                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-1997

Stewart v. Rutgers
Precedential or Non-Precedential:

Docket 96-5354




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iled July 25, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5354

JANICE P. STEWART,

Appellant,

v.

RUTGERS, THE STATE UNIVERSITY; JOSEPH J.
SENECA, Chair, Promotion and Review Committee;
FRANCIS L. LAWRENCE, President, Rutgers University

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 95-cv-04373)

ARGUED JANUARY 22, 1997

BEFORE: NYGAARD and LEWIS, Circuit Judges
and SCHWARZER,* District Judge.

(Filed July 25, 1997)



_________________________________________________________________
* Honorable William W Schwarzer, United States District Judge for the
Northern District of California, sitting by designation.
Michael H. Sussman (ARGUED)
Law Offices of Michael H. Sussman
25 Main Street
Goshen, NY 10924

Attorney for Appellant

Irving L. Hurwitz (ARGUED)
Carpenter, Bennett & Morrissey
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102

Attorney for Appellees

OPINION OF THE COURT

LEWIS, Circuit Judge.

Janice P. Stewart appeals from the district court's grant
of summary judgment in favor of Rutgers, the State
University of New Jersey; Joseph J. Seneca, chair of its
Promotion and Review Committee ("PRC"); and Francis L.
Lawrence, president of Rutgers (collectively "Rutgers") on
her racial discrimination claim initiated pursuant to 42
U.S.C. § 1981(c), and her Equal Protection claim brought
pursuant to 42 U.S.C. § 1983. She argues that the record
contains evidence from which a jury could conclude: (1)
that the rejection of her 1994-95 tenure bid was motivated
by racial discrimination; and (2) that Rutgers' proffered
legitimate nondiscriminatory reasons for not granting
tenure to her are not worthy of credence.

For the reasons that follow, we will reverse the district
court's grant of summary judgment as to both of Stewart's
claims.

I.

Dr. Janice P. Stewart, who is black, was an Assistant
Professor in the Department of Learning and Teaching at
the Graduate School of Education at Rutgers University,

                                 2
New Brunswick campus. From the 1990-1991 academic
year to the 1994-1995 academic year, Rutgers considered
368 faculty members for tenure, of whom 238 were granted
tenure, a success rate of sixty-five percent. During
Stewart's employment at Rutgers, no black person was ever
granted tenure in her department. Joint Appendix ("JA") at
695. The only black person to be granted tenure in the
Department of Learning and Teaching was a professor who
was hired from another university with tenure. Id. Except
for that person, there has not been a tenured black
member of the department for over twenty years. JA at 797.

Rutgers makes tenure decisions by considering the
teaching, service and scholarship of the tenure applicant.
Several factors are considered when evaluating scholarship:
peer evaluations, research, presentation of papers,
fellowship and grant awards and publication of books and
articles. No single factor is dispositive.

Rutgers' procedure for considering applicants for the
position of Associate Professor with tenure, described
in the 1994-95 "Academic Reappointment/Promotion
Instructions,"1 requires that an applicant prepare a
description of his or her qualifications, including scholarly
accomplishments. This information is compiled on "Form
a-1." Form a-1 and supplementary materials consisting of
confidential letters of recommendation and other evaluation
forms comprise the applicant's "Promotion Packet."

The Promotion Packet is first evaluated by tenured
members of the candidate's department. The department
produces an evaluation which reflects majority and
minority views on the substance of the candidate's
application. JA at 66. The Promotion Packet is also
evaluated by the Appointments and Promotions Committee
("A & P Committee"), which is composed of faculty members
of the candidate's institution. The department's and the A
& P Committee's evaluations are then considered by the
dean, who makes an independent recommendation.
_________________________________________________________________

1. Stewart applied for tenure during both the 1992-93 academic year and
the 1994-95 academic year. The 1992-93 instructions are essentially the
same as the 1994-95 instructions.

                               3
The next review is performed by the PRC. The PRC is
charged with making promotion recommendations to the
president of Rutgers. The PRC's purpose is to guard the
integrity of the tenure review process by ensuring that
evaluations of candidates have been made by leaders in
their academic fields and that "appropriate evidence and
analysis have been presented of accomplishment and
impact on the field to support these judgments." JA at 67.
After the PRC makes such an assessment, it then makes a
recommendation to the president of the university. After
review of all materials relating to the applicant, the
university's president makes a recommendation to the
Board of Governors, which makes the final decision to
grant or deny tenure. Each candidate for tenure is reviewed
independently by the PRC, without respect to the
credentials of other candidates.

Stewart first applied for tenure during the 1992-1993
academic year and was unsuccessful. Stewart's Promotion
Packet contained evaluations from nine referees, who were
faculty members at other universities. The referees were
asked to assess Stewart's scholarship, evaluating the
"originality and quality of [her] achievements, their impact
upon the field and the value of [her] contributions to the
profession," and her accomplishments "relative to others in
comparable positions in the discipline nationally and
internationally." JA at 246. The referees' responses were
varied.

The Department of Learning and Teaching recommended
Stewart for promotion to Associate Professor with tenure by
a vote of eleven to one. However, the department observed
that Stewart had not fully demonstrated peer acceptance
and recognition of her work because she had failed to
publish in refereed journals. The department also noted
that most of Stewart's work was collaborative, and that only
recently did she develop an independent line of research.

The A & P Committee recommended against promotion
and tenure by a two to one vote. JA at 345-46. Specifically,
the Committee stated that Stewart was a not a strong
candidate, but demonstrated potential for being a
productive, nationally visible scholar. Id. at 345. After
considering the recommendations from the department and

                               4
the A & P Committee, acting Dean Nobuo Shimahara
recommended granting tenure. Id. at 349. The dean's
decision was based on seven of the nine peer reviews which
commended Stewart's scholarship. Id. at 347. The dean
noted that although many of Stewart's works were
collaborative and that she had only one publication in a
refereed journal, he viewed her work as "definitely
substantial and meritorious" and "broadly recognized." Id.
at 348.

In contrast, the PRC recommended that Stewart be
denied tenure. Id. at 350. It noted that reviewers of
Stewart's work found a lack of substantive contribution in
scholarship and that the independence and quality had
been questioned. Id. The PRC concluded that based on the
record, Stewart "had not achieved a level of scholarly
accomplishment to justify promotion to the level of
Associate Professor with tenure." Id. President Lawrence
concurred with the PRC's recommendation and so informed
the Board. The Board thereafter denied tenure. Stewart was
informed of the Board's decision by letter dated April 2,
1993.

Stewart filed a grievance concerning the decision to deny
tenure. She claimed that the PRC's conclusion contained
material factual errors. Stewart alleged that the decision
was arbitrary and capricious and that procedural violations
occurred. She also alleged racial and gender discrimination.

The grievance committee found that the PRC's report
contained material factual inconsistencies and that the
PRC's decision had been made arbitrarily and capriciously.
It remanded Stewart's application for full re-evaluation with
an opportunity for Stewart to update relevant information.
Id. at 109. The committee found that the PRC's report was
not fully accurate on three points: (1) it failed to mention
that six of the nine peer reviews stated that Stewart's work
was more than merely promising, (2) it failed to reflect that
six of the peers were highly positive of Stewart's written
work and (3) the peer reviewers did not question the
independence or quality of Stewart's work. The committee
then concluded that Stewart's 1992-1993 rejection"could
not have been reached by reasonable evaluators." However,
the committee found no pattern of race or gender

                               5
discrimination. Id. at 109, 113. Though the committee
found no pattern of discrimination, it noted that:

[t]here was no apparent pattern of racial or sexual
discrimination, but serious deficiencies in the areas of
supervision, advice, mentoring, and assignment of
duties were apparent . . . The obvious and traditional
University concern with providing special support for
minority faculty was not evident in materials presented
at the hearing for this candidate. The [Graduate School
of Education] did not seem to carry out expectations of
affirmative action . . . [Stewart's allegations of racial
discrimination] were not proven in the technical sense,
but the [Promotion Review Committee] should be
apprised of the setting for this candidate's probationary
years at Rutgers in the context of the University's
commitment to affirmative action.

JA at 112.2

Stewart applied for tenure again during the 1994-1995
_________________________________________________________________

2. The grievance committee's conclusion that there was no racial
discrimination relating to the denial of Stewart's tenure bid is not
definitive. The grievance committee explicitly concluded that although
there was no "apparent" racial discrimination in the "technical sense,"
there was sufficient evidence to illustrate that the Promotion Review
Committee did not conduct its review of Stewart's bid for tenure
consistent with the University's affirmative action policy, as noted above.
Further, the grievance committee's finding that there was no pattern of
racial discrimination was limited to the specific allegation made by
Stewart that the conduct of the Department of Teaching and Learning
and its Chairperson, not the Promotion Review Committee, demonstrated
a pattern of discrimination against her. Finally, the record indicates that
in reviewing Stewart's 1994-95 bid for tenure, the grievance committee
was not permitted to consider or evaluate the promotion packets of other
individuals in assessing her discrimination claims. Assuming that the
grievance committee was similarly restricted in 1994, it is obvious that
the committee could not consider factors critical to Stewart's showing of
pretext, and thus critical to her claim in this litigation. In sum, the
circumstances indicate that the grievance committee's finding of no
discrimination does not end the inquiry, as the specific claims and
theories alleged by Stewart could not have been fully addressed by the
grievance committee, to the extent that they were presented to the
committee for review.

                               6
year. In this evaluation, individuals outside Rutgers again
submitted peer review recommendations. The peer review
comments were generally positive. Some stated that Stewart
likely would be granted tenure at their respective
institutions. In general the comments commended Stewart's
contributions and position of authority in the field. One
review was less favorable. It expressed the view that
Stewart's productivity was weak because she had published
three articles as first author in mediocre journals which are
not research-oriented. JA at 433.

The department unanimously recommended Stewart for
promotion. Id. at 446. Faculty members rated Stewart's
scholarship from outstanding to average, with seven of ten
rating her "above average." Id. at 445. The department's
report stated that referees were extremely positive but
noted areas of concern. Id. at 444.

The A & P Committee assessed Stewart's scholarship as
somewhat limited, but passable. It also noted that Stewart
"ha[d] accumulated a strong and improving record of
research, teaching and service to minority groups and,
therefore, in addition to her other accomplishments, ha[d]
advanced the purposes of the University's Affirmative Action
program." JA at 455. Louise Cherry Wilkinson, dean of the
Graduate School of Education, recommended Stewart for
promotion. She viewed Stewart's scholarship as above
average, and her work in the field as above average and
well regarded. She further found that the quality and
impact of Stewart's research was high, but that the
quantity was not above the norm. JA at 450-51.

The PRC stated that because Stewart had not established
a record of substantial, independent productivity, she had
not demonstrated the requisite level of scholarship to justify
promotion with tenure. Id. at 351. The PRC also determined
that Stewart's work lacked significant, external peer-
reviewed support and did not demonstrate substantial
national impact. Id.

Again, the president and the Board denied promotion
with tenure. JA at 115. Stewart was informed by letter on
June 13, 1995. Id. Stewart filed another grievance claiming
factual errors by the PRC, arbitrary and capricious

                               7
decision-making and racial discrimination. The grievance
was denied in its entirety.

Two professors in Stewart's department were granted
tenure in the 1994-1995 academic year, Drs. Kelly and
Smith. The peer reviews which were part of these
professors' Promotion Packets featured evaluations which
were generally more laudatory than Stewart's. JA at 499,
524, 599, 629. Furthermore, these professors had received
greater grant support than Stewart. Drs. Kelly and Smith
obtained $623,653.00 and $18,039, respectively. Id. at 485,
586. Stewart obtained $13,500.00. Id. at 282-83.

On May 10, 1996, the district court entered summary
judgment in favor of the defendants. With respect to the
March 1993 denial of tenure, the district court found that
Stewart's claims under 42 U.S.C. §§ 1981(c) and 1983 were
time barred, a ruling not contested on appeal. With respect
to the tenure rejection of May 1995, the district court
determined that no issues of material fact existed regarding
Stewart's claim that her tenure denial in 1994-95 was
motivated by racial discrimination. This appeal followed.

Our review of a district court's grant of summary
judgment is plenary, and we are required to apply the same
test the district court should have utilized initially.
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.
1987) (en banc). The district court had jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction under 28 U.S.C. § 1291.

II.

A.

The question before us is whether there is sufficient
evidence to create a genuine issue as to whether the
employer intentionally discriminated. Weldon v. Draft, 896
F.2d 793, 797 (3d Cir. 1990). In order for Rutgers to
succeed on a motion for summary judgment, it must show
that Stewart "will be unable to introduce either direct
evidence of a purpose to discriminate or indirect evidence
by showing that the proffered reason [for her tenure denial]
is subject to factual dispute." Id.

                               8
We are required to examine the evidence of record in the
light most favorable to Stewart, as the party opposing
summary judgment, and resolve all reasonable inferences
in her favor. Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). "This standard is
applied with added rigor in employment discrimination
cases, where intent and credibility are crucial issues."
Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162 (7th Cir.
1994).

B.

At issue is whether Stewart has satisfied her burden
under the McDonnell Douglas-Burdine framework to show
that racial discrimination motivated her tenure denial, or
that Rutgers' nondiscriminatory reason for such denial is
unworthy of credence. See Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Our application of the
McDonnell Douglas-Burdine framework is applicable to
Stewart's allegation of racial discrimination under 42 U.S.C.
§§ 19813 and 1983.4 See St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 506 n.1 (1993) (assuming applicability of
McDonnell Douglas-Burdine framework to 42 U.S.C. § 1983);
_________________________________________________________________

3. 42 U.S.C. § 1981 mandates that:

[a]ll persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens . . . .

42 U.S.C. § 1981(a). This section further instructs that "[t]he rights
protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State
law." 42 U.S.C. § 1981(c).

4. 42 U.S.C. § 1983 provides in relevant part:

"[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any state . . . subjects, or causes to
be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable to the
party injured . . . ."

                               9
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)
(applying framework to claims under 42 U.S.C. § 1981).

Under McDonnell Douglas, Stewart must first establish a
prima facie case by a preponderance of the evidence. St.
Mary's Honor Ctr., 509 U.S. at 506 (citing Burdine, 450 U.S.
at 252-53). In Bennun v. Rutgers State University, 941 F.2d
154 (3d Cir. 1991), which also involved a rejected bid for
tenure at Rutgers, we explained that the plaintiff must
demonstrate by a preponderance of the evidence that she is
within a protected class, that she applied for, was qualified
for and was rejected for the position she sought and that
nonmembers of the protected class were treated more
favorably. Id. at 170. Here, the parties do not dispute that
Stewart did just that.

After an employee has established a prima facie case, this
creates a presumption of discriminatory intent by the
defendant-employer. Burdine, 450 U.S. at 254. The burden
then shifts to the defendant to produce evidence that the
adverse employment action was taken "for a legitimate,
nondiscriminatory reason." Id. "To accomplish this, the
defendant must clearly set forth, through the introduction
of admissible evidence, the reasons for the plaintiff 's
rejection," id. at 255, which would support a jury finding
that unlawful discrimination was not the cause of the
adverse employment action. Hicks, 509 U.S. at 507. If the
defendant's evidence creates a genuine issue of fact, the
presumption of discrimination drops from the case.
Burdine, 450 U.S. at 260 (noting that "the defendant bears
only the burden of explaining clearly the nondiscriminatory
reasons for its actions"); Ezold v. Wolf, Block, Schorr and
Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992). The burden
then falls upon the plaintiff to prove that the "employer's
proffered reason [for the employment action] was not the
true reason for the . . . decision" but was instead
pretextual. Hicks, 509 U.S. at 508.

In Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1990), we
explained that in order to make the requisite showing of
pretext,

the plaintiff cannot simply show that the employer's
decision was wrong or mistaken, since the factual

                               10
dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent. Rather, the . ..
plaintiff must demonstrate such weakness,
implausibilities, inconsistencies, incoherences, or
contradictions in the employers's proffered legitimate
reasons for its action that a reasonable factfinder could
rationally find them `unworthy of credence,' and hence
infer `that the employer did not act for [the asserted]
nondiscriminatory reasons.'

Id. at 765.

In order for a plaintiff to survive summary judgment at
this stage, she must present sufficient evidence to raise a
genuine issue of fact as to whether the defendant's
proffered reasons were not its true reasons for the
challenged employment action. Fuentes, 32 F.3d at 764
("[T]o defeat summary judgment when the defendant
answers the plaintiff's prima facie case with legitimate,
non-discriminatory reasons for its action, the plaintiff must
point to some evidence, direct or circumstantial, from
which a factfinder could reasonably either (1) disbelieve the
employer's articulated legitimate reasons; or (2) believe that
an invidious discriminatory reason was more likely than
not a motivating or determinative cause of the employer's
action."); Sheridan v. E.I. DuPont de Nemours & Co., 100
F.3d 1061, 1067 (3d Cir. 1996) (en banc). The crux of the
district court's decision was that Stewart failed to make
such a showing.

C.

Stewart may avoid summary judgment by establishing
that a reasonable factfinder could conclude that invidious
discrimination more likely than not motivated the adverse
action. Brewer v. Quaker State Oil Refining Corp., 72 F.3d
326, 331 (3d Cir. 1995). In reaching the conclusion that
Stewart could not make such a showing, the district court
declined to consider a significant piece of circumstantial
evidence offered by Stewart: the grievance committee's
conclusion that the denial of tenure to Stewart in 1992-93
was "arbitrary and capricious." In doing so, the district

                               11
court failed to give Stewart the benefit of all reasonable
inferences.

Stewart points to the grievance committee's findings
regarding her 1992-1993 tenure rejection. The grievance
procedure is provided by the American Association of
University Professors, with whom Rutgers has an
agreement, with the purpose of "ensur[ing] the integrity of
the reappointment, promotion, and tenure procedures; to
provide a process for determining whether evaluations
resulting in negative personnel actions were flawed . . . and
to provide remedies in cases where defects are found."
While the district court was correct in finding that any
discrimination claim based on Stewart's 1992-93 tenure
denial is time-barred, we reject the notion that the events
surrounding that denial are not relevant evidence which
Stewart could use at trial. See United Air Lines v. Evans,
431 U.S. 553, 558 (1977) ("A discriminatory act which is
not made the basis for a timely charge is the legal
equivalent of a discriminatory act which occurred before the
statute was passed. It may constitute relevant background
evidence in a proceeding in which the status of a current
practice is at issue, but separately considered, it is merely
an unfortunate event in history which has no present legal
consequences.").

The grievance committee found that the PRC's decision to
deny Stewart's promotion to associate professor was
"arbitrary and capricious" and "could not have been
reached by reasonable evaluators." JA at 109. It noted
various inconsistencies and procedural errors. For example,
in reviewing the PRC's conclusion that Stewart's
substantive contribution to scholarship was inadequate the
committee noted that the PRC's characterization of her
work as merely "promising" failed to "reflect the fact that six
of the nine outside letters, including letters written by
nationally recognized leaders in the field, spoke of Professor
Stewart's work as considerably more than simply
`promising.' " Id. at 114. The grievance committee also
criticized the PRC's finding that "some" evaluators
questioned the independence and quality of Stewart's work.
Id. The committee stated that "[w]hile it is true that some
evaluators from Rutgers did make this judgment, we found

                               12
no evidence of this opinion regarding the independence or
quality of Stewart's work in any of the nine letters written
by outside reviewers." Id. Due to these factual and
procedural inconsistencies and, according to the grievance
committee, "arbitrary and capricious conduct on the part of
the PRC," the committee ordered that Stewart's tenure bid
be reevaluated.

In our view, this is sufficient evidence upon which a jury
could conclude that Stewart's 1994-95 tenure denial may
have stemmed from discrimination based on race. See
Village of Arlington Heights v. Metropolitan Housing
Development Corporation, 429 U.S. 252, 267-68 (1977)
("Departures from the normal procedural sequence also
might afford evidence that improper purposes are playing a
role. Substantive departures, too, may be relevant,
particularly if the factors usually considered important by
the decisionmaker strongly favor a decision contrary to the
one reached.").

We conclude that the grievance committee's finding that
Stewart's 1992-93 rejected tenure bid "could not have been
reached by reasonable evaluators" is sufficient to defeat
Rutgers' motion for summary judgment since it presents a
genuine material issue as to whether the tenure denial was
a product of discrimination. Accordingly, we find that
summary judgment was improper.5
_________________________________________________________________

5. Stewart also alleged that Rutgers' proffered nondiscriminatory reason
for nonpromotion was "unworthy of credence." The district court, in its
opinion, styled Rutgers' non-discriminatory justification for denying
Stewart tenure as: (1) Drs. Smith and Kelly published more material in
journals considered as "top-tier," (2) Smith and Kelly had been awarded
more funds than Stewart, and (3) the defendants' evaluation of Stewart
was properly based on subjective qualitative evaluations of her work,
which the defendants found inadequate to justify promotion. JA at 41.

Stewart contends that the district court ignored significant evidence of
pretext. Stewart relates that the PRC relied extensively on the outside
evaluators to assess her scholarship. This is significant, Stewart
contends, because no committee member had direct or relevant
experience in Stewart's area of expertise. Stewart also argues that her
negative references were highlighted while the negative reviews of Drs.
Kelly and Smith were not. Finally Stewart contends that the difference in

                               13
III.

For the reasons stated above, we reverse the district
court's order and remand for trial.

A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

the amount of grant money she obtained in relation to Smith was too
minute to be reasonably relied upon by Rutgers as a reason for
nonpromotion.

Because we conclude that the district court's grant of summary
judgment was improper, in light of its failure to consider the grievance
committee's finding of arbitrariness as probative evidence of racial
animus, we need not reach Stewart's contention that Rutgers' proffered
reasons    for    her    tenure   denial    are    "unworthy    of    credence."


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