*1
33
entry
alone to
an
judgment,
and jury’s finding on the same issue. Rule
49(a)
required either a new
finding by
trial or a
does not authorize that sort of incon-
49(a).
the
pursuant
court
to Rule
See
sistency.
gives
“The rule
the district court
Anderson, 862 F.2d at
(explaining
915-16
the authority to make a finding on the
49(a)
provision
Rule
allowing finding
fact;
omitted issue of
it does not give it
by the
adopted
court was
replace the
right
the
judgment
substitute its
common-law rule that omission of essential
that of the
on the
jury
question of dam-
special
issue from
verdict required a new ages.” Payton,
154;
780 F.2d at
see also
trial); see
9A
Wright
also
Charles A.
&
Techs.,
(“Rule
Gaia
49(a)
916.
Moreover, it is not clear that the back
pay issue was “omitted” in the sense used by the rule. The issue was indeed omitted Shelley WEINSTOCK, Plaintiff- form, from the verdict but it not omit- Appellant, ted from jury instructions there is no reason to it was believe not considered v. jury. Gaia Recy- See Techs. Inc. v. UNIVERSITY, COLUMBIA (5th 365, cled Corp., Prods. Defendant-Appellee. Cir.1999) (“Rule 49(a) allows the district No. Docket 99-7979. court to its own make findings as to
issues not submitted to the United jury”). The States Court of Appeals, jury presumably decided an amount of Second Circuit. pay,
back somewhere between zero and Argued March $150,000, but it was not asked to record Aug. Decided that amount a figure. discrete For the issue, district court to pay decide the back
then, required it finding make factual potentially inconsistent
2. Neither &Davis Geek nor court jury the district fact specify that the was not asked to cited, of, we any provision are not aware pay. obviously amount for There back would of federal or requires Puerto Rico law that be a different if outcome there were such judge trial to determine the of a back amount provision. pay purposes award tax regardless *5 Vladeck, Vladeck,
Anne C. Waldman, P.C., Engelhard, York, Elias & New N.Y. (Anne Clark, L. Mintzer, Kevin T. of coun- sel), for Plaintiff-Appellant. Goldstein, Mark Morris, L. Goldstein & LLP, (Andrea York, New N.Y. H. Stem- counsel), pel, of for Defendant-Appellee. Parker, Beth H. Equal Rights Advo- cates, Francisco, CA, San for amici curiae American University Association of Wom- en, Association Women Science and New Chapter York of the National Em- ployment Lawyers Association. CARDAMONE, Before: McLAUGHLIN, PARKER, and Circuit Judges.
CARDAMONE, Judge, Circuit dissents in a separate opinion.
McLAUGHLIN, Judge: Circuit
BACKGROUND This from case arises Columbia Univer- sity’s Shelley denial of tenure to Wein- stock. contends the deci- deny sion to her tenure was the result of that Wein- scholarship, then recommended gender. of on the basis moved forward. nomination be stock’s grant of an from a appeal this is Because defendant, we summary judgment agree- by the affiliation required As favorable light in the most facts recite the Columbia, the Barnard ment between and nonmoving party. See plaintiff, to the Cole, Columbia, con- Jonathan Provost (2d 349, 351 Bedoya Coughlin, v. appoint- He ad hoc committee. vened an Cir.1996). Tall, of Co- Alan the Chair ed Professor Medicine, as the Department lumbia’s by Barnard employed Weinstock. appointed He also Chair. committee’s af- and undergraduate college College, of Colum- Samuel Silverstein Professor Columbia, Profes- an Assistant as filiate of and Cellu- Physiology Department bia’s July from Chemistry Department in its sor Professor Zanvil Cohn Biophysics, lar became 1994. Weinstock to June Lila University, Professor Rockefeller during Spring se- eligible for'tenure Psy- Department Barnard’s Braine of year. academic 1992-1993 mester of the Bar- Paul Hertz of and Professor chology be- agreement an affiliation Pursuant Sciences, Biological Department nard’s Barnard, Byzan- tween Columbia other the committee’s members. faculty for Barnard process tine tenure anof ad hoc permits the Chair Protocol following through votes. proceeds members tó contact committee committee (1) First, faculty member’s academic meeting to determine whether before their (2) Barnard; at department complete more information they need Appointments, on Tenure Committee telephoned Tall file. the candidate’s (3) de- Promotions; counterpart to discuss Weinstock’s committee members Columbia, all must vote *6 partment file, any if committee to determine and Then, Presi- Barnard’s favor of tenure. information. wanted member additional that to recommend decides whether dent Braine committee members According to If Presi- the process move the forward.. on Hertz, of them Tall also told each and favorably, for- she votes dent of Barnard were he there phone thought the that to the Provost the nomination wards candidacy. with Weinstock’s problems then Provost convenes Columbia. The (from the Barnard Braine and Hertz- Both hoc University ad committee five-person remarks, which faculty) reported these the terms the nomination. Under review beyond a mere they going as considered hoc the ad agreement, of the affiliation information, to Bar- lack of inquiry about faculty members of two committee consists Dean, McCaughey. nard’s Robert Provost, two Barnard by the designated April on ad hoc committee met The members, member faculty and one faculty all the committee Present were 1993. tenure The an institution. from outside members, Dean McCau- Provost Cole and (1) the re- made if: will be appointment meeting, Dean At the outset of ghey. favorable; hoc committee view of the ad Tail’s extent of questioned the McCaughey (3) review; (2) that accepts the Provost and Braine calls to Professors telephone advice of follows the President of Columbia whether inquired Hertz. Provost Cole (4) Provost; and, Trustees finally, opinions of members’ of the committee grant tenure. Barnard and Columbia by their con- had been tainted Weinstock (1) of members Tall. None with of: versations received the Weinstock (2) influenced. they complained been Chemistry Department; the Barnard ad hoc also reminded Provost Cole Appointments, on Barnard Committee for tenure (3) the standards Promotions; the Co- committee Tenure and Columbia high, were because Pres- Chemistry Department. lumbia uni- research internationally renowned Futter, initial- Barnard, Ellen who ident of Sally Chapman, Professor versity. ly had reservations about Chair of Barnard’s Chemistry Depart- Provost Cole also discussed Weinstock’s ment, then presented Weinstock’s case for with the candidacy Chair of the Columbia Chemistry Department, tenure. Richard Bersohn. From these inquiries, as well as from a During the meeting, committee mem- previous inquiry of by Bersohn Associate Tall and bers Silverstein referred to Wein- Provost Stephen Rittenberg, Cole learned stock, met, they whom had never by her (1) that: general sentiment of the Co- name, first “Shelley,” and allegedly com- lumbia Chemistry Department was that mented that she seemed “nice.” Wein- Weinstock’s work was unimaginative and stock also alleges that she heard from that her publication (2) weak; record was Chapman and Hertz that Tall and Silver- the Columbia Department did not deem (Weinstock) stein observed that she (3) her worthy tenure; but the Colum- “nurturing.” However, seemed neither bia Department had voted recommend Hertz, Silverstein nor Tall remembers her for tenure as a courtesy to their coun- hearing the word “nurturing.” terpart department at Barnard. Provost Cole eventually recommended Tall and Silverstein deemed Weinstock’s against tenure Weinstock because he publications and papers research insuffi- felt that scholarship up cient to merit tenure. In their depositions, snuff. they testified that her research lacked originality journals Columbia, The President of that the in which Michael So- vern, who published provostal followed she were not first-tier recommenda- scientific tions on tenure journals. course, Tall matter of Silverstein were also accepted Cole’s unimpressed recommendation and de- Weinstock’s letters of nied Weinstock tenure. recommendation. Silverstein noted the letters were lukewarm comparison learned in May 1993 that she to letters he had examined other tenure had been denied tenure. Dean McCau- reviews. ghey from Barnard immediately objected alleged procedural in the flaws eventually committee voted 3-2 to process, and requested that Provost Cole Braine, grant Hertz, Weinstock tenure. either reverse his decision and follow the *7 tenure; and Cohn voted for Tall and Sil- ad hoc committee’s recommendation to verstein voted against it. A 3-2 favorable grant tenure, or the reconvene ad hoc vote is “underwhelming considered [in committee to consider the inputs additional support,” of] terms according to Colum- gathered Provost Cole had from Pro- President, bia’s current George Rupp. fessors Breslow and Bersohn. Dean From 1989 present, to the at six least McCaughey apparently was disturbed that (five male, female) tenure candidates one the committee did not have the benefit of denied were tenure after a 3-2 hoc ad damning itas was—that information — committee vote in granting favor of tenure. Provost Cole had from collected Breslow and Provost though, Bersohn. Cole re- accept reject decision to or com- fused to change his recommendation or to mittee’s vote moved to Provost Cole’s reconvene the committee. desk. Before Provost Cole made deci- his though, Breslow, he sion contacted Ronald Under the rules of process the tenure member of the Chemistry De- candidates, for if Barnard the Provost does for partment, his insights. Breslow stated not accept the vote the ad commit- hoc that, bluntly measured tee, intellectual say he why. must Provost Cole did strength and ability, scientific Weinstock this after Professor Braine wrote two not in league was the same ten- other letters requesting such a clarification. ured members the Barnard Chemistry explanation, his Provost Cole stated that: Department. (1) a favorable vote of 3-2 not a strong was (4) and seq.; § 296 et (2) mem- Executive Law
endorsement; the two Columbia City of New Silverstein, of the Code committee, Administrative Tall bers § limited et seq.. was York 8-107 research felt that Weinstock’s of a candi- expected quality and below discovery, Columbia completion of Upon (3) tenure; from Co- candidates for date judgment. summary, for filed a motion judged be were to lumbia and motion, con- granted court The district (4) standards; Cohn, by the same pro- failed cluding that commit- of the ad hoc member the outside a triable to establish duce evidence (Rockefeller University), had stated tee nature of the pretextual fact as to issue of receive tenure not would that Weinstock non-discriminatory legitimate, as Columbia university such a research tenure. Weinstock denying her reason for her research he conceded that though even appeals. now such as adequate institution was (5) Barnard; evalua- he had collected DISCUSSION confirm- Bersohn Breslow and tions from grant court’s a district review We did not that Weinstock ing his assessment Bedoya, de novo. See summary judgment merit tenure. at 351. in Wein- irregularities Citing procedural Barnard President process, stock’s tenure Judgment Standards Summary I. reject President Sovern Futter urged for clear- as a tool Summary judgment to ac- Cole’s recommendation Provost finds doomed lawsuits ing the calendar recommendation cept the favorable century in nineteenth origins modern alternative, its In the committee. ad hoc Bauman, A. See John English practice. ad that a new requested Futter President Judgment Summary The Evolution appointed to review be hoc committee (1956). Procedure, When 31 Ind. L.J. application. Weinstock’s country, it migrated to this procedure time, replaced George Rupp had By this had limited vastly expanded England — In re- as President of Columbia. Sovern negotiable instru- on largely it to actions protest, President Futter’s sponse to (see Gordillo, Summary A. Gregory ments informing wrote a letter Rupp President Applying the Problems in Judgment and had reviewed Futter he President Standard, 42 Clev. St. Trilogy Celotex agreed that he case and (1994)) almost applied to L.Rev. —and that her re- determination Cole’s Provost practice In federal all civil cases. ex- standards up search was Law Pro- by Yale vigorously championed faculty member. aof tenured pected Court) (and a member of later fessor that he did also indicated Rupp President drive Clark, spearheaded the who Charles *8 ir- procedural there were not believe in the 1938 version to include Rule 56 process. regularities in Weinstock’s of Civil Procedure. the Federal Rules to interfere. Accordingly, Rupp declined acolyte of great practice, In state 1995, filed February Shientag summary was Bernard judgment District in the United States complaint Supreme Court. New State of the York New the Southern District Court for Prop Pross v. wrote Foundation As he that, (Keenan, /.), by deny- alleging York 796, 304, erties, N.Y.S. 800 285 158 Misc. sex, of. her on the basis ing her tenure (Sup.Ct.1935): (1) of the VII violated: Title harassed amended, defendant] be Why [the 42 should 1964, as Rights Act of Civil dam- (2) perhaps and inconvenienced § Title IX seq.; 2000e et U.S.C. if it credit 1972, aged business as amend- his Amendments Education can en- (3) plaintiff that the clearly appears ed, § the New seq.; 1681 et 20 U.S.C. True, of success? Law, hope no York tertain Rights New York Human State
41
trial,
Cir.1995);
prevail
defendant will
at the
but he
see also Bryant Maffucci,
v.
923
(2d
979,
Cir.1991).
F.2d
subjected
will have been
to
982
considerable
expense by way
attorneys’
fees and
Summary judgment
is appropriate
trial,
which,
for
for
under
preparation
even in
cases, for,
discrimination
as this
present system,
our
he will not be com-
noted,
Court
“the salutary purposes of
by the
pensated
imposed.
costs
What
summary judgment
avoiding protracted,
—
way
doing
better
is there
away
with expensive and harassing
apply no
trials —
multiplicity
of unfounded and worth-
less to discrimination cases than
...
less suits with which our calendars are
litigation.”
Dacon,
other areas of
Meiri v.
clogged?
(2d
989,
Cir.1985).
759 F.2d
Just a
years
few short
ago we went out of our
Summary judgment
ap
now
way to remind district courts that
“im
propriate “if the pleadings, depositions, an
pression that summary judgment
is un
interrogatories,
swers
and admissions
available to defendants in discrimination
file,
affidavits,
together
on
any,
if
unsupportable.”
cases is
Chrys
McLee v.
show that there is no
issue as to
genuine
(2d
ler Corp.,
67,
Cir.1994);
38 F.3d
see
any material fact and
moving par
that the
also Shumway
Serv.,
v. United Parcel
ty is
to a judgment
entitled
as a matter of
Inc.,
(2d Cir.1997)
dated Rail
Judgment
Cir.1990).
Weinstock contends that
the district
Although the moving party bears
court
by holding
erred
that she failed to
the initial burden of establishing that there
deprivation
establish a
rights
under
genuine
fact,
are no
issues of material
once
VII,
Title
concluding that
there
showing made,
such a
the non-movant were no triable
respect
issues of fact with
specific
must “set forth
showing
facts
pretextual
nature of Columbia’s le-
genuine
there
is a
issue for
trial.”
gitimate, non-discriminatory reason for de-
Anderson,
James and put put Hazard “to up or A. The Scrutiny Title VII James, up.” Fleming shut Geoffrey Jr. & Hazard, Jr., (2d C. Civil Procedure 150 Title VII makes it unlawful “for an em- ed.1977). Accordingly, unsupported alle ployer ... to fail to hire or to discharge gations do not create a material issue individual, of any or otherwise to discriminate Goenaga fact. See v. March Dimes against any ... individual because of such of Found., (2d 14, Birth race, color, sex, 51 F.3d 18 religion, individual’s or Defects 42 at Mary’s, 509 U.S. See St. picture. § the 2000e- 42 U.S.C. origin.” national Fisher, 2742; F.3d at 114 510-11, 113 S.Ct.
2(a)(1). continue, plain the to For the case 1336. discrimination Title VII sex In a with evidence forward tiff must then come direct this, is no where there as case such non-dis proffered, defendant’s the discriminatory con of or overt evidence for pretext is a mere criminatory reason shift three-part burden duct, apply we the must plaintiff The actual discrimination. Douglas of McDonnell ing framework evidence, but simply ‘some’ not “produce 802-04, 792, Green, 93 411 U.S. Corp. v. rational support a evidence to ‘sufficient (1973),to deter 1817, 668 36 L.Ed.2d S.Ct. legitimate, non-discrimina that the finding ap judgment summary mine whether by proffered [defendant] the tory reasons College, Fisher v. Vassar propriate. See false, likely than not that more were Cir.1997) (en (2d 1332, 1336-36 114 F.3d reason for the was the real [discrimination] ).1 banc ” KLM Zant v. [employment action].’ Van (2d Airlines, 708, establish a 714 First, must 80 F.3d plaintiff Royal the Dutch Cir.1996) v. Nashua discrimination (quoting case of Woroski prima facie Cir.1994)). (2d (1) 105, a a member of 110 she is F.3d showing Corp., that: 31 (2) class; qualified short, for whether the question she is becomes the protected (3) whole, em a evidence, supports adverse suffered an as she taken position; (4) circum action; and the inference of discrimina rational ployment sufficient of dis is not jury, “[i]t an inference to the get rise to tion. To give stances employer; 411 Douglas, enough McDonnell ... to disbelieve crimination. See Here, plain 802, 1817. must believe [also] at 93 S.Ct. the factfinder U.S. light in the intentional discrimina court, viewing explanation the facts of tiffs district 519, Weinstock, found that at 113 Mary’s, 509 favorable to tion.” St. U.S. most burden her de minimis 2742.2 she satisfied S.Ct. stage. prima
proof at the
facie
here, the dis-
standards
Applying these
articu-
that Columbia
trict court held
story,
the end
That is not
its tenure
reason
legitimate
lated a
for
plaintiff succeeds
Even if the
however.
schol-
namely,
case, the defen
decision—
presenting
prima
facie
standards.
up to its
arship was not
by articulat
showing
may
dant
rebut
found that Weinstock
also
district court
non-discriminatory reason
ing legitimate,
any evidence
up
come
with
had failed to
action. See Texas
employment
for
find no
pretext.
was a
We
that this reason
Burdine,
v.
Community
Dep’t
Affairs
analysis.
in the
court’s
error
district
1089,
254,
67
248,
101 S.Ct.
450 U.S.
(1981); Shumway, 118 F.3d
L.Ed.2d 207
non-discrim-
legitimate,
1. Columbia’s
articulation
the defendant’s
Upon
at 63.
denying Wein-
reason
inatory
for
non-discriminatory reason for the
of such a
stock tenure
action,
presumption
employment
non-dis
legitimate,
arising with the establish
denying
Weinstock
criminatory
from
reason
drops
case
prima
ment of
facie
Supreme
recently reaffirmed
employ
2.
Court
apply to
standards
1. The identical
-
-,
Reeves,
120
U.S.
brought
Ti
framework in
under
claims
ment discrimination
tarry on the
We
VII,
IX,
S.Ct. at
decline
2108.
York Executive Law
New
tle
Title
necessary
question
much
296,
evidence
Code of the
how
§
and the Administrative
that,
Pisano,
simple
pretext
reason
find
116
v.
City
York. See Torres
of New
held,
Cir.1997);
"has
625,
(2d
district court
Murray v.
n. 1
F.3d
629
finding
support a
produced
evidence
Dentistry,
College
New York Univ.
respect
issue of fact exists
243,
(2d Cir.1995);
that a triable
v. A.W. Law
Reed
(2d
stated
pretextual
Co.,
[Columbia’s]
nature
Cir.
F.3d
rence &
Univ.,
for ...
non-discriminatory reason
legitimate,
1996);
F.Supp.2d
v. Columbia
Jalal
denying
(S.D.N.Y.1998).
tenure.”
232 n. 10
*10
tenure was that she did not meet
the
he
Breslow,
contacted Ronald
a member of
scholarship
standard for
uniformly applica-
Chemistry
Columbia
Department
the University.
ble within
There
be
further
can
comment.
It should come as no
no doubt that
Cole,
this was
valid
surprise
reason
that
who
biochemist,
is not a
her tenure decision.
did not read Weinstock’s publications dur-
ing the decision-making process,
in-
but
college
When a
university
or
de
stead relied upon
input
profes-
of other
valid,
nies tenure for a
non-discriminatory
sors who had a better grasp of her work.
reason, and there is no evidence of dis
Breslow stated that Weinstock was
in
not
intent,
criminatory
this Court will not sec
the same class as other tenured members
ond-guess that decision. See Bickerstaff v.
of the Barnard Chemistry Department
in
(2d
College, 196 F.3d
Vassar
455-56
terms
strength
of intellectual
or scientific
Cir.1999); Fisher,
Even though ad hoc vot- committee 3-2 grant tenure, ed Weinstock Provost contends, however, that this against Cole recommended tenure because was all discrimination, a mere cover for her scholarship questionable. Reject- (1) because there exists gen- of: evidence ing new, a committee vote was nothing (2) der stereotyping; procedural irregular- however, because, according to Columbia’s ities in process; the ad hoc committee current President George Rupp, fa- a 3-2 (3) disparate treatment. We look at each vorable vote is “underwhelming considered of these claims in turn. support,” in terms of and from 1989 to the noted, present, as earlier at least six ten- a. stereotyping Gender (five male, female) ure candidates one during Weinstock contends ad were denied tenure after an ad com- hoc hoc meeting, committee was referred she mittee voted 3-2 favor granting ten- a patronizing tone and that state- ure. ments were that stereotyped made her and Before Provost Cole made his recom- gender Specifically, demonstrated bias. vote, mendation to disagree with the 3-2 Weinstock claims committee members *11 stereotyp- that simply qualities not are as are to her referred Tall and Silverstein ically these and that female. “nurturing,” “nice” and essentially words code are statements of either sex person Any reasonable feminine they reflect bias because gender It is considered “nice.” like to be would that this is argues stereotypes. Weinstock employer’s that an to conclude indefensible disagree. We pretext. evidence gender dis- “nice” evinces word use of the First, no admissible appears be there so, every time crimination. Were allegation evidence to Sue], said, you are or employer “[Bob referred on the committee -anyone that worker, I am a hard but and person nice claims that “nurturing.” Weinstock her as you go,” such a state- to have to let going word that Chapman from she heard for a Title VII a basis would become ment However, Chap- was used. “nurturing” claim. at- in which Weinstock’s deposition, man’s Price not case like This is Waterhouse never stated Chapman torney part, took 228, 1775, 109 S.Ct. Hopkins, 490 U.S. v. used.- “nurturing” was word that the. (1989), the Su- where 104 L.Ed.2d Hertz, too, her told claims Weinstock vio- VII was held Title preme Court However, was “nurturing” used. the word denied Hopkins Ann lated when was deposed by Weinstock’s when Hertz neg- perceived because she promotion stated, “I don’t remember attorney, Hertz feminine lacking stereotypical atively for ‘nurturing....’” using the word them superior Specifically, traits. her character Silverstein, also stated deposition, in his femininely, “walk more advised her “nur- the word remember that he did not more feminine- femininely, dress talk more well, Tall, stated turing” being used. styled, have her hair ly, make-up, wear “nur- the word not remember that he did Waterhouse, 490 Price jewelry.” and wear turing.” 1775. These state- S.Ct. U.S. any direct failed to offer has Weinstock Hop- indication that were a clear ments any per evidence, testimony, from any- or against had discriminated superiors kins’ meeting, that at the committee present son sex, not she did because her on the basis during her “nurturing” was used the word stereotype of what a woman sexual fit the it; Hertz Silver- process. denies hand, Weinstock, on the other be. should it; Chapman, not remember stein does carping. faced no such queried on never even deposed, was when the ba- “nurturing” possibly can be Nor Therefore, Rule 56 of because the matter. pri- two a Title action. The sis for VII pro Rules of Civil Procedure the Federal are of the verb “nurture” mary definitions opposi affidavit submitted vides that an nourishment, food, “to supply made summary “shall be judgment tion to by if “to train or as protection” and shall set knowledge, [and] personal on instruction,” Interna- Third Webster’s facts as would be forth such admissible (1961). are defi- Dictionary These tional 56(e), evidence,” Fed.R.Civ.P. way stereotypically in no that are nitions to cre no evidence has adduced sufficient female. to her con issue of fact as genuine ate a “nurturing” was word
tention that these is no evidence Finally, there Douglas Elliman- Sarno v. used. See Wein- used to describe words were ever (2d Inc., Ives, Gibbons & research, which was quotidian stock’s Cir.1999). non-diseriminatory reason for proffered deny tenure. decision Second, assuming that even all, words, spoken if used at were used, These “nurturing” were words “nice” teach- with Weinstock’s connection no evidence provides fact alone It is ie., performance. her classroom ing, on the discriminatory intent or pretext to label simply objectively reasonable “nurturing” “Nice” and part of Columbia. *12 semaphores these innocuous words as Furthermore, the dissent incorrectly discrimination. To do preclude so would concludes that “procedural defects in the committees discussing tenure from ever tenure review process[ ques- ] into call[ ] positive personal candidate’s attributes as tion proffered Columbia’s nondiscriminato- a teacher. nurturing Niceness and ry are reason for denying tenure.” phone The not, all, after qualities bad to have in a calls that the dissent characterizes as a mentoring teacher’s capacity particularly “procedural irregularity,” fact, in — undergraduates. serve to support proffered Columbia’s non- discriminatory reason for denying Wein- b. Procedural irregularities stock tenure. deposition The testimony of Hertz, Silverstein, Professors Braine, Weinstock contends that there and Tall all procedural series of conclusion that irregularities in Profes- sor Tall indicated process very her tenure that from the beginning evidences discrimi that he natory intent on had concerns part. Columbia’s about the Specifi quality of cally, Weinstock’s research Weinstock and that he takes issue with was con- Tail’s cerned that phone calls to the materials her committee members be dossier were not of convened, “tenurable” quality. fore the committee and The con- Provost sistency of delay Cole’s explaining why rejected viewpoint expressed by he Tall—that Weinstock’s the committee’s vote and research recommended was sub- par only further is, supports denial of Weinstock’s tenure. There Columbia’s — proffered however, nondiscriminatory no evidence that reason for de- Weinstock’s sex nying Weinstock played any a role in tenure. alleged procedural irregularities, is, again, and there no evi of pretext. dence c. Disparate treatment “ It is true that ‘[departures from alleges also that she Weinstock procedural ... regularity can ques raise a was held to a stricter standard for tenure good tion as to the of the process faith woman, because she is a argues and that departure
where the may reasonably affect this is evidence of discriminatory intent on ” the decision.’ Stern v. Trustees Co part. Specifically, she con Univ., (2d lumbia 131 F.3d Cir. tends that Barnard professors are tradi 1997) added) (emphasis (quoting Zahorik tionally held to a lesser scholastic standard Univ., (2d v. Cornell Cir. professors, than Columbia complains 1984)). case, however, In this whatever that she was not cut during this slack irregularities existed fi did affect the evidence, candidacy. however, is to nal decision to deny Weinstock tenure. contrary. phone calls that prior Tall made to the meeting committee no effect Columbia, on According to the standard for committee member’s quality assessment Wein- of research expected that is candidacy stock’s In deposi tenure. tenure candidates from Barnard and Co- testimony, tion identical, committee members lumbia is although a lower level acknowledged Moreover, as much. productivity and publication research committee voted 3-2 in favor of granting accepted is from Barnard candidates be- her tenure. Provost made his deci they Cole cause typically have a heavier teach- reject sion to the committee’s ing recommen Any load. in productivity difference dation; and delay standards, however, his in explaining his import, is of no be- recommendation did not affect deci cause Columbia’s non-discriminatory rea- Therefore, sion any possible proce itself. denying son for Weinstock tenure involved irregularities dural in the denial of Wein- quality, quantity, not the of her re- enough stock’s were not suggest search. That the quality of research for gender bias. both Columbia and professors describing pattern purportedly raw by Presi- data undisputed uniform must be unequal op under-representation Futter. Rupp, Sovern dents faculty at Columbia for women portunity She asserts disagrees. dis gender the conclusion leads to a stricter standard applied however, This, play here. crimination *13 in candidates Barnard to male her than pro hypothesis unsupported an is little but was sciences; she she believes
the hard
that
for the assertion
viding no foundation
for
“higher” standard
by the
measured
in Weinstock’s
there was
can-
required of a Columbia-based
tenure
Zahorik,
F.2d at
process. See
tenure
for this
only support
Weinstock’s
didate.
Re
95;
Social
v. New School
Pollis
for
year
that
her contention
assertion is
Cir.1997).
(2d
search,
115, 123
tenure,
denied
Columbia
after she was
simply
is also
evidence”
“statistical
faculty
male
tenure to a
granted
record,
therefore
and is
part
not
Timo-
Department,
Physics
in its
member
in de
be considered
that cannot
material
research was
whose
thy Halpin-Healy,
Busi
International
ciding this case.3 See
would
the standard that
below
supposedly
Edelstein, 526
Corp. v.
ness Machines
by
counterpart department
his
expected
be
curiam).
Cir.1975)
(2d
(per
F.2d
at Columbia.
non-discrimi-
legitimate,
had a
Columbia
.
fails
Initially, Weinstock
ten-
denying
for
Weinstock
natory reason
used
standard was
claim that a different
scholarship
the requisite
lacked
ure —she
hearings
ques-
in
the two tenure
during
supposed-
single,
that a
required. A claim
unmistakably
*14
Cole,
alleged
on the
bias
Provost
its own
promotion
criteria for
and then to
decisionmaker,
primary
the fact that Pro-
evaluate
pro
a candidate’s fitness for
may
Tall
inappropriate
fessor
have made
motion
Bickerstaff,
under
them.”
phone
all
Gant,
calls is
the more immaterial. F.3d at
(citing
455-66
Lieberman v.
(2d Cir.1980)
J.)
(Friendly,
F.2d
In an effort to tar ad hoc commit
(“A university’s prerogative ‘to determine
tée members Tall and Silverstein as bi
for itself on
grounds
may
academic
who
ased, the dissent reaches for an
article
teach’ is an important part of
long
our
Feminism,
the Yale Journal
Law and
freedom.”)
tradition of
(quotation
academic
again provided by amici. The dissent
omitted)).
Instead,
this Court’s “role is
claims that Tail’s and Silverstein’s refer
narrowly limited to determining whether
name,
by
ence to Weinstock
first
illegitimate
discriminatory
an
reason
“Shelley,” is
gender
evidence of
bias. The
played motivating
role in
employ
dissent notes that
Yale
article found ment.
Bickerstaff,
decision.”
Cole’s reiteration that Cole’s was tainted “the criteria and of judgment standards der discrimination. interesting ques- raising are Provost nard next assails dissent
The tions character, actually calling him Cole’s alleged (5) this nothing; “push- The basis for Ph.D. “mendacious.” defenses— sought impressive that Cole mendacity is the fact over”—not schol on Weinstock’s (6) further information person. nice perfectly Bersohn from Professors arship cited the seventh “issue” Chemistry De Breslow of the Columbia dissent, alleged that Provost Cole is dissent, in a statement partment. inquired into the sinceri off base when he thriller, claims that spy reminiscent of a Chemistry Depart ty of the Columbia Professor Breslow “obtained from Cole ment’s favorable recommendation. record evi There is no what he wanted.” to follow dissent states that Cole failed “wanted;” and what stating dence Cole and that this is procedure,” “formalized input on sought additional the fact he trouble of discrimination. The evidence scholarship nothing out of there is no argument given the broad ordinary, especially forbidding Cole to procedure” “formalized during tenure Provost has powers that a Cole had engage inquiry. in such Professor Breslow decisions at Columbia. Bersohn and learned from Professors Weinstock, blunt in his assessment Breslow that the vote *15 that, in terms of intellectual stating was a mere “cour Chemistry Department ability, she was not strength and scientific took that into account tesy,” and Cole league as other tenured in the same tenure decision. making when his final Chemistry De of the Barnard members in were four abstentions Given that there However, fact that partment. (a occurrence), it department vote rare deleterious to Weinstock statement was positive not hard to conclude that “wanted,” and it what Cole does not make may a “courte votes well indeed have been him to be certainly prove does not of discrim sy.” certainly sign It was not “mendacious.” interpret to it. ination when Cole chose so eighth compre- “issue” is difficult to rais “issue” the dissent The sixth that, a matter hend. dissent claims personal notes es is a contention that in his he statement that logic, Provost Cole’s paid little heed to Wein- Provost Cole upon the partly tenure decision based his scholarship, but was stock’s research or scholar- poor assessments Weinstock’s per with her primarily instead concerned Breslow ship by Professors Bersohn and characteristics, thereby exhibiting sonal Profes- makes no sense. This is because just This is gender his inherent bias. Breslow, as members of sors Bersohn and record shows that Cole’s wrong. The Chemistry Department, the Columbia solidly *16 “Issue” ten focuses on Provost clearly Braine from Cole states that Wein delay writing a Cole’s letter to delineate stock was denied tenure because her re reject the reasons for his decision to the 3- Moreover, subpar. search was even as 2 recommendation of the ad hoc commit suming played finances a role the denial being prodded by tenure, tee. After ad hoc com of Weinstock’s such consideration Braine, entirely mittee member Professor Lila would be immaterial to this case. reasons, explaining sent a letter Cole his Title VII was enacted to discrimi combat nation; in it explanation designed conscript and stated that his “would was not to it. prepared reviewing be within the context of our de courts into the of task the wis University.” of university fense This defensive dom of administrators’ de fiscal Bickerstaff, statement was Weinstock cisions. See F.3d at 456 understandable. cases). already filed a charge (citing of discrimina tion with the EEOC when ment as evidence of reiteration letter. The dissent not denied tenure because her research was mary judgment. of explanation up to snuff. of the fact that amounts to interprets pretext, Weinstock was Cole nothing but Cole’s wrote his his letter but a state quixotic aborting case, we summary judgment [*] Notwithstanding efforts cannot by granting % fault the # breathe life into this is to weed out those a motion for sum very [*] district court for purpose [*] dissent’s v eleven,
In its “issue” the dissent con- cases that are destined to be dismissed on verdict, tends that the tenure standards for a male a motion for a directed or it is termed, professor, Timothy Halpern-Hea- judgment now a motion for as a 50(a). lowered, Weinstock, ly, were and- that be- matter of law. See Fed.R.Civ.P. woman, cause she was a did not receive Plaintiff would have us follow the advice of mentor, Copperfield’s the same treatment." There is no basis for David the amicable Micawber, proceed this assertion in the record. The dissent Mr. and let matters plaintiff court ruled that “something up.” will turn The district hope that is, That as a prima made out a case. with the text notion is inconsistent This facie protected woman is a member of a she Rule 56 of Federal policy behind class; qualified she is to be tenured Procedure, in- which was Rules Civil an adverse em- professor; she suffered profliga- calendar such prevent tended tenure; ployment decision the denial cy- surrounding circumstances produce has failed to give denial rise to an inference of discrimi- “ a rational ‘sufficient evidence majority accepts the nation. The district legitimate, non-discrimina finding that ruling prima court’s that a case has facie by the tory proffered [defendant] reasons been stated. false, likely not that more than were prima made out a plaintiff After has the real reason for the [discrimination] required to case the defendant ” facie Zant, 80 [employment action].’ Van non-discriminatory legitimate, articulate a — Reeves, 714; at at see also U.S. F.3d denying reason for tenure. Here that rea- -, 2108-09. For S.Ct. scholarship plaintiffs alleged- son was that reasons, the district foregoing this and the up not to defendant’s standards. ly was motion correctly granted court point come Plaintiffs burden at that is to summary and dismissed judgment proof forward with that such reason is complaint. Hope alone cannot likely merely pretext, and that more raise a triable issue. gender was the than not real reason. CONCLUSION plaintiff The district court found that re- appellant’s We have considered any proof failed to come forward and find them to be maining contentions pretext. majority could find no error AFFIRM Accordingly, we without merit. in this I think there was er- conclusion. for sum- grant appellee’s motion rights To of her civil ror. avoid dismissal mary judgment. actually complaint plaintiff need estab- raise a pretext.
lish Her burden is AMONE, Judge, CARD Circuit question validity fact as to the Dissenting: ad- proffered by reason defendant its *17 dis- employment verse decision. this had learning May in 1993 that she After sent, I that this rec- hope demonstrate College Barnard been denied tenure at abundantly questions reveals material ord pro- an assistant taught where she had regarding pretext of fact both whether for Chemistry Department fessor in the decision from sex dis- defendant’s resulted Shelley eight years, plaintiff crimination. complaint against defen- filed a Title VII Weinstock, University a woman science asserting that Professor dant Columbia men, by against professor in a field dominated the denial of tenure discriminated College at Barnard sex. From the turned down for tenure her on account of her summary by University, acting grant judg- defendant Columbia district court’s in through provost her its whom it vested vast dismissing ment in favor of Columbia From the majority discretion in tenure matters. complaint, plaintiff appeals. The view of provost negative the start the judgment has voted to affirm the candidacy. He took actions court. I dissent and Respectfully, district spirit and the summary that violated both the letter grant vote to reverse the agreement affiliation judgment. permit go I the case to of Columbia’s would to en- day agreement her Barnard —an executed plaintiff might to trial so that have in mat- sure fairness to Barnard tenure in on the merits of her discrimination court support for Despite ters. the unanimous claim. review, provides regular recognizes those most familiar with Wein- tenure of in in scholarship, namely peers her the differences the mission stock’s between College Barnard Chemistry Departments University. of Columbia Columbia the Barnard, no provost, who had small, undergraduate, Barnard is a in the field and had not read expertise n women’s college liberal arts of several publications, single-handedly denied her (this year’s thousand students graduating view, tenure, that, in stating his her 570), class was about while Columbia is a scholarship up was not to Columbia’s stan- large, internationally known research uni- say From this it is fair to that the dards. versity, teaching graduate as un- well as candidacy provost plaintiffs evaluated dergraduate students. Resources for re- lens, through gender-tainted fail- College search at the smaller are more recognize that his vast discretion did ing to University, limited than at the which is a him to the affiliation permit violate why by procedures reason “the Bar- which trample or to on the law for- agreement, nard nominations are [for tenure] reviewed bidding discrimination on account of sex respects” agree- differ in some under the Congress 1964 enacted as Title VII University ment between the and Barnard. Rights In particular, of the Civil Act. graduate Because there are no students by record is marked numerous contradic- assist in budget research and the research irregularities tions and conduct and facilities are more than at the limited by and rationales offered Provost Jonathan larger University, projects undertaken Cole, principal actor in this tenure professors Chemistry Barnard decision. These inconsistencies are inex- Department necessarily are narrower than plicable gender the absence of discrimi- Thus, University. although those.at nation. agreement facul- affiliation states that
ty at Barnard and are to be of quality, I comparable BACKGROUND the more limited re- require sources at Barnard that the stan- Relationship A. Between Columbia dards for tenure at the two institutions and Barnard explored differ. This crucial difference is below. I fully explain grounds on which To
dissent, important it is to understand the Barnard, relationship college between B. Columbia’s Record in “Natural tenure, sought Professor Weinstock Sciences”—Statistics where University. and defendant Columbia puts this matter in Statistical evidence plain and makes how College perspective and Columbia Universi- further *18 from the ty parties agree- University are to a written affiliation the deviated stan- agreed by. Although of dards it had to abide requires approval ment that Columbia’s us, in before Columbia faculty. agree- tenure for Barnard the record hiring appoint facul- makes statistical information on its requires ment freely widely and ty comparable quality patterns to Columbia and available. See regular system Opportunity and Equal that there be a for review- Office of (visited Yet, Aug. Action ing Barnard candidates tenure. Affirmative 2000) University <http://www.columbia.edu/ agrees procedures cu/vpaa/eoaa/index.html>. though Even candidates not identical to for Barnard are candidates, hiring percent a 38 those for Columbia and that Columbia established in goal in the natural sciences this distinction is to ensure fairness to for women 1996-97, year, new hires that Although pro- Barnard. the tenure review of the five disparity cannot and none were women. Such cess embodies same standards 52 cation, Weinstock the unanimous graduate of women received by a lack explained
be fields since women students in scientific Chemistry Depart- of the Barnard of all doctorates award- percent earned 45 Chemistry Depart- ment. The Columbia (which includes biochem- in life sciences ed not a plaintiffs ment tenure with voted for field) 1997; in nor can istry, Weinstock’s single negative vote. Barnard Com- pipeline of by a restricted explained be favor, in her mittee for Tenure voted in ob- even 1987 women candidates since president granting of Barnard favored all life science doctor- percent tained 35 plaintiff tenure. Weinstock’s tenure dossi- ates nationwide. extremely strong, containing was excel- er (often fact, natural sciences In in the leading from scientists lent referee letters sciences”), plaintiff “hard where known as widely in her lauded as field. She teaches, professors only percent excellent teacher and mentor. forty women. over Columbia were women have ever been years, only two II and the Provost Cole Chemistry Depart- tenured Columbia’s Ad Hoc Committee ment, has department and the never woman tenured at time. more than one A. Cole’s Conduct explained by record cannot be Chemistry Following approval number of wom- supply and demand —the entering obtaining en doctorates the Departments of Barnard and Columbia has risen job academic market science recited, approvals already and the other dramatically the last decade. One over application Professor Weinstock’s professor characterized Columbia Cole, Provost turned over to Columbia The 15 abysmal record as a “scandal.” who, provided for in the affiliation professors natural sci- percent women agreement, selected an ad hoc committee steady past for the ences has held (Professors two of five: from Columbia provost years, length same of time the Silverstein), Tall two from Barnard held who made this tenure decision has (Professors Hertz), Braine and and one like are disparities office. Statistical these having outside member no affiliation with probative on the issue (Professor Barnard or Columbia Cohn way they are because often University). The ad hoc com- Rockefeller demonstrate covert discrimination. See States, objective Hazelwood Sch. Dist. v. United as an independent, mittee serves 299, 307-08, U.S. 97 S.Ct. 53 L.Ed.2d body to evaluate tenure candidates. (1977). professors ap- The two Cole hoc, pointed to the ad Alan Tall and Samu- Candidacy C. Plaintiffs Silverstein, medical el were both from the plaintiffs background. Next look at we professors had known both school. Cole professor Weinstock was an assistant years for several and with Silverstein Chemistry Department at Barnard for “sociology shared a common interest in the when, years nine from 1985 to 1994 after science,” an in which has area Cole tenure, employment she was denied several books. published is a biochemist was terminated. She on blood primarily whose research focused committee, As Chair of the ad hoc Cole’s organs. and artificial Wein- substitutes Tall, Professor appointee, other Columbia Harvard, stock was educated at MIT and members before called each of the ad hoc scholarly in academic published works expressed convened and committee *19 publications prestigious and received candidacy. of Tall criticism Weinstock’s grants, including one from National express he called to “his con- admitted Health, Institutes of which funds less than majority dismisses these cerns.” The percent applications. of all Because the testimony phone “protocol,” yet calls as grant highly award of such a it selective Hertz, the two from Lila Braine and Paul top shows that she ranked near the of her committee, peer group. appli- professors national In her tenure Barnard on tenure, (issue 1)# nying not call- Weinstock This clear that Tall was very makes time, meeting disputed evidence raises the first of a convenient ing to schedule identify. of fact I perhaps questions Many miss- that of information inquiring about credibility. All to all them relate to Cole’s from the dossier distributed ing advance, attending pretext them are material to the issues of in or members scope stage and discrimination. At falling matters within other case, all of these issues should have been “protocol.” administrative such in plaintiffs resolved favor. Indeed, Braine testified that Tall was Moreover, deliberations, negative the ad hoc “twist her arm” with his trying to Weinstock; gender began Both Braine and evidence views of Braine by were disturbed the nature surface. Professors and Hertz so Hertz that independently calls that observed Columbia Professors phone Tail’s Tall, and they reported phone calls to Silverstein who had never met each other Weinstock, by Barnard’s McCaughey, the Dean of referred to her her first Robert name, “Shelley.” faculty, Referring who was to be to a woman Arts and Sciences in by may ad hoc. Columbia’s then- her first name this context be present at the Sovern, probative gender Michael its current on the issue of discrimi- President Amici,1quoting Barnard’s then- nation. an article from the George Rupp, President Futter, Feminism, Law Ellen and even Cole Yale Journal and re- President 1,730 port that student evaluations of agree phone all that these calls himself “inappropriate” faculty, professors if law school male were clearly would have been opinion an on Wein- never referred to their first names. were.expressing Tall candidacy, and would have consti- Braine and Hertz also testified Silver- stock’s because, patronizing stein and Tall assumed a tone procedural irregularity, tuted a Weinstock, calling her “nice” and according president, to Columbia’s mem- toward nurturing. her as if were describing an hoc committee are to meet she bers of ad reviewing Although they specifically the candidate’s dossier do not remem- after ber what words were used to describe “completely independently.” Weinstock, they both believe that “nurtur- McCaughey Dean raised the Yet when ing” was consistent with the nature of that a requested at the ad hoc and issue commentary. and Silverstein’s Tail’s convened, Provost new ad hoc be Cole law, finds, majority as a matter of request, claiming his that be- dismissed possibly comments cannot raise neither Braine nor Hertz felt their these cause of sex discrimination because opinions changed as a result of Tail’s inference (1) calls, “nurturing” ir- “nice” and could: conceiv- phone procedural there was no (2) men, ably and are Replicating argument, be used to describe regularity. Cole’s irregu- positive qualities. Perhaps posi- these are majority finds that “whatever contest, qualities the final de- tive a motherhood but larities existed did not affect for a deny during tenure.” the tenure deliberations cision to scientist, chemistry professor they and arm-twisting Tail’s was ultimate- Whether By discrimination. de- suggest gender to the issue of ly successful irrelevant referring to her very scribing fact that her as “nice” and gender discrimination. The made, manner, Tall nurturing they the calls were were clear- Silverstein extolling positive qualities— such constituted were not' ly inappropriate, rather, qualities to they using were these procedural defects the tenure review they perceived to be her process, question highlight calls into what for de- intellectual weakness. proffered nondiscriminatory reason Science, Chap- appeal York was filed in this for Women New 1. A brief Amici Curiae Advocates, Lawyers Employment As- jointly by Equal Rights ter of the National American Women, University Association sociation. Association of *20 in compile experts Barnard dean a list of Weinstock’s meeting At ad hoc the Al- present, candidacy. field to consult about her provost are both and Columbia provost though Rittenberg provided But the him with a list as observers. supposedly expressed nega- a expert faculty an active role and within Columbia Univer- took chemistry and her sity, single person tive view of Weinstock did not contact a Cole research, exper- Rather, no a field in which he had on this list. he turned to Breslow Bersohn, not a admitted he had read professors tise. Cole two in Columbia’s Sig- many publications. one of single Chemistry her whom Department, neither of deposition in hav- nificantly, he denied his in experts are Weinstock’s field. Profes- any at the ad hoc ing expressed opinion previously Breslow written a sor had all, members of the meeting yet three can- thoughtful supporting plaintiffs letter including present, who were committee didacy, in changed response but his tune Cohn, say Cole took outside Professor not provost, describing Weinstock as (Professor negative active role and was aggressive, tough, “perfectly a nice “sticking point” for Cole was Cohn said person” “pushover.” Having a ob- (issue research), Professor Weinstock’s from he tained Professor Breslow what wanted, provost #2) then cited Breslow’s turn advice of his decision to the members of provost informed down, (issue plaintiffs application plaintiff the ad hoc committee that should #5) receive judged though be she would Columbia, that had tenure at a standard questioned during deposition his When candi- applied not been to other Barnard why on he did not contact agree- to the affiliation According dates. experts knowledgeable about Weinstock’s institutions, pro- ment between the two research, responded that he area of Cole by cedures which Barnard nominations sought only to his assessment “confirm” tenure are reviewed “differ some re- not need therefore did spects” from Columbia nominations. The expert. to consult an His notes of own institutions differences between the two telling his conversation with Breslow are provost’s standard a purported
render they sup- touch briefly on the (issue 3)# impossible false and one. posedly strength central issue—the predisposition against go Provost Cole’s Weinstock’s research —but instead on characteristics, i.e., Weinstock, by personal his ac- to describe a Professor evidenced hoc, nice during “perfectly person,” “pushover.” tive and role the ad deliberate why remarkably Bar- found the needed— explain could he sent Cole confirmation he College stating gender stereotypes nard a letter that he confirmation of scholarly agreed deny with the ad hoc’s decision to detracted from Weinstock’s achievements, (issue 6)# denying Weinstock tenure and was thus very im- generated her tenure. He addition, In from his conversation portant despite document the fact that Bersohn, positive Cole discredited the rec- grant plain- ad hoc committee voted Chemistry ommendation of Columbia’s De- error, glaring tiff to his tenure. Alerted partment, describing “courtesy” by it as follow-up letter to Cole sent sincerity extended to Barnard. If the College, explaining sought that he had “ad- Chemistry Department’s let- vot- ditional information” after the ad hoc favoring ter tenure was am- favor, him ed which had convinced biguous, agreement affiliation sets recommendation, (issue 4) reject # its procedures exploring forth formalized process by meaning, through which Provost col- its either a written Cole hoc, testimony purported lected his “additional informa- statement to the ad or equally option tion” is mendacious. He asked before it. Neither was followed. Stephen Rittenberg light of the fact that Weinstock received Associate Provost *21 Chemistry requesting De- Braine wrote two letters 11 votes from Columbia’s favor, answered, explanation, finally 4 abstentions from Cole but in her partment research, qualified response by stating unfamiliar with his since those vote, single negative Cole’s assertion a charge not a Weinstock had filed of discrimina- EEOC, was extended as that the recommendation tion any explanation with the he least, “courtesy” say is to a mere offered must be made with the defense of majority’s startling. The asser- University somewhat in mind. might One ” ‘courtesy’ a tion that this vote “was mere fairly ask what defense would be needed if a dispute (issue raises a about material at best given pretextual. the reason was not fact, (issue 7)# issue #10) Moreover, credibility of assessing in B. Rationale Cole’s negative supposedly rebanee on two Cole’s from of the Columbia reports members in place For the reader to Cole’s conduct enti- Chemistry Department, Weinstock is context, proper insight some his initial into departmen- from the tled to the inference negative plaintiff view of as a woman can- (a) tal vote that Breslow and Ber- either Chemistry for tenure in the Depart- didate of her to thought enough sohn well work gained by examining ment can be a book (b) her; they were vote to tenure or subject, he wrote on this Fair Science: they among abstaining those because were in Community Women the Scientific infer- unfamihar with her Either work.. (1979). In Provost address- the book Cole validity casts doubt on the of Cole’s ence question es the of whether women scien- reason, (issue 8)# in subject tists are to sex discrimination Id. at promotion. matters -of 18. His 8-2, Even when the ad hoc’s vote is it is answer, chapter in sét forth Woman’s reject provost for the its recom- rare Community, Place in the justify, part, To at least in mendation. Scientific Instead, high believes there is a “no.” he taking overruhng the “rare” action of in the distribution of degree fairness vote, hoc committee Cole in his positive ad and that women’s lack of scientific rewards president to the of Columbia said report on what he terms “univer- success is based University’s that Rockefeller Professor criteria,” which, page salistic at he de- hoc only Cohn—the member of the ad at put fines as merit. See id. 82. To plaintiffs field— committee who was juror bluntly, a rational could find that thought Weinstock’s research was “weak.” view, are provost’s women scientists Yet, according the ad hoc to two of mem- subject in denial of bers, positive about Professor Cohn cases; they simply lack merit. fact, in plaintiffs candidacy. Professor Bar- Cohn’s own letter to the Chair of strong tenure candi- Faced with such ' Department following Chemistry nard’s date, by in- explained his decision Cole tenure, expressed the denial of he his un- fell short of the sisting that Weinstock happiness deny at Cole’s decision Wein- to obtain tenure standard needed Co- tenure, that he had stock stated voted rather Chemistry Department, lumbia’s her favor and had found her research Chemistry Department. than Barnard’s imaginative,” “rather and commented that him to This rationale enabled mischarac- an excellent teacher and mentor. she was positive reviews of her terize all the' Hardly language used to describe a work, Cohn’s, in- including Professor candidate, (issue 9) weak # were sisting that these reviewers Further, they ap- because agreement pro- positive about Weinstock the affiliation It nonetheless plied a lower standard. provost explain vided that the agreement to the ad hoc clear from the affiliation reasons for his decision Barnard, rejected. the standards for tenure whose recommendation he Cole bmit- undergraduate none. After Barnard Professor small institutioil offered facilities, disingen- That inaccurate differ from those at statement is ed research *22 Columbia, research institution large agreement a uous. The affiliation with Co- facilities and a substantial qualifications up with advanced lumbia leaves the review students to assist the hoc budget graduate agreed-upon process, and ad but considerations, in their research. There is with professors respect to financial “final,” prac- to indicate that as a as ample presi- evidence Barnard’s decision is the conceded, 12) standards, (issue matter, tical two one for ten- # dent of Columbia at Barnard and one for tenure at ure gender This record reflects discrimina- Columbia, emerged. Fut- President by gender incontrovertibly tion shown decision in appealed ter of Barnard Cole’s stereotyping and statistics. Further ap- first time she had ever writing —the the ae- this discrimination occurred under years in pealed a tenure decision gis provost granted of a vast discretion in defense, president. Barnard’s In his as who, record demon- tenure matters the argu- agreement, the affiliation Cole cited strates, guilty procedural irregulari- permitted apply him to identi- ing that agreement in the ties violation of affiliation cal standards to Barnard and Columbia Barnard, as between Columbia and well as professors, that his discretion and broad very large credibility number of issues rendered his decision unreviewable. veracity provost’s that cast doubt on the as nondiscriminatory rationale is Cole’s evidence, a witness. In light from start to finish incredible. Even Pro- jury prof- could find that the reasonable Breslow, testimony whose he cites fessor for denial of tenure was pre- fered reason decision, agreed support of his Sal- textual, the real reason was sex ly the of Barnard’s Chapman, Chair Chem- violation of Title VII. istry Department, would not have been
granted tenure under the standard Cole Ill Law on candidate impose claimed to Weinstock. Summary Judgment A. Weinstock was the first woman Professor In their zeal to “clear calendar” natural nominated for tenure sci- lawsuits,” my colleagues so-called “doomed during ences at or Barnard posture have overlooked the procedural provost, apparent term as and it is Cole’s appeal. Summary judgment selectively applied higher stan- Cole appropriate only moving party when the dard in her case. The tenure bar was genuine has shown that there are no issues raised for Weinstock because she is a of material that it fact and is entitled to crystal point woman. This was made clear judgment as a matter of law. See Fed. following year professor when a male 56(c). In determining R.Civ.P. whether Physics Department granted exist, genuine fact “a issues of material fact despite tenure at Barnard that at ambiguities all court must resolve ad least one member his hoc committee against draw all reasonable inferences acknowledged that he would not have re- moving party.... there [N]ot must Physics Department in the ceived tenure genuine evidentiary be no issue as to the is, at Columbia. That the tenure bar was facts, (issue #11) but there must also be no controver- Standing a man. lowered for sy regarding inferences to be drawn significant enough alone this issue is from them.” Donahue v. Windsor Locks summary judgment overcome a motion. (2d Comm’rs, Bd. Fire response Even Provost Cole’s Profes- Cir.1987) added). (emphasis inquiring sor Braine’s letter his rea- case, reviewing sons tenure was the facts of this denying suspect. provost majority Cole insisted that as he district court and the have done precise opposite had to be concerned about the financial factual is- —resolved impact University of tenure on finances. sues in favor rather than Wein- controversy Hopkins’ arose from the fact that stock’s, disregarded the house pivotal facts. These surrounding of its qualities so-called masculine others —what particularly egregious analytical errors are as her perceived abrasiveness —would case, employ in .a discrimination where qualities valued in a man being have been have re is at issue. As we er’s intent partnership. considered for Price Water- recognized, .evidence of peatedly discrimi against Hopkins house discriminated be- natory usually circumstantial and intent although performed cause she the “mascu- *23 scrutiny from only gleaned can be careful competing successfully line” role for See, e.g., v. of the entire record. Belfi business, punished the firm her for not (2d 129, Prendergast, 191 F.3d 135 Cir. simultaneously performing the “feminine” 1999) (“[T]he especially trial court must be softly having a speaking role of and femi- deciding grant whether to cautious appearance. Supreme nine The Court remedy in a discrimina provisional drastic Hopkins’ held that failure to fulfill this case, employer’s because the intent is tion gendered impermissible role an con- was scrutiny may often at and careful issue partnership sideration decision. supporting reveal circumstantial evidence discrimination.”); inference of Chertko presents image This case the mirror Co., Ins. 92 va v. Connecticut Gen. Life deny Price Waterhouse. Cole’s decision to Cir.1996) (2d (“Since 81, it is rare F.3d 87 ironically— Weinstoek tenure was based— employer’s find in an records indeed to projecting on her success at a perceived personnel decision was made proof stereotypically image “feminine” at work. reason, whatever oth discriminatory for a gentle was described as and Weinstoek ma depositions, er relevant affidavits and “nice,” caring, “pushover,” and nurtur- district court must terials are before the Weinstoek, ing. Unfortunately for a ster- circumstantial carefully scrutinized for be eotypically person “feminine” is not viewed that could an inference of evidence driven, in a male dominated field as a discrimination.”); v. Prudential Residential Gallo scientifically-minded, competitive academic s., 22 Partnership, Ltd. F.3d Serv on inappropriate researcher. The focus (2d Cir.1994) 1219, (explaining 1224 qualities “feminine” in the ten- using this court must be cautious about process perhaps ure led Cole and others remedy” “intent provisional “drastic where “masculine” success as a re- discount her issue”). is at Hopkins professor. searcher and While n B. Law on Discrimi- Substantive failing perform punished was Bearing nation —Factors on role, punished was “feminine” Weinstoek Pretext performing it too well. The Stereotyping. 1. Gender discrimi- Hop- both problem The Weinstoek pre- natory gender stereotypes effect of employers kins faced is that their demand- Supreme 'con- cisely problem Court they perform both “masculine” ed that Hopkins, in Price v. demned Waterhouse roles, yet perceived those roles “feminine” 228, 1775, 104 L.Ed.2d 490 U.S. 109 S.Ct. fundamentally incompatible. Unlike (1989). majority Price 268 believes Waterhouse, Price “masculine”- men at inapplicable to this case be- Waterhouse is her “mas- Hopkins punished because ad- Hopkins, unlike Ann who was cause gen- culinity” appeared inconsistent femininely, “walk talk more
vised to more stereotypes of how women should dered wear femininely, femininely, dress more behave; punished look and Weinstoek styled and wear make-up, have her hair incon- “femininity” appeared her because 235, 1775, at Wein- jewelry,” id. 109 S.Ct. success as a re- sistent with “masculine” “carping.” logic face This stock did not if had chosen to searcher. Yet Weinstoek dis- misapprehends why stereotyping is image, she project a more “masculine” criminatory. irony of Price Water- 58 n very employment setting, gen have suffered the same other the use of
could
well
Hopkins.
stereotypes suggests
fate as
dered
sex discrimina
necessary
tion.
It is not
that these stereo
Irregularities.
In the
2. Procedural
types
employer’s
form the sole basis for an
case,
signifi-
instant
Weinstock has raised
decision. Weinstock need
show that
proffered
questions
cant
about Columbia’s
gender
“motivating
was a
factor” in
for its tenure de-
nondiscriminatory reason
Columbia’s decision. See Price Water
enough
than
evidence to
cision—more
house,
250,
1775;
U.S.
S.Ct.
summary judgment.
a motion for
overcome
Inc.,
Grey Advertising,
Renz v.
135 F.3d
employment setting,
pro-
other
(2d
Cir.1997);
221-22
v.
shifting
Montana
irregularities
cedural
stan-
Ass’n,
dards outlined earlier that characterized
First Fed. Sav. & Loan
(2d Cir.1989).
process
the entire
Weinstock’s tenure
strong
When this
review,
undeniably
pretext.
would
suggest
pretext
evidence of
in the
considered
Sch.,
Holy
High
See DeMarco v.
Cross
gender stereotypes
context
evident
*24
(2d Cir.1993)
166,
(implausibility
F.3d
171
handling
of Weinstock’s tenure
nondiscriminatory
employer’s
of
rationale
case, it
creates
inference of sex discrim
pretext);
Regis
shows
St.
Pa-
Schmitz.v.
ination, suggesting
might
that Weinstock
Co.,
(2d Cir.1987)
131,
per
132-33
ultimately prevailed
well have
had she
(employer shifting explanations provides
given
day
been
her
court. See Reeves v.
—
pretext).
evidence of
The context of a
Products,
Plumbing
Sanderson
U.S.
different,
tenure decision is no
as Title VII
-,
-,
2097, 2108,
120 S.Ct.
147
with the
applies
same force to universities
(2000).
L.Ed.2d
In holding
105
that evi
employers. University
as to all
Pa. v.
of
pretext,
dence of
when combined with a
EEOC,
182, 190-91,
577,
493
110
U.S.
S.Ct.
could,
law,
prima
case
as a matter of
facie
(1990).
CONCLUSION sciences, preferment in the natural ademic in this case. that culminates a-record have to an- question ultimate we conduct is not whether Provost Cole’s swer depriving its sister success spirit of the the letter and the violated Weinstock’s services college of Professor between Barnard and agreement affiliation having Chemistry Department in its obviously it so did—it Columbia—which decision, must, at vindicate that this Court federal and actions violated whether Cole’s level, victory for as a some be viewed laws. The record state anti-discrimination But at what provost. and its denied ten- suggests that Weinstock was price? lack- scholarship
ure not because insists, but she is
ing, as Columbia because proof magnitude
a woman. in the is- offered —reflected significant, identified above—raises
sues respect pre- issues of fact with
material notes Cole’s tion. Provost tenure in male ly qualified less .received hearings the commit- at indicate that both not at Barnard does sciences the hard would the candidate whether tee discussed record at “the signify sex bias because Additionally, Columbia. receive tenure at in opinion of a difference best indicates Halpin- evidence that Weinstock’s merit,” gen- and not scholarly evaluation this, regard subpar Healy’s research was at Weinstock. aimed der discrimination member one unidentified the fact that was Zahorik, F.2d at 94. may ex- committee have his ad hoc was that his research pressed opinion Dissent’s Assertions B. The University standards. to Columbia up fact, the dissent Trolling for an issue of that However, there is no other evidence issues supposed “disputed twelve marshals hoc of his ad committee any other member fact,” their existence and claims that fact, view, the commit- shared this given have pretext should suggests unanimously grant Halpin- tee voted day in “her court.” Weinstock It cannot be said therefore Healy tenure. by dissent found The first “issue” a laxer was held to Halpin-Healy that made commit- phone calls involves was when he than Weinstock standard hoc committee Tall to the ad tee Chair granted tenure. tenure it to discuss before met that the contends candidacy. contends that certain The dissent The dissent all made at “calls evidence, amicus these calls were culled from an fact that statistical nondis- proffered question district into presented to and never brief denying for criminatory reason of sex probative appeal, court or on noted, However, it previously as tenure.” it that Specifically argues discrimination. institutions, pic- the overall pro- that search states that a dissent Columbia 3. The also University’s anything, this is a rec- ture a "scandal.” has characterized was If fessor This tenuring profes- as a "scandal.” compliment, women because the ord in backhanded actually professor stated is a distortion. "somewhat that sor stated also in its tenured two women that Columbia had univer- tenuring than other women better” Chemistry Department, this sities. comparison re- to other “good” record in all operating procedure a com- standard nominations the Universi ty mittee Chair call members of ad hoc are the could conceivably same” be seen they if anything negative committee to see need in light of subpar Weinstoek’s Granted, scholarship. However, before the committee meets. charge his to the inappropriate would be to criticize a candi- committee on these standards awas cor call; type phone representation date this but wheth- rect University policy, Tall er criticized Weinstock is immaterial and cannot reasonably be viewed as evi discrimination, no because ad hoc committee tes- member dence because it is not in any way tified Tail’s comments secondguess Court’s role to the appli their influenced view or eventual vote. cation of policy to Weinstock. After event, all, given that the dissent focuses right “[Columbia] alone has the to set
Notes
notes address Weinstock’s scholar have either abstained or would have had to They ship. are as follows: recommending tenure voted favor (1) Lessinger Chapman quality— & — Weinstock, con- Department vote since up quality not level either votes. The dissent negative tained no the two current members that Bersohn therefore concludes Chemistry Dept. against could not have been Breslow (2) of intellectual Nobody terms This mind granting Weinstock tenure. power; periphery work in generate not a materi- game certainly does field event, we have question al of fact. (8) City College— make it at Wouldn’t that Professor Breslow stat- already noted make tenure at probably wouldn’t was bluntly thought that he Weinstock ed City College league in the same as other not Chemistry De- (4)Never Barnard members of the say anything had sensible enough That statement alone partment. Bar- colloquium; other[s] from conclusion that claims professor Phys- Provost Cole’s that “a male at the negative Department ics granted Professor- Breslow had a view of was tenure at scholarship. despite the' fact that Weinstock’s one member hoc acknowledged of his ad committee an incon The ninth “issue” finds he would not have received tenure sistency between Professor Cohn’s view of Physics Department at Columbia.” His ad Weinstock and Provost Cole’s character committee, however, hoc as a whole did no ization of that After view. Weinstock was thing. such The most that can be said is tenure, Cohn, a of the ad denied member that one member of that committee stated tenure, hoc committee who voted for that Halpern-Healy would be in the bot- strongly swayed by wrote that he “was her tom ranks of Physics Depart- Columbia’s excellence as a teacher and mentor” and ment. There is no evidence that the entire that he “was less disturbed about [her “acknowledged” Halpern- committee which found rather imagina research] [he] Healy would not receive tenure at Colum- Cole, tive.” in a letter to Columbia’s Pres bia. explaining why. ident he not to decided The final “issue” noted the dis tenure, grant that Pro stated sent concerns an assertion that Provost thought research fessor Cohn was disingenuously Cole informed Professor However, “weak.” because de Braine, committee, a member of ad hoc research, on cision Weinstock’s based part of the reason Weinstock was primary which Cohn indicated denied tenure was because of financial vote, “yes” basis for his the fact that Cole impact University of tenure on finances. may have misconstrued view of Cohn’s is, however, There no basis the record inconsequential. research is for this assertion. The' letter