1st Cir.1990). In so doing, we view all the facts in the light most favorable to the non-moving party and indulge all inferences advantageous to that party, provided they arise reasonably from the record. Id.

The three-step burden-shifting analysis used in the majority of differential treatment employment discrimination cases is by now so familiar that it need not be fully explored here. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973); see also Olivera, 922 F.2d at 46-47 (summarizing Supreme Court employment discrimination doctrine). In cases where there is no direct evidence of discrimination, once the plaintiff has raised an inference of discrimination (the McDonnell Douglas prima facie case) the burden shifts to the defendant to articulate a nondiscriminatory justification for its decision; and when that burden is met, the plaintiff must produce evidence that the defendant's reasons "were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Importantly, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id.

As the first two elements of the McDonnell Douglas model are quite easy to meet, it is not surprising that most cases, like this one, come to rest on the third step. At the summary judgment stage, "when, as here, the employer has articulated a presumptively legitimate reason for discharging an employee, the latter must elucidate specific facts which would enable a jury to find that the reason given was not only a sham, but a sham intended to cover up the employer's real motive: ... discrimination." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.1990); see also Menzel v. Western Auto Supply Co., 848 F.2d 327, 329-30 (1st Cir.1988); Menard v. First Security Services Corp., 848 F.2d 281, 287 (1st Cir.1988); Dea v. Look, 810 F.2d 12, 15-16 (1st Cir.1987); Kumar v. Board of Trustees, Univ. of Mass., 774 F.2d 1, 14 (1st Cir.1985) (Campbell, J., concurring), cert. denied, 475 U.S. 1097, 106 S.Ct. 1496, 89 L.Ed.2d 896 (1986). The plaintiff must do more than cast doubt on the wisdom of the employer's justification; to defeat summary judgment, the plaintiff must introduce evidence that the real reason for the employer's action was discrimination. Medina-Munoz, 896 F.2d at 9; Menard, 848 F.2d at 287.

This requirement does not place a burden on the plaintiff in addition to that outlined in McDonnell Douglas. Cf. Connell v. Bank of Boston, 924 F.2d 1169, 1182 (1st Cir.1991) (Bownes, J., dissenting) (suggesting that this circuit has added to the plaintiff's burden). Rather, the requirement springs from the mandate of Rule 56. Rule 56 requires the non-moving party to demonstrate the existence of a dispute of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). In order to create a dispute of material fact, a discrimination plaintiff must raise an inference of discriminatory motive underlying the pretextual explanation. Medina-Munoz, 896 F.2d at 9. Nondiscriminatory motive is immaterial to a discrimination case; therefore, the mere showing that the employer's articulated reason may shield another (possibly nondiscriminatory) reason does not create a dispute of material fact. Only if there is evidence from which a reasonable inference of discrimination can be drawn has the plaintiff defeated the summary judgment motion.

It was suggested at oral argument in this case that a mechanical application of the McDonnell Douglas framework was the correct one. Under that analysis, once a plaintiff has produced evidence of pretext, the employer's justification vanishes and the original McDonnell Douglas inference of discrimination rises again, automatically overcoming summary judgment. We reject that formalistic approach as not in keeping with either Supreme Court doctrine or common sense. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (the McDonnell Douglas model "was not intended to be rigid, mechanized or ritualistic."). Depending on the facts and circumstances of each case, the original prima facie case plus the evidence of pretext may suffice to raise an inference of discrimination, or additional evidence may be required. There is no absolute rule that a discrimination plaintiff must adduce evidence in addition to that comprising the prima facie case and the rebuttal of defendant's justification in order to prevail either at the summary judgment stage or at trial. See Connell, 924 F.2d at 1172 n. 3; but see Olivera, 922 F.2d at 48 (stating that in this circuit a plaintiff must adduce additional evidence of discrimination). "Rather, the evidence as a whole, whether direct or indirect, must be sufficient for a reasonable factfinder to infer that the employer's decision was motivated by [discriminatory] animus." Connell, 924 F.2d at 1172 n. 3 (emphasis added). If no such inference can be drawn, summary judgment is appropriate.

Where the basis of an employment discrimination suit is a denial of tenure, some special considerations apply. First, a plaintiff raises an initial inference of discrimination by adducing proof:

(1) that plaintiff is a member of the protected group;

(2) that plaintiff was a candidate for tenure and was qualified under the college or university's standards, practices or customs;

(3) that despite these qualifications plaintiff was rejected; and

(4) that tenured positions in the relevant department remained open at the time plaintiff was denied tenure, in that others were granted tenure in the department during the same general time period.

Banerjee v. Board of Trustees of Smith College, 648 F.2d 61, 62 (1st Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). As to the second element, the plaintiff need only show that his or her qualifications were at least comparable to those of a "middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could...