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CAP v. LEHIGH UNIV.

April 7, 1978

BIRUTA CAP
v.
LEHIGH UNIVERSITY



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This sex discrimination case, brought under Title VII of the Civil Rights Act of 1964, was tried before the Court, sitting without a jury, from February 27 to March 2, 1978. Closing arguments were heard on March 7, 1978. The parties filed with the Court proposed findings of fact and conclusions of law, and the matter is now ready for decision.

 The plaintiff, Biruta Cap, Ph.D., a former assistant professor of French language and literature at Lehigh University, asserted in this action that the defendant, Lehigh University, discriminated against her on the basis of her sex when it decided to deny her tenure in April 1973. Specifically, the plaintiff alleged that she was qualified for tenure, that Lehigh had no valid reason not to grant it, and that its decision was based on her sex. The University's response was that the plaintiff was not sufficiently qualified for a tenured position in its Department of Modern Foreign Languages, and that the University's decision to deny her tenure was not based on the plaintiff's sex. For the reasons hereinafter set forth, the Court will enter a judgment for the defendant, Lehigh University, and against the plaintiff, Biruta Cap.

 At trial, the defendant renewed its motion to dismiss for lack of subject matter jurisdiction on the ground that the plaintiff did not file a timely charge with the Equal Employment Opportunity Commission, as required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In a memorandum dated June 3, 1977, this Court dismissed a similar motion on the basis of the facts therein considered. Since this is a motion pursuant to Federal Rule of Civil Procedure 12(b)(1), however, it may be renewed at any time during the course of the litigation.

 In our memorandum of June 3, 1977, we concluded that "the alleged discrimination continued at least until the plaintiff was informed that her case had been reviewed and the negative tenure decision affirmed." Having had the opportunity to hear the testimony at trial, we are convinced that our initial conclusion should remain unchanged. At trial, members of the Lehigh University administration testified that the reevaluation was intended to be a full and complete review as to tenure. It was also testified that the University monitored the plaintiff's performance during her terminal year to determine whether the proper decision had been made. Thus, the tenure denial at Lehigh did not become final until after the reevaluation had been completed. We therefore conclude that the charge was filed within the 180 day period after the alleged unemployment practice occurred. The defendant's motion to dismiss shall be denied.

 The parties stipulated to many of the facts involved in this litigation. The plaintiff received a Bachelor's degree from the University of Connecticut in 1960. She received her Master's degree from Rutgers University in one year, and completed her Ph.D. coursework in two years. In 1963 she took a full-time teaching position at Dunbarton College, where she remained for five years, until she completed her thesis on the works of Moliere, a French dramatist. At Dunbarton, the plaintiff was an instructor for the first three years, and an assistant professor during the last two. After receiving her Ph.D. in 1968, the plaintiff accepted a position at East Stroudsburg State College for one year as an assistant professor, and then joined the Department of Romance Languages and Literature at Lehigh University.

 According to Lehigh University's Procedures, Rules and Regulations (hereinafter "PR&R") adopted in 1970, a review of Dr. Cap's credentials and performance was to be conducted during the year 1971-72 in order to determine whether she should be granted tenure. The procedure used at Lehigh for making decisions regarding promotion and tenure is initiated by the chairman of the faculty member's department. The chairman solicits the written opinions of the tenured faculty members in the department on the candidate's (1) teaching, (2) research and scholarship, and (3) service to the University. If the department's recommendation is favorable, then the University convenes a three member ad hoc advisory committee to review the scholarship of the candidate. The recommendation of the department plus the ad hoc committee letters are sent to the Dean who then makes a recommendation to the Provost, whose recommendation in turn goes to the President. The Trustees approve positive recommendations for promotion and tenure.

 It was established at trial that Dr. Van Eerde, the Chairman of the Department of Romance Languages, initiated the tenure evaluation process for the plaintiff and that he and the only other tenured member of the Department, Dr. Victor M. Valenzuela, both wrote letters on her behalf. Such letters written by the tenured faculty, according to the PR&R, are to address themselves to an evaluation of the candidate's accomplishments in the three areas enumerated above. However, since no one had been recommended for tenure in the Department of Romance Languages for many years, Dr. Van Eerde was apparently unfamiliar with the procedures required by the PR&R, and did not request that Dr. Valenzuela review Dr. Cap's work or write on these specific points. In fact, the letter Dr. Valenzuela sent in stated "In all honesty, I have never . . . read material (articles or books) written by her regarding her field of teaching." The PR&R also provides that "in departments with few tenured faculty . . . the department chairman shall consult the tenured faculties of closely related departments" for their opinions with respect to whether tenure should be granted. PR&R 1.3.07.01. This was not done in Dr. Cap's case.

 The evaluations submitted by the two tenured members of the Romance Languages Department were transmitted to Dr. Ross Yates, the Dean of the College of Arts and Sciences. Dean Yates wrote to an ad hoc committee composed of three French scholars not on the Lehigh faculty, asking each whether he would recommend Dr. Cap for tenure. They replied in the affirmative. Although it was the Dean's responsibility to see that the proper procedure had been followed in tenure evaluations conducted in the College of Arts and Sciences, Dean Yates did not require adherence to the procedures of the PR&R. Upon receipt of the ad hoc committee members' letters, he sent all the opinions he had received to the Provost, Dr. Zettlemoyer, with his recommendation that the University not offer tenure to the plaintiff because her case was weak. Provost Zettlemoyer concurred in the Dean's evaluation, so in May 1972 the plaintiff was given a one year terminal contract.

 Plaintiff had expected to receive tenure because she thought she had favorable recommendations from the two tenured faculty members of her department. When she found out in early February 1972 that she might be given a terminal contract, both she and Dr. Van Eerde requested that Dean Yates consider her application for tenure withdrawn, so that she could be evaluated the following year. The Dean informed each of them, however, that she could not be reviewed for tenure after 1972.

 After the determination to deny the plaintiff tenure was finalized in May 1972, she requested a meeting with Dr. John Hunt, who had replaced Dr. Yates as Dean of the College of Arts and Sciences in July 1972. The plaintiff asked him to grant her a year's extension and then conduct another tenure evaluation because (1) it was unfair to look at her record after only three and a half post-doctoral years when under the rules others could have up to five and a half post-doctoral years to do research before evaluation, and (2) her research and service to the University had been slowed down because of the birth of her child in April 1971, and therefore she had not had an opportunity to make the extra effort normally exerted by tenure candidates in the review year. As Dr. Hunt was not familiar with the situation, he told her that he would look into the matter. Soon afterwards, he informed her that the PR&R did not permit Lehigh to give her an extra year, and that the University would be open to censure by the American Association of University Professors (hereinafter ("AAUP"), if it granted her an extension.

 The plaintiff appealed the decision denying her an extension and the adverse tenure determination to Committee W of the AAUP at Lehigh and to the Lehigh University Personnel Committee. Committee W is an advisory or watchdog organization which was formed to consider complaints of sex discrimination. The Personnel Committee is an official part of the University, with authority to hear complaints concerning the procedural aspects of tenure determinations. Committee W found that there had been no sex discrimination involved in the plaintiff's case. It did recommend, however, that she be granted an extension of one year because of her child care responsibilities. The Personnel Committee contacted the AAUP to determine if the administration was correct in its belief that Lehigh would be censured if it granted the plaintiff a one year extension. The AAUP responded:

 The Personnel Committee also conducted an independent investigation into the tenure review that had been done in the plaintiff's case and in December 1972 sent the following recommendations to the administration:

 
The Personnel Committee strongly and unanimously recommends that Dr. Cap be given a complete and thorough reevaluation regarding tenure. This reevaluation should be made by (1) the Department of Modern Foreign Languages, and possibly other members of the Lehigh faculty, (2) an acceptable ad hoc committee, (3) Dean Hunt, and (4) Provost Zettlemoyer. The Committee would like to emphasize its complete neutrality in the eventual decision. The basic reason for the recommendation is to assure that a fair appraisal is made according to due process.
 
With this recommendation, Dr. Cap would be granted a one-year contract for the academic year 1973-4. This contract should contain a clause which states that the two years at Dunbarton College will not be included in the probationary period. The evaluation of Dr. Cap can then be made at any time up until 31 August 1974, without granting tenure automatically.

 The administration did not accept either recommendation. On March 6, 1973 the Personnel Committee reiterated its position in a letter to Dr. W. ...


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