Zahorik v. Cornell University, 243
| Decision Date | 22 February 1984 |
| Docket Number | D,No. 243,243 |
| Parties | 34 Fair Empl.Prac.Cas. 165, 33 Empl. Prac. Dec. P 34,220, 16 Ed. Law Rep. 777 Donna ZAHORIK, Judith Long Laws, Antonia Glasse and Charlotte Farris, Plaintiffs-Appellants, v. CORNELL UNIVERSITY, Defendant-Appellee. ocket 83-7450. |
| Court | U.S. Court of Appeals — Second Circuit |
Fay Clayton, Chicago, Ill. (Melanie Gray, Martha L. Tonn, Sachnoff Weaver & Rubenstein, Ltd., Chicago, Ill., J. Anthony Gaenslen, Ithaca, N.Y., John De J. Pemberton, San Francisco, Cal., of counsel), for plaintiffs-appellants.
Sherwin J. Markman, Washington, D.C. (Peter W. Tredick, Gail Starling Marshall, Patricia R. Ambrose, Hogan & Hartson, Washington, D.C., John J. Dee, Paul M. Sansoucy, Bond, Schoeneck & King, Syracuse, N.Y., of counsel), for defendant-appellee.
Before MANSFIELD, CARDAMONE and WINTER, Circuit Judges.
Plaintiffs, four women formerly employed as Assistant Professors at defendant Cornell University ("Cornell"), commenced this action in June, 1980, alleging inter alia they were denied professorial tenure because of their gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII" or the "Act"). 1 42 U.S.C. Secs. 2000e et seq. They now appeal from Chief Judge Munson's granting of Cornell's motion for summary judgment and entry of a final judgment under Fed.R.Civ.P. 54(b) dismissing those claims, 579 F.Supp. 349. We affirm.
The plaintiffs allege that each was the victim of discriminatory treatment on the basis of sex in Cornell's decisions to deny them tenure and that Cornell's tenure criteria and procedures have an illegal disparate impact within the meaning of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
Before proceeding to more specific issues, we briefly detail the procedural sequence and structural context of tenure decisions prevailing at Cornell at the relevant times. Cornell has eleven separate academic colleges. Each college is composed of a number of departments which pursue studies in more specific areas, e.g., the Sociology Department in the College of Arts and Sciences.
The initial formal step in a tenure decision is the vote of the tenured faculty members of a department. A positive vote at the departmental level is automatically reviewed by the dean of the college in question. If the dean determines that the departmental decision is supported by the available documentation, an ad hoc committee of tenured faculty from the college and university will be appointed to make an independent inquiry and recommendation to the dean. The dean is also free to seek advice from any source. In the College of Arts and Sciences, the Standing Committee on Appointments and Tenure is available for such a purpose. The dean's final recommendation is based on his or her independent judgment of the merits of the appointment and the long term interests of the university.
Where the departmental recommendation is negative, a somewhat different review process is utilized. Because the departmental faculty is generally the group most familiar both with the relevant area of study and the work of a particular candidate and because tenure necessarily results in a collegial relationship within that department which may last for decades, negative decisions at the departmental level are given substantial deference by reviewing authorities at Cornell. Until recently, no review whatsoever of a negative decision was available. Now, however, such decisions are reviewed by the college deans and a grievance procedure is available which allows higher authorities to review negative decisions to ensure that proper procedures were followed and that the negative decision was neither arbitrary nor capricious, terms which encompass sex discrimination.
Viewing the record as established through discovery in the light most favorable to plaintiffs, we turn now to more particularized matters.
Dr. Donna Zahorik was evaluated for tenure in the Psychology Department during the academic year 1977-78. She was denied tenure while three of four male candidates considered at the same time were ultimately tenured. Although the Chairperson of the Psychology Department, Dr. Halpern, had chaired the committee of a successful male candidate and was familiar with Dr. Zahorik's area of specialization, he declined to serve on the departmental committee charged with marshaling evidence with respect to Dr. Zahorik. Moreover, Dr. Zahorik's committee as constituted did not act as a vigorous advocate of her candidacy, in contrast to the actions of a similar committee constituted for a second successful male colleague.
After review of the materials marshaled by the departmental committee, the Psychology Department voted four in favor, three against and five abstentions on Dr. Zahorik's candidacy. The department chairperson concluded that this unusual vote was not an endorsement of her candidacy.
Dr. Zahorik appealed the departmental decision to the Acting Dean of the College of Arts and Sciences, who, in light of the unusual vote, referred the issue back to the department for reconsideration. Subsequently, after the submission of additional materials, the department again voted to deny her tenure. This vote was six against, five in favor and one abstention. Dr. Zahorik appealed this second vote, and Harry Levin, then Dean of the College of Arts and Sciences, denied her appeal as did the Provost.
The departmental file concerning Dr. Zahorik contains highly favorable evaluations which praise her as an outstanding and productive scholar, more tempered assessments which rate her work highly but question her productivity, and highly critical statements that she lacks creativity and that graduate students were unwilling to conduct research under her supervision. There is no evidence that the judgment of any of the negative commentators was influenced by the fact that she is a woman other than a statement by an abstaining member of the department that Dr. Zahorik's problem in attracting graduate students was that she was too "feminine" in that she was too "unassuming, unaggressive unassertive and not highly motivated for vigorous interpersonal competition."
Dr. Judith Laws was the first woman to be hired in a tenure-track position by the Sociology Department at Cornell. She was reviewed for tenure during 1976. The department voted against her promotion by a six to four vote. Dr. Laws appealed to Dean Levin of the College of Arts and Sciences. Confining his review to the procedure followed, Dean Levin recommended departmental reconsideration after the solicitation of additional material on Dr. Laws, including opinions from reviewers outside Cornell. The additional materials were obtained, and Dr. Laws also elected to present a colloquium on her empirical research. This colloquium, according to one of her supporters, went very badly. The second tenure vote, held in December 1976, was also unsuccessful, and Dr. Laws again took an appeal. As in the case of Dr. Zahorik, this second appeal was denied by the Dean and ultimately by the Provost.
Dr. Laws' file also contains strongly supportive evaluations as well as highly critical ones. The negative views on her work were more widely and strongly held than in Dr. Zahorik's case. The Chairperson of the Department thus wrote Dean Levin: "[Doctor Laws'] teaching record is weaker now than when she began at Cornell; and her research has declined to zero while her writing is shifting toward the polemic and away from the major forms of theoretical work."
Dr. Antonia Glasse was evaluated for tenure in the Department of Russian Literature in the 1975-76 academic year. In December, 1975, the Department voted two to one to recommend tenure. The two members supporting Dr. Glasse cited her perfect command of Russian, her access to Soviet literary circles and her scholarly approach. One of the two, however, expressed concern over her teaching and described her published work as "relatively little." The negative voter, the chairperson and most prestigious member of the department, questioned the significance of Dr. Glasse's scholarly work and particularly questioned whether it would be wise to grant a fourth tenure position in a department of only five members, thus blocking the upward path of more promising scholars.
Dean Levin appointed an ad hoc committee from the College of Arts and Sciences to review the departmental recommendation. This committee endorsed Dr. Glasse for tenure, although it concluded that "our recommendation is ... on the whole measured rather than enthusiastic." An outside reviewer consulted by the ad hoc committee also supported Dr. Glasse for tenure. Three Cornell Slavic language professors, not members of the Department of Russian Literature, provided Dean Levin with letters regarding Dr. Glasse's candidacy; two strongly opposed it and one strongly supported it. Dean Levin also sought counsel from the College's Standing Advisory Committee on Promotions. It unanimously recommended that she should not be granted tenure.
Dean Levin concluded that Dr. Glasse's candidacy should be denied. He explained in a letter to her that he could not grant tenure on recommendations based principally on the argument that no one better was presently available. Dr. Glasse asserts that a male scholar of markedly inferior credentials was granted tenure in the Department of Russian Literature one year before Dean Levin's denial of her candidacy.
Dr. Charlotte Farris was appointed to the Department of Community Service Education ("CSE") in Cornell's College of Human Ecology in January, 1974 and was reviewed for tenure during the academic year 1978-79. The CSE Personnel Committee formed a Department Review Committee of tenured faculty both to marshal the evidence and to make a recommendation to the tenured faculty....
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