Villanueva v. Wellesley College Reply Brief of Plaintiff-Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT

NO. 90-1898

TINO VILLANUEVA, 
Plaintiff-Appellant,

v.
WELLESLEY COLLEGE 
Defendant-Appellee.

Appeal From The United States District Court 
For The District Of Massachusetts

REPLY BRIEF OF PLAINTIFF-APPELLANT 
TINO VILLANUEVA

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



TABLE OF CONTENTS

ARGUMENT This Case is Distinguishable 
from Medina-Munoz Because There 
is Sufficient Additional Evidence 
to Raise a Legitimate Inference 
of Discrimination.

CONCLUSION



TABLE OF CASES

Cases Page
Brown v. Trustees of Boston University,

891 F . 2d 337 (1st Cir. 1989).......................... 5
Carter v. Duncan-Huqqins. Ltd..

717 F . 2d 1225, 1232 (D.C. Cir. 1984)................. 3
Conway v. Electro Switch Corp.,

825 F . 2d 593 (1st Cir. 1987)................. .. .9
Cumpiano v. Banco Santander Puerto Rico.

902 F . 2d 148 (1st Cir. 1990)..................... 3 , 10
Medina-Munoz v. R.J. Reynolds Co..

896 F . 2d 5 (1st cir. 1990).................  2, 3, 4, 7
Oliveria v. Nestle Puerto Rico, Inc.

No. 90-1363 (1st Cir. December 27, 1990). . . 1, 3, 10
Roebuck v. Drexel University,

852 F . 2d 715 (3d Cir. 1988)........................5, 7
Shager v. Upjohn Co..

913 F . 2d 398 (7th Cir. 1990)...................... 6, 7
Texas Dept, of Community Affairs v. Burdine,

450 U.S. 248 (1981).................................. 1
United States Postal Serv. Bd, of Govs.

v. Aikens. 460 U.S. 711, 718 (1983)................. 1
Wards Cove Packing Co., Inc, v. Antonio,

109 S.Ct. 2115 (1989) 9



Argument

THIS CASE IS DISTINGUISHABLE FROM MEDINA- 
MUNOZ BECAUSE THERE IS SUFFICIENT ADDITIONAL 
EVIDENCE TO RAISE A LEGITIMATE INFERENCE OF 
DISCRIMINATION

In Olivera v. Nestle Puerto Rico, Inc.. No. 90-1363 (1st 
Cir. December 27, 1990), this Court clarified the burden which an 
employee in an age discrimination case must meet in order to 
survive the employer's motion for summary judgment. The Court 
recognized that under Texas Dept, of Community Affairs v.
Burdine, 450 U.S. 248 (1981), an employee who has made out a 
prima facie case of discrimination can prevail with respect to 
his or her ultimate burden of proving that he or she is the 
victim of intentional discrimination "by showing that the 
employer's proffered explanation is unworthy of credence." Id at 
256. See also United States Postal Serv. Bd. of Govs, v. Aikens, 
460 U.S. 711, 718 (1983) (Blackmun, J, concurring), ("the 
McDonnell Douglas framework requires that a plaintiff prevail 
when at the third stage of a Title VII trial he demonstrates that 
the legitimate, nondiscriminatory reason for the employment 
decision is in fact not the true reason for the employment 
decision"). This Court also acknowledged that "[a]t least nine 
circuits have held that the Burdine alternative language means 
that making out a prima facie case plus proving that the 
articulated reason for the discharge was pretextual is 
sufficient, without more, to raise a genuine issue of fact as to 
discrimination." Olivera, slip op. at 11.

The Court went on to point out, however, that in the First



Circuit, as a result of Medina-Munoz v. R.J. Reynolds Co.. 896 
F.2d 5 (1st Cir. 1990), "a plaintiff has the burden not only of 
proving that the articulated reasons of the employer were 
pretextual but also of adducing additional evidence that the 
articulated reasons were a pretext for age discrimination." 
01_ivera, slip op. at 13. It was upon the basis of its conclusion 
that such "additional" evidence was absent that the district 
court granted summary judgment in favor of Wellesley. And it is 
the alleged lack of such evidence upon which Wellesley 
principally relies in this appeal.

The wisdom of this Circuit's "additional" evidence rule is 
open to serious question. If, as virtually every other Circuit 
has recognized, a showing that a proffered justification for an 
adverse employment decision is pretextual together with the 
inference that may be drawn from an employee's prima facie case 
is sufficient to raise a genuine issue of fact with respect to 
the ultimate issue of discrimination, then a requirement that 
there be "additional" evidence is at war with the fundamental 
principle that on a motion for summary judgment the court should 
not weigh the evidence. It necessarily puts the court in the 
position of determining how much, if any, "additional" evidence 
is required to create a genuine issue of fact. Once the court 
abandons the relatively straightforward test that an inference of 
discrimination may be drawn from the employer's submission of a 
discredited explanation, it invades the jury's province by 
undertaking an evaluation of the probative value of other

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evidence. In addition, by apparently requiring some direct 
evidence of discrimination, the "additional" evidence rule would 
"effectively eviscerate" many valid discrimination claims. See 
Carter v. Duncan-Huqqins. Ltd.. 727 F.2d 1225, 1232 (D.C. Cir. 
1984) .

Indeed, in recognition of the fact that "in discrimination 
cases direct evidence of bias is rare," Olivera. slip op. at 16, 
this Court has retreated from the harsh impact of a literal 
reading of Medina-Munoz. In Cumpiano v. Banco Santander Puerto 
Rico, 902 F .2d 148, 158 (1st Cir. 1990), the Court noted that 
when an employer's pretext "was unmasked, an important 
underpinning to a finding of discrimination clicked into place." 
The Court went on to cite Medina-Munoz for the limited 
proposition that "where employee's evidence of pretext is 
tenuous, more evidence of discriminatory animus may be required." 
Id. The analysis and rationale of Cumpiano was, moreover, 
approved by this Court in Olivera. slip op. at 16.

This version of Medina-Munoz. however, is more unmanageable 
because it doubly requires the court to weigh the evidence: it
must determine first whether the employer's evidence of pretext 
is "tenuous," and second, whether there is sufficient 
"additional" evidence of discrimination to warrant submitting the 
case to the jury. Such a standardless inquiry effectively 
authorizes a court to substitute its judgment as to the weight of 
the evidence for that of the ultimate factfinder.

In the present case, therefore, this Court should hold that

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plaintiff's showing that Wellesley's reasons for denying him 
tenure were pretextual was sufficient, without more, to defeat 
its motion for summary judgment and the case should be remanded 
for a trial on the merits.

Even if this Court is not yet ready to abandon Medina- 
Munoz,17 however, plaintiff is still entitled to a reversal.
This is not a case like Medina-Munoz where the employee's 
evidence of pretext was "tenuous" because of an unsatisfactory 
employment record that was blemished by undisputed instances of 
misconduct, insubordination, tardiness, failure to meet 
deadlines, and evaluations which had progressively worsened over 
time. Id. at 10. In contrast, plaintiff had distinguished 
himself as a fine teacher, a highly reputed scholar and an 
internationally acclaimed poet during his fourteen years at 
Wellesley. He made a substantial and well-documented showing 
that Wellesley's reasons for denying him tenure were pretextual 
and, in addition, he introduced evidence of disparate treatment 
and statistical evidence of discrimination that was lacking in 
Medina-Munoz. Id.

At the summary judgment stage, plaintiff does not, as 
Wellesley argues, have to prove by a preponderance of the

In any event, Medina-Munoz should be limited to ADEA cases. 
Since race and gender discrimination is more deep-seated and 
pervasive than age discrimination, it follows that the inference of 
discrimination that can be drawn from a prima facie case in an age 
discrimination case is weaker than the inference that can be drawn 
from a prima facie case in a race or gender discrimination case.

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evidence that its reasons for denying tenure were pretextual,2/
He need only make a showing that is sufficient to permit a 
rational factfinder to conclude that Wellesley's explanation was 
not the real reason for its action. Nor must plaintiff show, as 
Wellesley also argues, that the articulated reasons were 
"obviously weak or implausible," that they were "manifestly 
unequally applied," or that the comparative evidence is 
"compelling."-7 This language, which Wellesley quotes from 
Brown v. Trustees of Boston University. 891 F.2d 337, 346-347 
(1st Cir. 1989), refers only to the burden of the plaintiff in an 
academic tenure case at trial, and not at the summary judgment 
stage.

As discussed in detail in plaintiff's main brief, the 
evidence would permit a jury to find that he was better qualified 
for tenure with respect to teaching, scholarship and service than 
some or all of his tenured colleagues, and that Wellesley's claim 
that he did not meet its standards for tenure was pretextual. He 
presented "sufficient evidence of disparate treatment, in terms 
of more exacting standards and devaluation of his contributions, 
from which a jury could infer that, but for his [color and sex] .
. ." he would have been granted tenure. Roebuck v. Drexel 
University, 852 F.2d 715, 728 (3d Cir. 1988). It is true that

Def. Brief at 27. ("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.")

-x Def. Brief at 21, 28.
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"this is so only when the evidence is viewed as favorably to 
[plaintiff] as reason will permit, but that is the proper 
viewpoint when the question is whether summary judgment should 
have been granted to his adversary." Shager v. Upjohn Co.. 913 
F .2d 398 (7th Cir. 1990).

In response, Wellesley ignores this precept and argues that 
the district court could properly weigh certain evidence and 
resolve countervailing inferences against plaintiff.-7 Thus, 
Wellesley argues that Agosin's scholarship was superior to 
plaintiff's despite the fact that plaintiff's independent, 
outside evaluations -- the most objective measure of 
scholarship —  were considerably better than Agosin's. In 
praising Agosin's teaching, moreover, Wellesley ignores the fact 
that the CFA considered her teaching record to be "ambiguous," 
and it was concerned about the "uneven" student evaluations she 
had received. With respect to its claim that Renjillian-Burgy 
was a superior candidate, Wellesley conveniently ignores her 
failure to meet even a minimal standard of scholarly strength and 
growth -- a failure which led the CFA to consider her 
scholarships a "negative factor," indicating that "quality of

- Not only does Wellesley's argument urge the Court to 
overstep the appropriate limits for the consideration of evidence 
on a motion for summary judgment, but it has improperly gone 
outside the record that was before the district court. Thus, on 
page 34 of its Brief, Wellesley quotes liberally from the 
deposition of David Ferry (p. 62) in support of its argument that 
Agosin was superior to plaintiff. This portion of Ferry's 
deposition was not, however, part of the record. See Aff. of John 
H. Mason, 5 9, p. 3. For that reason, plaintiff has filed a motion 
to strike that portion of Wellesley's brief.

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mind" was not present.
The weakness of Wellesley's argument is highlighted by its 

virtual concession that different standards were applied to 
plaintiff than were applied to Gascon-Vera and Roses. In order 
to escape the inferences of pretext and discrimination that might 
be drawn from such a disparity, it resorts to the argument that 
the comparisons are too "remote," and that "it is entirely 
possible that Wellesley's tenure standards may have tightened 
over the years. . . "-7 But there was no evidence whatsoever
that Wellesley's tenure standards had changed, and any inference 
that a change in the standards justified the denial of tenure to 
plaintiff, even if permissible, clearly goes to the weight of the 
evidence and may not be considered against him at the summary 
judgment stage.

Wellesley's argument that these comparisons are not 
probative because the "decision makers were entirely different" 
also misses the point. The relevance of comparative evidence, 
including prior decisions to grant tenure, is to establish what 
Wellesley's tenure standards were and to demonstrate the 
disparity in the application of those standards to plaintiff. It 
is the discriminatory animus of the persons who denied tenure to 
plaintiff and who were clearly aware of the standards applied in 
earlier cases -- since they were the tenure candidates in those 
cases —  that is at issue here, and pretext can be inferred from 
their application to plaintiff of a significantly higher standard

-7 Def. Brief at 38 (emphasis added) .
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than was applied to themselves. See Roebuck v. Drexel University, 
852 F .2d at 731 ("a jury could infer that [defendant's] reasons 
were pretextual, particularly given his willingness to apply an 
inappropriately rigorous standard to [plaintiff]"). In any case, 
an employer cannot insulate itself from liability by changing the 
decision-makers. "The deliberate act of an employee acting 
within the scope of his authority is the act of the employee." 
Shager v. Upjohn Co.. 913 F.2d at 404. In addition to the 
substantial showing that Wellesley's reasons for denying him 
tenure were pretextual, plaintiff produced significant other 
evidence from which Wellesley's discriminatory animus could be 
inferred. Unlike Medina-Munoz, 896 F.2d at 10, where this Court 
affirmed summary judgment because there was no "statistical 
evidence" and "no instances of disparate treatment," plaintiff 
made a showing in each of these areas from which an inference of 
discrimination can be drawn. Thus, not only did plaintiff 
introduce evidence that a different standard had been applied to 
him than to four other members of the Spanish Department who had 
been granted tenure, but the undisputed evidence established that 
each of the persons granted tenure was a white woman. A jury 
could infer, therefore, not only that the higher standards 
applied to plaintiff were evidence of pretext, but that he was 
treated differently because he was a brown-skinned Mexican- 
American male. It could properly conclude that the fact that all 
of the persons granted tenure by Wellesley despite their 
inferiority to plaintiff in some aspects of scholarship, teaching

8



or service were white women was evidence of unlawful
discrimination.

Plaintiff's statistical evidence of the disparity between 
the percentage of black and Hispanic representation on the 
Wellesley faculty between 1979 and 1987, which ranged from 2.31% 
to 3.89%, and the 6.2% percentage in the relevant labor market is 
also probative of discrimination. See. Wards Cove Packing Co., 
Inc.v. Atonio, 109 S.Ct. 2115, 2121 (1989). As this Court has 
explained: "Evidence of institutional state-of-mind may be
presented for the consideration of the trier-of-fact. because an 
employer’s willingness to consider impermissible factors such as 
race, age, sex, national origin, or religion while engaging in 
one set of presumably neutral employment decisions . . . might
tend to support an inference that such impermissible 
considerations may have entered into another area of ostensibly 
neutral employment decisions . . . "  Conway v. Electro Switch 
Coro.. 825 F .2d 593, 597 (1st Cir. 1987).

Wellesley's quarrel with this statistical evidence, however,
goes to its weight and not its admissibility. The extent to
which the particular statistics are considered probative of
discrimination is a determination that is inappropriate at the
summary judgment stage. As this Court has stated:

To a large extent, statistics signify what 
the factfinder reasonably believes that they 
signify. "The probative worth of statistical 
testimony must be evaluated in light of the 
methodology employed, the data available, 
and the factual mosaic unique to the case 
at hand." . . . [T]he information might be
suggestive or it might be meaningless; the

9



weight to be given to the statistics was 
for the factfinder.

Cumoiano v. Banco Santanderr, Puerto Rico, 902 F.2d at 156,
(citations omitted) (emphasis added).

The court below failed to consider this evidence in the
light most favorable to plaintiff, as it was required to, when it
concluded that it was of no value to plaintiff's case.
Similarly, Wellesley's contention on this appeal that the
statistics are misleading would be more appropriately addressed
to the jury at a trial on the merits.-7

In Olivera. slip op. at 17, this Court explained that when
the plaintiff in a discrimination case has met his burden on a
motion for summary judgment of refuting the employer's
articulated reasons for the action taken:

the additional evidence necessary to raise a 
genuine issue as to discrimination must be 
viewed, not in isolation, but as part of the 
other evidence adduced by plaintiff. The 
plaintiff does not have to prove by a preponderance 
of the additional evidence that discrimination 
was in fact the motive for the action taken.
All a plaintiff has to do is raise a genuine 
issue of act as to whether discrimination 
motivated the adverse employment action.

The statistical evidence and the evidence of disparate treatment
introduced by plaintiff clearly meets that burden.

-7 For example, Wellesley claims that plaintiff arbitrarily 
excluded Hispanics on the faculty from his statistical comparison. 
(Def. Brief at 45). However, plaintiff relied primarily upon 
Wellesley's classification of which of its faculty members were 
Hispanic. (See Exh. Y, Plaintiff's Exhibits in Opposition to 
Defendant's Motion for Summary Judgment).

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Conclusion
For the foregoing reasons and for the reasons set forth in 

plaintiff's main brief, the judgment of the district court should 
be reversed and the case remanded for a trial on the merits.

Respectfully submitted,

Jonathan Shapiro 
BBO No. 454220 
STERN & SHAPIRO
80 Boylston Street 
Suite 910 
Boston, MA 02116 
(617) 542-0663

Dated: January 18, 1991

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