Villanueva v. Wellesley College Brief of Defendant-Appellee
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December 7, 1990

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Brief Collection, LDF Court Filings. Villanueva v. Wellesley College Brief of Defendant-Appellee, 1990. 2d12920a-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/950d3ff3-8bac-455a-b748-3eefc5242926/villanueva-v-wellesley-college-brief-of-defendant-appellee. Accessed July 09, 2025.
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:■• ■••■■•■ I ' ' j» £ :'<&. '\ fcv v .•■»•• g a B p | p :f ' t-iatsaB’̂ a.w«.î E 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 -1- 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 -ii- 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 -iii- 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 -iv- 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 -v- 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 -vi- 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. -2- 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. -3- 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. -4- 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, -5- 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 -6- 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. -7- 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 -8- 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 -9- 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. -10- 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). -11- 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. -12- 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." -13- 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 -14- 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 -15- 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." -16- 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). -40- 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). -41- 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. -42- 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). -43- 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]"). -44- 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. -45- 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 -46- * 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. -47- * 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 -48- 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 -49-