Villanueva v. Wellesley College Brief of Defendant-Appellee

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RULE 26.1 CORPORATE DISCLOSURE STATEMENT 
Wellesley College is a nonprofit institution of higher 

learning organized under the laws of the Commonwealth of 
Massachusetts, and as such it has no parent companies, 
subsidiaries or affiliates that have issued shares to the publ



TABLE OF CONTENTS
STATEMENT OF THE I S S U E ..............................  1
STATEMENT OF THE C A S E ..............................  1
STATEMENT OF F A C T S ..................................  3
ARGUMENT ,

I . SUMMARY JUDGMENT WAS PROPERLY GRANTED BECAUSE 
WELLESLEY ARTICULATED LEGITIMATE, 
NONDISCRIMINATORY REASONS FOR DENYING TENURE 
TO PLAINTIFF, AND PLAINTIFF FAILED TO SHOW 
THAT THOSE REASONS WERE A PRETEXT FOR UNLAWFUL 
DISCRIMINATION ............................ 11

A. The District Court Applied Well 
Established Principles In Allowing 
Wellesley's Motion For Summary Judgment . 18

B. The District Court Correctly Found That 
Wellesley Articulated Legitimate, 
Nondiscriminatory Reasons For The 
Denial of Tenure to Plaintiff ........... 23

C. There Was No Probative Evidence That 
The Reasons Wellesley Articulated For The 
Denial of Tenure to Plaintiff Were Obviously 
Weak Or Implausible Or That Wellesley 
Manifestly Applied An Unequal Standard 
To Plaintiff's Tenure Application . . . .  27

1. The Tenure Candidacies of Professors 
Renjilian-Burgy and Agosin Do Not 
Permit A Reasonable Finding of One- 
S i d e d n e s s ..................... 30

2. The Only Probative Comparisons Are 
to Professors Renjilian-Burgy And 
A g o s i n ..........................37

3. Plaintiff's Other Evidence Fails 
To Show That The College's 
Articulated Reasons Were 
Pretextual..................... 41

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II. THERE WAS NO OTHER PROBATIVE EVIDENCE OF 
IMPROPER DISCRIMINATION AGAINST PLAINTIFF 
BECAUSE OF HIS RACE, COLOR, NATIONAL ORIGIN OR S E X ........................................

III. PLAINTIFF'S CLAIM OF AGE DISCRIMINATION
WAS ALSO PROPERLY D I S M I S S E D ............. 4 8

Conclusion........................................... ...

f

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TABLE OF AUTHORITIES
PageCASES

Anderson v. Liberty Lobby. Inc..
477 U.S. 242 (1986)..............................  19
Banerjee v. Board of Trustees of Smith College. 648 
F . 2d 61, 66 (1st Cir. 1 9 8 1 ) .............  20, 39, 46
Brown v. Trustees of Boston University. 891 F.2d 337, 
346 (1st Cir. 1 9 8 9 ) .................  16, 21, 27, 30
Cook County College Teachers Union.
Local 1600 v. Byrd. 456 F.2d 882
(7th Cir. 1972), cert, denied. 409 U.S. 484
(1972), reh. denied. 414 U.S. 883 (1972) . . . .  43
Dance v. Ripley. 776 F.2d 370, 373
(1st Cir. 1 9 8 5 ) ................................... 13
Pea v. Look, 810 F.2d 12, 15 (1st Cir. 1987) 13, 22
DeArteaga v. Pall Ultrafine Filtration Corp..
862 F . 2d 940 (1st Cir. 1988) .................... 19
Diminnie v. General Electric Co..
47 BNA Fair Empl. Prac. Cases 245
(W.D.Ky. 1989)   48
Federal Insurance Co. v. Summers’. 403 F.2d 971,
975 (1st Cir. 1 9 6 8 ) ..............................  17
Gray v. New England Telephone & Telegraph
Co. . 792 F. 2d 251, 255 (1st Cir. 1986) ......... 15
Griggs-Rvan v. Smith. 904 F.2d
112 (1st Cir. 1 9 9 0 ) ..............................  21
Hebert v. The Mohawk Rubber Co..
872F.2d 1104,1111 (1st Cir. 1989)   20

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Jackson v. Harvard University. 721 F. Supp.
1397 (D. Mass. 1989) ............................ ...
Janiqan v. Tavlor. 344 F.2d 781, 784
(1st Cir. 1965), cert. denied. 382 U.S. 879 (1965) 17
Johnson v. Allvn & Bacon. Inc.. 731 
F.2d 64, 70 (1st Cir. 1984), cert, denied.
469 U.S. 1018 (1984) ............................  12
Keyes v. Secretary of Navv. 853 F.2d
1016, 1023 (1st Cir. 1988) ............. 11, 14, 15
Loeb v. Textron. Inc.. 600 F.2d 1003,
1019 (1st Cir. 1979) ............................  11
McDonnell Douglas Coro, v. Green,
411 U.S. 792 , 802 (1973).....................  11, 12
McGruder v. Necaise. 733 F.2d
1146 (5th Cir. 1984) ............................  48
Medina-Munoz v. R.J. Reynolds Tobacco Co.. 896 F.2d 
5, 9 (1st Cir. 1 9 9 0 ) ............. 13, 14, 15, 21, 38
Menard v. First Security Services Coro..
848 F.2d 281 (1st Cir. 1988) ...............  15, 20
Metropolitan Life Insurance Co. v . Ditmore.
729 F . 2d 1 (1st Cir. 1987) .....................  19
Oliver v. Digital Equipment Corp., 846 F.2d 103, 107 
(1st Cir. 1 9 8 8 ) ..............................  12, 19
Perez de la Cruz v . Crowley Towing and
Transp. Co.. 807 F.2d 1084 (1st Cir. 1986), cert.
denied. 481 U.S. 1050 (1987) ...................  19
Price Waterhouse v. Hopkins. 109 S.Ct.
1775, 1797 (1989)................................  11
Rossy v. Roche Products. Inc.. 880 F.2d
621, 625 (1st Cir. 1989) ........................ 16

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11

Sweeney v. Board of Trustees of
Keene State College. 604 F.2d 106, 108
(1st Cir. 1979), cert, denied, 444
U.S. 1045 (1980) ..........................
Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256 (1980) ........................ 13
The Dartmouth Review v. Dartmouth College.
889 F. 2d 13 (1st Cir. 1 9 8 9 ) ...................... 22
Wards Cove Packing Co. v. Antonio.
109 S.Ct. 2115, 2122 (1989)...................... 44
White v. Vathallv. 732 F.2d 1037, 1043
(1st Cir.), cert. denied. 469 U.S. 133 (1984) . . 13

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STATUTES
29 U.S.C. § 631(d)  7
Act of October 31, 1986,
Public Law 99-592, § 6 ( b ) .......................... 7
Age Discrimination in Employment Act,
29 U.S.C. § 6 2 1 ............................ 1, 7, 48
Civil Rights Act of 1866, 42 U.S.C. § 1981 . . . . 1
M.G.L. c. 15IB, § 4(17) (c)  1
M.G.L. c. 15IB, §4(1) (A) and (B)  7
Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 20 00e-l................................. 1

RULES AND REGULATIONS
Rule 3(a) of the Rules for United States
Magistrates in the United States District
Court for the District of Massachusetts...........2
Rule 56(c) of the Federal Rules
of Civil P r o c e d u r e ..............................18

OTHER AUTHORITIES
Handbook of Labor Statistics published by the U.S. 
Department of Labor (Bulletin 2217 - June, 1985) 45

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STATEMENT OF THE ISSUE

Did the District Court properly grant summary judgment 
dismissing plaintiff's amended complaint alleging that 
Wellesley College denied him tenure because of his race, 
color, national origin, sex and age?

STATEMENT OF THE CASE

Plaintiff-appellant Tino Villanueva (hereinafter 
referred to as "plaintiff") was denied tenure in the 
Department of Spanish of defendant-appellee Wellesley 
College ("Wellesley" or the "College") in December, 1985.
He brought this action in August, 1987, alleging in an 
amended complaint that the tenure denial was based on his 
race, color, national origin, sex and age in violation of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-l et seq. ("Title VII"), the Civil Rights Act of 
1866, 42 U.S.C. § 1981, the Age Discrimination in Employment 
Act, 29 U.S.C. § 621 et seq. (the "ADEA"), and Massachusetts 
General Laws Chapter 151B, § 4(1)(A) and (B).

The parties engaged in discovery throughout the period 
from August, 1987 through February, 1989. Thereafter, on 
March 13, 1989, Wellesley filed a motion for summary 
judgment dismissing plaintiff's claim of age discrimination, 
and on December 7, 1989, a further motion for summary



judgment dismissing plaintiff's claims of race, color, 
national origin and sex discrimination. In support of its 
motions, Wellesley submitted a Statement of Material 
Undisputed Facts together with supporting affidavits from 
Ruth Anne Nuwayser, who is Manager of the Faculty Records 
Office at Wellesley, and portions of the deposition 
transcripts of various persons who had participated in the 
consideration of plaintiff's case.1

Plaintiff filed an opposition to Wellesley's motions, 
together with a Statement of Material Disputed Facts and 
various supporting exhibits. Thereafter, pursuant to Rule 
3(a) of the Rules for United States Magistrates in the 
United States District Court for the District of 
Massachusetts, the Court referred the matter to Magistrate 
Lawrence P. Cohen for recommended disposition.

On June 14, 1990, the Magistrate submitted a report 
recommending allowance of Wellesley's motions. After 
summarizing the facts shown by the parties' submissions and 
the applicable legal principles, the Magistrate assumed that 
plaintiff had established a prima facie case of 
discriminatory denial of tenure, but found that he had 
failed to produce "sufficient evidence by which a rational

1 These portions of deposition transcripts were submitted 
as attachments to the affidavit of John H. Mason, counsel 
for Wellesley.

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trier of fact — short of mere speculation or conjecture — 
could reasonably conclude that the legitimate, non- 
discriminatory reason advanced by Wellesley for denying 
[plaintiff's] tenure bid was a pretext for illegal 
discrimination." (App. Ilia).2

Plaintiff filed objections to the Magistrate's Report 
on June 29, 1990. On August 17, 1990, the Court overruled 
plaintiff's objections and entered an Order allowing 
Wellesley's motions for summary judgment for the reasons set 
forth in the Magistrate's report.

STATEMENT OF FACTS

The Statement of Material Undisputed Facts which 
Wellesley submitted in support of its motions for summary 
judgment is set forth in full in the Joint Appendix at pages 
16a-55a. In the interest of brevity, that statement will 
not be repeated here, except in the following summary form 
which will include citations to the Appendix where the 
statement is set out, or to other parts of the record where 
the events are described in more detail.

Record references are as follows: "App." refers to the 
Joint Appendix; "Nuywaser Supp. Aff." refers to the 
Supplemental Affidavit of Ruth Anne Nuwayser; "Exh." refers 
to an exhibit? and "Dep." refers to a deposition transcript.

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Plaintiff is a citizen of the United States who was 
born in 1941 in Texas of U.S.-born parents (App. 20a). From 
September 1974 until June 1987, plaintiff was employed in 
the Department of Spanish at Wellesley, first as a part- 
time Lecturer and then, starting in 1980, as a full-time 
Lecturer/Assistant Professor teaching, among other things, 
courses in Spanish language and Spanish and Chicano 
literature (App. 20a-21a).

Plaintiff was considered for tenure at Wellesley in 
academic year 1985-86 (App. 27a). In accordance with the 
procedures that were then in effect,3 the members of the 
Spanish Department Reappointments and Promotions Committee 
(the "R&P Committee") visited one or more of plaintiff's 
classes and reviewed, among other materials, all the written 
work that plaintiff had submitted as evidence of his 
scholarship, as well as letters from three outside

The process of evaluation for tenure was contained in 
the Wellesley College Articles of Government, Article IX, 
Section 6, attached as Exhibit A to Wellesley's memorandum 
in support of its motion for summary judgment dismissing 
plaintiff's claims of race, color, national origin and sex 
discrimination (and as Exhibit B to Wellesley's prior 
memorandum in support of its motion for summary judgment 
dismissing plaintiff's age discrimination claims). This 
faculty legislation provided, among other things, that the 
College would evaluate tenure candidates according to the 
factors of (i) quality of teaching; (ii) evidence of 
scholarly strength and growth; (iii) relation to 
departmental structure; (iv) service to the College in 
achieving its educational goals; and (v) external 
professional activities.

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evaluators regarding that work (App. 27a-34a). They then 
met and considered whether they should recommend plaintiff 
for tenure to the College's Committee on Faculty 
Appointments (the "CFA") (App. 34a).

In accordance with established practice, the R&P 
Committee consisted of the tenured members of the Spanish 
Department: Professors Elena Gascon-Vera, Lorraine Roses,
Joy Renjilian-Burgy and Gabriel Lovett (App. 98a). 
Professors Gascon-Vera, Roses and Renjilian-Burgy were of 
the view that plaintiff should not be recommended for 
tenure, while Professor Lovett believed that he should be 
recommended for tenure (App. 35a, 36a).

On October 25, 1985, the three-member majority of the
R&P Committee sent a memorandum to the CFA explaining the 
reasons for their recommendation against tenure for 
plaintiff (App. 36a; Nuwayser Supp. Aff. Exh. 34). The 
majority explained that:

"As a small department at a small college, it 
is imperative for us to secure a colleague who is 
outstanding as a teacher, as a scholar, as a 
member of the Department and as a generator of new 
ideas and resources . . . ."

The majority further explained that, in their view,
plaintiff did not meet this standard either in his teaching
or in his scholarship. More specifically, the majority
stated that the pace of plaintiff's teaching was too slow,

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the students in his classes tended to be passive rather than 
active, and plaintiff had not shown in his scholarship that 
he was current on the latest trends of literary criticism. 
The majority also stated that, while plaintiff had complied 
with requests from his colleagues, he had not taken the 
initiative either to promote Department activities or to 
handle major Department responsibilities. Finally, with 
respect to Department structure, the majority stated:

"Due to the size of the department and its 
structure (three tenured members are due to retire 
in 2007, 2008 and 2009, with Tino slated also for 
2007) to tenure Tino would mean that we would all 
leave almost at the same time. If we were a large 
university department it is more likely that there 
would be a slot for Tino, since he brings 
strengths as a poet and as an expert in Chicano 
culture. We also have to keep in mind that the 
next tenureable member would retire in 2020, is 
also an internationally known poet with four books 
of poetry, more than 30 scholarly articles and two 
books of criticism on Maria Luisa Bombal and Pablo 
Neruda. Also, this same member has superior 
student evaluations, particularly in literature."
At the time the majority of the R&P Committee prepared

this letter, the College had in effect a lawful policy
requiring all tenured faculty members to retire at age 70
(App. 106a).4

In the fall of 1985, the ADEA and M.G.L. c. 151B 
expressly permitted colleges and universities to require 
tenured faculty to retire at age 70. 29 U.S.C. § 631(d);
M.G.L. c. 15IB, § 4(17) (c). The federal provision was 
repealed in October, 1986 - one year after the Villanueva 
tenure decision. See Act of October 31, 1986, Public Law 
99-592, § 6 (b) (repealing 29 U.S.C. § 631(d) as of December

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I

i

I

I

I

The CFA considered plaintiff's case in November and 
December, 1985 (App. 39a-43a). The CFA consists of eight 
members, five of whom are tenured faculty members elected by 
the faculty at large (Wellesley College Articles of 
Government, Article V, Section 9). The sixth member of the 
CFA is a black tenured faculty member, selected by the black 
faculty at the College (id.). The other members of the CFA 
are the Dean and the President of the College, ex officio 
(id.). The CFA considers the opinion of the Department R&p 
Committee, but CFA members make their own, independent 
tenure recommendation to the College's Board of Trustees and 
to the President (Defendant's Response to Plaintiff's 
Interrogatories No. 4, 22).

During the course of the consideration of plaintiff's 
case, the CFA met with members of the R&P Committee on 
December 9, 1985 and again on December 11, 1985, and 
discussed the case with them (App. 40a, 42a). During these 
meetings, members of the R&P Committee majority repeated 
many of the concerns they had expressed in their letter and 
also stated, in response to questions from the CFA, that 
another member of the Department who was due to be

31, 1993). Because the College can no longer be certain 
that a tenured professor will retire no later than age 70, 
it has ceased to take projected retirement dates into 
account in evaluating the factor of department structure.

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considered for tenure the following year, Marjorie Agosin, 
was quite strong and that they were concerned, in light of 
the number of people in the Department who were already 
tenured, that an award of tenure to plaintiff might 
adversely affect an award to Ms. Agosin (App. 40a-42a).

On December 13, 1985, plaintiff was notified by letter 
from the President of the College, Nanerl 0. Keohane, that 
the CFA had voted to accept the recommendation of the 
Spanish Department R&P Committee that he not be granted 
tenure at the College (App. 43a; Nuwayser Supp. Aff. Exh.
46) . The letter further stated that, as a result of the 
Committee's action, plaintiff's appointment at the College 
would terminate at the end of the 1986-87 academic year 
(id.) .

Subsequently, on December 23, 1985, Maud H. Chaplin, 
the Dean of the College, and Edward A. Stettner, the 
Associate Dean, met with plaintiff at his request to discuss 
the negative tenure decision (App. 43a). Promptly 
thereafter, Deans Chaplin and Stettner furnished plaintiff 
with a letter summarizing that discussion (App. 44a;
Nuwayser Supp. Aff. Exh. 46). The letter explained that in 
reaching its decision, the CFA had determined that 
plaintiff's teaching was "much more than adequate, but it 
was not outstanding," and further that, as stated by the

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majority of the R&P Committee, plaintiff's written work did 
not show that he was current in the latest trends of 
literary criticism (id.).

In response to plaintiff's request, the CFA met with 
plaintiff and then reconsidered its decision in April, 1986, 
but voted not to reverse its prior recommendation that 
plaintiff not be granted tenure (App. 43a, 46a-47a). On or 
about May 9, 1986, plaintiff filed charges with the federal 
Equal Employment Opportunity Commission (the "EEOC") and the 
Massachusetts Commission Against Discrimination (the "MCAD") 
alleging that he was denied tenure at Wellesley because of 
his race, color, sex and age (App. 47a). After conducting 
an investigation, the EEOC on May 28, 1987, issued a 
determination that there was no probable cause to believe 
plaintiff's allegations of discrimination (id.; Nuwayser 
Supp. Aff. Exh. 55). The MCAD accorded substantial weight 
to the determination of the EEOC and on June 10, 1987 
entered its own finding of lack of probable cause (Nuwayser 
Supp. Aff. Exh. 55).

Thereafter, on August 11, 1987, plaintiff commenced the 
present action. During discovery, plaintiff took the 
depositions of numerous persons who had participated in the 
consideration of his case, but none of them supported his 
allegations of discrimination. To the contrary, even

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Professor Gabriel ("Harry") Lovett, who had vigorously 
supported plaintiff for tenure as a member of the R&P 
Committee, testified that, in his view, the majority members 
of the R&P Committee had substantial and legitimate 
reservations about plaintiff's work and did not discriminate 
on the basis of plaintiff's sex (Lovett Dep. 79-80). 
Similarly, Professor David Ferry, who supported plaintiff 
for tenure as a member of the CFA, testified that, in his 
view, plaintiff's tenure case was only "borderline" and that 
he understood entirely "the reasonableness of the decision 
of the majority. . ." (Ferry Dep. 56). Neither Professor 
Ferry, nor Professor Lovett, nor anyone else whom plaintiff 
deposed, in any sense suggested that any kind of 
impermissible discrimination was involved in the College's 
decision not to grant tenure to plaintiff.

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ARGUMENT

I. SUMMARY JUDGMENT WAS PROPERLY GRANTED BECAUSE WELLESLEY 
ARTICULATED LEGITIMATE, NONDISCRIMINATORY REASONS FOR 
DENYING TENURE TO PLAINTIFF, AND PLAINTIFF FAILED TO 
SHOW THAT THOSE REASONS WERE A PRETEXT FOR UNLAWFUL DISCRIMINATION________________

The burdens of proof in cases of employment 
discrimination are well settled. Plaintiff bears the burden 
of proof throughout the proceedings, and he must show by a 
preponderance of the evidence that some protected 
characteristic (here sex, race, national origin or age) was 
t-h.Q determinative factor in the defendant's decisions 
regarding him. See Price Waterhouse v. Hopkins. 109 S.Ct. 
1775, 1797 (1989) (where plaintiff has not proven any mixed 
motive, Title VII requires "but-for" causation); Keyes v. 
Secret a rY_.of Navy, 853 F.2d 1016, 1023 (1st Cir. 1988); Loeb 
v. Textron. Inc.. 600 F.2d 1003, 1019 (1st Cir. 1979).

Plaintiff first must establish a prima facie case of 
unlawful discrimination by proving sufficient facts which, 
standing alone, permit an inference of such discrimination 
against him. McDonnell Douglas Corn, v. Green, 411 U.S.
792, 802 (1973); Sweeney v. Board of Trustees of Keene State 
College, 604 F.2d 106, 108 (1st Cir. 1979), cert, denied.
444 U.S. 1045 (1980).

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If plaintiff establishes a prima facie case, the burden 
then shifts to the defendant to articulate legitimate, 
nondiscriminatory reasons for its decision. see 
McDonnell-Douglas v. Green. 411 U.S. 792, 802 (1973); Oliver 
v - Digital Equipment Corp.. 846 F.2d 103, 107 (1st Cir. 
1988). This Circuit has explained the employer's burden in 
the following way:

"The defendant's burden to articulate a legitimate 
reason is not a burden to persuade the court that he 
was in fact motivated by that reason and not by a 
discriminatory one. Rather, it is a burden of 
production —  i.e.. a burden to articulate or state a 
valid reason. . . . The defendant can accomplish this 
by introducing admissible evidence which would allow 
the trier of facts rationally to conclude that the 
employment decision had not been motivated by a 
discriminatory animus."

Johnson v. Allyn & Bacon. Inc.. 731 F.2d 64, 70 (1st Cir. 
1984), cert, denied, 469 U.S. 1018 (1984)(citations omitted, 
emphasis original).

The Court below found, and plaintiff does not seriously 
dispute, that Wellesley articulated legitimate, 
nondiscriminatory reasons for its denial of tenure to 
plaintiff. Any inference of discrimination thus dissolves, 
and the burden of persuasion created by the prima facie case 
shifts back to plaintiff to prove that the proffered reasons 
for the defendant's decision were not the true reasons —  
but were instead merely a "pretext" for unlawful 
discrimination. See Texas Pep't of Community Affairs v.

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Burdine, 450 U.S. 248, 256 (1980); Medina-Munoz v . R .J .
Reynolds Tobacco Co.. 896 F.2d 5, 9 (1st Cir. 1990)
(inference raised by plaintiff's prima facie case vanishes
when employer articulates its legitimate reasons); Dance v.
Ri.pley , 776 F.2d 370, 373 (1st Cir. 1985).

Plaintiff cannot prove pretext —  and thereby revive
the inference of discrimination previously dispelled by
defendant's articulated business reasons —  by challenging
the actual merit of the reasons.

"Merely casting doubt on the employer's articulated 
reasons does not suffice to meet the plaintiff's burden 
of demonstrating intent, for the defendant need not 
persuade the court that it was actually motivated by 
the proffered reasons in the first place. To hold 
otherwise would impose an almost impossible burden of 
proving absence of discriminatory motive."

Dea v. Look, 810 F.2d 12, 15 (1st Cir. 1987) (quoting White
v. Vathally, 732 F.2d 1037, 1043 (1st Cir. 1984), cert.
denied, 469 U.S. 133 (1984)). Rather, plaintiff bears the
burden of proving that the defendant's decision concerning
his employment was the product of impermissible
discrimination. As this Court stated in Medina—Munoz v.
R.J. Reynolds Tobacco Co.. 896 F.2d 5, 9 (1st Cir. 1990),
plaintiff

"must do more than simply refute or cast doubt on the 
company's rationale for the adverse action. The 
plaintiff must also show a discriminatory animus based on age."

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If plaintiff does not show such a discriminatory animus, 
summary judgment or a directed verdict is mandated.

In sum, once Wellesley has articulated its legitimate, 
nondiscriminatory reasons for denying plaintiff tenure, it 
devolves upon him to prove by a preponderence of the 
evidence, unassisted by the original presumption of his 
prima facie case, that Wellesley's reasons "were not its 
true reasons, but were a pretext for discrimination." Texas 
Dept, of Community Affairs v. Burdine. 248 U.S. 248, 253 
(1981) (emphasis added); accord. Medina-Munoz v. R,j. 
Reynolds Tobacco Co.. 896 F.2d at 9.

Plaintiff's brief on appeal utterly misapprehends his 
burden of demonstrating pretext. The reasons given for an 
employment decision may not be considered pretexts for 
unlawful discrimination even if it is shown that the 
decision was misguided, incorrect, or different from the one 
that a court or jury might have made. "Errors in judgment 
are not the stuff of Title VII transgressions —  so long as 
the mistakes are not a coverup for invidious
discrimination." Keyes v. Secretary of Navv. 853 F.2d 1016, 
1026 (1st Cir. 1988). As the First Circuit has repeatedly 
made clear in discrimination cases, "[i]t is not enough to 
show that the employer made an unwise business decision 
. . . . [or] that the employer acted arbitrarily or with ill

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will." Gray v. New England Telephone & Telegraph Co.. 792
F.2d 251, 255 (1st Cir. 1986). Wellesley was entitled to
deny plaintiff's tenure application for any reasons it
believed, in its sole discretion, were consistent with the
College's Articles of Government, provided such reasons were
not pretexts aimed at masking unlawful discrimination. As
this Court stated in Medina-Munoz.

"[Plaintiff] argues that he put forward enough evidence 
to create a litigable question as to whether the stated 
reasons were a ruse. If that is so, it is only half 
the battle; the other half was lost for he offered no 
colorable evidence to show that the reasons, if 
pretextual, were pretexts for age discrimination."

896 F .2d at 9 (emphasis original). Accord Keyes. 853 F.2d
at 1026; Menard v. First Security Services. Inc.. 848 F.2d
281, 287 (1st Cir. 1988).

Plaintiff's effort to turn this discrimination lawsuit 
into an occasion for revisiting the underlying merits of his 
tenure review completely misperceives the foregoing well 
established principles. "Neither the defendant's managerial 
judgment nor [its] recruiting acumen is on trial in this 
case." Keyes v. Secretary of Navv. 853 F.2d 1016, 1026 (1st 
Cir. 1988). The mission for this Court is to determine 
whether plaintiff has offered sufficient evidence for a jury 
to conclude on the basis of that evidence - and not on mere 
speculation or conjecture - that sex, race, national origin

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or age discrimination were the real reasons for Wellesley's
actions toward him. As this Court held recently:

"Our role is not to second-guess the business decisions 
of an emplyer, imposing our subjective judgments of 
which person would best fulfill the responsibilities of 
a certain job. While an employer's judgment or course 
of action may seem poor or erroneous to outsiders, the 
relevant question is simply whether the given reason 
was a pretext for illegal discrimination."

Rossv v. Roche Products. Inc.. 880 F.2d 621, 625 (1st Cir.
1989) (citations omitted).

Thus, plaintiff cannot show that the College's reasons
were a pretext for unlawful discrimination by presenting
evidence from which a factfinder might conclude that the
tenure decision could have gone either way, nor can
plaintiff show such pretext simply by persuading the
factfinder that it would have granted tenure to plaintiff.
Rather, plaintiff must show that the College's articulated
reasons for denying him tenure were "obviously weak or
implausible", or that the tenure standards for prevailing at
the tenure decision were "manifestly unequally applied".
Brown v. Trustees of Boston University. 891 F.2d 337, 346
(1st Cir. 1989). As emphasized by this Court in Brown.

"The essential words here are 'obviously' and 
'manifestly.' A court may not simply substitute its 
own views concerning the plaintiff's qualifications for 
those of the properly instituted authorities; the 
evidence must be of such strength and quality as to 
permit a reasonable finding that the denial of tenure 
was 'obviously' or 'manifestly' unsupported."

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Id. at 346. Likewise, a jury may not simply substitute its 
own views for those of the College. Accordingly, Wellesley 
is entitled to summary judgment unless plaintiff makes a 
showing of the strength and quality demanded by this Court 
in Brown.

Plaintiff's contention (Brief of Appellant at 46, 
n. 37) that he may meet his burden to establish pretext on 
the hypothesis that the jury might choose to disbelieve the 
defendant's witnesses and explanations is entirely without 
merit. See Janigan v. Taylor. 344 F.2d 781, 784 (1st Cir. 
1965), cert. denied. 382 U.S. 879 (1965) ("[H]owever 
satisfied a court may be from the witness's demeanor or his 
demonstrated untruthfulness in other respects that certain 
testimony is false, it cannot use such disbelief alone to 
support a finding that the opposite was fact"); Federal 
Insurance Co. v. Summers. 403 F.2d 971, 975 (1st Cir. 1968) 
(party bearing burden of proof does not have right to get to 
the jury when the only evidence is testimony against him). 
Were this view of the law correct, summary judgment motions 
could never be granted in discrimination cases once a prima 
facie had been made out —  a result clearly contrary to the 
explicit holdings of the Supreme Court in McDonnell-Douglas 
and Burdine. and of this Court in virtually every one of its 
employment discrimination decisions, including Oliver v.

-17-



Digital. Johnson v. Allvn & Bacon. Loeb v. Textron and
Medina-Munoz v. R.J. Reynolds. Further, if the trier of
fact's disbelief of a defendant's articulated business
reasons can, without more, suffice to give rise to an
inference of discrimination, then in reality a defendant
must not only articulate its reasons, it must prove them.
Again, such an interpretation of the law stands in direct
conflict with virtually every discrimination decision handed
down since McDonnell-Douglas v. Green.

Plaintiff's lawsuit was dismissed because he fell "far
short in mustering sufficient evidence by which a rational
trier of [fact] -- short of mere speculation or
conjecture —  could reasonably conclude that the legitimate,
non-discriminatory, reason advanced by Wellesley for denying
his tenure bid was a pretext for illegal discrimination."
(App. Ilia). The Court below applied the proper standards
in reaching this judgment. Its decision should be upheld.
A. The District Court Applied Well

Established Principles In Allowing 
Wellesley's Motion For Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment shall be granted "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact

-18-



and that the moving party is entitled to judgment as a 
matter of law." As this Court has repeatedly recognized, 
summary judgment is appropriately granted under this Rule if 
there is "an absence^of evidence supporting the non-moving 
party's case." E.g. , Oliver v. Digital Equipment Coro.. 846 
F •2d 103, 105 (1st Cir. 1988); Metropolitan Life Insurance 
Co. v. Ditmore. 729 F.2d 1, 4 (1st Cir. 1987).

This Court has further explained that the issue is "not 
whether there is literally no evidence favoring the non­
movant, but whether there is any upon which a jury could 
properly proceed to find a verdict in that party's favor." 
DeArteaga v. Pall Ultrafine Filtration Coro.. 862 F.2d 940, 
941 (1st Cir. 1988). The non-moving party may not rely on 
"unsupported allegations and speculations," Oliver v.
Digital Equipment Corp.. supra. 846 F.2d at 109-110, or on 
"the gossamer threads of whimsy, speculation and 
conjecture." Perez De La Cruz v. Crowley Towing and Transp, 
Co., 807 F.2d 1084, 1086 (1st Cir. 1986), cert, denied. 481
U.S. 1050 (1987). Rather he must produce evidence that is 
admissible and significantly probative of the claims he has 
made. Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 249- 
250 (1986). Otherwise, no genuine issue of material fact is 
presented and summary judgment is properly granted. See 
also Hebert v. The Mohawk Rubber Co.. 872 F.2d 1104, 1111

-19-



(1st Cir. 1989); Menard v. First Security Services Corp.f
848 F .2d 281, 284-85 (1st Cir. 1988).

The Magistrate explicitly recognized and applied the
appropriate legal standards in this case. Thus, following*
this Court's decision in Baneriee v. Board of Trustees of 
Smith College. 648 F.2d 61 (1st Cir. 1981), the Magistrate 
assumed that plaintiff had established a prima facie case of 
discriminatory denial of tenure5 and considered whether 
Wellesley had articulated a legitimate, nondiscriminatory 
reason for its action. Concluding that the College had met 
this burden, the Magistrate went on to consider whether 
plaintiff had produced "sufficient evidence by which a 
rational trier of fact - short of mere speculation or 
conjecture - could reasonably conclude that the legitimate, 
non-discriminatory reason advanced by Wellesley for denying 
his tenure bid was a pretext for illegal discrimination." 
(App. 111a). Quoting from this Court's decision in Brown v. 
Trustees of Boston University. 891 F.2d 337, 346 (1st Cir.

In Baneriee. the Court held that a plaintiff could 
establish such a prima facie case by showing that: (1) he
is a member of a protected minority group; (2) his 
qualifications for tenure were sufficiently strong to place 
him in the middle group of tenure candidates as to whom both 
a decision granting tenure and a decision denying tenure 
could be justified as a reasonable exercise of discretion by 
the tenure-decision making body; (3) he was nevertheless 
denied tenure; and (4) tenure positions were open at the 
time he was rejected. 648 F.2d at 63.

-20-



1989), the Magistrate noted that plaintiff could satisfy 
this burden by showing that the articulated reasons were 
"obviously weak or implausible, or that the tenure standards 
for prevailing at the tenure decisions were manifestly 
unequally applied," but he also noted, quoting further from 
the Court's decision in Brown, that "[t]he essential words 
here are 'obviously' and ’manifestly1." and that a court or 
jury "may not simply substitute its own views concerning the 
plaintiff's qualifications for those of the properly 
instituted authorities; the evidence must be of such 
strength and quality as to permit a reasonable finding that 
the denial of tenure was 'obviously' or 'manifestly' 
unsupported." (App. 112a) (emphasis added).

The Magistrate's approach was clearly correct and 
consistent with the decisions of this Court referred to 
above. See also Griggs-Rvan v. Smith. 904 F.2d 112, 115 
(1st Cir. 1990) ("Evidence which is merely colorable, or is 
not significantly probative will not preclude summary 
judgment."); Medina-Munoz v. R.J. Reynolds Tobacco Co.. 896 
F •2d 5, 9 (1st Cir. 1990) ("So long as the employer proffers 
[a valid, nondiscriminatory reason for its action], the 
inference raised by plaintiff's prima facie case vanishes 
[and] it is up to plaintiff, unassisted by the original 
presumption, to show that the employer's stated reason was

-21-



but a pretext for age discrimination.")6; The Dartmouth 
Review v. Dartmouth College. 889 F.2d 13, 16 (1st Cir. 1989)
(to avoid summary judgment, "plaintiffs must point, if not 
to fire, at least to some still-warm embers; 'smoke alone is 
not enough to force the defendants to a trial to prove that 
their actions were not [racially] discriminatory.1") While 
plaintiff may quarrel, as he does, with the result reached, 
he cannot show that the Magistrate placed any improper 
burden on him to defeat Wellesley's motion for summary 
judgment. Neither the Magistrate nor the District Court did 
any such thing.

6 Plaintiff argues that the Magistrate fundamentally 
misunderstood the Title VII burdens of proof. (Brief of 
Appellant at 44-46). The fact is, the Magistrate properly 
followed Medina-Munoz' clear holding that to rebut the 
employer's legitimate, nondiscriminatory reasons, a Title 
VII litigant must show that those reasons are "not only a 
sham, but a sham to cover up . . . [improper]
discrimination." Plaintiff's real problem is not with the 
Magistrate's decision, but with the holdings of Medina- 
Munoz , Burdine and many other employment discrimination 
cases. As discussed above at pp. 12 to 17, Medina-Munoz was 
rightly decided and correctly followed. Plaintiff's case 
was properly dismissed because he has not raised a genuine 
issue of fact as to whether Wellesley's reasons for denying 
him tenure were pretexts for unlawful discrimination. 
Plaintiff has at most presented evidence from which a 
factfinder might conclude that the tenure decision could 
have gone either way. Such a showing is insufficient to 
bring his case to a jury. See Pea v. Look. 810 F.2d 12, 15 
(1st Cir. 1987)(plaintiff "cannot meet his burden of proving 
'pretext' simply by refuting or questioning the defendants' 
articulated reason").

-22-



B. The District Court Correctly Found That 
Wellesley Articulated Legitimate,
Nondiscriminatory Reasons For The 
Denial of Tenure to Plaintiff____________
The Magistrate found, and plaintiff does not seriously 

dispute, that Wellesley articulated legitimate, 
nondiscriminatory reasons for its denial of tenure to 
plaintiff. The record shows that the members of the R&P 
Committee who recommended against tenure for plaintiff -- 
j.e. , Professors Gascon-Vera, Roses and Renjilian-Burgy —  
did so principally because they believed that, as a small 
department, they needed a dynamic person who could attract 
students and build course enrollments and that plaintiff had 
not shown, either in his teaching, scholarship, or other 
activities, that he was sufficiently exceptional to perform 
this task.

More specifically, the majority members of the R&P 
Committee noted with respect to plaintiff's teaching that 
his pace was generally slow, he spoke too much English and 
not enough Spanish, he spent a substantial amount of time 
simply reading to the students, and he had a difficult time 
in getting the students to actively participate in his 
classes. They also noted that plaintiff's course 
enrollments were generally low and that the evaluations 
submitted by students who had taken plaintiff's courses -

-23-



referred to as "SEQs"7 - were "not poor by any means," but 
they were "not of the superior quality that we seek in a 
tenure candidate."

/ with respect to plaintiff's scholarship, the 
majority members noted that:

plaintiff had concentrated his writing energies 
not on scholarship but on writing and promoting his own poetry;
his published poetry was mainly written in the 
1960s and 1970s (more recent poetry had not been published);
his doctoral dissertation should have been, but 
never was, transformed into a published book;
his published scholarly articles were done in the 
late 1970s and early 1980s, and were a reworking 
of his doctoral dissertation;
plaintiff's critical methodology, although sound, 
was not up-to-date or imbedded in the diverse 
trends of criticism that have been current for the 
last twenty years (Nuwayser Supp. Aff. Exh. 34).

With respect to service to the Department and the 
College, the majority members noted that plaintiff had 
generally complied with requests from his Department 
colleagues but had not taken the initiative either to 
promote Departmental activities or to handle major new 
Department responsibilities. Finally, with respect to 
Department structure, the majority members noted that the 
Department was small, with four of its six members already

Student Evaluation Questionnaires.
-24-



tenured, and the next candidate for tenure, Marjorie Agosin, 
was an "internationally known poet with four books of 
poetry, more than 30 scholarly articles and two books of 
criticism, as well as superior student evaluations, 
particularly in literature." The majority members also 
noted that, under the College's lawful mandatory retirement 
policy for tenured faculty, plaintiff would be due to retire 
at virtually the same time as three Department members who 
already had tenure.

Similarly, the undisputed evidence shows that the 
members of the CFA who voted against an award of tenure for 
plaintiff did so because of the R&P Committee's majority 
recommendation and also because their own review of the 
objective evidence in plaintiff's case, including the 
student SEQ's, the faculty teaching reports and the outside 
evaluations of plaintiff's written work, tended to confirm 
that plaintiff's teaching was good, but not outstanding, and 
that, while the quantity of plaintiff's scholarship was 
adequate, he did not seem current in the latest trends of 
literary criticism or to have adequate command of that 
material (Nuwayser Supp. Aff. Exh. 47).

The foregoing reasons are manifestly legitimate, 
nondiscriminatory reasons for opposing an award of tenure, 
and relate specifically to the standards set forth in the

-25-



College's Articles of Government. Thus, the Articles stated 
that "[rjecommendation for promotion should always be based 
upon evidence that the candidate is an able teacher and 
possesses intellectual enthusiasm and power." The Articles 
further stated that:

"In judging qualifications of candidates, 
reference will be made to teaching ability, 
evidence of scholarly strength and 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" (Wellesley College's Articles of 
Government, p. 61) (attached as Exhibit A to 
Wellesley's memorandum in support of its motion 
for summary judgment dismissing plaintiff's claims 
of race, color, national origin and sex 
discrimination).
In light of these provisions, and the materials 

discussed above, there can be no question but that Wellesley 
articulated legitimate, nondiscriminatory reasons for the 
denial of tenure to plaintiff. The Magistrate properly so 
found.

-26-



C. There Was No Probative Evidence That
The Reasons Wellesley Articulated For The 
Denial of Tenure to Plaintiff Were Obviously 
Weak Or Implausible Or That Wellesley 
Manifestly Applied An Unequal Standard 
To Plaintiff's Tenure Application__________
The principal inquiry in this case is whether plaintiff

has demonstrated by a preponderance of the evidence that the
foregoing legitimate, nondiscriminatory reasons for his
tenure denial were in fact a cover-up for unlawful
discrimination against him. Plaintiff concedes that he has
no "direct" evidence of discrimination. His attempt to show
pretext is based almost entirely on comparisons of his

ications with those of women granted tenure in the
Spanish Department. There is nothing else from which an
inference of discrimination on the basis of age, sex,
national origin or race is even remotely possible.

Where, as here, an unsuccessful candidate for tenure
challenges the university's decision with comparative
evidence, the Court must be especially sensitive to the risk
of "improperly substituting a judicial tenure decision for a
university one." Brown v. Trustees of Boston University.
891 F .2d 337, 347 (1st Cir. 1989). It is not sufficient to
show that the tenure decisions could have gone either way,
nor is it sufficient merely to demonstrate that some aspects
of plaintiff's case were stronger than some aspects of the
cases to which he compares himself. Rather, the comparative

-27-



evidence must be "so compelling as to permit a reasonable 
finding of one-sidedness going beyond a mere difference in 
judgment." Id. at 347 (emphasis added). Were the standard 
of proof otherwise, the normal differences and unique set of 
factors in every tenure case would permit the jury to make 
the leap of faith that any denial of tenure was on account 
of the protected classification into which the plaintiff 
happened to fall.

This Circuit's rule that comparative evidence in tenure 
cases must be compelling follows from the fact that a tenure 
decision is necessarily a subjective evaluation of 
professional performance at a very high level. Tenure 
candidates by definition have been reappointed to their 
assistant professorships and are deemed by the university 
already to have met some minimum standard applicable to 
college teaching and research. There always will be 
differences among candidates, and there often will be 
seeming inconsistencies among records, especially where, as 
here, fragments of some records are compared with fragments 
of other records. Such evidence does not show pretext for 
unlawful discrimination.

Plaintiff's evidence falls far short of the standard 
articulated by this Circuit. The Magistrate recognized that 
the "majority of plaintiff's arguments center on [his claim]

-28-



that he was as qualified, if not more qualified, for tenure 
as were four white women who were granted tenure." (App. 
108a). The Magistrate concluded, however, that the specific 
evidence plaintiff produced in an effort to show that this 
was so was not sufficient to allow a rational trier of fact 
to conclude, short of mere speculation or conjecture, that 
Wellesley's articulated reasons for denying tenure to 
plaintiff were mere pretexts for discrimination against him 
on account of his sex, race, national origin or age.

In reaching this result, the Magistrate did not 
improperly resolve factual disputes against plaintiff, as 
plaintiff contends at pp. 42-44 of his Brief. Rather, the 
Magistrate concluded that, even if true, the facts presented 
by plaintiff were not sufficient to allow an inference of 
improper discrimination (App. 108a, n. 11; App. 110a).

The Magistrate was plainly correct in concluding that 
plaintiff's evidence as to his relative qualifications did 
not permit a reasonable inference of discrimination. 
Recommendations for tenure at Wellesley are to be "based 
upon evidence that the candidate is an able teacher and 
possesses intellectual enthusiasm and power" (App. 19a). A 
candidate's record as a whole is taken into account, with 
reference to the five specific factors articulated in the 
faculty legislation (App. 19a). Plaintiff did no more than

-29-



compare isolated aspects of his overall record to isolated 
aspects of the records of other persons granted tenure 
before or after him. These misleading and fragmented 
comparisons - which are plaintiff's entire case - fall far 
short of the required showing that the reasons advanced for 
denial of tenure to him were obviously weak or implausible, 
or that the College manifestly applied an unequal standard 
to his tenure application. See Brown v. Trustees of Boston 
University, 891 F.2d 337, 346 (1st Cir. 1989).

1. The Tenure Candidacies of Professors
Renjilian-Burgy and Agosin Do Not Permit 
A Reasonable Finding of One-Sidedness

The facts concerning the relative qualifications of 
plaintiff and Professors Renjilian-Burgy and Agosin are 
essentially undisputed. This evidence does not permit a 
reasonable tridr of fact to conclude that in denying tenure 
to plaintiff and granting it to his female non-Chicano 
colleagues, Wellesley engaged in decision-making so one­
sided as to go beyond a mere difference in judgment.

With respect to Professor Renjilian-Burgy, the 
undisputed evidence shows that at the time she was awarded 
tenure, Professor Renjilian-Burgy was generally regarded as 
one of the most exceptional teachers at Wellesley and had 
regularly received awards for her teaching, including the 
Massachusetts Teacher of the Year award from the Spanish

-30-



Heritage Society in 1981, and a Pinanski prize for 
excellence in teaching at Wellesley College in 1983 
(Nuwayser Supp. Aff. Exh. 70).

The evidence likewise shows that, unlike plaintiff, 
Professor Renjilian-Burgy had been extraordinarily active in 
Departmental and College affairs, and also in outside 
professional organizations. Thus, at the time Professor 
Renjilian-Burgy was considered for tenure, she was an 
elected member of the Faculty Advisory Committee to the CFA. 
She was also serving on, or had served on, numerous other 
Departmental and College committees, including, among 
others, the Affirmative Action Task Force, the Intercultural 
Awareness Now Committee, the Martin Luther King Memorial 
Committee, and the Faculty Committee for the Stone Center 
for Psychological Development. Professor Renjilian-Burgy 
was also serving as faculty advisor to the "Alianza" student 
organization, and she was also a freshman liaison, a group 
discussion leader for freshman orientation and a faculty 
member of the MIT Wellesley upward bound program. Finally, 
Professor Renjilian-Burgy was First Vice President and 
President-elect of the Massachusetts Foreign Language 
Association, a member of the Board of Directors of the 
Massachusetts chapter of the American Association of 
Teachers of Spanish and Portuguese, and an active member of

-31-



The extraordinary regard that students and colleagues 
had for Professor Renjilian-Burgy was shown by the numerous 
letters they wrote in support of her reappointments and 
tenure. These letters were far more numerous and strong 
than the letters written in plaintiff's case. Thus, one 
student wrote that Professor Renjilian-Burgy1s "rigorous 
teaching excellence, her kindness and compassion, her 
commitment and drive, and her personal and professional 
integrity distinguish her as an outstanding faculty member 
and human being" (Nuwayser Supp. Aff. Exh. 107). Another 
wrote that Professor Renjilian-Burgy was an "invaluable 
asset to the Spanish Department and the entire Wellesley 
College community" (Nuwayser Supp. Aff. Exh. 119).

There is likewise no guestion that the grant of tenure 
to Professor Agosin raises no inference of discrimination. 
Thus, the undisputed evidence shows that at the time she was 
considered for tenure - i.e .. 1987-88 - Professor Agosin had 
written three books of literary criticism, one book of 
social commentary, 26 critical articles on various topics, 
three published books of poetry, four creative publications 
in anthologies, and three other works in progress and had 
delivered numerous lectures and papers at meetings of

numerous other outside professional organizations (Nuwayser
Supp. Aff. Exh. 70).

-32-



Professor Agosin's scholarly output was not only 
substantially greater than plaintiff's, it was also 
continually growing. This was specifically noted by David 
Ferry, a member of the CFA who voted in plaintiff's favor 
but who testified that in his view, Professor Agosin was the 
stronger candidate:

Q. Well, I understand your explanation as to why you 
thought [Professor Agosin] was a strong candidate. 
I guess my question is specifically and let's take 
scholarship, why did you think her scholarship was 
stronger than Professor Villanueva's?

A. Because it seemed to me on all three fronts, the 
front of social writing, the front of literary 
criticism, although I had some criticism of those, 
and the poetry, although I had some criticisms of 
that, to be continually productive and energetic 
beyond the energies of what Tino had displayed.
The R&P Committee in Tino's case pointed out, for 
example, that there was not much scholarly 
production beyond the terms of the dissertation, 
beyond the work done for the dissertation and so 
on and compared with Marjorie Agosin this wasn't 
the case. The poetry writing that Tino did dated 
mainly from an earlier period and this is not the 
case of Marjorie Agosin. So in those ways, she 
seemed to me —  seemed to me to be a superior 
candidate. (Ferry Dep. pp. 60-61).

Professor Agosin's teaching abilities also plainly 
supported her award of tenure. As Professor Ferry further 
explained, whereas there appeared to be little demand for 
the Chicano literature courses plaintiff was teaching, there

professional organizations around the world (Nuwayser Supp.
Aff. Exh. 128).

-33-



was a strong demand for the courses on Latin American
literature that Professor Agosin was teaching (Ferry Dep.
pp. 61-62). Here again, plaintiff's focus on an isolated
bit of evidence - the SEQ's - provides an incomplete and
misleading comparison. The entire record amply supports the
College's judgment that Professor Agosin was the better
teacher. Professor Ferry further testified:

I don't know whether Marjorie Agosin has created 
such a demand but there certainly —  there are a 
large number of Latin American students at 
Wellesley and students interested in the 
literature of Latin America, especially South 
America, and that is central to Marjorie Agosin's 
interests as -- as it was not the case in Tino.
And that fact, the fact that she presented 
positive curricular resources in ways that were 
central to the curriculum of the department, had 
to be taken into account.
Tino represented indeed a specialty that the 
curriculum ought to have in it, but there was not 
demonstrable a sizable demand for it at the 
present time, nor was it demonstrated that he was 
creating any demand. So they differ in that 
regard as well. (Ferry Dep. p. 62).
The evidence further showed that Professor Agosin had 

received uniformly excellent class visit reports and was 
generally regarded as a dynamic and effective teacher by her 
colleagues in the Spanish Department (Nuwayser Supp. Aff.
Exh. 138). Her courses were far more popular than 
plaintiff's and elicited many favorable letters from 
students. Professor Agosin had also been coordinator of the 
PRESHCO program and had served as the Spanish Department's

-34-



liaison with various College committees or programs, 
including the Women's Studies, Jewish Studies, and Foreign 
Studies programs, and also the Pew Committee. Finally, 
unlike plaintiff, Professor Agosin was extraordinarily 
active on Departmental and College committees and also in 
outside professional organizations. She had served on the 
Advisory Board of the Massachusetts Foundation of the Arts 
and the New England Council of Latin-American Studies, had 
served as Chairperson of the International Institute of 
Sisterhood is Global, and had been active in numerous other 
professional organizations and activities outside the 
College (Nuwayser Supp. Aff. Exh. 127).

Rather than supporting plaintiff's claim of pretext, 
the records of Joy Renjilian-Burgy and Marjorie Agosin 
illustrated precisely the type of professional vigor, growth 
and excellence that the members of the R&P Committee and CFA 
were clearly looking for, but did not find, in plaintiff's 
case. Both of them had a far greater impact on the growth 
and vitality of the Spanish Department than plaintiff.

Notwithstanding all the foregoing evidence, plaintiff 
says that evidence that a discriminatory "higher standard" 
was applied to him can be found in the fact that he was 
criticized for matters that were either minimized or ignored 
in the other Spanish Department tenure cases. More

-35-



specifically, plaintiff says that his scholarship was 
criticized even though Joy Renjilian-Burgy was awarded 
tenure without ever having completed her Ph.D. dissertation. 
He also says that his teaching was criticized even though 
his SEQ's were the same or better than any of the other 
Spanish Department tenure candidates except for Joy 
Renj ilian-Burgy.

This approach by plaintiff overlooks the obvious fact 
that the lack of significant ongoing accomplishment in one 
area becomes a more serious problem, and more subject to 
legitimate criticism, where it is not offset by significant 
accomplishments in another. Once again, the evidence showed 
that, unlike Joy Renjilian-Burgy, plaintiff was not 
generally regarded as one of the most dynamic and effective 
teachers at Wellesley and was not extraordinarily active in 
Department and College affairs and outside professional 
organizations. Accordingly, it is not surprising, or 
indicative of a pretext for unlawful discrimination, that 
the lack of significant, ongoing scholarship was regarded as 
more of a problem in plaintiff's tenure case than it was in 
Joy Renjilian-Burgy's .

Similarly, the evidence showed that, unlike plaintiff, 
Professor Agosin was an extraordinarily prolific scholar, 
regularly attracted numerous students to her courses and to

-36-



independent studies with her, and was extraordinarily active 
both in the Department and College. The evidence also 
showed that her colleagues who visited her courses found the 
content excellent and the students actively involved. Under 
these circumstances, once again, it is not surprising, or 
indicative of discrimination, that the R&P Committee members 
paid less attention to the SEQ's submitted in Professor 
Agosin's case. There was a plethora of other evidence to 
support the excellence of Professor Agosin's performance in 
all the areas designated for consideration by Wellesley's 
Articles of Government.

2. The Only Probative Comparisons Are to 
Professors Reniilian-Burov And Agosin

Plaintiff compares himself to his female Spanish 
Department colleagues granted tenure from 1977 through 1987. 
However, only two of those comparisons - to Professors 
Renjilian-Burgy and Agosin, whose tenure decisions bracketed 
his own - could possibly be relevant in this case. The far 
more remote tenure candidacies of Professors Gascon-Vera and 
Roses are not probative of the decision made in plaintiff's 
case because the decision makers were entirely different and 
the Department structure was not at all similar.

Professor Gascon-Vera was considered for tenure in 
1977, and Professor Roses in 1979. It is undisputed that 
different individuals decided plaintiff's application and

-37-



the tenure applications of Professors Gascon-Vera and Roses.
The only R&P Committee member common to all three decisions 
was Professor Lovett, who voted in favor of tenure each 
time, and almost none of the CFA members who decided 
plaintiff's case also participated in the previous cases.
The decisions of those other individuals and earlier 
committees simply are not probative of the decision made on 
plaintiff1s tenure application. See Medina-Munoz v. R.j. 
Reynolds Co., 896 F.2d 5, 10 (1st Cir. 1990) ("The biases of 
one who neither makes nor influences the challenged 
personnel decision are not probative in an employment 
discrimination case.").

Moreover, the Spanish Department was much more heavily 
tenured in 1985 than it was in 1977 or 1979. The award of 
tenure in 1985, in a department already heavily tenured, 
would have a much more dramatic impact on future tenure 
candidates than would earlier awards of tenure, especially 
those occurring almost a decade ago. For that reason, it is 
entirely possible that Wellesley's tenure standards may have 
tightened over the years as there became fewer tenure slots 
available. However, any difference in the tenure standards 
from 1977 and 1979 to 1985 - even if such a difference were 
shown - cannot be inferred to have had anything to do with 
plaintiff's sex, age, race, color or national origin.

-38-



Banerjee v. Board of Trustees of Smith Collpgp, 648 F.2d 61, 
66 (1st Cir. 1981) (higher standard applied to the 
®^^buation of plaintiff's scholarship was due to changed 
circumstances, and not to any discriminatory animus toward 
plaintiff).

Even if the tenure decisions of Professors Gascon-Vera 
and Roses are not too distant to be probative, there is 
nothing in those cases that helps plaintiff. He cannot show 
that, in comparison to them, the denial of tenure to him was 
obviously weak or implausible. To the contrary, the 
evidence showed that at the time they were awarded tenure, 
both Professors Gascon—Vera and Roses had demonstrated the 
type of vigorous ongoing development and activity in the 
Spanish Department and College at large that was lacking in 
plaintiff's case.

Thus, the evidence showed that at the time Professor 
Gascon-Vera was awarded tenure in the Spanish Department in 
academic year 1977-78, her Ph.D. dissertation on a 14th 
century Spanish author Don Pedro had been accepted for 
publication as a book, and she was working on a second book 
on a 15th century Spanish author, Don Enrique de Villena. 
Professor Gascon-Vera had also prepared several articles, 
and had given numerous papers and lectures on academic 
subjects to organizations around the world. Professor

-39-



Gascon-Vera was also an active member of the Modern Language 
Association of America and numerous other professional 
^rganizations, and was Chairman of the Language Laboratory 
Committee at Wellesley (Nuwayser Supp. Aff. Exh. 59).

Similarly, the evidence showed that at the time 
Professor Roses was awarded tenure in academic year 1979- 
80, the Spanish Department was offering a two-track major, 
one for students specializing in Spanish Peninsular 
literature and the other for students specializing in Latin 
American literature, and Professor Roses was the most senior 
person teaching Latin American literature. She had also 
written numerous articles on contemporary Latin American 
authors and was working on a full-length book on the Latin- 
American novelist, Lino Novas-Calua. Also, like Professor 
Gascon-Vera, Professor Roses was extremely active in the 
Spanish Department and College and had delivered numerous 
scholarly papers and lectures to professional organizations 
around the world (Nuwayser Supp. Aff. Exh. 61).

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3. Plaintiff's Other Evidence Fails
To Show That The College's Articulated 
Reasons Were Pretextual________________
Apart from the foregoing purported "comparisons,"

plaintiff also suggests that evidence of "pretext" or
unlawful discrimination can be found in letters that were
submitted by the Spanish Department in 1981 and 1982
supporting plaintiff's reappointment to his assistant
professor position. Quoting from the minutes of a CFA
meeting held on his tenure case in April, 1986, plaintiff
suggests that the shift between the earlier, positive
reappointment letters and the subsequent negative tenure
letter was so great and blatant as to suggest "dishonesty."8

The evidence shows, however, that one of the three
members of the R&P Committee which recommended against
tenure for plaintiff - Joy Renjilian-Burgy - did not

The probative value of the "dishonesty" comment is almost 
nonexistent. It was made by unknown members of the CFA 
during a consideration of plaintiff's appeal, when the CFA 
would have been expected to have critically reexamined all 
of the evidence pertinent to plaintiff's tenure candidacy, 
including that which seemed to favor plaintiff. The only 
legitimate inference that can be drawn from this comment is 
that the CFA carefully scrutinized plaintiff's case and gave 
him the benefit of a full and fair appeal. Far more 
suggestive of the CFA's actual view of the merits of the 
decision is that the appeal was denied and that the three 
members of the CFA who voted for tenure stated that they 
"did not feel strongly that Mr. Villanueva should be 
tenured." (Nuwayser Supp. Aff. Exh. 58, p. 2571).

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participate in the earlier reappointment decisions.9 
Another member - Lorraine E. Roses (then Lorraine E. Ben- 
Ur) - wrote a teaching report at the time of the earlier 
reappointment decisions which included some of the same 
criticisms that were subsequently included in the negative 
tenure letter. (Nuwayser Supp. Aff. Exh. 14.) Both 
Professors Roses and Elena Gascon-Vera - the third member of 
the R&P Committee which recommended against tenure for 
plaintiff - met with plaintiff in March, 1983 and 
subsequently sent him a memorandum urging him to become more 
active both within the Spanish Department and the College at 
large. (App. 24a-25a; Nuwayser Supp. Aff. Exh. 18.) Once 
again, plaintiff's failure to be more active in the 
Department or College was one of the principal criticisms 
expressed in the Committee's subsequent recommendation 
against an award of tenure to plaintiff. (Nuwayser Supp. 
Aff. Exh. 34.)

Thus, none of the three members of the R&P Committee 
who recommended against tenure acted inconsistently with 
their earlier positions. While some members of the CFA may 
have been surprised by the alleged switch between the

Professor Renjilian-Burgy did not have tenure in 1981 or 
1982 when plaintiff was reappointed and hence was not 
eligible to be a member of the R&P Committee at that time.

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reappointment and tenure decisions, there was manifestly 
nothing at all dishonest about it.

In fact, such "switches" necessarily occur whenever 
tenure is denied at Wellesley because, under the College's 
Articles of Government, a candidate can not be considered 
for tenure unless he or she has been earlier reappointed. 
Rather than dishonesty, such switches at most suggest that 
different decisions are being made under different 
circumstances, with the most important changed circumstances 
obviously being that the tenure decisions is forever, while 
the reappointment decision is for at most three years. In 
no sense did plaintiff's earlier reappointment by the 
Spanish Department R&P Committee suggest that the reasons 
the R&P Committee ultimately articulated for recommending a 
denial of tenure to plaintiff were pretexts or cover-ups for 
discrimination against plaintiff on account of his sex, age, 
national origin or race. Cf. Cook County College Teachers 
Union, Local 1600 v. Byrd, 456 F.2d 882, 899 n. 8 (7th Cir. 
1972), cert, denied, 409 U.S. 484 (1972), reh. denied. 414 
U.S. 883 (1972) (rejecting contention that positive earlier 
reviews of teachers suggested impermissible factors had 
affected subsequent negative reviews).

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II. THERE WAS NO OTHER PROBATIVE EVIDENCE
OF IMPROPER DISCRIMINATION AGAINST
PLAINTIFF BECAUSE OF HIS RACE, COLOR,
NATIONAL ORIGIN OR SEX________________
The Magistrate correctly concluded that plaintiff's 

statistical evidence was flawed because it failed to include 
any data showing the number of "minority persons of Hispanic 
origin" actually applying for positions in the Spanish or 
other departments at Wellesley, or the number of such 
persons who could reasonably be expected to apply absent 
discriminatory hiring practices. Without such data, no 
inference can be drawn from the number of such persons 
actually employed at Wellesley. Wards Cove Packing Co. v. 
Antonio. 109 S.Ct. 2115, 2122 (1989)("If the absence of 
minorities holding such skilled positions is due to a dearth 
of qualified nonwhite applicants (for reasons that are not 
petitioners' fault), petitioners' selection methods or 
employment practices cannot be said to have had a 'disparate 
impact on nonwhites.'"); Jackson v. Harvard University. 721 
F. Supp. 1397, 1430 (D. Mass. 1989)("Those figures [showing 
but three tenured women at the Business School out of a 
tenured facility of 84], while striking, are not in 
themselves particularly probative in a discriminatory 
treatment case [particularly in the absence of evidence 
showing the qualified labor market]").

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Plaintiff attempts to respond to this criticism by 
asserting in his Brief (p. 48) that he had "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." Wellesley's 
submission was, however, based on the Handbook of Labor 
Statistics published by the U.S. Department of Labor 
(Bulletin 2217 - June, 1985) which clearly included in its 
count all persons of Hispanic origin, including white 
persons.10 Plaintiff's purported comparison, which includes 
only "full-time minority faculty members of Hispanic origin" 
at Wellesley and arbitrarily excludes Hispanics whom he 
cavalierly dismisses as "white women," is utterly 
meaningless.

The appropriate statistical comparison is not what 
different R&P Committees did years ago, but what the CFA did 
in the 1985-1986 academic year, the year of Mr. Villanueva's 
candidacy. There were 15 candidates for tenure in 1985- 
1986, ten of whom were women and five of whom were men. Of

10 The Handbook specifically states that: "Hispanic origin 
refers to persons who identify themselves in the enumeration 
process as Mexican, Puerto Rican living on the mainland, 
Cuban, Central or South American, or other Hispanic origin 
or descent. Persons of Hispanic origin may be of any race, 
thus, they are included in both the white and black 
population group." See Handbook, p. 3.

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those candidates, six women and three men received tenure. 
Likewise, four of the candidates were over 40 and eleven 
were under 40. Of those candidates, three candidates over 
40 and six candidates under 40 received tenure. Sixty 
percent of the female candidates received tenure, as did 
sixty percent of the male candidates. Seventy-five percent 
of the candidates over 40 received tenure, while 
approximately half of the candidates under 40 received 
tenure and the other half did not (App. 52a). These 
statistics do not support, but rather refute, any claim of 
discrimination.

Plaintiff fares no better by examining the decisions of 
the CFA for the entire period that plaintiff was employed by 
the College. Here the evidence shows that during the period 
from September, 1972 through June, 1986, 149 faculty members 
were considered for tenure at Wellesley, and 98 of them were 
granted such tenure. During this same period, 12 persons, 
other than plaintiff, who were members of racial minority 
groups (including Asians) or persons of Hispanic origin were 
considered for tenure at Wellesley, and eight of them were 
granted such tenure. (Nuwayser Supp. Aff. 55 9-10). Thus, 
tenure was granted to 65.7% of all candidates and 66.7% of 
minority candidates. Plaintiff can get no help from such 
statistics. See generally. Baneriee v. Board of Trustees of

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*

Smith College. 648 F.2d 61, 66 (1st Cir. 1979)(statistics 
showing minority success rate in tenure decisions was 
approximately the same as overall success rate not probative 
of racial discrimination).

Plaintiff finally suggests (Brief of Appellant at pp. 
48-49) that evidence of discrimination can be found in the 
"patronizing" description of plaintiff contained in the 
memorandum prepared by the R&P Committee majority 
recommending against tenure for plaintiff and in a remark 
allegedly made by one of plaintiff's colleagues that 
plaintiff was "not very intelligent." In fact, the 
sentences about which plaintiff complains are not 
patronizing at all, but rather are a sensitive and 
sympathetic appraisal of his skill as a poet. The 
disappointment of the R&P Committee was that little of the 
expressive content of plaintiff's poetry made its way into 
his teaching, which was perceived as somewhat dull and 
uninspired. There is, further, nothing at all about a 
comment that someone is "not very intelligent" that would 
permit an inference of discrimination on account of sex, 
age, race, color or national origin.

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*

III. PLAINTIFF'S CLAIM OF AGE DISCRIMINATION
WAS ALSO PROPERLY DISMISSED_____________
Plaintiff asserted in the District Court that his claim 

of ^g^ discrimination could be based solely on the reference 
to his projected retirement date contained in the memorandum 
prepared by the R&P majority recommending against an award 
of tenure to him (App. 123a). Since plaintiff has not 
asserted this matter as an issue on this appeal, he may be 
presumed to have waived it. E .q .. McGruder v. Necaise. 733 
F •2d 1146 (5th Cir. 1984) (Court of Appeals will not 
consider matter not briefed). In any event, a review of the 
R&P majority's memorandum will show that the majority merely 
noted that plaintiff's projected retirement date was the 
same as several other members of the Department who had 
already been granted tenure so that, if plaintiff were 
awarded tenure, the Department might in the future be losing 
all of its senior members at or about the same time. As the 
Magistrate properly noted, this type of regard for the 
continuity of an employer's workforce is essentially age 
neutral and is not in any sense prohibited by the federal 
Age Discrimination in Employment Act, 29 U.S.C. 621 et sea. 
See generally Diminnie v. General Electric Co.. 47 BNA Fair 
Empl. Prac. Cases 245, 249 (W.D.Ky. 1989)("It doesn't 
require an advanced degree in business administration to

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understand that a company the size of defendant must plan 
for the replacement of retired or deceased employees.")

Plaintiff was denied tenure essentially because there 
was no substantial reason either in his teaching, 
scholarship or service to the Spanish Department or College 
for granting him such tenure. While plaintiff may quarrel 
with the result reached, he did not - and cannot - produce 
any probative evidence that the decision was based on his 
sex, race, color, national origin, or age. The decision of 
the District Court should therefore be affirmed.

CONCLUSION

Respectfully submitted,

Philip C. Curtis 
Ropes & Gray 
One International Place 
Boston, MA 02110 
(617) 951-7000

Counsel for Appellee, 
Wellesley College

Dated: December 7, 1990

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