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Roebuck v. Drexel University

filed: July 26, 1988.


On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 85-1255.

Sloviter, Becker and Cowen, Circuit Judges.

Author: Becker


BECKER, Circuit Judge.

James R. Roebuck, a disappointed academic tenure candidate, sued his former employer, Drexel University, alleging that but for discrimination on account of his race, he would have acquired tenure. The suit was grounded on both 42 U.S.C. § 1981 (1982) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982).

In the § 1981 suit the jury found for Roebuck, but the district court granted judgment n.o.v. for Drexel, holding that the evidence was insufficient to support the verdict. Concomitantly the district court found for Drexel on the Title VII claim (tried without a jury). The district court also denied Roebuck's motion to alter or amend the Title VII judgment to conform with the jury's findings on the § 1981 claim. Roebuck appeals.

For the reasons that follow, we find just enough evidence of discrimination to conclude that Drexel was not entitled to judgment as a matter of law. We nevertheless agree with the district court's assessment that the jury's verdict in favor of Roebuck was against the clear weight of the evidence. We therefore will reverse the grant of judgment n.o.v., but affirm the district court's alternative grant of a new trial.

We disagree, however, with the district court's ruling that it was not bound to conform its Title VII judgment to avoid inconsistency with the jury verdict. We instead follow the great weight of authority in other circuits and hold that principles of collateral estoppel and jury supremacy preclude a district court from issuing a judgment at variance with the jury's findings. We therefore will vacate the Title VII judgment in favor of Drexel, with instructions to the district court to await the jury's verdict upon retrial before rendering judgment on the Title VII claim.


Dr. Roebuck, a black man, was hired in 1970 by Drexel as a Lecturer in the History-Politics Department of the University's College of Humanities and Social Sciences. In 1977, upon completion of his Ph.D., Roebuck was promoted to Assistant Professor and began his six-year probationary period for tenure. In 1983, after an extensive review of his credentials, Roebuck was denied tenure.*fn1

Drexel employs a multi-level tenure review process and has published detailed standards for granting tenure. Because it is important to the result, a description of the process and the standards follows.

A. The Process

A faculty member is eligible for tenure after completing six years of teaching at the assistant professor level. In the year preceding the year in which a faculty member will be considered for tenure, the candidate meets with the dean of his college and the head of his department for a "pre-tenure review meeting," at which the candidate is given specific suggestions for improving his record and his chances for tenure. The candidate then prepares a tenure dossier, which forms, in essence, his application for tenure, including all relevant materials (scholarship, teaching evaluations, etc.).

The candidate next meets with a departmental committee formed to review his tenure application. The committee considers the entire dossier as well as the views of external peer reviewers who have been sent samples of the candidate's scholarship. The committee prepares a report, including a recommendation, and forwards it to the department head, who performs an independent evaluation of the candidate's credentials. The department head's recommendation is then considered, along with the committee report and other materials, by the Collegial Committee, which is composed of two representatives from each department in the candidate's college and is chaired in a non-voting capacity by the dean of the college. The Collegial Committee performs a de novo review of the material and prepares a recommendation for the dean. The dean, and subsequently the University Vice President for Academic Affairs, perform their own independent reviews. If the Vice President's decision is negative, the candidate is denied tenure, but is entitled to appeal.

The appeals process allows the candidate to reargue his case at each level of the tenure review at which he was unsuccessful. Should he fail to gain reconsideration, the candidate can then choose to petition a standing appeals committee, which issues an advisory report to the University President, or the candidate can appeal directly to the President himself.

In Roebuck's case, his department committee unanimously recommended him for tenure; however each subsequent recommendation in the process was negative. Upon denial of tenure by the Vice President, Roebuck appealed directly to the President but tenure was denied.

B. The Standards

At each level of the process, the candidate's credentials are reviewed in three discrete areas -- scholarship, teaching, and service. In order to gain tenure, the candidate's work must be rated at least "satisfactory" in all of the areas, and "outstanding" in at least one.

In reviewing a candidate's scholarship, a reviewer is expected to consider the work within the framework of the following priority scale: top priority refereed publications; second priority -- non-published but refereed work (such as conference papers); third priority -- non-published work with a clear potential for refereed publication; and lowest priority -- non-refereed publication.*fn2 Each tenure candidate's scholarship is reviewed not only by the tenure committees and advisors themselves, but also by external peer reviewers in the candidate's field, whose reviews are available for consideration at each stage of the process.

Drexel's standards for review of a tenure candidate's teaching ability are vague, and there is little in the record to illuminate the requirements or the assessment process. It is apparent, however, that review is based primarily on evaluations by students, peer and department head recommendations (of both current and former, and both internal and external, faculty), and evaluation of the nature and substance of the courses taught by the candidate.

The standards for assessing service are exceedingly vague and the parties disagree about the application of these standards. A document entitled "Departmental and Collegial Review Procedures for Tenure" states that the tenure decision involves consideration of the candidate's "service to Drexel," and then explains that decisionmakers should evaluate the candidate's "record of performance in . . . University, collegial, and departmental service, and community service relevant to the mission of the institution." J.A. at 1354. There is dispute, however, over what type of service is "relevant to the mission of [Drexel]," and over the extent and breadth of service necessary to qualify as "outstanding." Drexel argues that outstanding service requires leadership, rather than mere participation, or alternatively requires "extramural activity promoting the University." Brief for the Appellee at 13. However, as we will explain in some detail, infra, Roebuck points to contrary evidence, which we must credit for purposes of this appeal.*fn3

Although a formal assessment of an applicant's rating on each of the three prongs is not required at each level of review, from testimony at trial it is apparent that Roebuck was denied tenure because his teaching and service were found merely satisfactory and his scholarship was determined to be unsatisfactory.

C. Roebuck's Record

James Roebuck was and is a resident of West Philadelphia, a predominantly black community where Drexel, a predominantly white institution, is located. At the time of his hiring, Drexel's relationship with that community was somewhat uneasy, and Roebuck was hired in no small part because of his perceived ability to help "develop a more positive presence in West Philadelphia [and] to work more closely with the community." J.A. at 43 (testimony of Roebuck). As Roebuck explained in his testimony at trial,

[w]hen I was recruited to come to Drexel, one of the things that was said to me was that Drexel was in the process of trying to reach out to the West Philadelphia community, that I as a West Philadelphia resident would be a particular value to the Drexel community in my ability to interact with that community. . . . That was the basic underlying commitment from the University to me when I became a member of the faculty.

J.A. at 273.

With that understanding, Roebuck devoted himself unfailingly to community service. His resume at the time of his tenure review read like a directory of community organizations, including membership on numerous boards of directors and the chairmanship of several.*fn4 Moreover, Roebuck plainly had participated in at least his fair share of intra-University service, primarily through his work on various faculty committees.*fn5

Roebuck's feedback on his service activities conformed with his understanding of his role at Drexel. As he explained,

I got consistently positive feedback on the things I was doing. That came not only in terms of comment by various administrative officials, it came in terms of letters that I received from some of those officials indicating I had done a good job, I had helped the University. It came in terms of my annual meetings of my department chairmen.

J.A. at 58; see also J.A. at 59, 272 (Roebuck's testimony on additional positive feedback he received from the Drexel administration). There is thus evidence in the record to support Roebuck's contention that he was hired in large part for his ability to project a positive image for the University in the West Philadelphia community, that he performed that role vigorously and successfully, and that, at least until the time of his tenure application, his service was warmly received by the University.

Roebuck's teaching record, though not nearly as well documented as his service contributions, similarly reflects quality and commitment. He was warmly praised by many of his students, his student evaluations reflected general satisfaction on the part of his pupils, and he received several positive letters of recommendation about his teaching prowess.

His record of scholarship, however, was significantly less impressive. Although he listed numerous "scholarly papers and public lectures" on his resume, see J.A. at 1341, in his Statement on Tenure and Promotion he referred to only five items produced during his twelve years at Drexel in support of his claim of satisfactory scholarship for tenure purposes, J.A. at 1405-06.*fn6

Roebuck conceded on cross-examination that not one of these items fell within either of the top two priority categories for scholarship -- refereed publications or non-published refereed work. J.A. at 121-23. He claimed that one paper, which was based in large part upon his master's thesis, had a "clear potential for publication in [a] refereed journal[] or press[]," the third priority category; however he did not submit this piece to the tenure review committees as part of his tenure dossier, J.A. at 123-24, and hence it was not considered as part of his application. Of the two full-length papers that he did submit with his tenure application, he conceded that only one even fell within the University's priority scale, and that it fell in the lowest priority category -- publication in a non-refereed journal, J.A. at 131; the other he conceded was unpublishable in its current form. J.A. at 125-27.*fn7

Roebuck also submitted two biographical entries, totalling five typewritten pages, which had been published in a biographical dictionary and which he conceded were derived in large part from other scholarly works and from his own doctoral dissertation, rather than from any new original research. J.A. at 128-29. Finally, Roebuck submitted a contract he had signed with a publishing house in which he agreed to produce a bibliographical volume on U.S.-East Asia relations in the nineteenth and twentieth centuries, Roebuck's area of academic expertise, to be included in a fifteen to twenty-five volume bibliography on American foreign policy and diplomacy; no work on this volume, however, was submitted for his tenure review.*fn8

D. Roebuck's Tenure Review

1. The Departmental Committee

In October, 1982, a committee of faculty members of the History-Politics Department convened to address Roebuck's tenure application. The deliberations of the committee reflected some difficulty with the question, but the committee ultimately recommended unanimously not only that Roebuck be granted tenure, but also that he be promoted from assistant to associate professor.*fn9 The committee rated Roebuck's service and teaching "outstanding," and his scholarship "satisfactory."

With regard to his on-campus service (faculty committees, service to student organizations, etc.), the committee found Roebuck's activities to have been "numerous, willingly given, and constructive." J.A. at 1361. With regard to his extramural service activities, however, the committee report simply glows: "Dr. Roebuck's contributions have been not only numerous and excellent, but almost impossible to duplicate if Drexel is to achieve recognition as a well-regarded neighbor in the West Philadelphia community." Id.

The committee found "[t]he sheer number of Dr. Roebuck's service contributions to campus life [to be] impressive; few Drexel faculty of any rank could list as many." The report noted "his willing acceptance of assignments, his responsible performance of them, [and] his keen interest in all departments matters." Id. Moreover, the committee recognized the unique value to Drexel that Roebuck's service activities provided. The report quoted favorably from several letters of recommendation, which noted: "'Because he serves as a role model for people who do not ordinarily identify with institutions of higher learning, Dr. Roebuck has become a valued resource reflecting Drexel University's service to this city' . . . . 'His participation has enlarged the perception of the academic community [in] West Philadelphia.'" J.A. at 1362-63. The committee thus inferred that "Drexel's reputation is enhanced by [Roebuck's] work." Id.

The committee was similarly impressed with Roebuck's teaching, which they also rated "outstanding." The report recounted the course evaluations submitted by Roebuck's students, who generally spoke favorably of his teaching. Moreover, the committee found Roebuck's grading fair and in line with the rest of the faculty, the variety of his courses impressive, and his willingness to assist other instructors admirable. Hence they concluded that Roebuck was likely to continue to grow as a teacher.

The committee's assessment of Roebuck's scholarship, however, was of another order, and plainly reflected compromise of an internal struggle. The report stated:

The committee judges Dr. Roebuck's scholarly performance to be satisfactory. It means by that term not "satisfactory" in relation to some established and fixed standard such as might prevail in a department of long-established reputation for scholarship, but satisfactory in the light of a program to improve ...

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