# Fisher v. Vassar College

> District Court, S.D. New York · June 30, 1994 · 852 F. Supp. 1193

URL: https://www.frixlaw.com/law-library/cases/1736405

## Case

- **Full name:** Cynthia J. FISHER, Plaintiff, v. VASSAR COLLEGE, Defendant
- **Court:** District Court, S.D. New York
- **Decided:** June 30, 1994
- **Citations:** 852 F. Supp. 1193; 64 Fair Empl. Prac. Cas. (BNA) 1346; 1994 U.S. Dist. LEXIS 15732; 1994 WL 194908
- **Precedential status:** Published
- **Opinion:** Opinion by Motley
- **Judges:** Motley
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Cynthia J. Fisher, Plaintiff-Appellee-Cross-Appellant v. Vassar College, Defendant-Appellant-Cross-Appellee, 70 F.3d 1420 (1995).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1736405

## Opinion text

OPINION
MOTLEY, District Judge:
Plaintiffs principal claims in this action are that defendant discriminated against her on the basis of sex and age; that defendant discriminated against her in the terms and conditions of her employment; and that defendant retaliated against her for bringing this discrimination claim.
A. INTRODUCTION
Plaintiff, Dr. Cynthia Fisher, brought this action against Vassar College under Title VII of the Civil Rights Act of 1964, as amended to apply to Universities in 1972 (42 U.S.C. § 2000e
et seq.)
alleging discrimination against her on account of her gender. The case was tried before the court commencing on June 14, 1993 and was completed on July 2, 1993.
Pursuant to the court’s permission during the course of the trial (R. at 2392), plaintiff filed an amended complaint which made the following claims:
1. Plaintiff was discriminated against on account of her sex when she was denied tenure in May of 1985 in that male members
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of the Biology Department Faculty who had fewer qualifications than plaintiff, both prior and subsequent to her denial of tenure, were granted promotion to Associate Professor rank and tenure;
2. She was discriminated against in the denial of promotion and tenure on account of her status as a married woman;
3. During plaintiffs employment as an Assistant Professor of Biology from 1977 through June 1986, she was paid less in salary than men Biology faculty with similar assignments in violation of Title 29 U.S.C. § 206 (d)(1);
4. Plaintiff was discriminated against on account of her age when she was denied promotion and tenure in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623 ; and
5. Plaintiff suffered retaliation from defendant in violation of 42 U.S.C. § 2000e-3 in connection with a new position on the Bard College faculty which she secured after leaving Vassar.
Plaintiff seeks monetary damages, reinstatement on the faculty at Vassar with tenure and attorneys’ fees and costs.
B. FINDINGS OF FACT
After hearing the evidence and weighing the testimony, exhibits received in evidence and the credibility of the witnesses, the court makes the following findings of fact:
1. Plaintiff, Dr. Cynthia Fisher, is a married woman with two daughters ages 27 and 24. She holds a Bachelor’s degree from the University of Wisconsin and Master’s and Ph.D. degrees in Zoology from Rutgers University. (R. at 20.) She engaged in postdoctoral studies at Rutgers Medical School from 1963 to 1965. Between 1974 and 1976, she taught biology as a part-time lecturer at Marist College in Poughkeepsie, New York. (Pre-Trial Order, II, E., 1; Exh. 7.)
2. Defendant, Vassar College, is an employer within the meaning of Title 42 U.S.C. § 2000e-2.
3. Plaintiff was employed by the defendant from 1977 through 1986 as a member of the Biology Department Faculty. (R. at 22; Exh. 113.)
4. On March 29, 1985, the Vassar College Biology Department senior faculty recommended by letter to the Dean that Dr. Cynthia Fisher be denied promotion and tenure on the grounds that she did not demonstrate “the outstanding quality called for in the ‘Guidelines for Appointmént, Reappointment and Promotion of Faculty at Vassar College’ as set forth in the Faculty Handbook.” (Pre-Trial Order, II, F., 6; Exh. 8.) The letter was confidential and, therefore, not seen by plaintiff until discovery in this action. (R. at 241.)
5. Dr. Fisher was informed of this decision on March 29, 1985, during a twelve-minute meeting with the Chairman of the Department, Leathern Mehaffey. Athough Dr. Mehaffey had been delegated to explain to Dr. Fisher the Department’s conclusions and reasons for recommending against tenure, he refused to discuss the Department’s decision in any detail. (Exh. 98B.) Dr. Fisher received no further explanation of the Tenure Committee’s position from the Biology Department, the Dean, the President or anyone else at Vassar. (Pre-Trial Order, II, F., 6; Exh. 98A-C.)
6. The Departmental letter recommending against promotion and tenure for Dr. Fisher denigrated her scholarship, teaching ability and service; the three criteria considered on review. (Exh. 8.) The negative recommendation was unanimous as were all seven tenure recommendations made by the Department from 1979 to 1985. In 1987, a Dr. Schlessman was recommended for tenure in Biology by a 4-3 vote. (Exh. 24, 29, 32, 36, 39, 43, 117.).
7. Departmental recommendations are forwarded to the Dean and to the Faculty Appointments and Salary Committee (FASC) and each makes an independent recommendation. The Dean and the FASC then meet and compare their recommendations. After-wards, they meet with the President of the College, who has also made an independent review and come to a final decision. (R. at 1424-25.)
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Qualifications for Tenure.
Scholarship.
8.
The components of the “scholarship” qualification for tenure include peer-reviewed journal publications, the eminence or rank of the journals in which such publications appear, peer-reviewed extra-mural research grants awarded directly to the investigator (as distinguished from fellowship money), professional consultantships to national research institutions, papers presented at professional meetings with abstracts published, extra-mural research appointments, other in-house grants or fellowships and other lesser components.
1
(R. at 83£M1, 1113-15, 2196-97; Fallding Dep. at 25-26.)
Publications.
9. At the time of her tenure review, Dr. Fisher had seven peer-reviewed publications: six research papers plus an invited chapter. She also had a completed manuscript which was submitted in her dossier to the Biology Department and was subsequently published. Of these eight papers, three were pre-Vassar, and five were based on work done since she started at Vassar in 1977. She was second author on her first publication, and sole or principal author on all seven subsequent papers, including all five published while at Vassar. These publications were:
Leathern, J.H. and Fisher, C.J., Pregnancy and Protein Nutrition. V Congresso Int. per la Riproduzione Anímale e la Fecondazione Artificíale Bol. Ill: 274-276, 1964.
Fisher, C.J. and Leathern, J.H., Effect of a Protein-free Diet on Protein Metabolism in the Pregnant Rat. Endocrinology 76: 454-462, 1965.
Fisher, C.J. and Stetten, M.R., Parallel Changes
in vivo
in Microsomal Inorganic Pyrophosphatase, Pyrophosphate-Glucose Phosphotransferase, and Glucose 6-Phos-phatase Activities. Biochem. Biophys. Acta 121: 102-109, 1966.
Fisher, C.J. and Sawyer, R.H., The Effect of Triamcinolone on the Development of the Bursa of Fabricáis in Chick Embryos. Teratology 22: 7-12, 1980.
Fisher, C.J., Chick Embryos in Shell-less Culture. In: “Tested Studies for Laboratory Teaching: Proceedings of the Fifth Workshop/Conference of the Association for Biology Laboratory Education (ABLE).” Kendall/Hunt Publishing Co., Dubuque, Iowa. R. Ecklund, Ed., in Press, 1984.
Fisher, C.J., W.M. O’Guin and R.H. Sawyer. Altered Keratin Biosynthesis Follows Inhibition of Scale Morphogenesis by Hydrocortisone. Developmental Bio. 106: 45-52, 1984.
Fisher, C.J. and R.H. Sawyer. Comparison of Hydrocortisone and Triamcinolone Inhibition on Seale and Feather Development. Teratology 33: 37-45, 1985.
The unpublished manuscript entitled ‘Vitamin-A-Induced Ptilopody Alters Keratin Biosynthesis,” the logic of which was criticized by the Biology Department (Exh. 8) was subsequently published under the authorship and title: Fisher, Knapp and Sawyer, “Retinoic Acid Reticulate Scales.” Teratology 38: 321-328, 1988.
(Exh. 71, BH, 7 IV A, 58E-F, 130A.)
10.The
Science Citation Index (S.C.I.),
published annually by the
Institute for Scientific Information,
establishes a standard for grading the importance of professional journals in which scientists’ works appear. (R. at 1100-03.) The
S.C.I.
gives the citations to each author’s past articles and the number of citations each year to over 4000 scientific journals published worldwide. The journals are then ranked in an annual volume called the
S.C.I. Ranking Index
from most-cited (number 1) to least-cited. The top-ranked five percent are those journals ranked from 1 to approximately 200. The frequency of citations of a scholar’s work as listed in the
S.C.I.
and the rank of the journal in which
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the work was published are key measures of scholarship familiar to scientists and widely used by them. (R. at 1100-1115.) Dr. Fisher was published in some of the most prestigious journals and was more often the first author which is meaningful with regard to credit. (R. at 1109-10, 1113-14; Exh. BH.)
11.Among scientists, the number of citations to an article and the rank of its journal are a combined index of the importance of the work. The court has reviewed relevant pages from the
S.C.I.
for citations to Drs. Fisher, Hemmes, Mehaffey, Suter (three males) and Norrod (single female) and has further checked, with the help of expert testimony, the total numbers of citations in the
S.C.I.
to the pre-tenure, peer-reviewed publications of doctoral or post-doctoral research for Dr. Fisher and for Drs. Hemmes, Mehaffey, Suter and Norrod, the four recipients of tenure during the period Dr. Fisher was on the faculty to whose records Dr. Fisher’s record must have been compared, as well as for Dr. Mark A. Schlessman, the male who was granted tenure in 1987. The court has made the following comparisons as to these journal publications and their comparative importance. (Exh. 108A, 108BB, 108CB; R. at 218-219, 1103-1115):
a) Dr. Fisher had 50 citations to her papers in top five percent journals (ranked 7 to 109) and four citations to a paper in a 766 rank journal. (Exh. 71, 77 p. 6,108BB, 108C; R. at 223-24, 1103-1115.)
b) Dr. Norrod, a single female granted tenure on the recommendation of the Biology Department the year that Dr. Fisher was turned down, had 39 citations to her papers in top five percent journals (ranked 19, 70) and 31 citations to journals ranked 236 to 1,406. (Exh. 73, 78B pp. 4-5, 108BB; R. at 212-18.)
c) Dr. Suter, a male who received tenure in 1984 had no citations to papers in top five percent journals and had 26 citations to journals ranked 428 to 3340 out of 4000. (Exh. 69, 77A pp. 4-5, 108BB, 108CA; R. at 211-13.)
d) Dr. Mehaffey, a male who received tenure in 1980, and chairman of the Biology Department in 1985 at the time Dr. Fisher was considered for tenure, had no citations to top five percent journals and had five citations to one article in a journal ranked at number 296. At the time of his tenure review, he had five published papers and was first author on only one of them. All these papers were based on pre-Vassar work. At the time of tenure review, he had one paper published from his six and one-half years of work at Vassar and was second author. (Exh. 67, 77A p. 3, 108BB, 108CA; R. at 211-13, 1108-09.)
2
e) Dr. Hemmes, a male who received tenure in 1979, had 21 citations to one article in a top five percent journal which was ranked at number 75. (Exh. 65, 77 p. 2, 108BB, 108CA; R. at 211-13.)
f) Dr. Schlessman, a male who received tenure in 1987, did not have any citations to- top five percent journals and had six citations to a journal ranked 2634th. His other publications were in journals not listed in the
S.C.I.,
and, therefore, are not counted. (Exh. 124, 77 pp. 8-9, 108A, 108BB, 108CA; R. at 211-13.)
12. The court finds, based on the evidence, that Dr. Fisher’s publication record in prestigious journals was superior to that of the three males who received tenure prior to the consideration of Dr. Fisher for tenure and the male who received tenure subsequently in 1987 and was relatively equal to that of the single female who was promoted.
13. As part of its negative tenure recommendation, the Biology Department Committee falsely stated to FASC that the journals in which Dr. Fisher had published were “less impressive” than those in which Dr. Pinina Norrod, an unmarried female granted tenure the year Dr. Fisher was turned , down, had published. (Exh. 14.) While a major portion of Dr. Fisher’s publications appeared while
*1200
she was teaching at Vassar, all of Dr. Nor-rod’s publications were pre-Vassar. (R. at 1051-52.) There had been no break in Dr. Norrod’s career as there had been in Dr. Fisher’s. (R. at 1062.) Furthermore, in proceedings before the FASC regarding Dr. Fisher’s tenure which took place two months after the Department had made its recommendation, (Exh. 8), the FASC noted that Dr. Fisher’s research was performed “under more difficult circumstances than [Dr.] Nor-rod[’s] [and was] somewhat wider in range.” (Exh. 14; R. at 2148-2150, 2172.) Therefore, even if Dr. Norrod’s publication record was considered to be more impressive than Dr. Fisher’s record, her success was achieved without the extra burdens Dr. Fisher faced as a professor of biology.
14. In continuing its criticism, the Department stated to the FASC that the journals in which Dr. Fisher had published “were fairly narrow and highly specialized.” (See Glen Johnson Dep. at 15; Exh. 14.) However, in 1984, the Department did not remark on the journal rankings of Dr. Suter’s publications or comment on the breadth or narrowness of his research which was exclusively on spider behavior. (Exh. 82.)
15. Dr. Fisher’s published research had major importance to other scientists and was the opposite of “narrow and specialized.” The three outside experts who evaluated Dr. Fisher’s scholarship for Vassar’s tenure review process commented that her work was: 1) important to other scientists working on “skin biology, genetics, cellular and developmental biology and mechanism of teratogenesis (birth defects),” (Exh. 12C p. 2); that 2) “her papers are published in well-respected and refereed journals,” (Exh. 12C, p. 1); and 3) that her work “has made an important contribution to the study of development in the skin,” which “may have important implications to other areas such as cancer research____” (Exh. 12B, p. 1.)
16. The practice in science and among scientists in producing major research papers is to collaborate with other scientists. The first author on a multi-authored paper is the principal investigator, with the other listed authors having supporting roles. The
S.C.I.
cites the first author. (Exh. 108A; R. at 1109-10.) The Biology Department represented that Dr. Fisher’s research was derived from collaboration and was therefore not self-directed. (Exh. 8 p. 5 ¶ 3, 14 p. 2.) These conclusions were without foundation in fact. Dr. Fisher’s published collaborative papers all resulted from projects she designed and carried out. (R. at 259-64, 852-53; Exh. 7-IV-G.) Moreover, Dr. Fisher’s independence as a scholar was further confirmed by her being awarded a number of National Science Foundation (NSF) grants as sole or co-principal investigator while at Vassar. (Exh. 71; R. at 253-56.)
17. Dr. Fisher’s research independence may be contrasted with that of Drs. Hemmes and Mehaffey by comparing her number of first authorships with theirs. (Exh. 7, 64, 66; summarized in Exh. 77.) While Dr. Fisher was first author on five collaborative papers, Drs. Hemmes and Mehaffey were first authors on only one paper each at the time of their tenure reviews.
18. Moreover, both Drs. Hemmes and Mehaffey were praised on tenure review for their extra-mural collaborations. (Exh. 24, 29.) In addition to praising the quality of these collaborations, the Biology Department went far to excuse the lack of publication which resulted from these collaborations. (Exh. 24, 29.)
19. Without any support in the factual record, the Biology Department recommendation letter questioned the quality of Dr. Fisher’s scholarship by, among other things, criticizing five of her papers. The letter stated, “[w]e have serious questions concerning the quality of the scholarship,” — her work was “purely descriptive” and made “no interpretive claims.” (Exh. 8 p. 3 ¶ 5.) Dr. Castellot, an expert witness, noted that one of Dr. Fisher’s papers was important in its demonstration that a chemical used in humans to treat a number of diseases could cause birth defects. (R. at 1119.) Another paper addressed possible regulatory mechanisms in chick scale development. (R. at 1121.) However, the Biology Department Tenure Committee only considered the paper “a good experimental report,” and concluded that Dr. Fisher was “dependent on her coauthors” in her work. (Exh. 8 p. 4 ¶ 1.) The
*1201
Committee also concluded from her colloquia presentations, presentations required by the Biology Department for untenured members in a review year, that she “lacks both understanding and expertise” and “does not understand” the “significance [of her work] to [its] interpretation.”
(Id.)
As there were no indications of her inability to understand her work in this paper, the court finds that the Department’s criticism of this paper made unwarranted assumptions, was not based on any scientific rationale, and baselessly stated that she did not understand the biochemistry involved. (R. at 1122-23.) The criticism of a third paper stated that the paper represented unsound experimental thinking. (R. at 1125.) But in light of the fact that the Department did not carry out a statistical analysis of the experimental design, the criticism was again unwarranted.
(Id.)
The Department avoided dealing -with the significance of the work which showed the higher potency of one chemical than another in the development of chick scales. (R. at 1127.) As to the fourth paper, the Committee opined that “[t]he logic by which she derives this interpretation is impossible to follow.” (R. at 1128.) The Department again made unwarranted critical remarks and failed to check the substance of a reference in the paper which would have answered the questions the Department had concerning the dosage used in that particular experiment. (R. at 1127-31.) As to the fifth paper, the Department failed to acknowledge the value of the paper to research laboratories. Additionally, the Department unduly criticized her work for being based on a high school student’s project instead of acknowledging that science always involves input from many people with each person often profiting from the work of others. Therefore, all improvements made by a person on others’ work are significant scientific developments. (R at 1132-35.) These comments about Dr. Fisher’s work had no foundation in fact, (Fallding Dep. pp. 51-53, 59, 65-67), and clearly demonstrate bias against Dr. Fisher and the pretextual nature of the recommendation against her.
3
Each of the papers published, or accepted for publication by journals, had already been reviewed by several neutral expert scholars serving as editors of the respective journals. Papers submitted with the kinds of defects described by the Committee’s letter are seldom published by these prestigious journals. (R. at 891-898, 1115-1144; Fallding Dep. pp. 169-174, 205.) The Biology Department Tenure Committee’s representation that these journals were not “top rank” was pretextual and made in bad faith since the members of the Committee, all of whom are biologists, were familiar with the standards of the
S.C.I.
and the rankings of the journals in which Dr. Fisher had published since the
S.C.I.
is well recognized among scientists and science teachers. (R. at 1100-10.) Even without any study of the
S.C.I.,
the Committee should have been aware of the eminence of the journals in which Dr. Fisher published. Moreover, the Department could not in good faith have believed that Dr. Fisher’s work was more narrow and specialized than Dr. Suter’s work on spider behavior, for which he was commended in the Department’s recommendation for his promotion and tenure the previous year, (Exh. 32), or that Dr. Fisher’s work was less important than that of Drs. Mehaffey and Hemmes. (R. at 891-898.)
20. Dr. Fisher’s published research was commended, without reservation, by all three outside evaluators who evaluated Dr. Fisher for tenure review, by three expert witnesses at trial (two live witnesses, (Drs. Harding and Castellot) and one by deposition (Dr. Fallding)), and implicitly by the dozens of peer experts who reviewed and approved her published papers and her funded research grants. The only criticism of Dr. Fisher’s scholarship came from Vassar’s Biology Department. Generally, less weight is given to faculty opinion within a department than to outside experts since it is the outside experts who presumably know the field better. (Fallding Dep. pp. 169-173.) The court notes that Vassar offered no expert witnesses to counter the expert testimony adduced by plaintiff.
*1202
21. The Court finds that the Biology Department’s conclusions concerning the journals in which Dr. Fisher had published and the other comments the Department made about her published works in its assessment of her for tenure were disingenuous, pretextual and clearly made in bad faith, particularly in light of the fact that the persons making the statements concerning the assessment knew the false premise on which the conclusions were based.
Grants.
22. Further on the issue of scholarship, the court has reviewed Dr. Fisher’s record concerning extra-mural, peer-reviewed grants and has found that at the time of tenure review, Dr. Fisher had the following grants:
(a)
Research Grants:
(the last four were obtained during Dr. Fisher’s teaching career at Vassar)
NSF Co-op Graduate Fellowship, 1961-63 (Exh. 71)
American Association of University Women (AAUW) Fellowship, 1961-62 (Exh. 71)
National Institutes of Health (NIH) Postdoctoral Fellowship, 1963-65 (Exh. 71)
NSF Small College Faculty Opportunity Award, 1979 ($3,900) (Exh. 71, 61H, 7 IV B)
NSF Scientific Equipment Grant, Principal Investigator, 1981 (No. 8109084: $18,-480) (Exh. 71, 7 IV B, 61G)
NSF Research at Undergraduate Institutions Grant, Principal Investigator, 1984-86 (PCM-8402332: $40,000) (Exh. 71, 61A, 7 IV B)
NSF Research Grant, Co-Principal Investigator, 1984-87 (PCM-8402104: $204,-000*) (Exh. 71, 61E, 7 IV B)
(b)
Research Equipment for Teaching Grants
NSF Instructional Scientific Equipment Program Grant for Physiology Laboratory at Marist College, Co-Principal Investigator 1976 ($12,000*) (Exh. 71, 611)
NSF ISEP Grant for Tissue Culture Laboratory, Vassar College, Principal Investigator, 1980 (SER 8014038: $12,500
*
) (Exh. 71, 61F.)
(c) Vassar College Intra-Mural Grants
1979 Beadle Fund Grant (Exh. 60P.)
1979 Mellon Grant for Faculty Development (Vassar College) to attend Scanning Electron Microscopy course at SUNY, New Paltz (Exh. 60W.)
1980 Beadle Fund Grant (Exh. 60Q.)
1980 Mellon Grant for Faculty Development (Vassar College) to attend Transmission Electron Microscopy course at SUNY, New Paltz (Exh. 60BB.)
1981 Beadle Fund Grant (Exh. 60S-T.)
1981 Mellon Grant for Faculty Development (Vassar College) to set up an “in house” Photomicrography Course ($2,000) (Exh. 60EE-FF.)
1983 Mellon Grant for Faculty Development (Vassar College) for Microscopy Course, M.B.L., Woods Hole, MA ($1,014) (Exh. 71.)
1983 Beadle Fund Grant (Exh. 71.)
1984 Mellon Grant for Faculty Development: Research at U. of Grenoble, France ($1,470) (Exh. 71.)
23.The Biology Department Committee, in its negative tenure recommendation, minimized the importance of Dr. Fisher’s many grant successes. The Committee incorrectly stated that one of her grants was secured only after five unsuccessful attempts. (R. at 253-54.) While it noted that having to make several attempts is not unusual due to the competitiveness of securing national grants, the Committee misrepresented the facts. (Exh. 8 p. 3 ¶ 1.) This grant was in fact accepted on the fourth revision. (R. at 1833-34.) In addition, the Department down played the importance of Dr. Fisher’s Research in Undergraduate Institutions (RUI) grant by incorrectly calling it “less competitive” than regular grant programs when, in actuality, RUI grants are considered equally
*1203
as competitive. (R. at 857-58, 254; Exh. 8 p. 3 ¶ 1.) The Departmental letter even criticized the soundness of Dr. Fisher’s funded grant applications implying that the expert peer reviewers for these highly competitive national awards were somehow remiss in failing to spot the defects in her work which the Vassar Biology Department was able to discover. (Exh. 8 p. 5 ¶2.) Research grants are awarded by the NIH and NSF under extremely competitive circumstances and only after intensive review by a panel of expert peers in the scientific discipline of the person submitting the grant. (R. at 857-58, 860-61; Fallding Dep. pp. 47, 70-73.) These criticisms were in sharp contrast to recommendations made concerning the three male candidates who had been granted tenure while Dr. Fisher was on the faculty. (R. at 892; Exh. 8, 24, 29, 32.) None of these candidates was directly awarded any extramural peer-reviewed research grants while at Vassar College.
4
(Exh. 64, 65, 67, 68, 69, 77.) Dr. Schlessman, a male who was tenured in 1987, had one peer-reviewed research grant from a private foundation, the Research Corporation. (R. at 891; Exh. 124.)
24. It is significant that each of the three named male candidates, in the tenure recommendations of the Biology Department at the time of their tenure review, prior to the review of Dr. Fisher, were excused for not obtaining a funded peer-reviewed grant while Fisher’s success in obtaining grants was minimized. (Exh. 24, 29, 32.)
25. The Committee belittled the prestige of Dr. Fisher’s grant at the University of South Carolina, which she shared with Dr. Patricia DeCoursey, as co-principal investigator, by stating that “it was not related to her major research interest.” (Exh. 8.) This conclusion was erroneous, in fact, since Dr. Fisher’s collaborative work with Dr. DeCoursey applied Dr. Fisher’s culture technique from Developmental Biology to a behavioral field and to study of the brain. (Exh. 61E; R. at 860-61, 255, 558-59.) Moreover, the Department’s inference that a co-principal investigator is less important is “not at all” true. (Fallding Dep. p. 79.)
26. On one NSF grant, “Effect of Adrenal Steroids on Scale Morphogenesis and Keratin Biosynthesis,” the Committee misrepresented the record with respect to a letter from Dr. Fisher to Dr. Poodry (the Poodry letter), the Program Director of Developmental Biology at the NSF, in which she enclosed the NSF’s assessments on unsuccessful grant applications to show how she had addressed the criticisms therein. Despite the fact that the revised application won the sought after grant, the unfavorable Departmental recommendation quoted language from these unfavorable grant reviews. (Exh. 62A.) The Committee commented that “several flaws ... not mentioned in the reviewers’ comments” in the funded proposal put the Committee in disagreement with NSF which found no weaknesses when it awarded the grant. (Exh. 8 p. 5 ¶2; R. at 110-116 581-587, 591, 876-879.) The Poodry letter was part of a revised and renewed application for the grant. The court finds the Committee’s quotation ,of language from the Poo-dry letter and the attached reviews in its recommendation to be purposeful dishonesty. More specifically the court finds the dishonesty purposeful in light of the fact that the misquotation came about because the chairman of the Department deliberately asked Dr. Fisher to remove clarifying excellent NSF reviews of her work and to leave the critical assessments of the unfunded grant proposals in her departmental file. (R. at 111.) In any event, the other senior members of the Department must have known that grants which receive only fair to good ratings, as the Department characterized her grants, are not funded. (R. at 1135-38.)
27. With respect to the successful grant proposal (Exh 61E) Dr. Fisher shared with her sister, Dr. DeCoursey, the Committee gave all credit to her sister despite the fact that Dr. Fisher was the co-principal investigator, implying that she should not be credited for any scholastic contributions to the project. (Exh. p. 5 ¶ 3.) Dr. Fisher was
*1204
further criticized for talking about this proposal at her research colloquium because the research had not yet been “perfected.” (Exh. 8 p. 3 ¶ 2, p. 6 ¶ 1.) This was a spurious criticism since her colloquium involved a review of the techniques she invoked to secure her grant proposal; which in this instance involved the application of methods she had previously used in another field. (R. at 558-59, 859-63, 1140; Exh. 8 p. 6 ¶ 1.)
28. The same 1985 Departmental Committee which belittled Dr. Fisher’s NIH and NSF grants, strongly recommended Dr. Pinna Norrod. (Exh. 39.) In fact, the Department specially pled the necessity for Dr. Norrod’s tenure that year in the face of the FASC’s recommendation to deny her tenure. (R. at 1874; Exh. 9C.) Furthermore, the Committee emphasized the competitive nature of the grants Dr. Norrod had received and the “respect for her work in the larger scientific community” that such grants represent. (Exh. 39, p. 4.) The Committee recommended tenure for Dr. Norrod despite her having been on the Vassar faculty for only three semesters during which time she had no Vassar originated publications or grants. (R. at 1038-42.)
Papers Presented.
29. The court has found that at the time of tenure review, Dr. Fisher had delivered the following papers at professional meetings:
March 11, 1965: Fisher, C.J. and M.R. Stetten Parallel Hormonal and Dietary Induced Changes in Microsomal Inorganic Pyrophosphatase, Pyrophosphate Phosphotransferase and Glucose-6phosphatase activities. Federation Meetings, Atlantic City, NJ.
After joining the Vassar faculty:
March 8,1980: Fisher, C.J. and R.H. Sawyer Effect of TAC on the Development of the Bursa of Fabricáis in the Chick Embryo. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
March 27,1980: Fisher C.J. Mechanism of Action of Vitamin A. University of Maryland.
March 8, 1981: Fisher C.J. and R.H. Sawyer
In vivo
Effect of Vitamin A (Retinoic Acid) on the Development of Chick Skin. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
December 28, 1981: Fisher, C.J. and R.H. Sawyer Effect of Vitamin A (Retinoic Acid) on Chick Development
in ovum.
American Society of Zoologists, Dallas, TX.
March 19, 1982: Fisher, C.J., J. Gray and R.H. Sawyer Glucocorticoid Inhibition of Scutellate Scale Development by Hydro-cortisone. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
December 29, 1982: Fisher, C.J., J. Gray and R.H. Sawyer
In Vitro
Steroid Binding in Chick Embryonic Scale Skin and Glucocorticoid Inhibition of Scale Formation. American Society of Zoologists, Louisville, KY.
March 18, 1983: Fisher, C.J. and J. Gray Heterogeneity of Glucocorticoid Binding Sites in Avian Embryo Skin. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
December 27, 1983: DeCoursey, P.J. and C.J. Fisher Circadian Timing:
In Vitro
Culture of the Suprachiasmatie Nucleus. American Society of Zoologists, Philadelphia, PA.
December 28, 1983: Fisher C.J. and R.H. Sawyer Beta keratin: A Biochemical Marker for Feather Differentiation. American Society of Zoologists, Philadelphia, PA.
July 5,1984: Fisher, C.J. and R.H. Sawyer Altered Keratinization Follows Scale Inhibition by Glucocorticoids. ESCSB Congress, Grenoble, France.
December 27, 1984: Fisher, C.J. and R.H. Sawyer Mechanism of Action of Hydro-cortisone on Scale Keratinization. American Society of Zoologists, Denver, CO.
(Exh. 71.) Dr. Fisher presented twelve papers. Drs. Hemmes, Mehaffey and Suter
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and Schlessman had each presented six to nine papers at such meetings. (Exh. 77B.) Dr. Norrod had one invited presentation. (Exh. 72.)
30. The Biology Department Committee noted that Dr. Fisher had been invited by the National Institutes of Health to present a paper on Morphogenesis which it conceded represented recognition “by the scientific community.” (Exh. 8 p. 2 ¶4.) An expert testifying at trial asserted that this kind of recognition was “almost unheard of’ for an assistant professor at a liberal arts college and was a great honor. (R. at 851.)
Consultantships.
31. At the time of tenure review, Dr. Fisher had the following consultantships to the NSF and the NIH:
1984-85: NSF Panelist for College Science Instrumentation Program (CSIP)
1983: NSF Workshop on government research support at small colleges
1983: NIH: Developmental Biology consultant to Dr. G. Groos at the National Institute of Mental Health
(Exh. 71, 58C.) All of these consultantships were during her time at Vassar.
32. Drs. Hemmes, Suter, Schlessman and Norrod did not have any consultantships. Dr. Mehaffey had one consultantship. (Exh. 72, 77B, 124.)
Sabbatical Leave Activities.
33. Although the Committee agreed that Dr. Fisher’s sabbatical year was productive, the members criticized her sabbatical “leave activities” claiming that she spent only brief intermittent periods in the laboratory which raised concerns “about the choices she made in respect to how to spend her leave year.” (Exh. 8 p. 6, ¶2.) However, during her sabbatical, Dr. Fisher spent nine months working in the laboratory, during which time she collaborated with four different groups, submitted eight grant proposals, six of which (including two NSF grants) were funded, published one manuscript, wrote one other, served as consultant to both the NSF and the NIH and presented papers at national and international meetings. (R. at 45-47, 717-722; Exh. 7 IV B lab, 71, 16C 57A-B, 58A-F, 61A-E, 17.) These accomplishments made her sabbatical year far more productive than those of the three males who preceded her in tenure in the Department and more than the male who was tenured in 1987. (R. at 891-895; Exh. 65, 69,124.) The Committee excused Dr. Mehaffey for his lack of scholarly sabbatical activity by commending him for serving on a college committee during his sabbatical leave. (Exh. 29 p. 14.) Great portions of the tenure letters for each of Drs. Hemmes, (Exh. 24), and Mehaffey, (Exh. 29), were devoted to excuses for their lack of scholarly results. Despite her many recent grants and publications, the Departmental letter on Dr. Fisher concluded that “[t]here is no sustained in-depth probing of her research problem, leaving us once again to wonder about her commitment.” (Exh. 8 p. 6, ¶ 2.) This statement stands out starkly as another demonstration of the Department’s bad faith since Dr. Fisher’s scholarship was superior or at least equal to the scholarship of the three men and single woman who preceded her in receiving tenure as well as the man who subsequently achieved tenure in 1987. (R. at 841-853, 1107-1113, 1142-43, 1692, 1798-99, 1820, 1833, 1859-60.) Dr. Norrod, the single woman, did not take a sabbatical prior to her review. (Exh. 72.)
Outside Evaluations.
34.The court finds that the three outside evaluators, selected to evaluate Dr. Fisher’s scholarship record, evaluated her record analytically and in detail, were- strongly positive on her scholarship and supported her tenure candidacy. The court further finds that their appraisals of the plaintiffs merit as a scholar were improperly ignored by the defendant college in its final determination to deny plaintiff promotion and tenure in the Biology Department. The Department represented to the FASC and the Dean that Dr. Fisher’s outside evaluators did not go into depth or detail about her scholarship and thus their recommendations were not of high quality. (Exh. 126.) This was a disingenuous and pretextual criticism of these evaluations. It is clear upon a comparative reading of Dr. Fisher’s outside evaluations and those submitted for the men who had been recently tenured in Biology that Dr. Fisher’s evaluations were both more detailed and more
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unreservedly positive than those the men candidates received. (Exh. 12A-C, 25A-B, 30A-B, 33A-C.) At trial an expert testified on this issue:
As someone who is an expert in that area, I would agree with the outside evaluators whose letters were quite clear on the issue of Dr. Fisher’s research accomplishments that in fact she was a very accomplished, very independent, very well respected scientist who had contributed significantly to her own research field and showed every promise of continuing to do so in the future.
(R. at 1142-43.)
35. Particularly revealing on the issue of good faith were the remarks that Dr. Mehaffey, chairman of the Department at the time of Dr. Fisher’s tenure review, made to the FASC concerning Dr. Fisher’s outside evaluations. Dr. Mehaffey prepared certain notes for the meeting with the FASC on May 3, 1985. He wrote that Dr. Fisher’s three affirmative recommendations from the outside scholars were, “not at all analytical,” and that the Committee was “in fact disgusted with their quality.” (Exh. 126; R. at 1935-36.)
36. The court concludes that different standards were applied to Dr. Fisher. The court bases its conclusion not only on the strongly positive letters of support Dr. Fisher received from the outside evaluators, but also on a comparison with the outside evaluations received by the three men who were tenured prior to Dr. Fisher’s review; Drs. Hemmes, Mehaffey and Suter. Not one of these men had as favorable recommendations as Dr. Fisher had. Dr. Mehaffey had only two letters of evaluation rather than the normally required three. Dr. Hemmes and Dr. Mehaffey were each evaluated by someone who knew them personally or had been a mentor, teacher, colleague or friend, and their letters spoke from that vantage point rather that of a disinterested third party. The court’s findings are as follows:
Dr. Hemmes was evaluated by three outside evaluators. One, Dr. Eliot Stellar, a distinguished professor at the University of Pennsylvania stated that, based upon the “minor” papers Dr. Hemmes had published, he could not recommend Dr. Hemmes for promotion or tenure on the basis of his “scholarly accomplishment.” Dr. Stellar further stated that Dr. Hemmes had not accomplished enough to merit his being “worthy of tenure at that time.” (Exh. 25A.)
The second report by Dr. Ann Sullivan at Hoffinan-La Roche Co. was complimentary but brief (one-half page), not analytical and had no in-depth commentary. (Exh. 25B.)
The only other evaluator for Dr. Hemmes, Dr. Hirsch, knew him personally and had collaborated with him. (Exh. 26.) Despite this, the Biology Department strongly urged the Dean to place great significance on Dr. Hirsch’s recommendation. (Exh. 24 p. 5:)
Dr. Mehaffey was evaluated by two outside evaluators. The first, Dr. B.R. Wooten of Brown University, discussed four of Dr. Mehaffey’s papers. He was impressed with one of them but said that Mehaffey’s three publications on night vision were of “little scholarly interest” and that his “publication rate had been low” but that he showed “great promise.” The other, Dr. Margaret Burns, was complimentary, but as Mehaffey himself noted, her evaluation was not particularly useful to the Department’s review process and if he “were a member of the FASC and [] got that letter [he] wouldn’t pay much attention to it.” It also appears that Dr. Burns was personally acquainted with Dr. Mehaffey due to her references to him as a warm, sensitive, thoughtful human being. (Exh. 30 A-B, R. at 1943-45.) Typically mentors, friends and/or collaborators are not to write peer reviews for tenure. (See R. at 837.)
Dr. Suter was the only one of the three males evaluated by three outside evaluators, all of whom reported favorably on his work but in conclusive language. One favorable evaluation by Dr. William Eberhard of the University of Costa Rica was limited to observations on Dr. Suter’s research on insects and mice. While generally complimentary, Dr. Eberhard found one of Suter’s papers “weak” because “some important observations are lacking.”
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He did not make a recommendation as to tenure. A second outside evaluator, Dr. McClure, knew Dr. Suter from the University of Indiana where Dr. Suter had been a Mend of the evaluator and/or a student in the evaluator’s department although Dr. Suter did not work directly with her. Again, an evaluation by a person where this type of relationship exists between the evaluator and the candidate was not considered appropriate. (Exh. 33A-C.)
37. Despite the above record, Vassar’s President Smith stated to Dr. Fisher that one of the reasons for her denial of tenure was that her outside “reviews were lacking strength as compared to those for other departmental decisions.” (Exh. 128B p. 2.) President Smith could have been taking her cue from Dr. Mehaffey’s characterization of the Fisher letter as “disgusting.” (See Exh. 126.) The court finds that there were no consistent standards or criteria applied for the outside evaluations. (R. at 830, 834-53, 1033^2, 1045-65, 1142, 1151.) This is further proof of the pretextual nature and bad faith demonstrated in the decision against Dr. Fisher.
38. The court finds that the Biology Department Committee recommendation carried great weight in the subsequent deliberations of persons and committees appealed to by Dr. Fisher to reconsider the bad faith and pretextual negative recommendation concerning her promotion and tenure. A record of the FASC’s meeting with the Dean and President Smith showed that there was discussion about the Department’s strongly negative judgment of Dr. Fisher’s research in light of her three outside evaluations which were more positive in tone than the Department’s recommendations. It appeared to be of concern to the FASC that there was this disparity between the outside evaluators’ and the Department’s judgments. (R. at 2153.) The court finds that the FASC’s, the Dean’s and the President’s final characterization of these outside evaluations as being superficial and not critical of Dr. Fisher’s scholarship arose from points made by the Department such as Dr. Mehaffey’s characterization of Dr. Fisher’s evaluations as “disgusting.” (R. at 2151-53, Exh. 126.)
39. It is significant that neither the President, nor any member of the FASC, nor the Dean were trained in the natural sciences and therefore were probably more reliant on the Biology Department’s recommendation than they might have been in an application for appointment in another field such as the liberal arts. (Glen Johnson Dep. 14.) The President noted that the Departmental Committee’s rejection of Dr. Fisher’s qualifications for promotion and tenure represented “overkill” on the part of the Department. (Exh. 15.) This notation on Fisher’s faculty record card made clear that the President of the College was aware of the pretextual nature of the Committee recommendation concerning Dr. Fisher, but she nonetheless went forward with the denial of Dr. Fisher’s promotion and tenure.
Standards Applied to Evaluate Scholarship of Tenure Candidates.
40. One of Dr. Fisher’s experts said that “different standards were
being
used in the case of Dr. Fisher” from the “standards being used for the other faculty members being considered.” (Fallding Dep. p. 26.) Another stated the following:
Dr. Fisher was very productive. There was no reason to assume that she was going to change overnight. She, despite enormous obstacles, had gone out there and gotten grants and more grants, and changed her research area and produced peer review publications and gotten collaborations and gotten consultantships. And as they say, they don’t know if she’s going to continue, yet when the men don’t even produce a publication they say we know he’s willing to make up for this in the future. It’s a completely different story.
(R. at 898.)
41. One example of many in the record which demonstrates the arbitrariness of the application of standards and criteria is represented by a sample of the cross-examination of Dr. Pat Johnson, the former chairman of the Biology Department, who drafted the scholarship portions of Dr. Fisher’s negative tenure recommendation.
Q. Now on scholarship, and I’m turning now to page 3 of the report of March 28,
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1979: “Mr. Hemmes has a broad scholarly interest in the nature of social communication in animals. His doctoral work centered on the maternal-infant bond and the kind of signals generated by mother and by infant which established and maintained that bond ...”
*
* * * * *
Now, as of 1979, [the time of his tenure review] had Mr. Hemmes had any peer review publications while he was at Vassar?
A. Yes, he did____ It was a paper entitled — well, I don’t remember the exact title, but it had to do with the reproductive capacity in Zucker genetically obese rats.
Q. And where was the paper published?
A. I believe in the proceedings for the society of Experimental Biology and Medicine.
Q. And did he have any other papers published?
A. As I recall, he had at least one paper published before he came to Vassar.
Q. No. I’m talking about at this moment.
A. At this time, I think that that was the one published paper. He had two additional papers, including the one we are referring to in this paragraph, that were submitted for publication.
Q. I want to be clear on it. He had a paper published while he was at Vassar?
A. Yes.
Q. One?
A. That’s my memory, one.
Q. Now, did you write about his published works, and I’m referring to page 5: “In summary, while the quantity of his published works is not great, the quality of the papers written and of the studies completed is exceptionally fine. We are certain that Richard Hemmes possesses a keen analytical mind and a creative drive that will keep him immersed in scientific investigation throughout his career?”
A. Yes.
Q. You wrote that?
A. That’s what we wrote.
Q. “The work that he completes is precisely done, well controlled, thoroughly analyzed and properly interpreted. It should always meet with success in the peer review process.”
A. Yes it is.
Q. ‘We must also add that he has written several grants of various kinds in search of funds to support his work, a task that is comparable to producing a manuscript.” Now what did you mean when you said that?
A. That the creative process, if you will, that goes into producing a grant request is essentially the same kind of creative process that goes into producing a manuscript. It’s addressed to describing the kind of work one is going to do, rather than describing the kind of work one has done, but the intellectual input, the detail that has to be presented, the experimental design that is to be described and presented is all of the same nature and quality that goes into producing a manuscript.
Q. Would it be fair to say here, Dr. Johnson, that you were crediting him with a great deal of good scholarship because he had written a grant application even though it had not been funded or approved or thought to be excellent by his peers?
A. Well, we were crediting him with signs of good scholarship based on not only those grant proposals that he had written, but also with the manuscripts that we had for review published—
Q. No, I’m asking about this very language here: We must also add that he has written several grants of various kinds in search of funds to support his work, a task that is comparable to producing a manuscript.”
Now right there are you saying that he should be complimented for writing these grant applications even though they were not peer-reviewed and even though in peer review they were not given a very good or excellent mark and funded?
A. I can’t say what kind of mark they were given. All I can testify to is to say they were not funded. And I’m saying
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yes, that he should be lauded for having written these proposals, yes.
(R. at 1798-1801.)
42. Similarly, when Dr. Pat Johnson was cross-examined about what the Committee said about her endorsement of Dr. Mehaffey, she was asked: “Are you saying there that he really couldn’t publish because he couldn’t get the research funds to do his work?” She responded, “[t]hat’s what we are saying, uh-huh.” (R. at 1815.)
43. The fact that there were no consistent standards applied in making judgments concerning promotion and tenure was doubly emphasized in the testimony of Dean Sullivan, the Dean of Vassar College at the time of Dr. Fisher’s tenure review. When asked to describe the test applied to Dr. Fisher in her tenure review in the light of Dr. Fisher’s scholarship record as compared with the men who received tenure in the years immediately preceding her tenure denial, his response was:
... [A] tenure decision is not a quantitative analysis. It is a judgment call. It is a judgment based upon evidence as best one understands the evidence. And each case has its distinctive characteristics because each ease is an individual case. There may be some matters of analogy, but beyond that, one can say very little.
One is looking at the case as it is presented. One is examining the evidence presented, one is making a judgment based on that evidence, and it’s not done then on a comparative basis ...
(R. at 2204.)
44. Despite Dr. Fisher’s impressive record which was superior or equal to the scholarship of the four assistant professors (three men and one single woman) who received tenure between 1979 and 1985 and the one man who received tenure in 1987, the Committee stated, without any apparent basis for its conclusion, that her overall scholarship accomplishments were “mixed.” (Exh. 8.) They credited her with “energy,” but questioned her “independence” as a scholar and the “depth of the mastery of the field in which she was working.”
(Id.)
Based on the foregoing testimony and evidence, the court finds that these conclusions concerning Dr. Fisher’s scholarship were made in bad faith, were pretextual, and represented the application of patently discriminatory standards.
Teaching.
45. Dr. Fisher’s classroom performance was never directly observed by any of the five senior Biology Department members who constituted her tenure committee. (R. at 83, 1899.) Accordingly, her teaching performance assessment was based almost exclusively on student teaching evaluations.
46. The Biology Department letter of March 29,1985, (Exh. 8), regarding Dr. Fisher’s tenure heavily emphasized the student course evaluations in its commentary on Dr. Fisher’s teaching record, but misrepresented the facts concerning the 24 courses taught by Dr. Fisher from 1977 to 1985. The Committee selectively excluded favorable ratings and focused on the two courses in which Dr. Fisher had difficulties. (Exh. 8 p. 8 ¶ 4, 46 A-P, 49.)
47. In student evaluations, teachers are given a score from one to five by the students in their class, with five being the highest score. (Exh. 129A-B; R. at 84.) In addition to these evaluations, teachers receive assessments from the Student Advisory Committee (“SAC”) and from a committee composed of Vassar biology majors. (R. at 89.)
48. The Dean of the Faculty, H. Patrick Sullivan, testified that a 70 percent average of fours and fives on student evaluations “would be considered a good statistic” and “in the good or superior category.” (R. at 2147.) During the period that Dr. Fisher taught at Vassar, with the exception of two courses, her overall average of fours and fives was greater than 70 percent. (R. at 89; Exh. 46A-46P.)
49. The Committee reached its unfavorable conclusions as to Dr. Fisher’s teaching record by applying different standards to her than were applied to other tenure candidates. The Committee distorted the numbers by counting only fives for Dr. Fisher while counting fours and fives for the other candidates to determine student evaluation rankings. (R. at 298-99, 1146.) Additionally, the
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Committee emphasized a few critical comments about Dr. Fisher’s teaching instead of noting the generally affirmative comments that were made by the student committees. (Exh. 46A-0.)
50.Prior to tenure review in 1985, the Dean’s Office produced the student evaluations for Dr. Fisher in 21 of the 24 courses she had taught up to that point. In total, there were 411 student responses to the nine questions on the form which the students filled out. (Exh. 129A.) Dr. Fisher’s teaching load was 40.2 students per semester, averaged over fourteen teaching semesters. (Exh. 46A-P, 49B, 112AB-GB; R. at 1293.) A statistical summary of the student evaluations of the 21 rated courses shows that she received the following percentages of fours and fives in the categories listed:
Availability to Students 75%
Illumination of Materials 73%
Clarity of Presentation 76%
Fairness 77%
Instructor Effectiveness 79%
Openness to Students 87%
Increased Knowledge (to Student) 87%
Mastery of Subject 88%
(Exh. 46P, 112.) Notwithstanding the above, the Committee came to the conclusion that, “Ms. Fisher has had consistent problems with clarity and her ability to illuminate difficult materials.” (Exh. 8 p. 8 ¶ 4.)
51. Of the 21 rated courses, Dr. Fisher scored within the “excellent” or “exceptionally fine” range in thirteen courses, good in six courses, and scored low in two courses; one in 1982, the other in 1983. (Exh. 49B.)
52. Over eight years of teaching, Dr. Fisher averaged 79 percent of five to four rankings on question nine, “Overall Effectiveness of Instructor,” an average well above the 70 percent level identified by Dean Sullivan as “good or superior.” (R. at 2147; Exh. 112.) Dr. Hemmes had 61 percent of fours and fives while Dr. Mehaffey had 68 percent. (Exh. 51D, 52A, 52E, 112.)
53. Pre-tenure, Dr. Fisher taught substantially the same number of courses as Drs. Hemmes, Mehaffey and Suter. (R. at 208.) Dr. Mehaffey had six student low-rated courses (below 60 percent fours and fives) and Dr. Hemmes had seven. Drs. Fisher and Schlessman had two such low-rated courses. Vassar did not produce a complete record on Dr. Suter. (R. at 204, 206; Exh. 46, 49B, 51A-J, 52A-H, 112AB-GB, 125.)
54. The court finds that Dr. Fisher’s teaching evaluations were better than those of the three men tenured prior to Dr. Fisher’s review. These candidates had all received some poor student evaluations during their pre-tenure career at Vassar. (R. at 298-99, 373-80, 1146.) However, on each occasion that one of them was evaluated unfavorably, the Committee commented on their subsequent improvement or excused the poor assessments of their teaching skills by explaining away low ratings as student reactions to the instructor’s high standards or problems inherent in the course. No such comments were made about Dr. Fisher. (R. at 1006-1019, 1823, 198, 203-07; Exh. 112AB-GB, 49B.) The Committee reported that Dr. Hemmes had fine student recommendations despite his receipt of an unfavorable student Bio-major report. (R. at 1796.) Similarly, the Committee recommended Dr. Suter highly in the face of some unfavorable remarks of the student committees. (R. at 1822-25.) Dr. Mehaffey was tenured even though he received a SAC report so unfavorable that they recommended against his tenure. (Exh. 52A.)
55. Any comparison to Dr. Norrod’s teaching evaluations, which were excellent, does not give a true picture of the situation. Unlike Dr. Fisher, Dr. Norrod did not carry a full teaching load of two courses a semester. Instead, Dr. Norrod taught only one course each semester for just three semesters before tenure review, averaging no more than ten students per class. (Exh. 55D; R. at 207.) Dr. Schlessman, who also scored well, taught far fewer students than Dr. Fisher had. (Exh. 125.) Fewer students in a class allowed the professors more interaction with students. This added interaction resulting from a lighter teaching load has a positive effect on the students’ evaluation of the course. (R. at 1008.) Dr. Fisher’s teaching load was approximately twice that of Dr. Schlessman’s and four times greater than Dr.
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Norrod’s teaching load. (R. at 106-07, 208-09.)
56. In discussing the student ratings of Drs. Hemmes, Mehaffey and Suter, the Biology Department Committee considered ratings of over 78 to 80 percent of fours and fives together, on Instructor Effectiveness, “exceptionally fine,” “excellent,” or “highly positive,” and a rating of over 60 percent in these categories was considered “good.” However, the Biology Department did not apply these same standards in its evaluation of Dr. Fisher for tenure. (Exh. 49B, 112AB-GB, 8, 24, 29, 51A-J, 52A-H.)
57. Dr. Fisher taught five sections of Bio 230 before her tenure review. Her ratings were high in four of the sections and low in one. (Exh. 461, based on Exh. 46P.) The Department focused on the one low-rated section and dismissed the other four stating that, “[W]e certainly would not characterize the student evaluations for the 1978-79a and b, 1979-80b, and 1981-82 offerings (of Bio 230) as excellent, [but] we do regard them as good.” (Exh. 8 p. 7 ¶2.)
58. However, for these four sections, Dr. Fisher scored the following percentages of fours and fives, mostly in the “excellent” range and averaged in the excellent range:
Clarity 79%, 76%, 96%, 87% (average = 84%)
Illumination 75%, 76%, 79%, 91% (average = 80%)
Instructor Effectiveness 86%, 86%, 79%, 91% (average = 85.4%)
(Exh. 32, 37, 39, 41, 46P: Summarized on Exh. 112.)
59. In these four sections, which the Committee found to be “not ... excellent,” Dr. Fisher scored well over 78 percent on “Instructor Effectiveness.” When the Biology Department Committee recommended Dr. Hemmes for tenure in 1979 they stated that this percentage rated his teaching ability as “exceptionally fine.” (Exh. 24.) Similarly in 1980, the Biology Committee found that statistics showing an average of 83 percent of fours and fives on “Instructor Effectiveness” for Dr. Mehaffey in one course was “excellent.” (Exh. 29.) It does not follow that an average of 85.4 percent for Dr. Fisher was characterized as only “good.” (Exh. 8 p. 7 ¶2.) This, the court finds to be further evidence of the disparate treatment accorded to Dr. Fisher by Vassar College.
60. The 1985 Biology Majors Report, dated January 25,1985, reflected students’ opinions on two courses taught by Dr. Fisher: her first time instruction of Hormonal Integration (Bio 327) and General Biology (Bio 115), both in the fall of 1984. The one-page report was signed by twelve senior or junior Biology majors. (Exh. 46J.) The Biology Department’s recommendation letter quoted language from this report:
The majors report for 115 states that “all students felt that she was fair, patient and caring. However, these students thought she was not well versed in this more generalized material. She lectured primarily from the text and did little to enhance or further understanding of the subject. Some commented that she was sometimes confusing in lecture.” We find ourselves distressed by this characterization of Ms. Fisher’s performance in our introductory courses.
(Exh. 8 p. 7 ¶ 1.)
61. In choosing to quote this language from the report, the Committee also chose to omit the first sentence of the report which stated,
Cynthia Fisher was unanimously voted one of the best professors in the Biology Department, by her advanced-level “Hormonal Integration in the Mammal” class.
(Exh. 46J.)
62. Additionally, the Committee failed to report that the second time Dr. Fisher taught the elementary biology course (115) referred to above, she received the following ratings:
88% 4-5s on Instructor Effectiveness
84% on Clarity
100% on Mastery.
(Exh. 46P p. 47.)
63. Thus, after reviewing the record, the court finds that the males tenured while Dr. Fisher was on the faculty were praised for their fine teaching while Dr. Fisher was criticized, although the facts on which the Committee’s determinations were based (student evaluations, Biology Majors Reports and SAC Reports) revealed that Dr. Fisher’s evaluations were superior to theirs. (Exh.
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112AB-EB.) With respect to Dr. Norrod, a single woman who was recommended for promotion and tenure at the same time Dr. Fisher was denied tenure, there could be no adequate comparison as Dr. Norrod had completed only three semesters on the faculty before tenure review and had a light teaching load. (Exh. 41, 55.) Dr. Schlessman, tenured in 1987, also carried a teaching load half the size of Dr. Fisher’s, making the comparison more difficult.
64. Just as these favorable reports of her teaching were ignored by the Committee, and thereafter by Vassar College in confirming the Committee’s recommendation, and throughout Dr. Fisher’s intra-mural appeal up to December of 1985, so were other reports from the Biology Majors which stated the following:
Mrs. Fisher is able to elucidate difficult material. (Exh. 46C, 46E.)
She enhanced the subject matter by clarifying difficult topics from the text, yet her lectures were not derived from the textbook.
(Exh. 46 0.)
The student evaluations of Ms. Fisher show a remarkable similarity in the answers to each specific question, and are consistently a highly positive critique.
“... her lectures were clear, concise, well-organized,” and, “often helped to summarize and condense material;” and “[the class] ... would not have understood any of this or much cared if Ms. Fisher had not given the subject life and relevance.”
(Exh. 46M.)
65. The court finds it significant that the Biology Majors Committee felt it necessary to send the Bio-Majors Report for the spring semester 1985 (Exh. 46M), quoted above, to the Appeals Committee in Dr. Fisher’s case with a cover letter from the Bio-Majors Committee which stated, “we feel it [this report] is representative of her teaching not only from last semester, but throughout her years at Vassar.” (Exh. 46N.)
Additional Distortions in Vassar’s Assessment of Dr. Fisher’s Teaching Record
66. The Departmental letter set up new categories and standards for tenure, either not applied to the other tenure candidates, or dishonestly assessed as to those candidates and Dr. Fisher. The categories included “independent students”, meaning students either not enrolled in a Biology class or enrolled in a special class so named, and the introduction of 300 level (advanced) courses in biology. (Exh. 8.)
67. The Biology Department Committee stated that Dr. Fisher had a poor record in the supervision of students in independent research. (Exh. 8 p. 10 ¶2.) This conclusion, when compared to the records of the men given tenure, underlines further the bad faith of the Biology Department concerning its recommendation that Dr. Fisher not receive promotion and tenure. The Department, in its 1979 letter to the Dean recommending Dr. Hemmes for tenure, said that publication of students’ research was one of the “ultimate tests” of instruction, and predicted that his students’ work would be published “in the future.” (Exh. 24.) None of Dr. Hemmes’ students were co-authors with him on extra-mural papers nor were any of Dr. Mehaffey’s students. (Exh. 64-67.) The 1984 letter recommending Dr. Suter for tenure noted that,
Mr. Suter has had great success in attracting students to work with him ... [and] has often had three students working with him during the course of a year.
(Exh. 32.) The 1985 letter recommending against tenure for Dr. Fisher stated in part that,
Another aspect of teaching of great importance to the Biology Department is the supervision of student independent research---- Ms. Fisher’s record is poor in this regard____ Prior to this year she has had a total of five independent students and one volunteer who did research — a disappointing record. This year she has had five students which is commendable, though based on past performance, we are concerned that the present level of activity will not be sustained.
(Exh. 8 p. 10, ¶ 2.)
68. However, during Dr. Fisher’s three tenure-track years, she had twelve independent study students, which averaged over
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three students working with her in the course of a year, the standard referred to as “great success” for Dr. Suter. Including her terminal year 1985-86, she had altogether the following independent study students and assistants:
Seven students registered in Independent Study (Bio 178, 298, or 399);
nine student research assistants on College stipend or partially supported by Dr. Fisher’s NSF grant; and
four adult research assistants or high school students (not Vassar students).
Two of Dr. Fisher’s students were coauthors on her papers presented at national meetings.
(Exh. 50; R. at 81-2, 313, 314-18, 2397-2400.)
69. The Committee further noted her failure to introduce a 300-level (advanced) course in her area of expertise in its recommendation. (Exh. 8 p. 10 ¶3.) She was faulted for not developing “an advanced course of her own design which all other faculty had routinely done,” and, accordingly, the Committee felt she did not “meet the criterion for high quality teaching at Vassar College.” (Exh. 8 p. 11 ¶ 2.) This was false both as to Dr. Fisher and as a standard applied to other tenure candidates. At trial, Dr. Mehaffey, the Department Chair, conceded that the development of a 300-level course was not a requirement for tenure. (R. at 1474.) Nonetheless, Dean Sullivan testified that this criterion, and Dr. Fisher’s alleged failure to meet it, was an important consideration discussed by the FASC that reviewed the Department’s negative recommendation. (R. at 2161-62.)
70. In any event, Dr. Fisher did prepare and discuss advanced course proposals with the Department Chair which were turned down, but in 1985-86, she successfully designed and taught a 300-level course, Bio 335. (R. at 243-45, 651-53, 713-14; Exh. 96A-N.)
71. It is noteworthy that the tenure recommendations of the Department for Dr. Suter, (Exh. 32), Dr. Greenwood, (Exh. 36— not otherwise a valid comparison to Dr. Fisher’s tenure eligibility since Dr. Greenwood was hired as an Associate Professor and her review concerned her eligibility for Full Professor), and Dr. Hemmes, (Exh. 24), did not credit them with any new 300-level courses prior to tenure. This demonstrates that this criterion was not applied to these candidates at the time of their reviews. The Biology Department’s letter recommending Dr. Nor-rod for tenure, (Exh. 39), falsely credit her with “introducing” an advanced course, Immunology (Bio 370), despite the fact reflected in Vassar College Catalogues that the same course (same number and course description) had been taught several times in prior years by other faculty, to wit, by Dr. Karen Friedman who testified that she developed the course and the course description in the catalogue. (R. at 1260-63; Exh. 94.)
Service.
72.In the Vassar Governance, the College’s basic policy document, the only qualifications stated for attaining the tenured rank of Associate Professor are scholarship and teaching. (Exh. 2 p. 35.) Thus at Vassar, service is a tertiary criterion. Although the Committee conceded that Dr. Fisher had “served the department in a number of ways,” they concluded that,
Overall then, we are not satisfied with Ms. Fisher’s service to the department and feel that while her service to the college may be adequate it is in no way outstanding. We conclude that Ms. Fisher’s service to the department and the college is not of sufficiently high quality for promotion.
(Exh. 8 p. 12, ¶ 2.) Despite this review, Vassar College’s President Smith stated that Dr. Fisher’s service to the College and to the Department had been “appreciated,” and the FASC noted that Dr. Fisher’s service was “good in quantity and quality.” (Exh. 19, 14.) It is additionally significant that early evaluations by the Department of Dr. Fisher’s service to the College and the Department were glowing. (Exh. 5G, 5N.) The only explanation for the change in attitude towards Dr. Fisher that the court can find is the discrimination manifested in its decisions concerning her culminating in its decision in 1985 not to promote her.
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Leadership.
78. On the issue of “leadership,” (defined in the Faculty Handbook as a component of service,
Faculty Handbook,
Exhibit 3, App. VII, p. 1), the Departmental Committee found “Ms. Fisher a great disappointment.” (Exh. 8 p. 12 ¶ 3.) The Committee concluded that her problems stemmed from her “difficulty in establishing straightforward, open, trusting, collegial relationships with others in the department,” and her lack of input “on matters of departmental concern.”
(Id.)
The Committee faulted her for having a “deferential attitude.”
(Id.)
Its members stated that even though her colleagues at NSF valued her abilities, she did not exhibit these abilities in the Biology Department at Vassar, and therefore “conclude[d] that she does not satisfy the criterion for academic leadership.”
(Id.
¶ 3, 4.) Again this comment was not in accordance with two previous evaluations, one in 1977 and one in 1980, in which Dr. Fisher’s collegiality, personality and cooperativeness were praised. (Exh. 5G, 5N.)
74. The court further finds on the record before it that Dr. Fisher’s collegiality, personal relationships, and service to the College and to its students were more than satisfactory and that the opinions given contrary to this finding by the Biology Department were pretextual. Vassar had no legitimate cause for her termination on these grounds. (Exh. 5G, 5N, 8, 14, 19.)
75. Finally, the court finds that the Biology Department senior faculty was aware of the comparative scholarship, teaching and service records of Dr. Fisher and the other faculty reviewed for tenure in light of the fact that the same three Full Professors, Drs. Donald Williams, Marcie Greenwood, and Pat Johnson, served on almost all of the tenure review committees from 1979 through 1987. (Exh. 8, 24, 32, 43, 117.)
Curricular Balance and Tenure Structure.
76. On the issue of “tenure profile,” the Department’s position was that Dr. Fisher had no unique place’ in the- Department and, accordingly, should not get tenure. (Exh. 8 p. 13, ¶¶ 2, 3; R. at 1496-97.) The Biology Department had twelve tenure slots, six of which were already filled. There were three candidates for tenure during the academic year of 1984-85 (Fisher, Tucker, Norrod) and one in 1986-87 (Schlessman). (R. at 2119-22.)
77. The Department’s claim that Dr. Fisher offered little that was unique to the curriculum was a distortion of the situation. (R. at 48-51, 1064; Exh. 4A, 115.) In 1982, the Biology Department Senior Faculty stated, “she [Dr. Fisher] has been filling an important niche in the Department’s curricular program by teaching a large number of our student majors in critical courses in their program. Their evaluations of her are quite positive.” (Exh. 5U p. 6.) Moreover, Dr. Fisher’s field of developmental biology was an important area of study for a modern biology department and no other member of the Department was a developmental biologist. (R. at 1147-51.) The Department did not use this excuse of curricular balance to deny tenure to Dr. Greenwood when her field of expertise overlapped with that of Dr. Pat Johnson, or when Dr. Suter’s field overlapped Dr. Hemmes field. (R. at 1148-51.)
78. Nowhere in the criteria for tenure at Vassar College is it stated that “curricular uniqueness” was necessary. (See Exh. 2.) This standard was never applied to male faculty. While each member of the faculty had a curricular role and “core” courses to cover, (Dr. Fisher’s track was identified upon her appointment to tenure track in 1980 (Exh. 5G)), there was considerable professional overlap in the Biology faculty’s areas of expertise. (Exh. 80, 93.) Furthermore, Dean Sullivan admitted that there were discussions concerning lifting the “rigidly applied tenure ceiling” around the time of Dr. Fisher’s review, suggesting that the limits on tenured faculty the Department expressed concern about were somewhat in doubt. (R. at 2174.) Accordingly, the court finds on the evidence adduced that Dr. Fisher did make a unique contribution to the Department and had professional skills which were useful to Vassar and that the Committee’s conclusion on this issue was again pretextual and made in bad faith. (R. at 1151.)
79. Finally, it is significant that President Smith did not mention either service to the college or curricular balance as determinative
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factors in her 1985 letter to Dr. Fisher advising her of her termination. (Exh. 19.) It is equally significant that after the denial of tenure to Dr. Fisher, Vassar advertised three times in the journal
Science
for faculty to teach the courses Dr. Fisher had taught. This indicates that the faculty identified in the Departmental letter as potential substitutes for Dr. Fisher in all of her courses were not teaching those courses. (Exh. 8 p. 13 ¶ 2, 97.) In 1986-87, those courses were in fact assigned mostly to male faculty, most of whom were recent hires. (Exh. 99, 100; R. at 1443, 1922.)
Promotion and Tenure of Married Women at Vassar.
80.In the 30 years prior to Dr. Fisher’s tenure review, no married woman ever achieved tenure in the hard sciences (defined as Mathematics, Physics, Chemistry, Geology, Biology and Computer Science). (Exh. 82A-B, R. at 1308-12.) This information was based on the Vassar College Directory of Administration/StaffiFaculty which is published annually by Vassar College and lists each person on the faculty with that person’s rank, and in parentheses lists that person’s spouse, if any. Such entries for the directory are voluntarily obtained from the professor himself or herself on a form solicited annually by the College Publications Office. (R. at 2094-95.) Also consulted were faculty biography cards in the Vassar library where there are brief personal biographical files on each faculty member. (R. at 345-46, 478-79.) Between 1956 and 1985, out of 18 single women in the hard sciences department who received at least two year contracts at the Assistant Professor rank, ten were tenured and eight were terminated or left. From 1972 on, six out of nine were tenured. From 1956 to 1985, among nine women who were apparently married (by listing a male parenthetical name in the College Directory, or otherwise checked out as married from the biographical files of the College) all nine were terminated or left. (Exh. 82A-B.) Of the eight women on the Biology faculty for a period of two years in the rank of assistant professor from 1972 to 1985, three single women were tenured and the five married women left the faculty. (Exh. 82A-B.)
81. Between 1981 and 1985, two other women, Karen Friedman and Marlene Palmer, married at some time while on the Biology faculty at Vassar and first hired in 1977 as Assistant Professors, were terminated before achieving tenure. Proof was adduced that available married women were not advanced by the College for tenured positions through the several steps to tenure in Division III. Evidence adduced from Dr. Karen Friedman indicated that there was a policy of discouraging married women who were hired in the sciences as assistant professors from advancing to tenure. (R. at 418-22, 507-09, 1253-90, 1276-90, 1325-55, 1679-82; Exh. GB, 110, 111A-J.) In Dr. Friedman’s case, she was asked to take a leave without pay in order to “qualify” for tenure. However, even after taking the leave, she was denied the opportunity of a contract which could have led to tenure. (R. at 1337-38.)
82. Dr. Palmer was an assistant professor in the Biology Department for six years. (R. at 509-12.) She wrote a letter to Dr. Fisher’s Appeals Committee describing the prejudice at Vassar toward promoting or tenuring married women and how it negatively affected her — to the point of her securing an abortion due to her fear that having a child would affect her tenure prospects. (R. at 2342 — 46; Exh. 109F.) There is no record that Vassar conducted any investigation into her allegations. (R. at 2347-48.)
83. Annually since 1972 the National Academy of Science has published a report on Ph.D recipients at American universities which is broken down by professional discipline, gender, marital status and other factors. Three of these categories are: physical sciences (physics/astronomy, chemistry, geology or earth science), mathematics and bio-sciences. (Exh. 84A.) For the years 1972 to 1985, among women Ph.Ds in science, an average 45.4 percent were single in biosciences; 42.3 percent were single in mathematics; and 43.3 percent were single in physical sciences. (Exh. 84A-B.) Thus, the majority of these female Ph.D scientists were married. Nationally more than 50 percent of the women holding Ph.D degrees in Biology are married and were married over 20 years ago. During the four year period 1980 to 1983,160
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women applied to Vassar’s Biology Department for six advertised openings. (Exh. 123.) Given that the majority of women with Ph.Ds in Biology were married, this suggests that there was a pool of married women scientists from which Vassar could have selected qualified married women scientists for their tenured scientific faculty.
84. The court finds that both the notation in Exhibit 8 concerning Dr. Fisher’s time out for family (she devoted “nine years (1965-74) of her life entirely to her family and to her personal life”) Exhibit 8, p. 2, and the emphasis on this fact by Dr. Pat Johnson in Exhibit 14, are reflective of bias against married women.
85. Such comments on pre-Vassar personal life and life choices were not made in any letters of evaluation of other faculty. The Biology Department senior faculty again focused on this “hiatus” aspect of Dr. Fisher’s life choices regarding family priorities when the Committee made its in-person presentation to the FASC Committee on May 3, 1985, regarding its reasons for rejecting Dr. Fisher’s candidacy. At that meeting the Department represented to the FASC that Dr. Fisher was “out of date — out of the field for 10 years.” (R. at 2165; Exh. 14.) The reference to her being “out-of-date” implied that Dr. Fisher’s scholarship was obsolete as a direct result of the period she was at home with her husband and children.
86. The hiatus in Dr. Fisher’s professional career at most was a period of eight years (1966-73) and was not a total hiatus. She joined the faculty of Marist College in 1974 in the Biology Department, three years before she joined the Vassar faculty. Among Dr. Fisher’s scholarly accomplishments as presented to Vassar for tenure review and discussed,
supra,
most of her grants, publications, consultantships, professional papers and other recognized accomplishments were achieved after 1977 while she was on the Vassar faculty. (Exh. 71.)
87. The persistent fixation of the Biology Department’s senior faculty on a married woman’s pre-Vassar family choices reflects the acceptance of a stereotype and bias: that a married woman with an active and on-going family life cannot be a productive scientist and, therefore, is not one despite much evidence to the contrary.
88. Expert testimony of Dr. Rita Simon, a distinguished professor at the American University in the Washington College of Law and the School of Public Affairs, established that in academia, married women are more productive than single women in many fields. Particularly in the “hard sciences”, they are as productive as men, but are often not given the same rewards as either men or single women in terms of professorial rank. Based upon her studies of the question and a review of Exhibit 82 which showed that no married woman had ever achieved tenure at Vassar in the hard sciences, she stated,
Drawing on data from a great many universities and thousands of responses from men and women in the hard sciences, and examining the performance of Cynthia Fisher, versus the other people who were coming up for tenure at the same time as she did, I concluded that Vassar was discriminating on the basis of marital status.
(R. at 966.)
89. The court finds that Vassar, despite its protest that it advances the cause of women, R. at 2276, has consistently shown prejudice toward its married female faculty in the hard sciences.
90. In support of plaintiffs claim that she was discriminated against because she is a married woman, it is significant in the spring of 1985, at or about the same time Dr. Fisher was being reviewed, Pinina Norrod, originally hired by Vassar in the Biology Department in 1983 as an assistant professor, came up for tenure. Dr. Norrod, a single woman, had taught one course each semester for three semesters prior to her tenure review whereas the standard pre-tenure teaching load was two courses per semester for at least six and one-half years. (R. at 2169; Exh. 2, 72.)
91. Although the totality of Dr. Norrod’s publications and grants were substantially equal in number and quality to those of Dr. Fisher (Exh. 72, 73, 78, 108A, 108BB, 108CA), her time in rank and in the Department was six years less than Dr. Fisher’s and at the time of review, she had taught
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only one course per semester for three semesters with an average of only ten students per class, which was approximately one fourth of Dr. Fisher’s teaching load of 40.2 students per semester. (Exh. 72; Exh. 55.) Furthermore, her research was narrow, specialized and considered inappropriate for an undergraduate curriculum. (R. at 2172.) The FASC did not approve the granting of tenure to Dr. Norrod at that time. (R. at 2173; Exh. 41.) The FASC believed that her field of research (gonorrhea) might not have been an appropriate subject for undergraduate students in laboratory courses. (R. at 2172-73.) Outside evaluators for Dr. Nor-rod, though supportive in their recommendations for her promotion to tenure status, noted that she had a light teaching load; a “half time instruction” record, (R. at 2170, Exh. 40C p. 2), that she had spent just two years and not the usual six to seven years in rank before tenure review, and therefore they would not grant tenure at their colleges. (Exh. 2 p. 37, 38, 39, 40A-D, 41, 55, 72, 73.)
92.Furthermore, the court finds that the senior members of the Biology Department were determined that Dr. Fisher be denied tenure and that Dr. Norrod be promoted and granted tenure. When it became clear subsequent to the meeting with the FASC on May 3, 1985, that there might be a question about the Department’s judgment on the issue of Dr. Fisher’s recommendation, the Chairman and the entire Department wrote two emotionally charged letters to the Dean, the President and the FASC. (Exh. 9C-D.) They claimed that Dr. Fisher misrepresented facts. Specific “incorrect facts” to which the Department objected in its May 7 letter (Exh. 9D) were:
1) That Dr. Fisher had misrepresented to the FASC that Dr. Greenwood had served on Dr. Hemmes’ tenure review Committee, arguing that M.R.C. Greenwood could
not
have participated in the tenure reviews of Hemmes and Mehaffey because her own tenure was not effective until 1980-81; and
2) That the years which Dr. Fisher had listed for tenure approvals of Drs. Hemmes (1979) Mehaffey (1980) and Suter (1984) were incorrect.
(Exh. 9C-D.) If it is true that Dr. Greenwood was not tenured until after Dr. Hemmes’ and Dr. Mehaffey’s reviews, then a nontenured member of the faculty participated in both of these evaluations because Dr. Greenwood’s signature is on the Biology Department’s recommendations of tenure for both of these candidates. In fact, all of Dr. Fisher’s information as to these matters is true and was known or should have been known to the Biology Department faculty. (Exh. 24, 29, 32.)
93. The Governance provided for a six and one half or seven year period of assistant professorship before a candidate would even be considered for a tenured appointment. (Pretrial Order, II, D(6).) The Governance provides that only under “special circumstances” may this rule be changed. (Exh. 2 p. 37.) Thus, in order for Dr. Norrod to be considered for tenure prior to this time period of service, the Biology Department had to develop the need for her tenure as a “special circumstance.” The Biology Department Tenure Committee seems to have persuaded President Smith to overturn the FASC’s recommendation against tenure. (R. at 2174; Exh. 9C-D.) Dr. Norrod was promoted and given tenure at the same time that Dr. Fisher was unjustly denied promotion and tenure.
Affirmative Action for Married Women after 1972.
94. At trial, Dean Sullivan testified that one of his functions as Dean was to look into the requirements of “affirmative action.” (R. at 2137-38.) At the time Dr. Fisher made her original complaint to Dean Sullivan concerning the absence of tenured married women in the hard sciences, Dean Sullivan stated that he took it “seriously” as did the FASC. However, he claimed that after his investigation into the complaint, he found it to be “without merit.” (R. at 2139-40.)
95. In this regard, the court inquired of Dr. Pat Johnson, a senior member of the Biology Department who served as department chair for a period of nine years, concerning Vassar’s program of Affirmative Action. (R. at 1548.) Dr. Johnson did not remember when such a program was set up. Dr. Johnson could not remember the issue of married women ever being discussed. Dean
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Dye, the present dean of the College, volunteered to find out the answer, but further testimony was never adduced on this subject. (R. at 1889-96.)
96. Dean Dye conceded that, “We do not have proof that there were women scientists who were married who are not in psychology, who received tenure during the years identified ... in this complaint.” (R. at 2306, 2311.)
97. Based then on this unrebutted proof, the court finds that never, in at least the 30 year period, from 1956 to 1986 has Vassar advanced, through the four steps to tenure as stated in the Governance (Exh. 2 p. 37), any woman in the six “hard” sciences (Biology, Chemistry, Geology, Mathematics, Physics and Computer Science) whose marital status was at
any
time married between hiring as assistant professor and the tenure review, and that all women tenured in the hard science departments during this period were single at all times from appointment as assistant professor up to the grant of tenure, including all eight tenured from 1972 on, and including the three tenured in Biology. Moreover, the appropriate and available pool of applicants for positions in the Science Departments and particularly the Biology Department contained a large percentage of married women who would be satisfactory faculty if employed. Accordingly, this record shows an affirmative intent to deny tenure to married women in the “hard” sciences.
98. Therefore, the court finds that the denial of promotion and tenure to Dr. Fisher was the result of a pattern and practice of discrimination followed by Vassar with respect to married women in Biology.
99. Out of the five faculty who constituted Dr. Fisher’s Biology Department tenure evaluation committee, two were men who were promoted in Biology while she was on the faculty. One of these men served as Department chair for Fisher’s tenure review. The other three committee members, Full Professors Greenwood, Williams and Johnson, served on all the tenure review committees from 1979 to 1987 (except that neither Drs. Greenwood or Williams served on Dr. Greenwood’s tenure committee in 1980). (Exh. 8, 24, 29, 32, 36, 39, 43, 117.) This fact is significant because there was a continuum of senior personnel in the rulings made by the faculty'as to men and women during this period and thereby a continuum of oversight as regards criteria and standards for tenure review.
100. The court further finds that the termination of plaintiffs employment resulted not from any inadequacy of her performance or qualifications or service, but from the pretextual and bad faith evaluation by Vassar of her qualifications relative to the four men and one single woman promoted in Biology from 1979 to 1987.
Salary Discrimination.
101. The court finds that Dr. Fisher was discriminated against on account of her status as a married woman as to salary from the time of her original appointment. With three years prior teaching experience, a two year postdoctoral fellowship, two doctoral and one postdoctoral publications and several grants, she was hired as a Visiting Assistant Professor of Biology in 1977 at a salary of $12,500, the minimum starting salary that year. (Exh. 71, 102A, 113; R. at 137, 141, 389.) At the same time, Robert Suter, a male with no prior teaching experience, no post doctoral fellowship, no grants and two undergraduate publications, was hired as a Visiting Assistant Professor at a salary of $13,000. Dr. Suter specialized in animal behavior. Although his sub-specialty was different from that of Dr. Fisher, their duties and assignments in the department were comparable. Dr. Suter was put on tenure track in 1978-79. Dr. Fisher was put on tenure track in 1981-82. (Exh. 34, 68, 77, 103, 113B; R. at 381, 388-90, 2387-89.) The treatment of Dr. Fisher in comparison with Dr. Suter demonstrated salary discrimination against her own account of her gender at the time of her hiring, at the time of Dr. Suter’s advancement to track and at their respective tenure decisions. There' were other inequalities which support this theory as well. Dr. Hemmes received $500 over the minimum salary with only one year of teaching experience, a two-year post doctoral fellowship and one publication. He was hired at the tenure track level. (Exh. 104B; R. at 391-92.) Dr. Mehaffey received $800 over the minimum salary with no teaching experience, a two year postdoctoral fellowship, no grants and two publications. (Exh. 104B; R. at 392.) Dr. Tucker, a male who received an increment of $1000 over the minimum salary and who was hired after Dr. Fisher to perform
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similar services in the Biology Department and who was denied tenure in 1985, had fewer qualifications than Dr. Fisher but was also paid more in salary than Dr. Fisher throughout the years he was on the Vassar faculty. (R. at 391-94, 995-97; Exh. 113.)
102. Dr. Schlessman who was tenured in 1987 was hired at $150 above the minimum salary with no teaching experience, one grant and no postdoctoral fellowship. (Exh. 113, 124.)
103. Additionally, a distinction was made between the initial salaries granted to married women as opposed to single women. Drs. Friedman and Norrod were both hired as microbiologists, had two years teaching experience and had post-doctoral fellowships. When Dr. Friedman, who was married at the time she came onto the Vassar faculty, was hired, her salary was $1000 annually above minimum. When Dr. Norrod, an unmarried female was hired, her salary was $6750 above minimum. (Exh. 104D; R. at 2385-86.)
104. The court finds that Dr. Fisher was discriminated against on account of her gender and from the time she was first hired by Vassar in 1977, in that: (a) her qualifications at hiring were stronger than those of the men when they were hired, but she was started at minimum salary whereas they were all paid above minimum salary. This was particularly true of a comparison with Dr. Tucker who was denied tenure at the same time as Dr. Fisher, but who was always paid $500 more per year than Dr. Fisher for substantially equal services; and (b) she was required to wait longer than any man before she was advanced to “tenure track,” when her contract was renewed for 1981-83. (Exh. 102, 104A-C, 113, 71, 64, 66, 68.) The court further finds that Vassar discriminated against married women in terms of salary discrepancies.
Age Discrimination.
105. Dr. Fisher presented evidence that she was discriminated against on account of her age. Dr. Fisher testified that she was born in 1932. The other persons to whom she was compared had the following birth dates: Dr. Suter was born in 1946, and Drs. Mehaffey, Hemmes and Norrod were born in 1941. Dr. Schlessman received his B.A. in 1974, indicating that he is younger than Dr.
Fisher and was probably born around 1952. (R. at 2394; Exh. 72.) Dr. Fisher also presented evidence concerning the ages of senior faculty members, Drs. Greenwood, P. Johnson and Williams. Dr. Greenwood was born in 1932 and Dr. Johnson in 1931. (R. at 2395.) Dr. Williams received his B.A. in 1955 suggesting that he was born in about 1933. (Exh. 139.)
106. The age at issue is the age at the time of tenure review. Putting the information on age together with the known tenure dates of the faculty members, the court finds that at the time of their tenure reviews the ages of the Vassar faculty members were approximately as follows:
Fisher 53
Norrod 44
Mehaffey 39
Hemmes 38
Suter 38
Schlessman 35
Williams 33
Johnson 44
Greenwood 48
(Dr. Greenwood was hired as an Associate Professor. This was the age at which she became a full professor.)
All faculty members, except for Dr. Greenwood, were at least nine years younger than Dr. Fisher was at the time of tenure review. The court finds that this statistical evidence gives rise to an inference of age discrimination.
107. Dr. Fisher testified that a full professor in the Vassar biology department, Dr. Sue Lumb, told her that she “was too old to ever become tenured faculty.” (R. at 2392.) In addition, the Biology Department represented to the FASC in a meeting concerning Dr. Fisher’s tenure candidacy that she was “out of date — out of the field for 10 years.” (R. at 2165; Exh. 14.)
Retaliation Claim.
108. Subsequent to her leaving Vassar in May 1986, Dr. Fisher was hired at Bard College in a half-time position as adjunct faculty at a one-time salary of $5,600; a reduction from her previous salary at Vassar of $27,000. She moved her grant equipment from Vassar to Bard. (R. at 2364-65.) Dr. Fisher had difficulty in getting Dean Sullivan to sign the transfer papers for the equipment. (R. at 2365-66; Exh. 150C-E.) When the Dean finally gave permission for the transfer, he additionally gave Bard’s
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Dean Levine, a professional acquaintance of his, permission to keep the equipment beyond Dr. Fisher’s departure from Bard. (R. at 2208-10; Exh. 136J.) When Dr. Fisher’s contract was not renewed at Bard, she concluded that she had been “blacklisted” by Vassar College and that Dean Sullivan had told the Dean at Bard about her lawsuit against Vassar. (R. at 951-52.)
109. While at Bard, Dr. Fisher’s performance was evaluated, although not as extensively as at Vassar, and she received very enthusiastic reviews. (Exh. 136A-G.)
110. It is clear that Dr. Fisher did not feel she could continue in her chosen field of science, and in order to minimize her damages and go on with her life she chose another field of endeavor.
111. In the fall of 1988, she was admitted to Adelphi University on Long Island where she was enrolled in a Master’s program in the School of Social Work. In May 1991, she graduated with a Master’s Degree in Social Work and in June, 1991, she passed her State Certification Examination as a Certified Social Worker. Since that time she has been employed as a social worker at the Poughkeepsie Continuing Treatment Center, a Division of the Dutchess County Department of Mental Hygiene where she received a starting salary of approximately $29,900 per year. (R. at 442.)
C. JURISDICTION
While timely filing a claim of discrimination with the Equal Employment Opportunity Commission (“EEOC”) functions as a statute of limitations, it is not a jurisdictional requirement for a Title VII suit.
Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 , 102 S.Ct. 1127 , 71 L.Ed.2d 234 (1982) (‘We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling’’);
Hallstrom v. Tillamook County,
493 U.S. 20, 27 , 110 S.Ct. 304, 309 , 107 L.Ed.2d 237 (1989),
reh’g denied,
493 U.S. 1037 , 110 S.Ct. 761 , 107 L.Ed.2d 777 (1990) (“In
Zipes ,
we held that the timely filing of a charge of discrimination with the Equal Employment Opportunity Commission, as required under Title VII of the Civil Rights Act of 1964 ... was not a jurisdictional prerequisite to suit but was subject to waiver, estoppel, and equitable tolling.”)
But see Butts v. City of New York Dep’t of Hous. Preservation and Dev.,
990 F.2d 1397, 1401 (2d Cir.1993) (district court only has jurisdiction to hear Title VII claims brought before the EEOC or reasonably related to those brought before the EEOC);
Malarkey v. Texaco, Inc.,
983 F.2d 1204, 1208 (2d Cir. 1993) (“Under the ADEA an employee may not bring a discrimination claim in federal court unless she first files the charge with the EEOC”).
Nevertheless, plaintiff has complied fully with the administrative prerequisites for Title VII and Age Discrimination in Employment Act (“ADEA”) litigation by filing a timely complaint with the EEOC, claiming sex discrimination, age discrimination and discrimination in the terms and conditions of her employment, specifically in terms of her salary. (R. at 2389.)
Plaintiff did not claim retaliation in the EEOC proceedings. However, the Second Circuit has determined that retaliation claims are “reasonably related” to claims already raised as to permit consideration.
Malarkey,
983 F.2d at 1208
(citing Almendral v. New York State Office of Mental Health,
743 F.2d 963 (2d Cir.1984));
Goodman v. Heublein, Inc.,
645 F.2d 127, 131 (2d Cir.1981). Therefore, the court concludes that plaintiff may amend her complaint to include a claim of retaliation.
This court has jurisdiction over the subject matter of each of plaintiffs causes of action pursuant to 28 U.S.C. § 1331 ,
5
42 U.S.C. §§ 2000
et seq.,
6
Title VII of the Civil Rights Act of 1964, the Age Discrimination in
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Employment Act of 1967 (“ADEA”),
7
and 29 U.S.C. § 206 (d)(3), the Fair Labor Standards Act of 1938.
8
D. TITLE VII — EMPLOYMENT DISCRIMINATION
One of the purposes of the Civil Rights Act of 1964 is to provide a federal cause of action for victims of employment discrimination.
See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 800 , 93 S.Ct. 1817, 1823 , 36 L.Ed.2d 668 (1973) (“The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities ...”).
See also U.S. Postal Service Bd of Governors v. Aikens,
460 U.S. 711, 716 , 103 S.Ct. 1478, 1482 , 75 L.Ed.2d 403 (1983) (prohibitions against discrimination as part of national policy).
1. In Tenure Decisions
At trial, defendant, through its repeated objections, argued that a university is a special employment environment in which the application of Title VIPs prohibitions are circumscribed. As support for its position, defendant referred to the dicta in
Lieberman v. Gant,
630 F.2d 60 (2d Cir.1980); the Second Circuit there noted that “[a] university’s prerogative ‘to determine for itself on academic grounds who may teach’ is an important part of our long tradition of academic freedom.”
Id.
at 67
(quoting Sweezy v. State of New Hampshire,
354 U.S. 234, 263 , 77 S.Ct. 1203, 1218 , 1 L.Ed.2d 1311 (1957) (Frankfurter, J., joined by Harlan, J., concurring in the result),
reh’g denied,
355 U.S. 852 , 78 S.Ct. 7 , 2 L.Ed.2d 61 (1957). Additionally, the court in
Zahorik v. Cornell University,
729 F.2d 85, 92-93 (2d Cir.1984), citing
Lieberman ,
discussed five reasons why “tenure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally.” While the court in
Lieberman
recognized that “academic freedom does not include ‘the freedom to discriminate,’ ”
9
the court, nevertheless, observed that Congress could not have intended that “courts would sit as ‘Super-Tenure Review Committee[s].’ ”
Lieberman,
630 F.2d at 67 (citation omitted).
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Lieberman ,
however, concerned the comparison of files for the purpose of determining qualification. To that extent,
Lieberman
can be distinguished from the ease at hand because plaintiff here, in addition to assessing qualifications, uses comparative evidence to show that the tenure process itself is a front for intentional discrimination.
Moreover, in
Gibson v. American Broadcasting Cos., Inc.,
892 F.2d 1128 (2d Cir. 1989), the Second Circuit limited the holding in
Lieberman
to the facts of that case. While acknowledging that the university may be a special setting, the
Gibson
court noted that the tenure files at issue in
Lieberman
were incomplete so as not to permit accurate comparison.
Gibson,
892 F.2d at 1133. Additionally, the court in
Gibson
noted that the court in
Lieberman
merely held that the district court’s exclusion of comparative evidence was not an abuse of discretion.
Thus,
Lieberman
does not stand for the proposition that comparative proof otherwise relevant is inadmissible in Title VII suits. In light of the strong remedial purposes expressed in the Civil Rights Act of 1964 and the 1972 Amendments to Title VII, where Congress aimed to give courts broad discretion, in the exercise of their equitable powers, to fashion the most complete relief possible for victims of discrimination, we could hardly hold that relevant proof was inadmissible. Hence, comparative proof is generally admissible in a Title VII discrimination suit.
Gibson,
892 F.2d at 1133.
Despite their reservations, the courts in both
Lieberman
and
Zahorik
acknowledged that Title VII applies equally to universities.
Zahorik,
729 F.2d at 93 (“Tenure decisions are not exempt under Title VII ...”). In fact, Title VII was amended specifically for the purpose of including universities and other educational institutions. In
Powell v. Syracuse University,
580 F.2d 1150 (2d Cir. 1978),
cert. denied,
439 U.S. 984 , 99 S.Ct. 576 , 58 L.Ed.2d 656 (1978), the Second Circuit discussed the history of Title VII:
As originally passed, Title VII of the Civil Rights Act exempted all educational institutions with respect to faculty employment practices. This exemption had not been part of the original Senate bill, but was proposed in a substitute bill----
The Equal Employment Opportunity Act of 1972, 86 Stat. 103 , sec. 3 (1972), amended Title VII to bring educational institutions within the purview of the Act. In the words of the House Report:
There is nothing in the legislative background of Title VII, nor does any national policy suggest itself to support the exemption of these educational institution employees — primarily teachers— from Title VII coverage. Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment.
Powell,
580 F.2d at 1154 (citations omitted). The
Powell
court went on to observe that “far from taking an anti-interventionist position with respect to the academy, the Congress has instructed us to be particularly sensitive to evidence of academic bias.”
Id.
The court in
Lieberman
distinguished
Powell
as concerning the renewal of a teaching contract rather than appointment to tenure.
Lieberman,
630 F.2d at 64 . Nevertheless, subsequently in
Zahorik ,
the Second Circuit recognized the right of plaintiffs “to show that forbidden purposes lurk
in
a tenure decision____”
Zahorik,
729 F.2d at 93 . Moreover, in
University of Pennsylvania v. E.E.O.C.,
493 U.S. 182 , 110 S.Ct. 577 , 107 L.Ed.2d 571 (1990), considering whether universities held a privilege against releasing peer review materials in tenure decisions, the Supreme Court admonished that the petitioner there could not
seriously contend that Congress was oblivious to concerns of academic autonomy when it abandoned the exemption for educational institutions.
The effect of the elimination of this exemption was to expose tenure determinations to the same enforcement procedures applicable to other employment decisions.
Id.
at 190 , 110 S.Ct. at 582-83 (emphasis added). In the case at hand, therefore, the tenure decisions of Vassar College are subject to the same inquiry as employment decisions challenged under Title VII by plaintiffs in other employment contexts.
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2. Standards of Proof
Title VII’s prohibition against discrimination provides, in pertinent part:
10
Employer practices:
(а) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
Plaintiffs principal claims here are based on the disparate treatment theory of discrimination under Title VII. The Supreme Court very recently in
St. Mary’s Honor Center v. Hicks,
— U.S. -, 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993) clarified the requirements for proving a claim of disparate treatment under Title VII that were established in
McDonnell Douglas,
411 U.S. 792 , 93 S.Ct. 1817 (1973) and refined in
Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981).
11
In
McDonnell Douglas ,
the Supreme Court established a three-part “order and allocation of proof in a private, non-class action challenging employment discrimination.”
McDonnell Douglas,
411 U.S. at 800 , 93 S.Ct. at 1823 : First, the plaintiff must establish a prima facie case of discrimination.
Id.
at 802 , 93 S.Ct. at 1824 . If the plaintiff establishes a prima facie case, then the burden of production shifts to the employer to show “some legitimate, nondiscriminatory reason” for the employment decision.
McDonnell Douglas,
411 U.S. at 802 , 93 S.Ct. at 1824 . Finally, if the defendant meets its burden, plaintiff must “be afforded a fair opportunity to show that [the employer’s] stated reason for [the plaintiff’s] rejection was in fact pretext.”
McDonnell Douglas,
411 U.S. at 804 , 93 S.Ct. at 1825 .
In
Burdine ,
the Supreme Court reviewed the three-step process established in
McDonnell Douglas
and elaborated upon the second step. The Court held that the defendant’s burden of providing a nondiscriminatory reason for its employment decision is not a burden of persuasion but a burden of production. In other words, the defendant need not prove its legitimate, nondiscriminatory reason, merely articulate it.
Burdine,
450 U.S. at 256-60 , 101 S.Ct. at 1095-97 .
Most recently, in
Hicks ,
the Court settled a divergence among the circuits regarding the meaning of the third prong of the
McDonnell Douglas
test.
12
Because the burden of persuasion is borne at all times by the plaintiff, the Court concluded that at the third prong of the test, plaintiff must not only prove that defendant’s legitimate, nondiscriminatory reason is a pretext, plaintiff must prove that defendant’s reason is “a pretext
for discrimination.” Hicks,
— U.S. at -, 113 S.Ct. at 2752 , 125 L.Ed.2d at 421-22 (emphasis in original). The Court held that plaintiff must show
“both
that the reason was false,
and
that discrimination was the real reason.”
Id.
at -, 113 S.Ct. at 2752 , 125 L.Ed.2d at 422 . In other words, even if plaintiff proves that the reason proffered by defendant is a lie, plaintiff may not succeed unless she proves the ultimate question of intentional discrimination.
Id.
at -, 113 S.Ct. at 2751-52 , 125 L.Ed.2d at 421 .
In proving discrimination, plaintiff need not rely on direct evidence.
Aikens,
460 U.S. at 717 , 103 S.Ct. at 1483 (“District Court erroneously thought that respondent was required to submit direct evidence of discriminatory intent____”). Either direct evidence or circumstantial evidence will serve to prove discriminatory intent.
Id.
at 714 n. 3, 103 S.Ct. at 1481 n. 3 (“As in any lawsuit, the plaintiff may prove [her] case by direct or circumstantial evidence”).
Statistics may be part of plaintiff’s case in proving discrimination. In Interna
tional Brotherhood of Teamsters v. United States,
431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977), a case involving systemic disparate treatment, the Supreme Court noted that “our cases make it unmistakably clear that ‘[statistical analyses have served
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and will continue to serve an important role’ in eases in which the existence of discrimination is a disputed issue.”
Id.
at 339 , 97 S.Ct. at 1856
(quoting Mayor of Philadelphia v. Educational Equality League,
415 U.S. 605, 620 , 94 S.Ct. 1323, 1333 , 39 L.Ed.2d 630 (1974) (citations omitted).
See McDonnell Douglas,
411 U.S. at 805 , 93 S.Ct. at 1825 (statistical evidence may be used in proving pretext in disparate treatment case).
See also Dothard v. Rawlinson,
433 U.S. 321, 330 , 97 S.Ct. 2720, 2727 , 53 L.Ed.2d 786 (1977) (approving use of statistical evidence in disparate impact context);
Bryant v. Intern’l Schools Services Inc.,
675 F.2d 562, 573 (3d Cir.1982) (in disparate impact context, “statistical proof serves ‘an important role’ in discrimination cases and may often successfully establish plaintiffs
prima facie
case”)
(quoting Teamsters,
431 U.S. at 339 , 97 S.Ct. at 1856 ) (citations omitted)).
E. BECAUSE OF SEX
Plaintiff claims that she was discriminated against “because of ... sex.” She claims that even though she was qualified for the position, she was not promoted to the tenured position of Associate Professor while less qualified males were so promoted. Plaintiff alleges that this failure to promote her to a tenured position occurred because of her sex.
Discrimination “because of ... sex,” as used in Title VII, does not refer only to discrimination due to sex alone.
The scope of Section 703(a)(1) is not confined to explicit discrimination based ‘solely’ on sex. In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.
Sprogis v. United Air Lines, Inc.,
444 F.2d 1194, 1198 (7th Cir.1971),
cert. denied,
404 U.S. 991 , 92 S.Ct. 536 , 30 L.Ed.2d 543 (1971). Plaintiff presents evidence to support two separate theories of sex discrimination. Plaintiff argues that she was discriminated against because she is a woman and because she is a married woman.
As noted above, plaintiff brings her claims under a theory of disparate treatment. The “burden of establishing a prima facie case of disparate treatment is not onerous.”
Burdine,
450 U.S. at 253 , 101 S.Ct. at 1094 . To establish a prima facie case of sex discrimination, plaintiff must show (i) that she is a member of a protected class; (ii) that she applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite her qualifications, she was rejected; and (iv) that, after her rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.
McDonnell Douglas,
411 U.S. at 802 , 93 S.Ct. at 1824 ;
See Hicks,
— U.S. at -, 113 S.Ct. at 2746-48 , 125 L.Ed.2d at 415-16 .
In establishing these criteria, however, the Court in
McDonnell Douglas
noted that because the facts of individual Title VII cases will vary, the specification of proof will not necessarily be applicable in all • cases.
McDonnell Douglas,
411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In
Burdine ,
citing its qualification in
McDonnell Douglas ,
the Court defined the proof required for a prima facie case in the context of a sex discrimination claim as requiring that plaintiff “prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.” 450 U.S. at 253 , 101 S.Ct. at 1094 .
See also Schwabenbauer v. Board of Ed. of City School Dist. of City of Olean,
667 F.2d 305, 309 (2d Cir.1981) (in order to establish a prima facie case, “a female plaintiff may show that she was treated less favorably than men in circumstances from which a gender-based motive could be inferred”).
1. Discrimination Against Fisher as a Woman
Plaintiff claims first that she was not promoted to a tenure position because she is a woman and that less qualified men were subsequently promoted. Plaintiff, however, has failed to establish a prima facie case for her claim alleging discrimination based purely on sex. Plaintiff has established that she is a woman and that she was qualified for a tenured position in the Biology Department. She argues that men — Drs. Richard Hemmes, Leathern Mehaffey, Robert Suter and Mark Sehlessman — who were less qualified or who had qualifications equal to hers were tenured either shortly before or shortly after she was denied tenure. However an
*1225
other woman, Dr. Pinina Norrod, who was considered for tenure at the same time as plaintiff, was awarded tenure. Moreover a man, Dr. Edward Tucker, who was considered for tenure at the same time as Dr. Fisher and Dr. Norrod, was denied tenure. These facts, along with the fact that several women sat on the tenure committee and the fact that several women had been tenured previously in the department, result in plaintiffs failure to establish a prima facie case under plaintiffs first theory of simple sex discrimination.
2. Discrimination Against Fisher as a Married Woman
In addition to her claim of pure sex discrimination, plaintiff claims that she was denied tenure because she is a married woman.
See Sprogis,
444 F.2d at 1198 (Title VII not limited to claims based solely on sex).
In
Phillips v. Martin Marietta Corp.,
400 U.S. 542 , 91 S.Ct. 496 , 27 L.Ed.2d 613 (1971) (per curiam), the Supreme Court determined that discrimination based on marital status qualifies as discrimination “because of ... sex” under Title VII.
Marietta
involved a plaintiff challenging a corporation policy not to accept applications from women with preschool-aged children while accepting applications from men with pre-school-aged children. The Court noted that the District Court had found that 75-80% of those hired for the position sought by plaintiff were women and, therefore, that no question of bias against women as such was presented. Nevertheless, the Court held that “permitting one hiring policy for women and another for men—each having pre-school-age children” was a violation of Title VII.
Marietta,
400 U.S. at 544 , 91 S.Ct. at 498 .
By this decision, the Court established the doctrine of “sex-plus” in Title VII cases. In other words, in certain circumstances, if sex plus some other characteristic results in discrimination against one sex, then Title VII is violated. In his concurrence, Justice Marshall explained,
[b]y adding the prohibition against job discrimination based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterizations of the sexes.’ Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 CFR § 1604.1 (a)(l)(ii).
See Bowe v. Colgate-Palmolive Co.,
416 F.2d 711 (7th Cir.1969);
Weeks v. Southern Bell Tel. & Tel. Co.,
408 F.2d 228 (5th Cir.1969). Even characterizations of the proper domestic roles of the sexes were not to serve as predicates for restricting employment opportunity.
Marietta,
400 U.S. at 545 , 91 S.Ct. at 498 (Marshall, J., concurring) (citations omitted). When stereotypes regarding some characteristic results in disparate treatment, the synthesis of that characteristic and sex is discrimination “because of ... sex” under Title VII.
The “sex-plus” doctrine applies to marital status.
See Bryant,
675 F.2d at 573 n. 18 (citing
Phillips v. Martin Marietta Corp.,
411 F.2d 1 (5th Cir.1969),
petition for reh’g denied,
416 F.2d 1257 ,
vacated and remanded,
400 U.S. 542 , 91 S.Ct. 496 , 27 L.Ed.2d 613 (1971)) (“In what has come to be known as a “sex-plus” problem, a claim of sex discrimination may be premised upon marital status”);
Sprogis,
444 F.2d 1194 (citing
Marietta
) (“no marriage” rule of United Airlines violated Title VII);
Lansdale v. United Airlines, Inc.,
437 F.2d 454 (5th Cir.1971) (citing Marietta) (vacating prior determination that discrimination on the basis of marital status was not a violation of Title VII). If policy or stereotypes about married women result in the disparate treatment of married women, then Title VII is violated.
13
At trial plaintiff presented evidence in support of her claim that she was discriminated against because of her marital status: 1) evidence distinguishing between departments in the “hard”
14
sciences (including the
*1226
Mathematics, Physics, Chemistry, Geology, Biology and Computer Science departments) and the departments in the rest of the College; 2) evidence that traditionally the “hard” sciences faculties have been composed of men (married and single) and women (single only); 3) evidence that although married women constituted 52 percent of the women in science nationally, no married woman had ever received tenure in the “hard” sciences at Vassar. Plaintiff claims that it was her decision to be a wife, mother and a scientist before seeking tenure at Vassar that resulted in the denial of tenure application.
Part of plaintiffs claim of sex discrimination due to her marital status involves the fact that plaintiff left formal academia for approximately eight years in order to raise a family.
15
In 1965, when plaintiff left academia, marriage and family went hand in hand for women, especially for women of plaintiffs race and class. Prior to the 1970’s Women’s Movement and social advances that have permitted women more freedom in shaping their private and professional lives, women who were of plaintiffs race and class rarely had children out of wedlock. Likewise, women of plaintiffs race and class who were married almost always had children. In other words, raising a family was an assumed aspect of marriage.
Subsequent to her parental leave, plaintiff returned to academia and spent nine years in academia before coming up for tenure. She claims that despite her qualifications and her progress in becoming current in her field, her absence from academia was held against her as an insurmountable barrier.
Plaintiff established a prima facie case of discrimination because of sex against her as a married woman. Plaintiff established that she is a member of a protected class — married women. She has demonstrated that she was qualified for the tenure position for which she applied.
Finally, plaintiff has demonstrated that she was rejected under circumstances giving rise to an inference of unlawful discrimination.
*1227
Plaintiff presents evidence that prior to, contemporaneous with, and subsequent to her denial of tenure, the Biology Department at Vassar College tenured only faculty members who were not married women (single women, single men and married men) and who had qualifications less than or equal to hers.
Defendant, however, rebutted plaintiffs prima facie ease by articulating a legitimate, non-discriminatory reason for the tenure decision. Defendant presented evidence that Dr. Fisher’s denial of tenure was based on an unfavorable evaluation of plaintiffs qualifications based on Vassar College’s standards for tenure.
Moreover, defendant argued that the professors who were granted tenure at the approximate time that plaintiff was denied tenure were more qualified and filled specific needs of the department.
In that Vassar College has satisfied its rebuttal burden by presenting a legitimate, non-discriminatory reason for its actions regarding Dr. Fisher, Dr. Fisher has the right to prove that defendant’s reason is a pretext for discrimination.
Plaintiff has presented evidence that defendant’s references to standards and Dr. Fisher’s lack of qualifications according to the categories of evaluation are pretextual. Defendant claims to have evaluated Dr. Fisher’s performance in three main categories— scholarship, teaching ability and service to the College. Nevertheless, several times during the trial, witnesses for defendant admitted that the meaning and specifications of these categories are not written down so as to permit plaintiff to know what was expected of her and to give credibili

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1736405. Public record. Not legal advice.