Albany Criterion Club v. Dougherty County, GA Board of Commissioners Brief of Appellees

    UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT

NO. 90-1898

TINO VILLANUEVA, Plaintiff-Appellant,
v.

WELLESLEY COLLEGE Defendant-Appellee.

Appeal From A Judgment Of The United States District Court For The District of Massachusetts

BRIEF OF PLAINTIFF-APPELLANT

Jonathan Shapiro 
Stern & Shapiro 
80 Boylston Street 
Suite 910 
Boston, MA 02116 
(617) 542-0663



TABLE OF CONTENTS
Statement of the C ase...................................... 1
Statement of Facts ........................................ 2
Argument................................................ 2 4

THE COURT BELOW SHOULD HAVE DENIED WELLESLEY'S 
MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE DISPUTED ISSUES OF FACT AS TO WHETHER PLAINTIFF 
WAS ILLEGALLY DENIED TENURE BECAUSE OF INTENTIONAL 
DISCRIMINATION ...................................... 24
A. Introduction.................................. 2 4
B. Plaintiff Established A Prima Facie Case of

Intentional Discrimination...................... 26
C. There Are Disputed Issues of Fact With Respectto Whether Wellesley's Reasons For Denying Tenure 

Were Pretextual................................. 3 0
D. The Court Below Applied An Incorrect Legal

Standard........................................ 44
E. Other Evidence Of Discrimination.................  47

Conclusion.............................................. 49



4

TABLE OF AUTHORITIES
CASES
Banerjee v. Board of Trustees of Smith College,

648 F. 2d 61 (1st Cir. 1981) ........................  26-28
Brown v. Trustees of Boston University, 891 F.2d

337 (1st Cir. 1989) ..........................  24, 32, 43
Chipollini v. Spencer Gifts, Inc., 814 F2d at 901. . . . 42, 46
Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979) ............  47
Dea v. Look, 810 F.2d 12 (1st Cir. 1987) ..................  45
Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986) ..........  36
George v. Mobil Oil Corp., 739 F.Supp. 1577, 1582,

(S.D.N.Y. 1990)   36
Greenburg v. Puerto Rico Maritime Shipping

Authority, 835 F.2d 932 (1st Cir. 1987) ..............  42
Hazelwood School Dist. v. United States, 433 U.S. 299(1977)   48
Jackson v. University of Pittsburgh, 826 F.2d 230

(3rd Cir. 1987)   25
Kumar v. Board of Trustees, University of Massachusetts,

774 F. 2d 1 (1st Cir. 1985)............................  32
Lipsett v. University of Puerto Rico, 864 F.2d 881

(1st Cir. 1988)   47
Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) . . . .  45
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ........................................  25-27, 30,
31, 45, 47

Medina-Munoz v. R.J. Reynolds Tobacco Co.,
896 F. 2d 5 (1st Cir. 1990)..................  2, 44, 45, 47

Namenwirth v. Board of Regents of the University 
of Wisconsin System, 769 F.2d 1235
(7th Cir. 1985) ..................................  32, 43

O'Connor v. Peru State College, 781 F.2d 632
(8th Cir. 1986) ......................................  25

li



Oliver v. Digital Equipment Corporation, 846 F.2d
103 (1st Cir. 1988)   31

Patterson v. McLean Credit Union, 109 S.Ct.
2363 (1989)   33

Powell v. Syracuse University, 589 F.2d 1150
(2d Cir. 1978)........................................  27

Rossy v. Roche Products, Inc., 880 F.2d 621
(1st Cir. 1989) .................................. 25, 47

Stepanischen v. Merchants Despatch Transp. Corp.,
722 F. 2d 922 (1st Cir. 1983)..........................  43

Sweeney v. Board of Trustees of Keene State College,
569 F.2d 169 (1st Cir.), vacated on other grounds,
439 U.S. 24 (1978)................................ 24, 49

Texas Department of Community Affairs v. Burdine,450 U.S. 248 (1981) .................. 25, 26, 31, 45, 46
United States Postal Service Board of Governors

V. Aikens, 460 U.S. 711 n.3 (1983)................ 25, 31

STATUTES AND REGULATIONS
Age Discrimination in Employment Act of 1967, 29 U.S.C.

§621 et s e q ............................................1
Civil Rights Act of 1866, 42 U.S.C. §1981.................... 1
Civil Rights Act of 1964, 42 U.S.C. § 2000e-l et seq..........1
Massachusetts General Laws, chapter 151B, §4(1) ..............  1

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BRIEF FOR PLAINTIFF-APPELLANT
Statement of the Case

This is an employment discrimination case filed against 
defendant Wellesley College ("Wellesley") on August 11, 1987. 
(App. 6a). Plaintiff Tino Villanueva ("plaintiff" or 
"Villanueva"), a brown-skinned male of Mexican-American ancestry, 
alleged that he was denied tenure by Wellesley in the 1985-86 
academic year on account of his race, color, sex and age, in 
violation of various federal and state statutes.- After 
extensive discovery, Wellesley moved for summary judgment on the 
ground that there was no genuine issue of fact with respect to 
its claim that plaintiff was denied tenure solely because he 
failed to meet Wellesley's standards of excellence. (App. 14, 
15a). Plaintiff opposed this motion on the ground that there 
were genuine issues of fact with respect to Wellesley's motive 
and intent in refusing to grant him tenure. (App. 56a).

In a Report and Recommendation, dated June 14, 1990, the 
United States Magistrate recommended that the district court 
grant Wellesley's motion with respect to all of plaintiff's 
claims. (App. 97a). The Magistrate found that plaintiff had 
established a prima facie case of a discriminatory denial of 
tenure (App. 104a); that Wellesley had met its burden of 
articulating a legitimate, nondiscriminatory reason for denying

- Plaintiff alleged violations of Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000e-l et seq.. and the Age 
Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq. 
In an amended complaint filed on September 2, 1987, plaintiff 
added claims under the Civil Rights Act of 1866, 42 U.S.C. §1981, 
and under Massachusetts General Laws, chapter 151B, §4(1) and 
(IB). (App. 6a).



plaintiff tenure (App. 108a); and that plaintiff had raised 
numerous factual disputes with respect to Wellesley's 
explanations for the denial of tenure. (App. 109a).
Nevertheless, he concluded that summary judgment should be 
granted because "no rational trier of fact could reasonably 
conclude '. . . that the reason given was not only a sham. but a
sham to cover up the employer's real motive: [improper]
discrimination.' Medina-Munoz v. R.J, Reynolds Tobacco Co.. 896
F.2d 5, 9 (1st Cir. 1990)(emphasis added)." (App. 112a).

Plaintiff filed timely objections to the Report and 
Recommendation of the Magistrate on June 29, 1990. (App. 121a). 
On August 17, 1990, the District Judge (Nelson, J.) adopted the 
Magistrate's recommendation, and granted Wellesley's motion for 
summary judgment for the reasons set forth in the report. (App. 
125a). Final judgment was entered the same day (App. 127a), and 
this appeal followed.

Statement of Facts
Plaintiff was born in San Marcos, Texas, in 1941. He 

received a B.A. degree from Southwest Texas State University in 
May, 1969, and an M.A. degree in Romance Languages from the State 
University of New York at Buffalo in 1971. (App. 6a). While 
working toward his Ph.D. in Romance Languages at Boston 
University, he taught Spanish at Boston University from 1971 to 
1976, and in 1974 he was hired as a part-time instructor in the 
Department of Spanish at Wellesley. (App. 98a). In his first 
teaching evaluation after being hired, Professor Ruiz-de-Conde

2



expressed her high opinion of plaintiff as a teacher, and 
commented that in the two classes that she had observed "your 
delivery was efficient, you were lively, energetic and engaging, 
warm, and on excellent terms with the students . . .  I did like 
your classes very much, you are a good teacher and I [am] very 
glad you are here teaching with us." (App. 59a).

Plaintiff's appointment at Wellesley was regularly renewed 
from year to year until January 1981, when it was converted from 
part-time to full-time for the 1980-81 academic year. After he 
obtained his Ph.D. from Boston University in February, 1981, he 
was promoted to the position of assistant professor. (App. 21a). 
In April, 1981, this appointment was renewed for an additional 
two year period on the basis of an enthusiastic recommendation by 
the Reappointment and Promotion Committee (the "R&P Committee") 
of the Spanish department. (App. 21, 59a). In its 
recommendation, the R & P  Committee commented that since 1974 
when he joined the Spanish department, plaintiff had "worked 
enthusiastically, always attempting to meet the particular needs 
of the department and adjusting to the curriculum changes and new 
teaching methodologies which had been implemented during the last 
years." (App. 61a). With respect to his teaching, the Committee 
stated that plaintiff "has done a most creditable job in the 
classroom, showing great ability in arousing the interest of his 
students," and that "his dedication and enthusiasm in his courses 
have resulted in good student evaluations." The R & P  Committee 
members who had attended his classes were "unanimous in praising

3



his performance as a teacher." (App. 59, 60a). The Committee 
noted that plaintiff was "a recognized scholar in the fields of 
Spanish Contemporary Literature and Chicano Studies" and that he 
had published "extraordinarily well received" articles on a 
variety of subjects in a number of "prestigious" journals.- It 
also noted that "[a]s a poet, Mr. Villanueva is one of the best 
representatives of the Chicano experience and has given numerous 
recitals in prestigious places," and his poetry had been 
published in national magazines in the United States and abroad. 
It concluded that "[h]is colleagues believe him to be a marvelous 
companion, generous, witty and intellectually stimulating. We 
are happy and greatful [sic] to have him among us."-'

One year later, in March, 1982, the R & P Committee 
recommended plaintiff's reappointment as an assistant professor 
for an additional four years. (App. 60a). The Committee 
commented that since his reappointment he had contributed to both 
the Spanish department and the College by giving recitals and a 
lecture, that he had been the Coordinator for the Elementary 
Spanish classes during the year, that he was leading a directed 
study course on Chicano literature, that in the Fall he was going 
to teach a senior seminar on Spanish Vanguard Poetry, a course he 
had created and proposed to the Department, and that he had been 
a discussant on a panel at the Modern Language Association

- Plaintiff's Exhibit U In Opposition to Defendant's Motion for 
Summary Judgment, p. 2.
* Ibid.

4



conference in December, 1981. (App. 61a). In addition, the 
Committee "enthusiastically" subscribed to its earlier evaluation 
of plaintiff's teaching, noting that since he had become a full­
time member of the department he had "a much more relaxed and 
expansive demeanor which projects itself in his teaching." (App. 
60a) .

After meeting with plaintiff in April, 1983, the R & P 
Committee members summarized their discussion in a memorandum in 
which they stated that plaintiff's teaching of a wide variety of 
courses from first year to literature was "quite satisfactory and 
constantly improving as can be seen in student evaluations and in 
class visits." They noted that they were pleased that he had an 
article published in the Bulletin Hisoanique. that his anthology 
of Chicano literature had been published, and that his "work as a 
poet is so highly respected." The Committee also noted that it 
would like to see plaintiff increase his activity in regard to 
college service and collegiality. (App. 25a).

In addition to many poetry recitals, lectures and activities 
with students, plaintiff represented the Wellesley Spanish 
department at meetings of a consortium of colleges known as 
PRESHCO that sponsored student studies in Spain, and he served on 
the Fulbright Scholarship Committee and the Foreign Study 
Committee at the College. He also founded and was the publisher 
and editor of Imagine: International Chicano Poetry Journal.
(App. 24a).

5



In the Fall of 1983, plaintiff applied for and was granted 
an early leave of absence for the academic year 1984-85. In 
accordance with policies then in effect, plaintiff chose to have 
this time included in his years of service for the purpose of 
determining the time of his tenure consideration. (App. 25a). 
During his leave, he completed a creative project that involved 
writing 15 to 20 poems on a scene in the movie Giant. (App.
61a) .

In the course of the tenure consideration of a colleague of
plaintiff's, Joy Renjilian-Burgy, in 1984, the R & P Committee of
the Spanish department reported to the college-wide Committee on
Faculty Appointments (the "CFA") that:

Tino Villanueva has been with us for about ten years, first as a part-time person, and 
has had an extensive teaching career. He is 
well-liked by many students and spends extra time with them . . . Tino is a well-known
Chicano poet whose presence in our department 
is significant because he brings to us 
qualities which most Spanish departments in 
the country are looking for. But he is not 
only a poet, he has also published some nine 
articles and had given many poetry readings.
His anthology of Chicano poetry, which includes a prologue by Tino, is a 
considerable contribution to this type of 
literature. It should also be noted that he had just put out a collection of poems 
entitled Shaking off the Dark (Houston: Arte Publico Press, 1984).

6



At this time the R & P Committee expressed its opinion that 
plaintiff was a "strong and tenurable" faculty member, and the 
CFA agreed that he was a "quite strong" candidate for tenure.- 

Plaintiff came up for tenure consideration in the 1985-86 
academic year, his sixth year of continuous full-time service at 
Wellesley. According to the Articles of Government of the 
College:

Recommendation for tenure should always be 
based upon evidence that the candidate is an 
able teacher and possesses intellectual enthusiasm and power. In judging qualifications of candidates, reference will 
be made to teaching ability, evidence of scholarly growth including research activity 
and potential, the relation of the candidate to his/her department's structure, service to 
the College, including assumption of 
departmental and College-wide 
responsibilities, and external professional 
activities. Work in progress as well as work 
completed will be considered. (App. 19a).

The first two criteria for tenure —  teaching ability and
scholarship —  were given considerably more weight in the tenure
decision than the other criteria. (App. 45a).

The policies of the College provided that an initial
recommendation with respect to tenure would be made by the R&P
Committee of the particular department involved, which committee
would normally consist of the tenured members of the department.
Thereafter, the final decision on tenure would be made by the
CFA, which consisted of five tenured faculty members elected by

- Supplemental Affidavit of Ruth Anne Nuwayser in Support of 
Defendant's Motion for Summary Judgment (the "Nuwayser Aff.") 
Exh. 26, p. 2559.

7



the Wellesley faculty at large, a black tenured faculty member 
elected by the black faculty, the Dean, and the President of 
Wellesley. (App. 18a).

The scholarly and creative work that plaintiff submitted for 
review in his tenure cases included eight articles that had been 
published in scholarly journals or, in one case, as a prologue to 
an anthology edited by him, two published collections of poetry 
and a published short story, two published autobiographical 
essays, two published interviews with plaintiff, plaintiff's as 
yet unpublished Ph.D. dissertation, and four unpublished 
interviews of authors by plaintiff. (App. 62a-63a). Four of the 
published articles were based upon his dissertation but contained 
revisions and new material. The prologue to the anthology 
included adaptations of two of the published articles with an 
additional section. An introduction to Imagine was substantially 
different from plaintiff's other published material dealing with 
Chicano culture. (App. 63a).

These materials were submitted to three outside evaluators 
who had been chosen by the Associate Dean on the basis of 
suggestions made by persons on a list submitted by plaintiff. In 
a letter dated September 8, 1985, one of these evaluators 
concluded that "Villanueva's work is significant, very well 
developed and written, original, a definite asportation to his 
discipline. He reveals a great deal of maturity and unusual 
responsibility in the way in which he deals with his material.
His studies in my area will be necessary reading for future

8



scholars . . . All this adds up to a very positive recommendation
for tenure and promotion." Specifically, this evaluator thought 
that the "article on the history and meaning of the term 
'chicano' is a fine example of historical and linguistic 
research." He found that another article on the nature of 
chicano poetry "offers excellent and very penetrating comments on 
the diverse ways in which poetry reveals dual cultures, dual 
sensibilities, and dual use of language systems." He was 
impressed by plaintiff's articles on contemporary Spanish poetry, 
and he thought that the thematic studies of the poets contained 
in his dissertation "are sound, informative, original, and well 
written." (App. 63a-64a).

In a letter dated September 21, 1985, a second evaluator 
concluded:

I believe that Professor Villanueva will 
continue to do intensive research and to 
publish high quality studies, thus 
contributing to enhance our knowledge of 
Chicano and Spanish literature. I have 
nothing but admiration for his publications, 
both creative and scholarly. (App. 64a).

He commented that plaintiff's "article on the meaning of the word
Chicano is without doubt the best in existence, as it explores
all the possible meanings and origin of the word through his
research, and is considered the most authoritative study on the
subject." He thought that plaintiff's anthology "is the best and
most complete anthology of Chicano literature in print and . . .
had greatly advanced the understanding of Chicano literature in
all Spanish speaking countries." As a critic and a poet,

9



plaintiff "has reached a higher level of recognition and 
development than most of his colleagues in the same rank. He has 
done far more quality research and publication than many tenured 
faculty at leading universities. Among Chicano critics, he is 
recognized as a poet and a critic of great merit and a leading 
author in his field." Plaintiff's publication of the "excellent" 
journal Imagine "has succeeded in bringing Chicano literature to 
the attention of an international audience." (App. 65a).

The third evaluator concluded in his letter of October 1,
1985:

I believe Professor Villanueva's work in my field shows that he is a thorough scholar and 
a sensitive reader of poetry. I have also 
read his poetry, which I liked. He seems to 
be a talented and versatile writer and 
scholar with much promise.

With respect to plaintiff's dissertation, this reviewer found 
that the "historical background and the account of the 
intellectual climate and literary trends of the post-civil War 
period are detailed, well documented and sound. In the 
thoroughness of its research and varied use of sources it 
compares well with another study on the same subject that I 
evaluated some months ago for Tamesis Publishers." The 
dissertation also contained "significant" and "original" 
contributions with respect to the poetry of Celaya, Gonzalez and 
Caballero. (App. 65a).

In preparation for making their tenure recommendation, the 
members of the Spanish department R & P Committee visited 
plaintiff's classes. In her report of her visit to plaintiff's

10



Chicano literature class on September 20, 1985, Professor 
Lorraine Roses concluded that "Tino is friendly, relaxed, 
organized and eminently clear on all the points he presents. . . 
All in all, a fine class." Ms. Renjilian-Burgy wrote of a visit 
to plaintiff's elementary Spanish class on September 23, 1985, 
that he had made "excellent" use of pictures and photos, and that 
his approach was precise, thorough and very methodical, so that 
students could grasp the concepts clearly." She noted that 
students" did not hesitate to ask questions" and that the "class 
atmosphere was informal while serious at the same time." During 
the second part of the class, plaintiff included "very fine 
choice questions to make students think, filter and respond 
personally," and his "descriptions and explanations were 
carefully thought out and meticulously presented." (App. 66a).

Professor Gascon-Vera attended plaintiff's Chicano 
literature class on September 25, 1985. In a conversation after 
the class, plaintiff agreed with some of Professor Gascon-Vera's 
critical comments, but explained that he was ill with a cold. At 
plaintiff's request that she attend another of his classes, she 
visited his composition and conversation course on October 2, 
1985. She noted that the students were "alert and interested," 
and that plaintiff "skillfully used various questions and answers 
in trying to help the students to discover" the meaning of the 
story they had read. Her impression was that plaintiff was "very 
good in bringing the students participation, . . . [h]e was very
dynamic in that class," and that it was "a very well-prepared

11



class." She concluded that "[w]ith Mr. Villanueva's direction, 
discussion of the beauty and clarity of the text made the class 
enjoyable." (App. 67a). In his visit to the same course one 
week later, Professor Gabriel Lovett wrote that "[t]he class was 
very dynamic and was given with contagious enthusiasm which 
caused the class to he highly responsive. Mr. Villanueva has 
improved his technique 100% over that of 5 years ago and has 
given an excellent class from all points of view." (App. 68a).

In a letter dated October 18, 1985, Professor Lovett, the
chairperson of the Spanish department, wrote to the CFA
recommending plaintiff for tenure upon the basis of his
excellence in teaching, his outstanding scholarship, his creative
contributions as an internationally recognized poet, and his
loyal service to the College community. (App. 68a). He
dismissed any concern that if plaintiff were tenured he would be
retiring at approximately the same time as three other tenured
members of the department on the ground that his own prospective
retirement would open up a tenure spot, and that there was no
certainty the other tenured members would "finish their days at
Wellesley." He concluded that:

Tino Villanueva is an indispensable member of 
the department. He is a member of a vital 
and important minority and we should do 
everything in our power to keep him at 
Wellesley. It would be a blow to the College 
if he left us. Thus, I recommend him 
enthusiastically for tenure. (App. 69a).

The three white women members of the R & P Committee, 
Professor Gascon-Vera, Professor Lorraine Roses, and Ms.

12



Renjilian-Burgy, responded to Professor Lovett's letter in a 
letter recommending against tenure for plaintiff. In contrast to 
the glowing appraisals of his teaching, scholarship and 
creativity that were contained in the R & P Committee's letters 
of 1981 and 1982 recommending reappointment and in the letters 
from the three outside evaluators, this letter concluded that 
plaintiff's teaching was "adequate," that he was merely "active" 
as a poet, and that his scholarship was deficient in a number of 
respects. (App. 69a). Thus, the majority of the R & P Committee 
recommended against tenure for plaintiff, ostensibly because he 
was not sufficiently "outstanding" to satisfy the College's 
tenure criteria.-

At its November 21, 1985 meeting, CFA members discussed 
plaintiff's tenure case for the first time, but took no action on 
it. (App. 39a). At the December 4, 1985 meeting of the CFA, 
members noted and remarked upon the contrast between the "very 
positive" evaluations of plaintiff's teaching contained in the 
class visit reports and the negative tenure recommendation. One 
member found plaintiff's poetry "reasonably impressive," and 
suggested that the R & P Committee was being unfair in expecting 
each scholar to work "in the later critical mode." This member 
also thought that plaintiff's material in English that promoted 
Chicano interests was "impressive." Another member commented 
that plaintiff's poetry was "quite good," and that he had not 
received proper credit for his work. (App. 70a).

- Nuwayser Aff. Exh. 25, p. 2.
13



On December 9, 1985, the R & P Committee met with the CFA to 
discuss plaintiff's case. Professor Lovett responded to 
criticisms of plaintiff's teaching by the majority of the R & P 
Committee, pointing out that in his opinion plaintiff's teaching 
had improved significantly and is "dynamic and enthusiastic." He 
indicated that plaintiff had never been informed that the 
majority found fault with his style of teaching. He commented 
that plaintiff was "a scholar, a good teacher, an editor, and an 
expert on contemporary peninsular literature, as well as a 
representative of a minority group," and that he gave "dynamic 
poetry recitals." In a further discussion by the CFA on December 
11th, it was noted that plaintiff was an "outstanding teacher and 
scholar," and that he was "very good in all areas of review."
One CFA member thought that a case could be made that plaintiff 
"has strength as a poet, that he has fostered interest in Chicano 
literature, that his student evaluations are not weak, and that 
he represents a contribution to the College that would be 
difficult to replace." On a straw vote to sustain the majority 
recommendation of the R & P Committee against tenure, the CFA 
voted five in favor, one opposed, and two abstentions. (App. 
72a). On December 13, 1985, the CFA discussed plaintiff's case 
and voted 5-3 in favor of a motion to accept the majority 
recommendation not to grant tenure to plaintiff. (App. 43a). 
Plaintiff was informed that his appointment at Wellesley would 
terminate at the end of the 1986-87 academic year. (App. 43a).

14



In their letter to plaintiff of December 23, 1985, 
explaining the reasons for the negative vote by the CFA, Dean 
Chaplin and Dean Stettner stated that the decision had been a 
difficult one, that the CFA saw many strengths in his case, and 
that the CFA had been "greatly influenced" by the negative 
recommendation by the majority of the R & P Committee. They 
explained that the CFA is only prepared to overturn majority 
recommendations of an R & P Committee where "it is apparent that 
the candidate has been reviewed unfairly or where the R & P 
Committee recommendation seems clearly at variance with College 
standards." (App. 72a).

With respect to plaintiff's teaching, the CFA concluded that 
it was "much more than adequate, but that it was not 
outstanding." Although it noted that plaintiff's student 
evaluations were good, it felt that they were "not as strong as 
we often see in tenure cases in language departments." The CFA 
also took seriously the comments of the R & P Committee that 
plaintiff was not an "exciting teacher or perhaps one who 
employed the latest teaching techniques." (App. 44a).

Although all of the letters from plaintiff's outside 
evaluators were positive, the CFA thought that the tone of one or 
two indicated "a sense of reservation." Another important point 
for the CFA was the argument of the R & P Committee majority that 
plaintiff was not current in the latest trend of literary 
criticism. (App. 44a).

15



The R & P Committee had emphasized that plaintiff was a 
cooperative colleague, but had criticized his lack of initiative. 
The CFA noted, however, that the context in which plaintiff was 
asked to work was a department in which there were a number of 
strong-willed people who had their own ideas about how to develop 
a strong program. Plaintiff's service to the College was 
considered to be good. (App. 44a). His professional activities 
were viewed as "a strongly positive" part of his case, and his 
work as a poet was valued by the CFA.-'

Finally, the CFA noted that the R & P Committee was 
concerned about the fact that the Spanish department would be 
almost fully tenured if plaintiff and Marjorie Agosin, the next 
candidate to be considered for tenure, were granted tenure. 
Although this was an important issue, Dean Chaplin and Dean 
Stettner thought that it was not likely to have been dispositive 
if the evaluations of plaintiff's teaching and scholarly strength 
had been more positive. (App. 45a).

On April 7, 1986, plaintiff met with the full CFA in support 
of an appeal from its negative tenure decision and responded to a 
number of the points made by the majority of the R & P Committee. 
Among other things, he pointed out that the fact that he had not 
yet published his dissertation was held against him, even though 
two of the tenured members of the Spanish department had not 
published their dissertations when they were granted tenure. He 
also explained his teaching methodology, and noted that there

Nuwayser Aff. Exh. 47, p.3.
16



were legitimate differences of opinion within the department with 
respect to pedagogy. He also noted that some of the comments in 
the R & P Committee majority letter reflected an ethnic 
stereotype of him as a Chicano. (App. 74a).

In the course of its consideration of plaintiff's appeal on 
April 14, 1986, the CFA was informed that Professor Lovett had 
told Deans Chaplin and Stettner that he thought that the R & P 
Committee had recommended against tenure for plaintiff because 
they were "trying to maintain room for Marjorie Agosin." Some 
members of the CFA commented that the striking shift from 
positive reappointment recommendations to a negative tenure 
recommendation was "too blatant, hard to justify, that it even 
looked like dishonesty." It was also noted that it was not clear 
that Professor Agosin was a stronger candidate than plaintiff, 
and that although she may be more "compatible" with the R & P 
Committee majority, that consideration "was not a particularly 
good basis for building a department." One member of the CFA 
commented that "Villanueva in his work tells Chicanos to be bold, 
but is himself not bold." Another member stated that he feared 
that "the College may be passing up a person of unique experience 
and accomplishment in affirmative action areas." A motion to 
reverse the prior vote and to grant tenure to plaintiff failed to 
carry, with three in favor and five opposed. (App. 74, 75a).

Professor Marjorie Agosin, a thirty-two year old white 
woman, was the next candidate considered for tenure in the 
Spanish department in the 1987-1988 academic year. She was

17



supported for tenure by the three tenured women members of the 
department who had comprised the majority of the R & P Committee 
in plaintiff's tenure case. These tenured women professors, 
Gascon-Vera, Roses and Renjilian-Burgy, were all very friendly 
with Agosin, and they were all very interested in getting tenure 
for her. As far back as March, 1984, when the R & P Committee 
had recommended her for reappointment, it had also urged the CFA 
to give serious consideration to granting her tenure "in due 
course." The CFA considered such a suggestion so inappropriate 
that it admonished the R & P Committee to refrain from making 
such positive statements regarding tenure because, without a full 
tenure review, the Committee had no basis for prejudging a 
candidate.

On October 20, 1987, the R & P Committee (Gascon-Vera, Roses 
and Renjilian-Burgy) unanimously recommended Professor Agosin for 
tenure. Despite the Committee's very positive report with 
respect to her teaching, the student evaluations she had received 
were no better than plaintiff's student evaluations, which these 
same women had considered not sufficiently outstanding to warrant 
tenure. Indeed, the CFA was concerned about the apparent 
discrepancy between the R & P Committee recommendation and 
Professor Agosin's uneven student evaluations. It was noted that 
her evaluations were weaker than those of two of the tenured 
members of the department, and that in some courses her 
evaluations did not compare well to College averages. The CFA 
thought that Professor Agosin's teaching record was "ambiguous."

18



When asked to explain, the R & P Committee conceded that it, too, 
was puzzled by the unevenness of her student evaluations, and 
attributed it to "flukes." (App. 76a).

The outside evaluations of Professor Agosin's scholarship 
were also very uneven. One of the evaluator's praise was 
unqualified. Another evaluator praised her very highly as a poet 
and as a feminist/activist, but was reserved with respect to 
other aspects of her work.- This evaluator thought that she was 
only "competent" as a critic; her book on Neruda was "choppy and 
awkward in tone," and its content was "competent but not 
brilliant." The third evaluator, although impressed by her 
poetry, was not impressed with her literary criticism, which she 
found "rather descriptive and repetitive." This evaluator 
criticized her writings on contemporary issues, in one case 
because of factual errors and in another because it was 
"sentimental and superficial." (App. 76, 77a). After meeting 
with the R & P Committee, the CFA voted unanimously on December 
7, 1987, to accept the recommendation of the R & P Committee and 
grant tenure to Professor Agosin. (App. 78a).

The three tenured white women who had recommended against 
tenure for plaintiff and in favor of tenure for Agosin had

- In her letter of September 29, 1987, this evaluator reported 
that she had known Professor Agosin since 1982 and that "Marjorie 
Agosin and I have not only become good friends but have 
collaborated on a number of professional projects." Despite the 
fact that it was contrary to the policy of the CFA to accept 
outside evaluations from persons who had personal and 
professional relationships with the tenure candidate, the CFA 
agreed to accept this evaluator's letter. (App. 76a).

19



themselves been granted tenure in the Spanish department on the 
basis of mediocre records. Professor Gascon-Vera was recommended 
for tenure in 1977. At that time, she had only made three 
presentations at professional meetings, and none of her work, 
including her Ph.D. dissertation, had been published. Nor had 
she ever gotten very high marks with respect to her teaching. In 
1974, the CFA had tabled action on her reappointment as an 
assistant professor because of an "imprecise letter of 
recommendation together with poor student evaluations." Class 
visit reports over the years had been critical of her teaching in 
a number of respects, and she had received a number of very 
negative student evaluations, including one in which the student 
said that she "has almost succeeded in making Spanish Literature, 
the subject I am majoring in, absolutely repulsive to me." When 
Professor Lovett recommended her for tenure, he had reservations 
with respect to her student evaluations. Even after receiving 
tenure, Professor Gascon-Vera continued to receive poor student 
evaluations. When she was promoted to associate professor in 
1978, the CFA questioned the fact that she continued to receive 
"somewhat low student evaluations in the beginning courses."

The outside evaluations of Gascon-Vera's scholarship were 
not without criticism. One reviewer pointed out a number of 
significant inaccuracies in her work and expressed disagreement 
with some of her literary analysis. Another reviewer thought 
that the subject of her dissertation was "rather insignificant,"

20



and that her treatment of a significant author, Don Enrique de 
Villena, was "very disappointing." (App. 80a).

Professor Lorraine Roses was granted tenure by the CFA in 
1980, after having first been denied tenure in 1979. In their 
first consideration of Roses' tenure case, the CFA thought that 
her teaching was weak at the introductory level, and that she had 
not attracted students to the department. The CFA noted that 
there was a "lack of great enthusiasm for her teaching," a "lack 
of effectiveness" in her teaching of the lower level courses 
which were so important to the department, and a lack of evidence 
that her teaching was improving. This was "particularly 
disturbing" in a teacher with as much experience as Professor 
Roses had. (App. 82a).

With respect to scholarship, one of Professor Roses' outside 
reviewers was quite negative. The reviewer concluded that the 
quality of Professor Roses' work was "adequate, far from 
outstanding or brilliant;" that her "achievement is 
satisfactory;" her promise as a scholar was "very difficult to 
assess;" and that the quality of her work was inferior to that of 
established scholars in her field. The CFA had doubts as to the 
originality of her research, it thought that her choice of 
research subjects was "undistinguished," and it concluded that 
there was a "lack of evidence of intellectual distinction." In 
addition, although Professor Roses obtained her Ph.D. in 1974, 
her dissertation had never been published. (App. 83a). The CFA 
thought that Professor Roses' College-wide service was

21



"adequate," even though she "has not been distinguished on 
College committees." It also found her autobiographical essays 
to be "pedestrian" and "rather shallow." (App. 83, 84a).

On December 13, 1979, the CFA voted 4-3, with one 
abstention, not to accept the recommendation of the R & P 
Committee to tenure Professor Roses. On her appeal, however, the 
CFA, in an unprecedented decision, permitted Professor Roses to 
obtain three new outside evaluations of her scholarship. As with 
the first evaluations, these were mixed. Even the two evaluators 
who were positive, criticized certain aspects of her work and had 
explicit reservations about others. One evaluation, however, was 
decidedly negative. This reviewer thought that as a "critic- 
scholar" Professor Roses "is not outstanding . . .but she is more
than competent." He was not "as enthusiastic about [her] other 
abilities as a critic." Although he "never like[s] to discount 
the possibility that a critic will improve," he did not think 
that Professor Roses was among the top critic-scholars in her 
area and it was "impossible for me to speculate if she has a 
chance of coming up to the level of these critic-scholars."
(App. 86, 87a).

Even though the CFA thought that the new evaluations were 
"essentially similar" to the first ones, that she was a good, but 
not excellent teacher, and that "the light quality of [her] 
intellect is worrisome," it voted 7-1 to reverse its previous 
decision and to accept the R & P Committee recommendation to 
tenure Professor Roses. (App. 87, 88a).

22



Ms. Joy Renjilian-Burgy was the candidate considered for 
tenure in the Spanish department immediately before plaintiff.
In October, 1984, the R & P Committee recommended that she be 
granted tenure. At that time, Ms. Renjilian-Burgy had not 
obtained a Ph.D., she had not published any scholarly articles, 
and she had presented only one scholarly talk in 1982. In her 
only publications, she co-edited a classroom text and a 
bibliography of Spanish videotapes. Although she was praised for 
her teaching, she had not developed and presented any new courses 
in the department, nor had she directed any honors theses. None 
of the outside evaluators were able to say much about Ms.
Renjilian-Burgy's scholarship because of the limited number of 
her publications and the fact that she was a co-author on both. 
One reviewer noted that her scholarly work was "very conventional 
and even perfunctory." He indicated that he would not deem 
either of her two scholarly articles worthy of publication and 
concluded that "she has yet to prove that she is a promising 
scholar, who will make an original contribution to the field." 
(App. 91a).

Members of the CFA saw Ms. Renjilian-Burgy's scholarship as 
a "negative factor." They viewed her lack of a Ph.D. as 
problematical and thought it unfair to other candidates who had 
not been able to continue at Wellesley because they had not 
obtained a doctorate. Her lack of scholarship was seen as 
indication that "quality of mind" was not present, and that it 
was arrogant of her not to pursue her Ph.D. A number of members

23



of the CFA wondered whether she would be able to sustain the 
quality of her teaching without evidence of stronger scholarship. 
Nevertheless, on December 13, 1984, the CFA voted 5-2 to grant 
Ms. Renjilian-Burgy tenure as a Lecturer. (App. 90a).

Argument
THE COURT BELOW SHOULD HAVE DENIED 
WELLESLEY'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE 
DISPUTED ISSUES OF FACT AS TO 
WHETHER PLAINTIFF WAS ILLEGALLY 
DENIED TENURE BECAUSE OF INTENTIONAL DISCRIMINATION

A. Introduction
Although this Court has cautioned about "intruding into the

world of university tenure decisions," Brown v. Trustees of
Boston University. 891 F.2d 337, 346 (1st Cir. 1989), it has also
recognized that discrimination is much harder to prove "in a
college or university setting, where the level of sophistication
is likely to be much higher than in other employment situations .
. ." Sweeney v. Board of Trustees of Keene State College, 569
F.2d 169, 175 (1st Cir.), vacated on other grounds. 439 U.S. 24
(1978). In a tenure case, the reasons for the decision are
wholly subjective, and direct evidence of discrimination is
rarely found. Sweeney, 569 F.2d at 175. As one court has noted:

In today's climate of public opinion, blatant 
acts of discrimination —  the true "smoking guns" —  can easily be identified, quickly 
condemned and often rectified in the particular settings where they occur. Much 
of the discrimination that remains resists legal attack because it is so difficult to 
prove. Discrimination victims often come to 
the legal process without witnesses and with 
little direct evidence indicating the precise



nature of the wrongs they have suffered.
That is one of the reasons why our legal 
system permits discrimination plaintiffs to 
"prove [their] case[s] by direct or 
circumstantial evidence."

Jackson v. University of Pittsburgh. 826 F.2d 230, 236 (3rd Cir. 
1987) (Higginbotham, J.), quoting from United States Postal 
Service Board of Governors v. Aikens. 460 U.S. 711, 714 n.3 
(1983) .

For this reason, academic employment decisions, particularly 
when they are made by persons who are not members of a minority 
group, must be subjected to close scrutiny. O'Connor v. Peru 
State College. 781 F.2d 632, 637-38 (8th Cir. 1986). Since these 
cases will usually turn upon the issue of motive or intent, they 
"are most suited for jury determinations, as proof is generally 
based on inferences that must be drawn, rather then on the 
proverbial 'smoking gun.'" Rossv v. Roche Products. Inc.. 880 
F.2d 621, 624 (1st Cir. 1989).

In a disparate treatment employment case, the plaintiff has 
the ultimate burden of persuading the trier of fact that the 
defendant discriminated against him intentionally. Texas 
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 
(1981). In McDonnell Douglas Corn, v. Green. 411 U.S. 792 
(1973), the Supreme Court set forth certain intermediate 
evidentiary burdens which serve "to bring the litigants and the 
court expeditiously and fairly to this ultimate question."
Burdine. 450 U.S. at 253. First, the plaintiff has the burden of 
establishing a prima facie case of discrimination by a

25



preponderance of the evidence. Second. if the plaintiff has 
proved such a case, the burden shifts to the defendant to produce 
evidence that the adverse employment action was taken against the 
plaintiff for a legitimate, nondiscriminatory reason. Third. if 
the defendant carries this burden, the plaintiff then has the 
burden of proving by a preponderance of the evidence that the 
legitimate reasons offered by the defendant were not its true 
reasons, but were a pretext for discrimination. McDonnell 
Douglas. 411 U.S. at 802-804. This burden "merges with the 
ultimate burden of persuading the court that [s]he has been the 
victim of intentional discrimination." Burdine. 450 U.S. at 255.

B. Plaintiff Established A Prima Facie Case of Intentional Discrimination.
The essential elements of a prima facie case of 

discriminatory denial of tenure were outlined by this Court in 
Baneriee v. Board of Trustees of Smith College. 648 F.2d 61 (1st 
Cir. 1981). A plaintiff must show that: (1) he is a member of a 
protected minority group; (2) he was qualified for tenure under 
the institution's standards, practices or customs; (3) he was 
rejected for tenure despite his qualifications; and (4) other 
persons were granted tenure in the department during a period 
relatively near to the time the plaintiff was denied tenure. Id. 
at 62 .

In the present case, Wellesley did not challenge the fact 
that plaintiff is a member of groups that are afforded protection 
under the Civil Rights Acts of 1866 and 1964. Nor did it contest 
the fact that plaintiff was denied tenure during a period in

26



which other non-minority candidates were granted tenure in the 
Spanish department. Rather, it argued below that plaintiff 
failed to establish a orima facie case, and that it is therefore 
entitled to summary judgment, because the undisputed facts 
demonstrate that plaintiff was not "qualified" for tenure at 
Wellesley. This argument was properly rejected by the court 
below.-

In Baneriee. this Court approved the district court's 
holding that in order to satisfy the second element of the prima 
facie case, the plaintiff "need only show that his qualifications 
were at least sufficient to place him in the middle group of 
tenure candidates as to whom a decision granting tenure and a 
decision denying tenure could be justified as a reasonable 
exercise of discretion by the tenure-decision making body." Id. 
at 63. The plaintiff does not have to prove that he is the best 
qualified candidate for tenure or that his performance was 
flawless. Rather, he must only show that he met the threshold 
standards of eligibility for tenure established by the academic 
institution. See Powell v. Syracuse University. 589 F.2d 1150, 
1155 (2d Cir. 1978).

Wellesley's argument in the court below that plaintiff could 
not show that his performance was "sufficiently excellent" to 
justify the award of tenure erroneously conflated the issue of 
whether its reasons for denying plaintiff tenure were pretextual 
(the third step in the McDonnell Douglas analysis) with the issue

- App. 103a-104a.
27



of whether he was sufficiently qualified to make out a prima 
facie case of discrimination (the first step in the McDonnell 
Douglas analysis). Indeed, Wellesley's argument would render the 
McDonnell Douglas analysis meaningless because it would, in 
effect, require plaintiff to satisfy his ultimate burden of 
showing that Wellesley's explanation for the denial of tenure 
(i.e. that plaintiff did not meet the College's standard of 
excellence) was pretextual in order for him to meet his 
intermediate burden of establishing a prima facie case.

Under the correct standard, there is an abundance of 
undisputed evidence support the decision of the court below that 
plaintiff was "sufficiently qualified to be among those persons 
from whom a selection, to some extent discretionary, would be 
made." Baneriee. 648 F.2d at 63. At Wellesley, a person must 
have tenure potential in order to be hired in a full-time, tenure 
track position.- Thus, when plaintiff obtained his Ph.D. in 
1981 and was hired as a full-time assistant professor, the R & P 
Committee recognized that he was among that group qualified for 
tenure. The R & P Committee enthusiastically recommended 
plaintiff for reappointment in 1981 in a letter that praised his 
teaching, his service, his scholarship and his creative 
writing. — '' In 1982, the Committee once again enthusiastically 
recommended plaintiff for reappointment for four years, during 
which time he would be considered for tenure. The reappointment

- App. 52a, par. 11.
— 1 App. 59a, 60a.

28



letters made a convincing case that plaintiff had compiled a
significant record of scholarly publications, that he had
distinguished himself as a teacher and as an internationally
acclaimed poet, and that he had been active in his service to the
College community and to the Spanish department. On November 26,
1984, the R & P Committee reported to the CFA that:

Tino Villanueva has been with us for about 
ten years, first as a part-time person, and 
has had an extensive teaching career. He is 
well-liked by many students and spends extra 
time with them . . . Tino is a well-knownChicano poet whose presence in our department 
is significant because he brings to us 
qualities which most Spanish departments in 
the country are looking for. But he is not only a poet, he has also published some nine 
articles and has given many poetry readings.
His anthology of Chicano poetry, which 
includes a prologue by Tino, is a 
considerable contribution to this type of 
literature. It should also be noted that he has just put out a collection of poems 
entitled Shaking off the Dark (Houston: Arte 
Publico Press, 1984).—

During the course of the CFA's consideration of Ms. Renjilian- 
Burgy's tenure case, the R & P Committee expressed its opinion 
that plaintiff was a "strong and tenurable" faculty member, and 
the CFA agreed that he was a "quite strong" candidate for 
tenure.—

The most persuasive evidence that plaintiff was sufficiently 
qualified to at least place him in "the middle group" of 
candidates as to whom a favorable decision would have been

— 1' Nuwayser Aff. Exh. 81, p. 5.
—  Nuwayser Aff. Exh. 26, p. 2559.

29



reasonable is the closeness of the decision to deny him tenure. 
The R & P Committee was itself divided, with Professor Lovett, 
the department chairman, strongly recommending that plaintiff be 
granted tenure, and Professors Gascon-Vera, Roses and Ms.
Renjilian-Burgy recommending against tenure. The final decision 
of the CFA, which was characterized as "difficult" and "close" by 
Dean Chaplin and Dean Stettner,— denied plaintiff tenure by a 
vote of only five to three.

Wellesley's argument that plaintiff was so unqualified for 
tenure at the College that he had failed, as a matter of law, to 
make out a prima facie case is, therefore, totally without merit. 
The recognition by both the R & P Committee and the CFA that 
plaintiff was a strong tenure candidate and the objective 
evidence of his superior qualifications as a teacher and scholar 
certainly creates, at the very least, a genuine issue of fact 
which requires the denial of summary judgment.

C. There Are Disputed Issues of Fact With Respect to
Whether Wellesley's Reasons For Denying Tenure Were Pretextual.

As a disparate treatment case where there was no direct 
evidence of discrimination, the court below properly analyzed it 
within the framework set forth in McDonnell Douglas. Having 
correctly concluded that plaintiff had made out a prima facie 
case of discriminatory denial of tenure and that Wellesley had at 
least articulated legitimate, nondiscriminatory reasons for its 
decision, the court turned to the ultimate issue of whether

—  App. 72a.
30



Wellesley's reasons were a pretext for intentional 
discrimination.

A plaintiff can meet this burden by "either directly 
persuading the court that a discriminatory reason more likely 
motivated the employer or indirectly by showing that the 
employer's proffered explanation is unworthy of credence."
Burdine, 450 U.S. at 256, citing McDonnell Douglas. 411 U.S. at 
804-805; see also Oliver v. Digital Equipment Corporation. 846 
F.2d 103. 109 (1st Cir. 1988). In addition to establishing his 
prima facie case by indirect evidence, a plaintiff can prevail on 
this ultimate burden by means of indirect proof that the 
employer's reasons are pretextual, without presenting evidence 
specifically relating to a discriminatory intent. United States 
Postal Service Board of Governors v. Aikens. 460 U.S. 711, 717 
(1983). Indeed, "[a] demonstration that the employer has offered 
a spurious explanation is strong evidence of discrimination 
• • •" Benzies v, Illinois Dept, of Mental Health. 810 F.2d 146,
148 (7th Cir. 1987).

There is ample evidence in the present case to support 
plaintiff's position that Wellesley's proffered reasons for 
denying him tenure are unworthy of credence. This evidence, if 
believed by the fact-finders at trial, would be sufficient to 
meet his burden of demonstrating that the reasons were pretextual 
and that he was denied tenure as a result of unlawful 
discrimination. Burdine. 450 U.S. at 256.

31



This Court recently explained that in a tenure
discrimination case:

[A]n inference of discrimination can be 
derived from a showing that a university's given reasons for denying tenure were 
"obviously weak or implausible" or that the 
tenure standards for prevailing at the tenure decisions were "manifestly unequally applied."

Brown v. Trustees of Boston University. 891 F.2d 337, 346 (1st 
Cir. 1989), quoting from Kumar v. Board of Trustees. University 
of Massachusetts. 774 F.2d 1, 15 (1st Cir. 1985). Moreover, in 
attempting to prove that the institution's explanation of its 
denial of tenure is unworthy of belief, "evidence of a 
comparative sort is appropriate: if others were hired or
promoted though by the same reasoning [as that applied to the 
plaintiff] they ought to have been excluded, then the motive is a 
'pretext.'" Brown v. Trustees of Boston University. 891 F.2d at 
347, quoting from Namenworth v. Board of Regents of the 
University of Wisconsin System. 769 F.2d 1235, 1240 (7th Cir. 
1985), cert, denied. 474 U.S. 1061 (1986).

The most persuasive evidence of pretext in the present case 
is the significant disparity between the treatment of plaintiff 
and the treatment of the four white women who were granted tenure 
in the Spanish department between 1977 and 1987. In denying 
tenure to plaintiff, Wellesley judged him by a substantially 
higher standard with respect to teaching, scholarship, and 
service than it judged any of the white women who were granted 
tenure before and after him. Indeed, there was evidence upon

32



which it could be concluded that Wellesley's claim that it 
granted tenure to better qualified candidates was pretextual 
because plaintiff was in fact better qualified than the persons 
granted tenure. See Patterson v. McLean Credit Union. 109 S.Ct. 
2363, 2378 (1989).

It is virtually indisputable that plaintiff was held to a 
much higher standard with respect to teaching than had been 
applied in tenure cases in the Spanish department either before 
or after he was considered for tenure. In explaining the 
negative vote of the CFA, plaintiff was told that although his 
teaching was "good," it was not "outstanding."— The R & P 
Committee majority had also explained that they expected 
"outstanding" teaching from a tenurable colleague.— Even 
though the CFA agreed that plaintiff's student evaluations were 
at or above the Spanish department average, it concluded that 
"the department average was not a good benchmark for a tenure 
decision.—

No other tenure candidate in the Spanish department has been 
held to such a standard. Marjorie Agosin, the next person to be 
considered for tenure in the Spanish department after plaintiff, 
was granted tenure despite the fact that the CFA considered her 
teaching record "ambiguous."— The CFA had been concerned with

14/ App. 44a.
15/ Nuwayser Aff. Exh. 34, p. 255.
16/ Nuwayser Aff. Exh. 47, p. 241.
] 7 / App. 76a.

33



the "uneven" student evaluations that she had received. It noted
that her evaluations were weaker than those of two of the tenured 
members of the department, and that in some courses her 
evaluations did not compare well to College averages.— There 
was no question that Agosin did not meet the "outstanding" test 
by which plaintiff was measured.

Nor can there be any question that Professors Gascon-Vera 
and Roses were considered "outstanding" teachers when they wre 
granted tenure. The CFA had tabled action on Gason-Vera's 
appointment as an assistant professor in 1974 because of poor 
student evaluations; Professor Lovett had reservations about her 
teaching when she was recommended for tenure; and the CFA noted 
that she continued to receive "somewhat low student evaluations 
in the beginning courses" when she was promoted to associate 
professor in 1978.

Similarly, in their consideration of Professor Roses' tenure 
case, the CFA thought that her teaching was weak at the 
introductory level and that she had not attracted students to the 
department. One of the members of the R & P Committee who 
recommended tenure described her teaching merely as "very 
competent." The CFA noted that there was a "lack of great 
enthusiasm for her teaching," a "lack of effectiveness" in her 
teaching of the lower level courses which were so important to 
the department, and a lack of evidence that her teaching was

—  App. 76a.

34



improving. This was particularly disturbing to the CFA in a 
teacher with as much experience as Professor Roses had . — ''

Plaintiff's performance as a teacher was also judged more 
harshly than that of his colleagues in a number of other 
respects. While plaintiff was faulted (erroneously) by the R & P 
Committee majority for not having developed any new academic 
programs,22' Ms. Ren j ilian-Burgy had not created any new courses 
when she was granted tenure. The fact that plaintiff had not 
directed any honors theses was held against him, but in the case 
of Ms. Renjilian-Burgy, her failure to direct any honors theses 
was explained on the basis of the fact that only tenured faculty 
members were permitted to do so.- There was, moreover, 
conflicting evidence with respect to the alleged shortcomings in 
plaintiff's teaching. The criticisms expressed by the majority 
of the R & P Committee were contradicted by their own previous 
very positive appraisals of plaintiff's teaching, as well as by 
Professor Lovett's opinion. The claim that plaintiff's 
methodology was not sufficiently "up to date" and that the 
intellectual level of his classes was not sufficiently high is 
undermined by the fact that no mention of these alleged 
shortcomings had ever been made during the ten years that

ii 2' App. 82a.
— Plaintiff had, in fact, created and proposed to the 
department a course in Spanish Vanguard poetry. (App. 81a).
211 App. 9 2a.

35



plaintiff had been teaching at Wellesley.227 See George v. Mobil
Oil Coro.. 739 F. Supp. 1577, 1582, 1583 (S.D.N.Y. 1990) 
(inference of satisfactory performance can be drawn from failure 
to mention an employee's alleged shortcoming); Duchon v. Caion 
Co., 791 F.2d 43, 46 (6th Cir. 1986) (fact that no prior warning 
was given employee, and that reason given to state agency for 
discharge varied from that given employee was evidence of 
pretext).

The disparity between the standard applied to plaintiff and
the standard applied to his white, female colleagues was even
greater with respect to scholarship. On the basis of what is
perhaps the most objective measure of scholarship and potential
for scholarly growth - - the outside evaluations - - plaintiff
fared better than all of his colleagues. All three of
plaintiff's outside evaluations were very positive, and
recognized both the significance of his scholarly work as well as
his promise for future growth. One evaluator concluded that:

Villanueva's work is significant, very well 
developed and written, original, a definite 
asportation to his discipline. He reveals a 
great deal of maturity and unusual 
responsibility in the way in which he deals 
with his material. His studies in my area 
will be necessary reading for future 
scholars. . . All this adds up to a very 
positive recommendation for tenure and promotion. (App. 63a).

A second evaluator concluded that as a critic and a poet, 
plaintiff:

—  App. 71a.
36



has reached a higher level of recognition and 
development than most of his colleagues in 
the same rank. He has done far more guality 
research and publication than many tenured 
faculty at leading universities. Among 
Chicano critics, he is recognized as a poet and critic of great merit and a leading 
author in his field. (App. 64a).

A third evaluator concluded that plaintiff was a talented and
versatile writer, and a thorough scholar "with much promise."

In contrast, Professor Agosin's outside evaluations were
very uneven. One evaluator thought that she was only "competent"
as a critic, that her book on Pablo Neruda was "choppy and
awkward in tone," and that its content was "competent but not
brilliant." Another evaluator was not impressed with her
literary criticism, which she found "rather descriptive and
repetitive," and she criticized her writings on contemporary
issues, in one case because of factual errors and in another
because it was "sentimental and superficial."—

Professor Roses' outside evaluations were so poor that she
was initially denied tenure by the CFA. One evaluator concluded
that the quality of her work was "adequate, far from outstanding
or brilliant;" that her "achievement is satisfactory;" that her
promise as a scholar was "very difficult to assess;" and that the
quality of her work was inferior to that of established scholars
in her field. The CFA had doubts as to the originality of her
research, it thought that her choice of research subjects was
"undistinguished," and it concluded that there was a "lack of

- App. 77a.
37



evidence of intellectual distinction."— When given the 
unprecedented opportunity to have a second round of outside 
evaluations, Professor Roses fared no better. One evaluator 
thought that as a "critic-scholar" she "is not outstanding . . .
but she is more than competent," and he was not "as enthusiastic 
about [her] other abilities as a critic." Although he never 
like[s] to discount the possibility that a critic will improve," 
he did not think that Professor Roses was among the top critic- 
scholars in her area and it was "impossible for me to speculate 
if she has a chance of coming up to the level of these critic- 
scholars . " — '

None of her outside evaluators were able to say much about 
Ms. Renjilian-Burgy's scholarship because of the limited number 
of her publications and because she was a co-author on both. One 
reviewer noted, however, that her work was "very conventional and 
even perfunctory," and he indicated that he would not deem either 
of her two scholarly articles worthy of publication. He 
concluded that "she has yet to prove that she is a promising 
scholar who will make an original contribution to the field." 
Members of the CFA saw Ms. Renjilian-Burgy's scholarship as a 
"negative factor" which indicated that "quality of mind" was not 
present.—

24 / App. 83a.
25 / App. 86, 87a
26 / App. 91a.

38



The outside evaluations of Professor Gascon-Vera were 
critical in a number of respects. One reviewer pointed out a 
number of significant inaccuracies in her work and expressed 
disagreement with some of her literary analysis. Another 
reviewer thought that the subject of her dissertation was "rather 
insignificant," and that her treatment of a significant author 
was "very disappointing."—7

Despite the superiority of plaintiff's scholarship to that 
of his colleagues, he was denied tenure, in part, because the CFA 
depreciated his outside evaluations on the basis of a supposed 
"tone of restraint" or a "sense of reservation." Although the 
CFA had permitted Professor Roses to obtain three new evaluations 
when the first ones were unsatisfactory, it denied plaintiff's 
request that it merely ask his outside evaluators to address any 
reservations that they might have about his scholarship.— In 
plaintiff's case, moreover, the majority of the R & P Committee 
had belittled one of his outside evaluations because the 
evaluator had been a contributor to plaintiff's literary 
journal.—7 In Professor Agosin's case, on the other hand, a 
close friend and collaborator, was permitted to be an outside 
evaluator in violation of College policy.—7

27 / App. 80a.
28 / App. 73a.
29 / Nuwayser Aff.
30 / App. 76a.

Exh. 34, p. 257.

39



A different standard was applied to plaintiff in a number of 
other significant respects. Plaintiff was criticized because he 
had not published his Ph.D. dissertation and because some of his 
publications had been adapted from his dissertation. However, 
neither Gascon-Vera nor Roses had published their dissertations 
when they were granted tenure, and Renjilian-Burgy had never even 
obtained her Ph.D. In fact, at the time that they were granted 
tenure, none of Gascon-Vera's work had been published and most of 
Roses' published articles had been adapted from her dissertation. 
Plaintiff had, moreover, published more than any of his 
colleagues had published at the time of their tenure 
consideration.

Furthermore, the majority of the R &P Committee had 
criticized plaintiff for devoting so much of his energy to his 
poetry and it discounted his international reputation, but it was 
"honored" to have a poet like Professor Agosin in the department. 
While it deprecated plaintiff for not being adept at the current 
approach to literary criticism, it praised Agosin for being able 
to teach "traditional" criticism.— No other faculty member, 
moreover, had been subjected to such a "litmus test" with respect 
to her approach to scholarship. Ironically, the majority was 
apparently uninterested in the contribution that plaintiff could 
bring to Wellesley by virtue of his minority ethnic background, 
but it argued that the tenuring of a white, Jewish woman who was 
born in the United States of a French father and a Chilean mother

^  App. 77a.
40



"would be an important decision and a response to a critical 
need.

Finally, for the first time the consideration of the 
"structure" of the Spanish department was held against a tenure 
candidate. All of the white women were recommended for tenure 
despite the fact that, in each case, the granting of tenure meant 
that the department would be "highly tenured," that a number of 
the tenured faculty members would be likely to retire at the same 
time, and that tenure for the next person in line might be 
precluded. In all of these cases, however, the "structure" of 
the department was downplayed, even to the extent that two Latin- 
Americanists were tenured in a department lacking in other 
specialties. The fact that tenure for Professor Roses meant that 
three out of the five members of the Spanish department were 
tenured, two of whom would retire at the same time, and that the 
next person in line might not get tenure was no obstacle to a 
favorable decision. The fact that tenure for Renjilian-Burgy 
meant that four out of the six members of the department would be 
tenured and that three would retire at the same time did not 
present a problem. The R & P Committee even went so far as to 
argue that there was precedent for all members of a department to 
be tenured, and that tenuring Professor Agosin "would not 
necessarily preclude any future tenured appointments, given that 
our department shows a sustained growth curve."— Yet, when it

—  App. 78a.
—  App. 78a.

41



was thought that granting tenure to plaintiff might prevent the 
tenuring of the white woman who was next in line, the "structure" 
of the department became a major consideration in the decision to 
deny him tenure.

Despite the recognition by the court below that plaintiff 
had raised numerous factual issues with respect to the validity 
of Wellesley's reasons for denying plaintiff tenure and to the 
evenhandedness of the manner in which plaintiff was judged, it 
nevertheless concluded, as a matter of law, that no rational 
trier of fact could conclude that Wellesley's reasons were a 
pretext for discrimination. Since, in the court's view, it would 
be impossible for plaintiff to meet his burden of proof of 
showing pretext at trial, it granted Wellesley's motions for 
summary judgment.

In reaching this result, the court clearly overstepped the 
proper bounds of its limited role on a motion for summary 
judgment and erroneously "superimpose[d] his own ideas of 
probability and likelihood (no matter how reasonable those ideas 
may be) upon the [facts of] record." Greenburq v. Puerto Rico 
Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir. 1987). 
Since the issue of pretext turns on the defendant's credibility, 
it is rarely appropriate for resolution on a paper record. 
Chioollini v. Spencer Gifts. Inc.. 814 F.2d at 901. As this 
Court has stated:

In cases where . . . the state of mind of one
of the parties is crucial to the outcome of 
the case, resort to summary judgment is 
vested with more that the usual difficulty.

42



Under such circumstances, jury judgments 
about credibility are typically thought to be of special importance. Thus, courts are 
particularly cautious about granting summary judgment.

Stepanischen v. Merchants Despatch Transp. Coro.. 722 F.2d 922, 
928 (1st cir. 1983).

The error of the court below is manifest in light of its 
concession that plaintiff had raised numerous factual disputes 
with respect to the validity the reasons advanced by Wellesley 
for denying plaintiff tenure.2*' For if the ultimate fact-finder 
were to resolve these factual disputes against Wellesley, then 
plaintiff would clearly have met his burden of proving pretext. 
If, as they might, a jury concluded that plaintiff's 
qualifications were equal or superior to those of the four white 
women who were granted tenure, then plaintiff will have shown 
that Wellesley's reasons were "obviously weak or implausible" or 
that its standards were "manifestly unequally applied." Brown v. 
Trustees of Boston University. 891 F.2d at 346. If, on the basis 
of the reasoning in plaintiff's case, his four female colleagues 
ought to have been denied tenure as well, then the reasons are 
pretextual. Id. at 346, citing Namenwirth v. Board of Regents of 
the University of Wisconsin System. 769 F.2d 1235, 1240 (7th Cir. 
1985). Indeed, the court's conclusion that no rational trier of

—  A clear example of how the Magistrate improperly weighed the 
evidence is his conclusion that "[t]o date, plaintiff has not 
discredited the defendant's explanation." (App. 116a) (Emphasis 
in original). However, in view of the disputed factual issues, 
whether or not plaintiff has discredited Wellesley's explanation 
is for the ultimate trier of fact, not the Magistrate.

43



fact could come to such a conclusion is completely undermined by 
the fact that some members of the CFA considered that the 
negative tenure recommendation was "too blatant, hard to justify, 
that it even looked like dishonesty."— Surely, if the reasons 
for denying plaintiff tenure were so spurious as to look like 
dishonesty to some of the persons who actually participated in 
the tenure decision, then a rational fact-finder would be 
warranted in concluding that those reasons were pretextual.

D. The Court Below Applied An Incorrect Legal Standard.
The court was also wrong to the extent that it ruled that, 

in order to survive summary judgment, plaintiff was required to 
do more than make a showing upon which the fact-finders could 
conclude that Wellesley's reasons for denying tenure were 
pretextual. Quoting from this Court's opinion in Medina-Munoz v. 
R.J.Reynolds Tobacco Co.. 896 F.2d 5, 9 (1st Cir. 1990), the 
court held that "no rational trier of fact could conclude on the 
basis of the record before the Court that the reason given by 
Wellesley College for denying plaintiff tenure 'was not only a 
sham, but a sham intended to cover up the employer's real motive: 
[improper] discrimination.'"— Thus, even though plaintiff may 
have raised a genuine issue of fact as to whether Wellesley's 
reasons were pretextual, the court concluded that he did not 
raise a factual issue as to whether they were a pretext for some

—  App. 74a (emphasis added).
- App. 112a.

44



other motive, however arbitrary or unfair, which is not 
prohibited by law.

This reasoning reflects a fundamental misunderstanding of 
the McDonnell Douglas analysis in a disparate treatment case.
The establishment of a prima facie case means that the plaintiff 
has produced sufficient evidence from which a presumption of 
illegal discrimination can be drawn. Indeed, if the plaintiff's 
evidence is not answered by evidence on behalf of the employer 
that there was a legitimate, nondiscriminatory reason for its 
action, then the presumption of illegal discrimination satisfies 
the plaintiff's ultimate burden of proof and requires a finding 
for the plaintiff. Burdine. 450 U.S. at 254. Although this 
presumption of discrimination is dispelled when the employer 
presents some evidence of a legitimate, nondiscriminatory reason, 
Medina-Munoz. 896 F.2d at 9, the evidence presented as part of 
the plaintiff's prima facie case retains its inherent probative 
force as evidence of illegal discrimination and must be 
considered, along with other evidence, in determining whether the 
plaintiff has presented sufficient evidence to go to the jury on 
his ultimate burden. Burdine. 450 U.S. at 256 n.10; Pea v. Look. 
810 F.2d 12, 15-16 (1st Cir. 1987), quoting Loeb v. Textron.
Inc.. 600 F.2d 1003, 1015 (1st Cir. 1979) ("'the inference of 
discrimination created by the prima facie case is dispelled once 
the employer's reason is stated, until and unless the latter is 
shown to be pretext'") (emphasis added). When the plaintiff 
convinces the trier of fact that it is more likely than not that

45



the employer did not act for its proffered reasons, "then the 
employer's decision remains unexplained and the inference from 
the evidence produced by the plaintiff may be sufficient to prove 
the ultimate fact of discriminatory intent . . . "  Chipollini v. 
Spencer Gifts. Inc.. 814 F.2d at 899. Such a case is no 
different than if the employer had offered no explanation in 
response to the plaintiff's prima facie case. The inference of 
discrimination is sufficient to carry the day and warrants the 
entry of judgment for the plaintiff. The Supreme Court has even 
gone as far as to say that the plaintiff may even prevail "where 
the plaintiff's initial evidence, combined with effective cross- 
examination of the defendant, will suffice to discredit the 
defendant's explanation." Burdine, 450 U.S. at 256 n. 10.—

In the present case, therefore, the disputed issues of fact 
relating to the validity of Wellesley's reasons for denying 
tenure to plaintiff were sufficient, without more, to defeat 
Wellesley's motion for summary judgment. By resolving these 
issues in plaintiff's favor, the trier of fact would be warranted 
in rejecting Wellesley's explanation as unworthy of belief and 
finding in plaintiff's favor on the basis of an inference of 
discrimination drawn from the prima facie case evidence. As in

— The statement in the Magistrate's Report, adopted by the 
court below, that plaintiff will not be able to discredit 
Wellesley's explanation by cross-examination because "the reasons 
proffered were made openly and contemporaneously with the tenure 
decisions (App. 116a) completely misses the point. If the persons who gave those reasons at the time of the tenure denial 
are unable to credibly defend those reasons at trial, the trier 
of fact could certainly infer that the reasons were pretextual.

46



Rossv v. Roche Products. Inc.. 880 F.2d 621, 626 (1st Cir. 1989),
"[a]11 of [defendant's] explanations may in fact be accurate, but 
they must be decided after trial, especially in cases such as 
this where [defendant's] intent is the central issue." Since 
plaintiff has pointed to "specific facts detailed in affidavits 
and depositions —  that is, names, dates, incidents and 
supporting testimony —  giving rise to an inference of 
discriminatory animus, the dispute must be subjected to the 
factfinding process." Lipsett v. University of Puerto Rico. 864 
F.2d 881, 895 (1st Cir. 1988).

E. Other Evidence Of Discrimination.
Even if it were necessary to make a showing of something 

more than the pretextual nature of Wellesley's explanation, 
Medina-Munoz v. R.J. Reynolds Co.. 896 F.2d at 10, plaintiff has 
satisfied this burden with statistical evidence and other 
evidence from which a strong inference of discriminatory 
treatment can be drawn. McDonnell Douglas v. Green. 411 U.S. at 
804-805; Davis v. Weidner. 596 F.2d 726, 732 (7th Cir. 1979). 
Wellesley is, and has been for years, a bastion of white 
privilege in higher education. Despite the lip service it pays 
to an affirmative action program with respect to faculty, over 
two decades since the enactment of Title VII have brought little 
change to the Wellesley campus. Wellesley has never granted 
tenure to a minority person of Hispanic origin, and plaintiff was 
the only such person ever even to be considered for tenure. When 
he was considered for tenure in 1985, plaintiff was one of only

47



two untenured minority faculty members of Hispanic origin out of 
a total full-time faculty of 241, less than 1%. Indeed, in the 
period from 1979 to 1987 the percentage of full-time minority 
faculty members of Hispanic origin never exceeded .87%, and the 
percentage of full-time black faculty members never exceeded 
3 .18%. — 7

The court below rejected this evidence on the ground that 
"the figures [minority percentages on faculty] mean little absent 
additional information regarding the minority composition of the 
relevant labor market."^' Plaintiff had, however, accepted 
Wellesley's submission for the purpose of summary judgment that 
the relevant labor market was reflected by the national average 
of 6.2% of minority (black and Hispanic) faculty members in 
colleges and universities. The disparity between this relevant 
minority labor market of 6.2% and the percentage of minority 
representation on the Wellesley faculty which ranged from 2.31% 
to 3.89% over the period from 1979 to 1987 is probative of a 
pattern and practice of racial discrimination. See Hazelwood 
School Dist. v. United States. 433 U.S. 299, 307-308 (1977).

Although there was no direct evidence of discrimination —  
the proverbial "smoking gun" —  the way in which plaintiff was 
viewed and treated by his white female colleagues was indicative 
of subtle discrimination. Thus, the patronizing description of

257 App. 92a, 93a. 
—7 App. 115a.

48



*

plaintiff by his colleagues in their letter recommending against 
tenure, for which Deans Chaplin and Stettner apologized, can only 
be considered ethnic stereotyping. Similarly, despite his many 
notable accomplishments and the high level of his academic 
achievement, one of his colleagues deprecatingly considered him 
"not very intelligent." On the other hand, much of the interest 
by his white female colleagues in obtaining tenure for Marjorie 
Agosin, the white woman to be granted tenure after plaintiff was 
based upon the fact that she was considered more "compatible."—

Conclusion
The fundamental error of the court below was, at the summary 

judgment stage, "to elevate the question of proof to such a level 
that a litigant is necessarily doomed to failure." Sweeney v. 
Board of Trustees of Keene State College, 569 F.2d at 175. It 
applied a standard that would make it almost impossible for a 
Title VII plaintiff to survive a motion for summary judgment in 
an academic tenure case without producing direct evidence of 
invidious discrimination, and it improperly weighed the evidence 
and resolved the competing inferences against the plaintiff. In 
so doing, it has virtually immunized the academic tenure review 
process from the searching inquiry of a trial, and it has 
substantially undermined the effectiveness of Title VII in

s *  App. 74a.
49



A

eliminating discrimination from higher education, 
reasons, this Court should reverse the judgment of 
court and remand this case for trial.

For these 
the district

Respectfully submitted,

^Jonathan Shapiro 
/BBO No. 454220 r
Stern & Shapiro 80 Boylston Street 
Suite 910 
Boston, MA 02116 (617) 542-0663

Dated: November 8, 1990

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