The opinion of the court was delivered by: KNOX
The forecast as to the complex and protracted nature of the case although not a class action has been borne out by subsequent events. The case was tried non jury before the court, plaintiff having waived her rights to jury trial with respect to causes of action for damages under the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3). Trial on the merits occupied the court for a period of 74 days during seventeen weeks. 12,085 pages of testimony were taken, 73 witnesses were heard some of them being on the stand for many days and close to 1,000 exhibits were received in evidence.
During the trial, the court has been required to make excursions through the very frontiers of human knowledge in the ever advancing field of biochemistry. The case is also an example of the devastating effects of sex discrimination cases of this kind against universities upon the work and calendars of the United States courts, and the commitments and time of trial counsel. Attempts to curtail the case proved fruitless in view of plaintiff's claim, for which there appeared to be a reasonable basis that because of sex discrimination males had been hired and promoted in her department who were less qualified than she was to receive promotion and tenure. This necessitated the examination of the professional credentials of numerous professors, a task for which the court like probably most federal judges was ill suited. The case of Cussler v. University of Md., 430 F. Supp. 602 (D.Md.1977) is another illustration of the problems posed by a case of this kind. Before proceeding with the opinion and discussion, in view of the multitudinous factual problems presented, the court will make the following detailed.
1. The plaintiff is Dr. Sharon L. Johnson, a female assistant professor employed by the University of Pittsburgh (hereinafter Pitt) in the Biochemistry Department of the School of Medicine. Pitt is a large university with many schools and colleges headquartered in Pittsburgh, Pennsylvania. It has 35,000 students and 7500 employees.
2. The plaintiff's action is based on the Civil Rights Act of 1964, Title VII, as amended, 42 U.S.C. § 2000e, et seq. The Civil Rights Act of 1871, 42 U.S.C. § 1983, the Civil Rights Act of 1861, § 1985(3) and Article 1, Section 28 of the Pennsylvania Constitution. The defendants in the Title VII action are the University of Pittsburgh, Dr. Donald N. Medearis, Dean of the Medical School, and Dr. Edward C. Heath, Chairman of the Biochemistry Department. The defendants in the plaintiff's action based on 42 U.S.C. §§ 1983 and 1985(3) and the Pennsylvania Constitution are the University, Dr. Medearis, Dr. Heath, the Chancellor, Dr. Wesley W. Posvar, the Vice Chancellor for the Health Professions, Dr. Francis S. Cheever, and certain members of the Board of Trustees of the University. William H. Rea, George S. Stinson, Robert A. Ahlbrandt, Henry L. Hillman, Leon Falk, Dr. S. Harris Johnson and Harvey J. Haughton. The Chancellor at Pitt performs the functions of president in other universities.
After leaving Mellon Institute, Plaintiff spent one year at Vassar College as an associate professor of chemistry without tenure. Preliminary Injunction Transcript (hereinafter P.I.) 25-27, T. 1206, 1909 (Johnson); P.E. 70. The National Institute of Health grant which she had obtained at Mellon Institute was transferred by plaintiff to Vassar in 1965. After leaving Vassar in 1966, plaintiff spent one year as a chemist for Westinghouse where she did research on the physical and chemical properties of liquid crystals.
4. The plaintiff was employed originally at Pitt at an annual salary of $13,000 which had increased to $18,000 in 1973 after certain raises and cost of living increases. The salary she received was higher than the salary paid to a male assistant professor in the Department who had been hired in 1961. D.E. 107.
5. In 1967 Dr. Moldave also hired Dr. Nakada at the rank of associate professor with a salary of $18,500 in the Biochemistry Department. Based on his outstanding qualifications, Dr. Moldave actively sought to recruit Dr. Nakada as a member of the faculty.
From 1955 to 1958, Dr. Nakada was an outstanding scientist of renown having been a faculty member of Osaka University in Japan; a visiting assistant professor at Columbia University; a visiting assistant professor at MIT and a project leader in charge of a large research group at E.I. Du Pont DeNemours & Co. The salary paid was appropriate for someone of Dr. Nakada's stature.
6. At the time Dr. Nakada and Dr. Johnson were hired, Dr. Nakada had a considerably more impressive bibliography and was a senior scientist with substantial research achievements in the area of biochemistry as compared with Dr. Johnson, a junior scientist who had not yet achieved full development and whose work was characterized as being in the area of physical-organic chemistry which was beginning to lean in a more biochemical direction. T. 725 (Mandel). In the seven years from 1960-67, Dr. Nakada had 24 publications as compared to the nine papers published by plaintiff during the eight-year period since receiving her Ph.D. T. 3711-5 (Cheever).
7. When the plaintiff was hired by Dr. Moldave, three other individuals were already employed in the department at the rank of assistant professor, Drs. McNary, Weliky and Diven. In addition to the plaintiff, Dr. Moldave hired Drs. Bishop, Arfin and Ihler as assistant professors in 1969. In 1970, Dr. Moldave hired another assistant professor, Dr. Phillips.
8. In 1969 Dr. Diven transferred his primary appointment from the Biochemistry Department to the Pathology Department which assumed responsibility for his salary. In the Spring of 1971 he was given tenure in the pathology department which was responsible for his salary and his primary department. He was also promoted to associate professor in the Biochemistry Department where his appointment was secondary. Dr. Heath was likewise informed of this.
In 1970 the appointments of Dr. McNary and Weliky, both males were not renewed, and in 1971 Dr. Bishop, also a male, was terminated. T. 10,929-34 (LiVolsi); T. 11,787-9 (Nakada); D.E. 107.
9. Dr. Moldave resigned as department chairman in 1970 to go to the Department of Biological Chemistry of the California College of Medicine, University of California at Irvine.
The Department Under Dr. Basford.
10. Dr. Robert Basford became the acting chairman of the Department of Biochemistry of the School of Medicine for the period from July 1970 to July 1971.
11. During this period, no new faculty appointments were made. However, the following changes in personnel occurred:
a. Dr. Arfin resigned to take a position in Dr. Moldave's new department.
b. Dr. Ihler was promoted to the rank of associate professor in the Spring of 1971.
12. Dr. Basford recommended Dr. Ihler for promotion to the rank of associate professor on February 15, 1971. At that time there was a competing offer for his services from Dr. Moldave at the University of California. His promotion was approved by the ad hoc committee appointed by the Dean in accordance with usual university procedures. Although Dr. Heath was not chairman at the time his selection was known and Dean Medearis as a courtesy wrote to Dr. Heath to inform him of Dr. Basford's recommendation.
13. With respect to Dr. Diven's primary appointment in pathology and secondary appointment in Biochemistry an ad hoc committee was appointed chaired by Dr. Hayashi.
Dr. Hayashi testified that the weight to be given to teaching, research productivity and outside letters of recommendation would have been different if Dr. Diven were being considered for appointment to tenure in the Department of Biochemistry, where service is not an important element. Dr. Ebert concurred that a person with a joint appointment in pathology and biochemistry might be qualified for tenure in the pathology department because of his service contribution, but unqualified for tenure in the biochemistry department.
As is customary when Dr. Diven was promoted to tenure in the pathology department, he was also promoted to the rank of associate professor in the biochemistry department where he held a secondary appointment. Dr. Hayashi explained that Dr. Diven would not have had the rank of associate professor in the biochemistry department if he had not been promoted to tenure in the pathology department. T. 11,566, 11,589 (Hayashi). Although the committee was only concerned with Dr. Diven's qualification for promotion in the department of pathology, Dr. Basford was consulted as acting chairman of the department of biochemistry to make certain that he had no objections in view of Dr. Diven's secondary appointment in his department. T. 11,571, 11,588 (Hayashi).
Dr. Heath was also informed of Dr. Diven's promotion as a matter of courtesy. Since Dr. Diven was receiving tenure in the pathology department, Dr. Heath testified that he would not have voiced any objection except under extraordinary circumstances since Dr. Diven's primary appointment was in the pathology department, which was entirely responsible for his salary. T. 2708-13 (Heath); T. 6475 (Medearis); T. 10,972, 11,027 (LiVolsi). Dr. Heath testified, however, that after hearing Dr. Diven lecture to the medical students in the freshman biochemistry course, he gave Dr. Diven no further assignments in that course. T. 2706, 3490 (Heath).
14. Because the post of chairman of the department of biochemistry became vacant with Dr. Moldave's departure in June of 1970, the Dean of the School of Medicine determined that it would be an appropriate time to consider whether the biochemistry department should continue as an independent department in the medical school or whether it should be merged into the biochemistry department of the School of Arts and Sciences.
Accordingly, a committee chaired by Dr. Jack Myers was formed to consider the future of the biochemistry department in the school of medicine.
16. As a result of their deliberations, the committee concludes that the department of biochemistry in the medical school had a unique function and should not be merged into the biochemistry department of the school of arts and sciences. (Myers 8911). The committee determined that the mission of the biochemistry department could be fulfilled if appropriate and vigorous leadership was provided by the chairman.
17. Thereafter, a search committee, chaired by Dr. Julius Youngner, was appointed by Dean Medearis to select a new chairman for the biochemistry department of the school of medicine. The search committee was charged with the responsibility of identifying an individual who was preeminent in the field of biochemistry, excellent in research, vitally interested in teaching medical students and experienced in administration.
18. The search committee solicited names of potential candidates from more than three dozen experts, resulting in a list of 60 or 70 names. In addition, the committee advertised the position in the Journal of Science. T. 4679, 4687 (Bentley). In their search for appropriate candidates, the committee and the dean were particularly interested in identifying female candidates, and the committee made a special effort to solicit the names of qualified women to fill the position. Youngner 8583-85, 8643-6.
19. Of the 60 or 70 individuals identified, five were invited by the committee to give seminars at the University of Pittsburgh. Of the five persons who were invited to present a seminar, one was a woman, Dr. Elizabeth Neufeld. Another woman who was contacted, Dr. Mary Ellen Jones, declined to be considered.
20. Dr. Edward Heath was one of the candidates who was invited to give a seminar. He had been recommended to the committee by two separate individuals, one a man and one a woman and his other credentials and experience indicated he was well qualified.
21. The search committee recommended to the dean that Dr. Heath be offered the position as chairman of the department of biochemistry. In addition, Dr. Heath met with Dr. Myers who was the chairman of the committee to evaluate the biochemistry department and a consultant to the search committee. Dr. Myers approved the choice of Dr. Heath, particularly in view of Dr. Heath's knowledge in the area of medical education and his plans for the development of the department, which included interaction with other departments in the medical school and the teaching of biochemistry in a manner relevant to medical science.
22. The search committee also seriously considered Dr. Neufeld for the position of chairman, but determined that Dr. Heath was a superior candidate because he had had substantial experience in teaching medical students and in carrying out administrative responsibilities in a medical school setting. Dr. Neufeld did not have such teaching and administrative experience; however, had Dr. Heath declined the offer, the committee would have recommended that Dr. Neufeld be offered the position.
23. Dr. Heath was offered the position of chairman in March, 1971 and accepted the position in late March or early April 1971.
24. Heath had broad powers to revitalize the teaching and research programs of the department of biochemistry. Myers 8923, 8943. Two chairmen had recently left and there had been an erosion of morale and spirit and a loss of direction and leadership. (Youngner 8579-81; J.E. Johnson 7230-31). Dr. Heath had not only the prerogative but the express duty to define a mission for the department and to take whatever steps were necessary to reshape the department consistent with that mission. The court finds that a medical school has the authority to reshape a department by appointing a new chairman.
26. Between January 1971 and July 1971 when Dr. Heath assumed the position of chairman of the department of biochemistry, he visited the department on six different occasions for a total of 12 days.
During these visits, he met with the faculty of the department for the express purpose of apprising them of the mission for the department, including the medical school teaching program and the research program for the department. T. 2675, 2749, 8696 (Heath); T. 8654 (Youngner).
Dr. Heath testified that he met with the faculty of the department and discussed his mission and plans. It may be inferred that plaintiff attended these meetings and approved of Heath's plan.
27. The new chairman was limited in his ability to implement his mission by financial and physical constraints over which he had no control. The only means by which changes could be implemented was by changes in the faculty. The chairman was, of course, unable to make any changes with respect to tenured faculty. New faculty could be appointed if positions were available. The only other opportunity a new chairman has for reshaping the department is to replace probationary or nontenured faculty. The accomplishments of probationary employees must therefore be evaluated in light of the departmental mission. The fact that a nontenured faculty member has served in the department prior to the arrival of the new chairman does not preclude the chairman from evaluating faculty for tenure in terms of his mission.
28. After assuming the position of chairman, Dr. Heath took steps to implement the mission which he had previously stated to the faculty, viz:
He revised the biochemistry course to stress a more biological and pathological orientation. He also requested all faculty to attend the lectures in the medical school biochemistry course and initiated the practice of conference session with the medical students for the purpose of linking biochemistry and disease, a teaching method which the plaintiff agreed was effective. (T. 245-50).
Also, in order to stimulate interaction within the department, Dr. Heath instituted the Journal Club where matters of mutual scientific interest could be discussed.
29. In accord with his policy that all faculty attend the medical school biochemistry course lectures, Dr. Heath, as well as other members of the faculty, had the opportunity to observe the plaintiff lecture to first year medical students in the Fall of 1971. During this time, the plaintiff was assigned to give four lectures in the freshman biochemistry course. The plaintiff's teaching performance throughout all four lectures was poor. During each class, the students expressed their dissatisfaction by making rude noises, audible complaints and by walking out during the lecture period. Toward the end of the period in one lecture in particular, Dr. Johnson was attempting to explain data which she was writing on blackboards, she had her back to the audience and failed to notice a student who had raised his hand to ask a question. After some period of time, she turned around and recognized the student who expressed his frustration and dissatisfaction as follows:
"Yes, I have had a question for the last ten minutes. I have had my hand in the air but you have been ignoring me. You have been ignoring all of us. You didn't seem to come here to teach us. You seem to come here to confuse us. I have been to your lectures and I know less than when I came in." T. 9382-3.
Other students then joined in the criticism of the lectures. The disturbance increased in volume and intensity as students began shouting and swearing at the plaintiff, accusing her of failing to present clear and comprehensible lectures. T. 9383 (Finn); 9918 (Glew). Dr. Glew described the scene as follows:
The class, as a whole, many vocal points of abuse arose. In fact, the abuse and the language was so extreme that I had never seen anything like it in a classroom. I recall, in fact, one of the girls sitting next to me was a freshman medical student and she stood up and in very foul language and screamed out to Dr. Johnson, "What the fuck are you doing. I can't understand a single word you are saying," and I remember talking with the same student about two days later because I had approached that student and I cautioned her that if she, in subsequent lectures, continued to attack Dr. Johnson in that manner that I would not permit her to participate in these review sessions, these lectures, that I was giving on the same material. T. 9918.
The disruption terminated when students stood up and left the room. While Heath may not have taken proper steps to control the situation he certainly was not responsible for it having arisen.
30. Throughout the demonstration, the plaintiff appeared to be unable to comprehend the seriousness of the problem and took no steps to bring the class under control or to respond to students' criticism in an effective manner.
31. The faculty who observed it characterized the outburst as a "boisterous and unruly revolt", "a massive rebellion", "a small riot", and a "Boisterous outburst". They testified that it made an extraordinary impression on them since they had never witnessed such an extreme student reaction. Although the faculty did not condone the students' behavior, they testified that the frustration and dissatisfaction of the students was justified by Dr. Johnson's complete failure to present the material in a logical and comprehensible fashion. Dr. Finn testified that even she, as a faculty member of the department of biochemistry, was unable to understand Dr. Johnson's presentation prior to the outburst. T. 9384. Dr. Grooms, one of plaintiff's witnesses, who was then a student in the class, admitted that he had never seen a similar outburst where students stood up and cursed a teacher. Although plaintiff implies that the student reaction stemmed from general student unrest, there is no evidence that lectures of other faculty members were so poorly received. Nor is there evidence that the material is more difficult than that taught by others. Dr. Myers expressly negated plaintiff's claim that such an outburst could arise from student impatience with chemical versus clinical material; in his experience teaching in the medical school, including lectures in the medical biochemistry course, he testified that he had not observed such student impatience.
32. The student dissatisfaction with Dr. Johnson's performance was so widespread that another junior faculty member, Dr. Glew, at the request of the students, initiated a series of evening lectures which covered the same material presented by plaintiff. Although the lectures were optional, approximately one-half to two-thirds of the freshman medical students attended his lectures. Dr. Glew testified that he has never perceived the need to provide supplemental lectures to such a large cross section of a class.
33. Although Dr. Glew was willing to provide assistance to the freshman medical class with respect to Dr. Johnson's lectures, he made it clear to the students that he would do so only on the condition that no further outbursts occur during plaintiff's remaining lectures. He hoped that his admonitions to the students concerning their behavior, coupled with the availability of evening tutorial sessions, would eliminate any further student disruptions during plaintiff's lectures. Dr. Glew's actions were apparently effective since no further outbursts occurred during plaintiff's lectures, even though the quality of her presentations did not improve. The significance of these incidents was clearly a matter for the tenure faculty to consider in evaluating plaintiff's promotion.
Dr. Heath's Recruitment Program.
34. When Dr. Heath was hired, there were four vacant positions in the department. To fill these positions Dr. Heath sought people who were well trained, who had worked with important individuals, and who had good recommendations from their mentors. In addition, Dr. Heath wanted people whose research showed some degree of independence in an area significant to human biology. In recruiting junior faculty, the criteria considered are background, training, recommendations, plans for research and potential for development. As Dr. Ramey and Dr. Mandel testified, a first appointment at the rank of assistant professor is made on the basis of promise of future performance. This is in contrast to evaluating faculty for tenure, where the primary inquiry is as to the accomplishments of the candidate, not promise.
35. Dr. Heath filled the first position with Dr. Robert Glew. Glew had previously spent three years with Dr. Heath as a post doctoral fellow at Johns Hopkins University and Dr. Heath thus had first hand knowledge of Dr. Glew's teaching ability and research interests.
At the time Dr. Glew was hired, he had had his Ph.D. in biochemistry for three years, had two publications and was employed by the University of Louisville Medical School as an assistant professor. At Johns Hopkins, Dr. Glew carried out research involving the transport of proteins across cell membranes. At the time Dr. Heath interviewed Dr. Glew, his research was in the area of glycoprotein structure and metabolism which occurs in mammalian cells. The court finds Dr. Glew's teaching and other qualifications fully justified an initial appointment.
36. With respect to the remaining three positions which he had authority to fill, Dr. Heath contacted as many people as he could by telephone, letter and at professional meetings in order to solicit the names of potential candidates. He also requested suggestions from members of the department. At least one of the individuals he contacted was a woman, Dr. Mary Jane Osborne. In addition, Dr. Heath indicated to one of his recruits, Dr. Cerami, that he was actively seeking women candidates, and requested that Dr. Cerami supply names of any such candidates.
He received the names of 80 to 100 persons. Of this number, he invited 15 for interviews. Of the 15 he invited, there were 12 men and 3 women and of those, Dr. Heath extended offers to 6 men, Drs. Cerami, Walsh, Curthoys, Stancel, Prouty and Rifkin, and to 2 women, Drs. Coffee and Rifkin. Two of the men, Drs. Curthoys and Prouty, accepted the offer as did one woman, Dr. Coffee.
The individuals to whom Dr. Heath extended offers clearly meet the criteria which he had established for the departmental mission.
37. Since much has been made of the attempt to hire Dr. Christopher Walsh we will deal with this incident in some detail.
Dr. Walsh visited the department on September 20 and 21, 1971 and received an offer from Dr. Heath on December 15, 1971.
Dr. Walsh had obtained his undergraduate degree from Harvard College where he was awarded a Widener Scholarship. He had earned his Ph.D. in biochemistry at Rockefeller University in the laboratory of Dr. Fritz Lipmann, a Nobel Laureate. As a post-doctoral student, Dr. Walsh was awarded a Whitney fellowship, a highly competitive award, to work in the laboratory of Dr. Robert Abeles at Brandeis University for two years.
Dr. Abeles recommended Dr. Walsh to Dr. Heath as the best post-doctoral fellow he had ever had. Dr. Heath felt that this recommendation from Dr. Abeles was extremely favorable since Dr. Abeles has trained many post-doctoral students and is a highly critical mentor. In addition to Dr. Abeles' recommendation, Dr. Heath received strong recommendations from other individuals who were familiar with Dr. Walsh and with his work.
At the time Dr. Heath interviewed Dr. Walsh, he had had his Ph.D. for one year and had five publications with one additional publication in press and other submitted to the Journal of Biological Chemistry. Dr. Walsh had by that time already established himself as an enzymologist who had studied enzyme reaction mechanisms using the enzyme itself. Both the plaintiff and her expert witness, Dr. Mandel, agreed that as of 1971, Dr. Walsh had conducted research with enzymes which occur in living cells.
While it appears that Dr. Walsh's work with enzymes was similar to plaintiff's it is claimed that his direction was more compatible with that set by Dr. Heath for the department. The experts disagree on this and the court holds that plaintiff has not carried her burden of proof of showing that this action constituted sex discrimination.
At approximately the same time that Dr. Walsh received the offer from Dr. Heath, he also received job offers from the University of Pennsylvania, Princeton University and Massachusetts Institute of Technology. He subsequently accepted a position at MIT as an assistant professor of biology and chemistry. He has since been promoted to the rank of associate professor.
38. On October 4 and 5, 1971, Dr. Heath interviewed Dr. Carol Coffee, a female and on February 10, 1972, he offered her a position which she later accepted. While the offer to Dr. Coffee was delayed pending other interviews, there is no evidence that she was treated differently from male applicants by Dr. Heath in any substantial manner.
39. In February and March, 1972, Dr. Heath interviewed Dr. Walter Prouty and Dr. Norman Curthoys. Dr. Heath offered them positions which they accepted. The court finds no abuse of discretion in Heath's determination that they were qualified for an initial appointment.
40. Linda Cohen Barancik, a female, never formally applied for a position in the biochemistry department and never sent Dr. Heath a copy of her curriculum vitae. Dr. Barancik only casually mentioned to Dr. Heath in the most general terms that she was looking for a job during a conversation between the two in the hall shortly after Dr. Heath arrived at Pitt. Dr. Heath did not actively recruit Dr. Barancik because he did not think her serious in the absence of a follow up and because he had knowledge of her work from the time that they were both at Johns Hopkins and he was not particularly impressed with it. The court cannot say this determination was unreasonable.
41. A question has been raised concerning the termination of Dr. Molly Vogt by the department of biochemistry but there is no evidence that it resulted from sex discrimination. In the summer of 1971, Dr. Vogt held a primary appointment in the School of Health Related Professions (SHRP
and a secondary appointment in the biochemistry department of the medical school. Prior to departing on sabbatical, Dr. Basford and Heath agreed that Dr. Vogt would be devoting full time to SHRP and that her secondary appointment in the department of biochemistry, which was expiring on August 31, 1971, should not be renewed. Dr. Heath testified that the department would be willing to reconsider a position for Dr. Vogt at a later date if she wished to resume activities in the department.
Dr. Basford agreed to notify Dr. Vogt of the decision concerning her appointment, but forgot to do so before leaving the country. D. Ex. E. Dr. Heath was unaware of this oversight. Dr. Heath had, however, in September, 1971, notified Dr. Anne Pascasio, Dean of SHRP, that Dr. Vogt's appointment would not be renewed since she would be teaching full time in SHRP. Because of an erroneous notice received by Dr. Vogt that her secondary appointment continued until 1973; Dr. Pascasio thereafter contacted Dean Medearis to clarify the confusion. He reviewed the matter and determined that the decision concerning Dr. Vogt's appointment was appropriate.
When Dr. Heath learned in February, 1972 of Dr. Basford's failure to notify Dr. Vogt of the decision, he met with her to apologize for the error and assured her that he would be willing to reconsider her appointment should she so desire. Dr. Heath had previously made the same representation to Dean Pascasio. Dr. Vogt, however maintained her full time position in the SHRP where she continued to advance. The court finds that failure of communications not sex discrimination was responsible for this snafu.
43. A non-tenured position is a probationary appointment, usually for three years during which time the faculty member must establish that he has attained the qualifications necessary to justify a tenured appointment. Tenure is not automatic; the mere fact that a person has received an academic appointment in the tenure stream does not guarantee that the faculty member will develop the qualifications necessary for tenure. Chancellor Posvar testified that only half of those hired into the tenure stream at Pitt eventually receive tenure. T. 8337, 8340.
44. The applicable criteria for tenure are set forth in the Handbook for Faculty 1970. P. Ex 2. The areas which are evaluated in determining qualifications for promotion to a tenured position are (1) effectiveness as a teacher, (2) Research and scholarship, (3) professional stature and (4) service contributions.
An assistant professor at Pitt is normally appointed for three years. At the end of this period, he or she may be reappointed for a second term of three years. At the end of this second three year period, the assistant professor must be promoted to associate professor and receive tenure or employment is terminated. This is known as the "Up or Out System". See pp. 16, 17 Faculty Handbook. P. Ex. 2.
45. Tenure is not awarded simply on the basis of adequate performance of the criteria set forth in the Handbook. Tenure is not a matter of right but a privilege. The Faculty Handbook provides that a candidate must at least demonstrate outstanding accomplishment in some of the criteria for promotion and adequacy in the others. For example, both Dean Ebert and Dean Medearis testified that a poor teacher must be a truly distinguished investigator whose work is a stimulus to others in order to be promoted to tenure. Similarly, a faculty member with an average or less than adequate research record must make an outstanding contribution to the department teaching program or provide some other substantial and important departmental service. T. 1171 (Ramey); T. 6474 (Medearis); T. 10,744 (Ebert). See also T. 11,572 (Hayashi).
46. The evaluation and weighing of the various criteria for tenure depend upon the nature of the department. As set forth in the Handbook, the criteria for promotion are interpreted with differing emphasis depending upon the department. For example a clinical department such as pathology would place greater weight on service than preclinical departments such as biochemistry.
47. Dr. Heath's program for the department laid emphasis upon the importance of a quality teaching program and on the development of research oriented toward medical problems. Thus any individual's qualifications for tenure must be judged in light of that program. Inadequate teaching and research inconsistent with the department's goals are valid reasons for denial of tenure.
Dean Ebert of the Harvard Medical School expressly stated that it is important that a new chairman not be bound by the standards of the previous chairman if he is to fulfill the purpose for which he was recruited.
49. During the period 1966-71, it was the practice in the medical school to notify a non tenured faculty member whether he would be promoted by March 15 of the second year of the second three year contract. During this same period the departmental chairmen in the medical school were responsible for making the initial recommendations regarding promotion. Although there was no requirement that the tenured faculty be consulted, Dean Medearis encouraged the department chairmen to seek the advice of the senior faculty in making tenure decisions.
Prior to the departmental decisions and recommendation to the Dean, whether made by the chairman alone or in consultation with the tenured faculty, there was no requirement, policy or practice in the biochemistry department or in the medical school to advise the faculty member that he was being considered for tenure, to request him to submit information in support of his or her candidacy or to solicit names of, or opinions from outside experts.
It was therefore not incumbent on Heath, absent due process considerations to inform plaintiff of consideration to be given her promotion and tenure. (Medearis 7444). As will be shown later no due process rights were involved in this case. The court is not prepared to require faculties making these determinations to give notice and grant hearings in all cases. The plaintiff in this case must have known that action on her promotion and tenure was imminent (8447). Chancellor Posvar stated (8368, 8446) that notice of the action taken should be given 1 year in advance and the practice in the medical school was to give it by March 15 of the preceding year.
50. If the departmental recommendation to the Dean is negative, no further action is required and the appointment of the faculty member is not renewed.
51. If the departmental recommendation to the Dean is favorable, the Dean then appoints an ad hoc committee to evaluate the faculty member's qualifications. Outside letters of recommendation are solicited by the ad hoc committee to assist in this process. An ad hoc committee is only appointed in the event that the Dean receives a favorable departmental recommendation. A favorable recommendation by the ad hoc committee is transmitted to the Executive Committee by the Dean and thence to the Vice Chancellor and Chancellor for final approval. The Chancellor has to review 200 to 300 tenure decisions a year and cannot possibly sit in on the deliberations but relies on the professional faculty.
52. In view of the procedure which must be followed in order to render a final tenure decision, the departmental decision must be made well in advance of the March 15 notification date to provide time, if the recommendation is favorable, for the convening of the ad hoc committee, the solicitation of outside letters, the deliberations of the ad hoc committee and the recommendations to the Executive Committee, Vice Chancellor and Chancellor.
Meeting of Tenured Faculty -- Consideration of Qualifications
53. Dr. Heath convened the tenured faculty on October 27, 1971 to consider the plaintiff's promotion, thereby allowing sufficient time to complete the tenure review procedure by March 15, 1972 should the tenured faculty recommend that the plaintiff be awarded tenure. Shortly after Dr. Heath's arrival at the university, both Dr. Basford and Dean Medearis had alerted Dr. Heath that he would be required to submit a recommendation concerning the plaintiff's promotion by March 15, 1972. P.I. 536, T. 2800 (Heath). In addition, Dr. Heath wanted to provide the plaintiff with adequate time to seek other employment in the event of an unfavorable decision. T. 2758 (Heath).
54. The tenured faculty consisted of Drs. Basford, Hofmann, Axelrod, Nakada, Ihler and Heath. Dr. Basford did not participate in the deliberations because he was out of the country on sabbatical leave.
56. Several weeks prior to the meeting of October 27, 1971 Dr. Heath distributed a packet of materials relative to plaintiff to the members of the tenured faculty.
57. Prior to attending the meeting, Dr. Heath had reviewed the plaintiff's personnel file during the summer of 1971. Dr. Heath had also reviewed her 1971 NIH grant renewal application. T. 5771-5 (Heath). He was thus aware of the nature of plaintiff's research and of its lack of relevance to the mission of the department. He had concluded that she should not be given tenure but told no one of this conclusion.
58. At the meeting of the tenured faculty, Dr. Heath brought with him the plaintiff's curriculum vitae, a copy of her 1971 grant renewal application to the NIH and the preprints of her unpublished papers. At the meeting the plaintiff's qualifications were considered and evaluated in light of all of the criteria set forth in the Faculty Handbook. P. Ex.2. See Plaintiff's Exhibit 9, the minutes of this meeting. Despite plaintiff's assertions, the court finds that her unpublished works were considered. Hofmann 10,118, Nakada 11,615, Engelmen 11,274.
The plaintiff has admitted that she was aware of the criteria in the Handbook. T. 1369 (Johnson). To the extent that in his letter to plaintiff of February 13, 1967 he attempted to vary them, Dr. Moldave did not have the authority to minimize the stated criteria for tenure and in fact he did not purport to do so in this letter (P. Ex. 1) where he explained that "unofficially" one of the most important factors in a tenure decision is research productivity and another was election to the American Society of Biological Chemists. In addition, Dr. Moldave did not promise the plaintiff tenure, either in his letter to plaintiff or at any other time.
59. Dr. Heath made no effort to influence the outcome of the tenured faculty meeting, expressing no opinion concerning Dr. Johnson's qualifications either prior to, or during the meeting, until all of the other tenured faculty had presented their own views. T. 3327, 3459 (Heath); T. 10,120 (Hofmann); T. 11,611, 11852 (Nakada). After careful consideration of all of the factors involved, the committee unanimously concluded not to recommend plaintiff for promotion to tenure. P.I. 671, T. 7348 (Ihler); T. 10,035 (Hofmann); D. Ex. 9. Dr. Basford did not vote on the question of plaintiff's promotion, owing to his absence from the university on sabbatical leave. He was however, informed of the outcome by Dr. Heath. (Heath P.I. 566) On page 3 of Dr. Basford's response to Dr. Heath (D. Ex. E) he indicated that he would have voted with the tenured faculty not to recommend plaintiff for promotion, although on page 2 he says he would have found it difficult not to support her promotion.
60. The tenured faculty discussed all aspects of Dr. Johnson's teaching activities including medical student teaching, both lectures and conference, graduate student teaching, duties as an advisor to graduate students and informal presentations such as Journal Clubs.
Dr. Myers testified that even a single lecture may suffice to evaluate teaching performance and Ebert, Finn and Park agreed that three or four lectures are clearly sufficient. Myers 8984, Finn 9633, Park 10,537, Ebert 10,741-2.
62. Student feedback is of limited utility in evaluating a faculty member since as to any given professor student comments will always vary from excellent to terrible (see Davies 10,195, et seq.) however, continuing complaints by students may have some significance. T. 8985 (Myers). Therefore, it was appropriate for the tenured faculty to consider, in addition to their own observations, the students' complaints and the adverse student reactions to her lectures which they themselves had witnessed. It should be borne in mind of course that some courses are difficult but have to be taught. Schwartz 6819-21.
63. Based on all of the evidence, the tenured faculty unanimously concluded that Dr. Johnson's teaching was unacceptable. The minutes of the tenured faculty meeting of October 27, 1972 state:
"It was concluded by this group that Dr. Johnson has exhibited very limited expertise in her teaching assignments. In fact, just a month or so before this meeting was held, Dr. Johnson fulfilled her obligations to the medical student biochemistry course, the results of which were disastrous. During this teaching stint she demonstrated a virtually complete inability to organize and convey a substantive body of information to students. In fact, during one of her lectures, the student body became so frustrated with the confusion and lack of continuity that there was a boisterous and unruly revolt which ...