plaintiff for promotion, citing Dr. Hou's publication in the Canadian Journal of Mathematics (Volume 23, 1971) of an article entitled "Quasi-Splitting Exact Sequence." (Plaintiff's Exh. 44). George Smith, then Dean of the School of Natural Sciences and Mathematics, recommended against promotion, however, expressing the concern that 2 1/2 years was too short a time in which to evaluate an individual for promotion to full professor. (Plaintiff's Exh. 1). While President Watrel awarded plaintiff a "merit" salary increase in August 1972, plaintiff was denied promotion for that year.
2. The 1973 Application
On December 15, 1972, Dr. Clair McClure, Chairman of the Math department, recommended plaintiff for promotion, citing plaintiff's publication and work on departmental committees. (Plaintiff's Exh. 45). On February 6 and March 5, 1973, plaintiff received two generally favorable class observation reports from colleagues Professors Pagano and Sah. (Plaintiff's Exhs. 52 and 57). On March 5, 1973, however, the CWPC recommended against plaintiff's promotion. (Plaintiff's Exh. 81). Considerations included both plaintiff's individual record and a comparison with others applying for the same rank. The Committee observed that 32 of 83 total applications were for the rank of full professor.
On March 29, 1983, Professors Pagano and McClure met regarding plaintiff's teaching effectiveness. In a memorandum summarizing the meeting, they expressed concerns with regard to plaintiff's answering questions, providing solutions before testing, allowing time for questions, and speaking more slowly to prevent plaintiff's accent from interfering with the discourse (Plaintiff's Exh. 36). On April 16, 1973, Professor McClure gave plaintiff a generally favorable class observation. He noted plaintiff's accent, his efforts to speak slowly, and some accompanying tendency to be repetitive. (Plaintiff's Exh. 48). On May 30, 1973, plaintiff was granted tenure; he was denied promotion for 1973.
3. 1974 Application
The evidence with regard to this application period shows that on December 4, 1973, plaintiff received a favorable class evaluation by Professor Pagano. (Plaintiff's Exh. 7). On December 26, 1973, Howard Campaigne, Chairman of the Departmental Promotions Committee, recommended plaintiff's promotion. His memorandum noted that, within the department, plaintiff was ranked second for promotion to professor, and fifth overall in the department (Plaintiff's Exh. 47). On January 8, 1974, Department Chairman McClure recommended plaintiff for promotion. He also stated that plaintiff was ranked second for promotion to professor and fifth overall in the department. (Plaintiff's Exh. 46). On February 20, 1974, Professor McClure gave plaintiff a generally favorable class observation report. He commented, however, on some problems with teaching methods regarding the emphasis of the class presentation (Plaintiff's Exh. 49; includes letter from plaintiff to James Roberts, Vice-President for Academic Affairs, rebutting negative comments in the evaluation).
On May 3, 1974, a memorandum was sent from the CWPC to each applicant for promotion, stating the recommendation of the Committee. The memo informed Dr. Hou that the CWPC had recommended against his promotion. Areas specified by the CWPC as needing improvement were teaching effectiveness and committee work. (Plaintiff's Exh. 39).
On May 13, 1974, Dr. Carlton Dresden, Dean of the School of Natural Sciences and Mathematics, recommended to James Roberts, Vice-President for Academic Affairs, that plaintiff not be promoted. He observed that plaintiff's "excellence in subject area" did not overcome his weakness in committee work and teaching effectiveness. (Plaintiff's Exh. 37).
On May 15, 1974, Vice-President Roberts recommended to President Watrel against plaintiff's promotion. (Plaintiff's Exh. 63).
4. 1975 Application
On March 14, 1975, Professor McClure, Chairman of the Math Department, recommended to the CWPC against plaintiff's promotion. His memorandum cites good peer evaluations received by plaintiff as well as accent and grammatical problems, student criticisms of plaintiff's ability to answer questions clearly, and problems with regard to plaintiff's working relationship with other department members. Plaintiff received an evaluation of "good" in teaching effectiveness; "excellent" in mastery of subject, "good" in continuing scholarly growth; and "average" in contributions to college. (Plaintiff's Exh 38).
On April 21, 1975, the CWPC recommended against plaintiff's promotion. (Plaintiff's Exh. 29). On May 15, 1975, Professor McClure wrote a class observation report regarding Dr. Hou, noting plaintiff's accent and rapid speech. Expressing the view that student complaints could be an excuse for poor performance, Dr. McClure noted that the number of complaints received was deserving of mention. (Plaintiff's Exh. 30). On May 20, 1975, Dr. Dresden, Dean of the School of Natural Sciences and Mathematics, recommended against plaintiff's promotion in a memorandum to Dr. James Roberts, Vice-President for Academic Affairs. (Plaintiff's Exh. 31). On May 30, 1975, Dr. Roberts recommended against a promotion for plaintiff in a memorandum to President Watrel. (Plaintiff's Exh. 32).
5. 1976 Application
On December 12, 1975, Howard Campaigne, Chairman of the Math Department, recommended to the CWPC that plaintiff be promoted. He rated plaintiff's teaching effectiveness "good"; mastery of subject matter "excellent"; continuing scholarly growth "good"; and contributions to college "good." Plaintiff was ranked first in the department for promotion to professor, and second overall in the department. (Plaintiff's Exh. 53).
A general departmental evaluation for 1975 noted general student dissatisfaction, the refusal of plaintiff to grant access to the material in his personal file beyond one or two documents, and plaintiff's lengthy rebuttal to minor comments in one class evaluation. (Plaintiff's Exh. 35).
On March 31, 1976, Dr. Dresden, Dean of the School of Natural Sciences and Mathematics, recommended against plaintiff's promotion to James Roberts, Vice-President for Academic Affairs. Dresden cited conscientious progress by plaintiff, but noted the need for more services to the college. He rated plaintiff in teaching effectiveness, "good"; mastery of subject matter, "excellent"; continuing scholarly growth, "good"; and contributions to college, "good." (Plaintiff's Exh. 33). On May 10, 1976, Dr. Roberts, Vice-President for Academic Affairs, recommended against plaintiff's promotion in a memorandum to President Watrel. (Plaintiff's Exh. 34). On June 16, 1976, plaintiff wrote to then Acting-President Roberts protesting his failure to be promoted after 5 applications, and listing his personal accomplishments. (Plaintiff's Exh. 17). On June 30, 1976, Acting-President Roberts denied plaintiff a promotion. (Plaintiff's Exh. 3).
6. 1977 Application
On December 8, 1976, plaintiff submitted a group of documents to the CWPC together with his application for promotion. Included was a departmental recommendation in favor of promotion. (Plaintiff's Exh. 28, list of documents). The CWPC recommended against promotion, summarizing plaintiff's application and recommendations in a chart. The committee cited the need for additional committee work at the college-wide level, plaintiff's relatively limited participation in professional activities, a need for more research by plaintiff in order for him to be favorably compared with others applying for rank of professor, and the "good" rating in teaching effectiveness. (Plaintiff's Exh. 27, dated March 1, 1977). On June 24, 1977, Acting-President Roberts denied plaintiff a promotion to full professor.
A. The Title VII Claim
"The central focus in a [Title VII disparate treatment] case such as this is always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex or national origin.'" Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978), quoting Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) the Supreme Court set forth the applicable guidelines as to burden of proof in a "disparate treatment" case. The oft-repeated four-part test for establishment of a prima facie case is that plaintiff
. . . (i) belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualification . . . .
Id. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677.
The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 99 S. Ct. 295, 295, 58 L. Ed. 2d 216 (1978) (per curiam). Once the employer has articulated a legitimate reason for rejecting the applicant, the inquiry does not end, but the plaintiff is given a chance to show that the employer's reason is a pretext for discrimination. 411 U.S. at 804-05, 93 S. Ct. at 1825, 36 L. Ed. 2d at 679. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207, 215 (1981); Jackson v. United States Steel Corp., 624 F.2d 436, 442 (3d Cir. 1980). This established framework for Title VII cases was recently reaffirmed by the Supreme Court in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983). There, the Court emphasized that when an employer responds to plaintiff's proof by offering evidence of its reason for plaintiff's rejection, the factfinder must reach the question of whether the rejection was discriminatory within the meaning of Title VII. Id. at 4355. Regarding the question of proof, while the plaintiff bears the burden of showing that the employer's articulated reason is pretextual, plaintiff's case may be proven by direct or circumstantial evidence. Id. at 4356. A plaintiff in a Title VII disparate treatment case is not required to submit direct proof of discriminatory intent. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 52 L. Ed. 2d 396, 97 S. Ct. 1843 n.44 (1977) ("The McDonnell Douglas formula does not require direct proof of discrimination.") See Kunda v. Muhlenberg College, 621 F.2d 532, 541-44 (3d Cir. 1980) for a clear discussion of the steps of proof in a Title VII case.
The McDonnell Douglas test was specifically applied to a situation involving tenure and promotion in an academic setting in Kunda v. Muhlenberg, 621 F.2d 532 (3d Cir. 1980). In Banerjee v. Board of Trustees of Smith College, 495 F. Supp. 1148 (D. Mass. 1980), aff'd, 648 F.2d 61 (1st Cir. 1981), cert. denied 454 U.S. 1098, 70 L. Ed. 2d 639, 102 S. Ct. 671 (1981), the district court restricted the language of the McDonnell Douglas test in this context, requiring that a plaintiff in a tenure or promotion case show
(1) that plaintiff is a member of a racial or national origin minority;