Brousard-Norcross v. Augustana College Ass'n

HEANEY, Senior Circuit Judge,

dissenting.

I respectfully dissent from Part II of the majority’s opinion. This case turns on whether the reasons proffered for Linda *980Brousard-Norcross’ tenure denial were a pretext for unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964. In my view, Professor Brousard-Norcross has established a factual dispute over whether the proffered reasons for her tenure denial were pretextual and is therefore entitled to a jury trial on that issue.

This case comes to us on summary judgment. “If the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” summary judgment is not appropriate. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Applying this standard to this case raises the issue of whether a reasonable fact finder could find that the proffered reasons for Brousard-Nor-cross’s tenure denial were a pretext to mask sex discrimination. In making this determination, “the nonmoving party must be given the benefit of all favorable factual inferences.” Evans v. Pugh, 902 F.2d 689, 691 (8th Cir.1990). Brousard-Norcross has raised genuine issues of material fact regarding Augustana’s motives for denying her tenure, and thus, a reasonable jury could find that she was the victim of unlawful sex discrimination.

Brousard-Norcross chronicled several incidents which give rise to an inference that her sex factored into her tenure denial. During her job interview with Augustana, the then chair of the education department warned Brousard-Norcross against joining what the chair described as a “radical” campus women’s group, because her involvement with such a group could affect her future with Augustana College. During a 1983-84 school year conference, this same individual again cautioned Brousard-Norcross against becoming too involved in feminist issues. During that same year, the chair related a story to Brousard-Nor-cross with the moral that in nature female animals are docile and timorous, while males are fearless, and that humans have something to learn from this fact.12 On another occasion during that same year, the chair explicitly advised Brousard-Nor-cross that she was too aggressive and assertive for a woman.

Additional events suggest that the tenure denial was retaliatory. From 1982 through 1985 Brousard-Norcross expressly questioned her salary and teaching load relative to male faculty members. In response, the chair of the department warned Brousard-Norcross that she might not receive tenure if she questioned her salary. Another department member condemned Brousard-Norcross’ salary complaints as inappropriately aggressive behavior, yet added that if a male made the same complaint, he would not consider such behavior to be aggressive. When the chair was denied tenure and the second department member was denied leave in 1985, they blamed the feminists for their denials and warned the feminists not to expect their support when the feminists became eligible for tenure or promotion. These two professors eventually supplied two of the three negative recommendations disapproving Brousard-Norcross’ tenure application.

These events alone cast doubt on the defendants’ motives for denying Brousard-Norcross tenure. Equally damning, however, was the defendants’ deviation from the tenure evaluation process while considering Brousard-Norcross’ application. Such a deviation had never occurred before. The deviation at issue was the Personnel Council’s decision to distribute evaluation forms to Brousard-Norcross’ Fall 1987 students after they had recessed for Christmas vacation. Compared with the normal classroom evaluation method, this mail survey garnered a relatively poor response — twenty evaluations returned out of thirty-two mailed. More importantly, distributing the evaluations during the recess created the probability that the students would be evaluating Brousard-Nor-*981cross after they had received their final grades. In fact, the evaluations contained at least seven negative comments regarding Brousard-Noreross’ grading or testing practices. Moreover, some of the students who had the opportunity to evaluate Brous-ard-Norcross, after they had received their grades from her, had been graded lower by Brousard-Noreross than these students needed to qualify for student teaching assignments; these students certainly would not be able to fairly evaluate the professor whose grading had prevented them from becoming student teachers.

Some evidence suggests that the defendants knew that students might be able to evaluate Brousard-Noreross after receiving their grades. Although Brousard-Nor-cross taught three classes in the Fall of 1987, the Personnel Council mailed evaluations to the students in only two of her classes; many of the students in the solicited classes did not receive favorable grades. In contrast, the college inexplicably decided not to send evaluations to the third class of students; in the unsolicited class, all of the students earned “As”. These facts give rise to the inference that illegal motives inspired the distorted evaluation process, particularly when considered with the comments of Brousard-Noreross’ departmental colleagues.

Together the comments and the peculiar evaluation process suggest that the proffered reasons for the tenure denial were pretextual. The Personnel Council offered two reasons for its recommendation to deny Brousard-Noreross tenure: negative student evaluations from the Fall 1987 classes and nonpositive relationships with some of her department colleagues. The distortion in the student evaluation process has already been outlined. Two additional facts, however, suggest that this first proffered reason was mere pretext. First, pri- or student evaluations of Brousard-Nor-cross had been overwhelmingly positive. Second, after originally claiming that a majority of her former students were not satisfied with Brousard-Noreross’ handling of her courses, the Personnel Council redrafted its initial letter informing Brousard-Noreross of its negative recommendation in order to limit its reference to negative student evaluations to the Fall 1987 classes.

The majority’s response to the student evaluation issue is alarming. According to the majority, “[i]t is not for us to determine what constitutes a sufficient amount of negative feedback from students before a denial of tenure is justified; ...” Under this reasoning, universities can rely on the slightest negative student reaction, regardless of its merit, to deny tenure. By bestowing such discretion on universities, the majority has effectively shielded these institutions from Title VII liability in the context of tenure decisions.

Examining the second proffered reason for the tenure denial, nonpositive departmental relationships, also discloses indications of pretext. As the majority recognizes, an overwhelming number of her colleagues favored granting tenure to Brous-ard-Norcross. In fact, eight of the ten faculty members who made a recommendation supported her tenure bid, with one of the negative recommendations coming from one of the male colleagues who was responsible for some of the sexist remarks referenced earlier.13 In addition, Brous-ard-Norcross’ tenure file was filled exclusively with positive recommendations from professional acquaintances and former students. Given these facts, there is a factual dispute as to whether Brousard-Noreross’ colleagues supported her tenure application. Similarly, because two of the three negative recommendations came from the men who had made numerous and repeated disparaging, sexist remarks, it is debatable whether their opinions were anything more than a pretext for sex discrimination.

On summary judgment, this court need not reach the merits of the case before it. Instead, we review the record to ascertain whether there is a genuine issue of material fact. The burden of establishing the *982existence of a genuine issue of material fact rests with the nonmoving party. “Rule 56(e) [of the Federal Rules of Civil Procedure] permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings them-selves_” Celotex Cory. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). These referenced evi-dentiary materials include depositions and answers to interrogatories. See Fed.R. Civ.P. 56(c). Brousard-Norcross relied upon these very tools of discovery to develop the facts that have been recounted above. These facts create a genuine issue as to whether the proffered reasons for Brousard-Norcross’ tenure denial were pretextual. In such a situation, summary judgment should not be entered against the nonmoving party.

For these reasons, I dissent from the majority’s decision to affirm the district court’s grant of summary judgment.

. Specifically, the chair explained to Brousard-Norcross that he had a new brood of piglets and when the piglets experienced the springtime air for the first time, all the male pigs jumped out of the pen and into the open air without fear, while the female pigs pranced and cowered and refused to exit. According to the chair, the moral of the story was that people can learn a great deal about male and female behavioral differences from animals and that hormonal distinctions account for these differences.

. The other professor who had berated Brous-ard-Norcross with regard to her feminism declined to cast an explicitly negative recommendation but nonetheless provided a substantively negative review of Brousard-Noreross' tenure application.