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Bennun v. Rutgers State University

argued: January 23, 1991.

DOCTOR ALFRED BENNUN
v.
RUTGERS STATE UNIVERSITY; BOARD OF GOVERNORS OF RUTGERS STATE UNIVERSITY; AND DOCTOR EDWARD J. BLOUSTEIN, PRESIDENT (CIVIL RIGHTS NO. 84-4655); DR. ALFRED BENNUN V. RUTGERS STATE UNIVERSITY; BOARD OF GOVERNORS OF RUTGERS STATE UNIVERSITY; AND DR. EDWARD J. BLOUSTEIN, PRESIDENT, RUTGERS STATE UNIVERSITY (CIVIL RIGHTS NO. 85-3491); DR. ALFRED BENNUN V. RUTGERS STATE UNIVERSITY (CIVIL RIGHTS NO. 86-621); RUTGERS, THE STATE UNIVERSITY; BOARD OF GOVERNORS OF RUTGERS, THE STATE UNIVERSITY; AND DR. EDWARD J. BLOUSTEIN, APPELLANTS



Appeal from the United States District Court for the District of New Jersey; D.C. Civil Action No. 84-04655.

Becker and Hutchinson, Circuit Judges, and D. Brooks Smith, District Judge.*fn*

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge

Rutgers, The State University of New Jersey (Rutgers) appeals from a judgment of the United States District Court for the District of New Jersey granting appellee, Dr. Alfred Bennun (Bennun) promotion to Full Professor with full back pay retroactive to the end of the University's 1980-1981 promotion review period. The back pay amounted to the difference between Bennun's earnings as a tenured associate professor and what he should have been paid as a full professor, a position the district court held Rutgers had wrongly denied him. The judgment was fashioned to give Bennun full relief from Rutgers' violations of his right to be free of unlawful discrimination under 42 U.S.C.A. § 1981 (West 1981) and his right to equal opportunity in employment under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1981). We will affirm in part. In doing so we hold that Rutgers' treatment of Bennun in the promotion review process did not violate § 1981 and will thus reverse that portion of the district court's judgment; but, as we agree with that part of the district court's order imposing liability because Rutgers' actions violated Title VII, we will affirm that part of its decision. Moreover, because all of the relief the district court granted Bennun was available to cure the Title VII violation, our partial reversal of the district court on Bennun's § 1981 claim for unlawful discrimination does not affect the remedy that the district court provided. Accordingly, we will affirm its remedial order.

I.

Bennun filed a charge of discrimination with the Equal Employment Opportunity Commission (the Commission) in 1981. He charged that Rutgers' denial of his bid for full professorship during the 1980-81 review period was not only discriminatory, but also in retaliation for his earlier filing of discrimination charges against Rutgers when it denied him promotion to associate professor with academic tenure. The Commission's investigation of Bennun's instant charge lasted over three years and resulted in a Commission determination that there was reasonable cause to believe that Rutgers violated Title VII when it failed to grant Bennun the rank of full professor. The EEOC's right to sue letter authorized Bennun to sue in his own right, but the Commission itself decided not to sue Rutgers.

In the meantime Bennun had also filed a grievance against Rutgers' refusal to afford him the rank of full professor, as permitted by the collective bargaining agreement between Rutgers and the American Association of University Professors. In 1982 a university review panel found the 1981 decision denying Bennun tenure was arbitrary and capricious. The review panel recommended that an outside arbitrator hear the matter. Rutgers did not implement this recommendation.

Rutgers' failure to implement the review panel's recommendation led Bennun to file suit in the Superior Court of New Jersey, Chancery Division, in 1984. In that suit Bennun sought to compel Rutgers to appoint an outside neutral party to hear and decide his grievance. The Chancery Division did not grant Bennun the relief he requested, but instead remanded the matter to the university with a direction that Rutgers undertake a further evaluation of Bennun's claim. Rutgers reevaluated Bennun in March of 1985 and persisted in denying him the status of a full professor.

In November of 1984, without awaiting the results of the reevaluation the state court had ordered, Bennun started this action in the United States District Court for the District of New Jersey pursuant to the Commission's right to sue letter. In it he alleged Rutgers violated Title VII, specifically 42 U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(A) and 42 U.S.C.A. § 1981 when it denied him the rank of full professor in 1980-81. In August 1985 Bennun filed a second federal action with allegations similar to those in his 1984 federal complaint. The 1985 federal action arose out of Rutgers' 1982-83 refusal to grant him a full professorship. An identical refusal in the 1984-85 review period led Bennun to initiate still a third federal action in February of 1986. This 1984-85 refusal was occasioned by the reevaluation ordered by the Superior Court of New Jersey's Chancery Division. Bennun's second and third federal actions were, like his first, preceded by a Commission-issued right to sue letter.

All three federal actions were consolidated by the district court. Rutgers moved for partial summary judgment claiming, among other things, that Bennun had no standing to maintain his § 1981 claims because he was not Hispanic and that Bennun's 1984 state-court action precluded his claims based on the 1980-81 and 1982 promotion denials because of New Jersey's entire controversy doctrine. The district court denied Rutgers' motion on these points, although it did grant other relief on points not material to this appeal.

After a bench trial, the district court held that Bennun's denial of promotion to full professor was actionable under § 1981. See Bennun v. Rutgers, The State University, 737 F. Supp. 1393, 1397-98 (D.N.J. 1990). It then denied Bennun's retaliation claim under § 1981 and Title VII, but found that Bennun had proven his disparate treatment claims under both statutes. Id. at 1400-01, 1408-09. In its disparate treatment analysis, the district court compared Bennun's review packets with those of Dr. Ethyl Somberg, a professor in the same department as Bennun. Somberg had been promoted from Associate Professor to Full Professor in 1979. Id. at 1404-1409. Relying in part on its comparison of Somberg's academic credentials with Bennun's, the district court held that Bennun had made out a prima facie case of disparate treatment and that Rutgers' proffered nondiscriminatory reason, failure to meet the university's high standards for full professorship in the judgment of his peers, was a pretext for discriminatory denial of the promotion Bennun requested. In support of its decision the district court, comparing Bennun's promotion treatment with that of other tenured associate professors, in particular, with that of Somberg, found the following facts:

1. A different standard was applied to Bennun in terms of number of publications. (Bennun with more publications was [found] moderately active while Somberg[, with less,] was [found] excellent in quantity.)

2. A different standard was applied to Bennun concerning what level of achievement was necessary to be promoted. (Bennun was required to become an international leader while other promoted candidates, whose letters indicated they were not international leaders, were promoted.)

3. A different standard was applied concerning grant support. (For Bennun this was a negative factor, for Somberg it was not relevant.)

4. A different standard was applied concerning the level of specificity required by peer reviewers. (Bennun's [letters] were not specific while other candidates had none.)

5. A different standard was applied concerning the age of the peer review letters. (Bennun's were old and therefore negative. Somberg's, although just as old were not considered dispositive.)

6. A different standard was applied concerning the number of peer review letters. (The University inferred a lack of interest in Bennun but not in others who did not have the continued support evidenced in Bennun's packet.)

7. The [Appointments & Promotions] committee sua sponte concluded, without any evidence, that a damning letter was being withheld from Bennun's packet. No such inference was drawn with reference to other candidates with similar or less substantial peer review packets.

8. Somberg's research was considered in light of her teaching. Bennun who taught a similar load was not so evaluated.

9. The University's explanation that Bennun's research was inadequate is not worthy of credence in light of a comparative analysis with other promoted candidates whose research qualifications were judged excellent.

Id. at 1409. The court ordered that Bennun be granted the rank of full professor retroactive to July, 1981, with full back pay and benefits. Id. This timely appeal by Rutgers followed.

II.

A.

Promotion and tenure decisions at Rutgers are made on the basis of five criteria as set out in University Regulation 3.30. These five criteria are: teaching effectiveness; scholarly/creative activity; research accomplishments; professional activity/public service; and general usefulness. In Regulation 3.30 Rutgers also sets forth a standard for application of the criteria when tenured associate professors are under consideration for award of a full professorship:

A full professorship is the highest academic rank. An individual promoted to this rank should have met with distinction one or more of the criteria indicated previously, and have made substantial progress beyond that for which he or she was recognized at the associate professor level.

Joint Appendix (Jt. App.) at 1443.

The process of evaluating candidates for a full professorship begins when the candidate submits to his department chair a curriculum vitae, a list of potential outside evaluators and any other documents or materials the candidate wants to have considered. The persons who will serve as outside evaluators are selected by the candidate's department. The candidate's packet includes these materials, plus any materials added to the candidate's packet as his candidacy goes through successive levels of review and evaluation forms are completed upon review at each successive level.

The candidate is first evaluated by those persons in his department who are at or above the level for which he is being considered. In this case, Bennun's departmental evaluators were all the full professors in his department. Based on these departmental evaluations, the candidate's department chairperson passes a departmental recommendation to the Dean of the academic unit that encompasses that department. An academic unit is made up of a group of related departments.

The candidate is then evaluated by his unit's Appointments and Promotions Committee, an advisory committee to the Dean. This committee has four members. Two are selected by the Dean and two by the faculty.*fn1 The Appointments and Promotions Committee independently evaluates the candidate's packet.

After the committee's independent review, the candidate's Dean evaluates the packet. At the same time that the Dean is evaluating the candidate, the section, a University-wide*fn2 group of all faculty members in the candidate's discipline at or above the level for which the candidate is being considered, evaluates the candidate's research and scholarly activity. The packet the section receives does not contain the recommendations of either the Dean or the Appointments and Promotions Committee.

After section evaluation, the university's Promotion and Review Committee, consisting of the University Executive Vice-President and Chief Academic Officer, the Camden, New Brunswick and Newark provosts and four senior faculty who are appointed by the President, reviews the candidate's packet which now includes the recommendations of the Dean and the section. This committee reports to the President if and only if its recommendation about the candidate is positive. The President then makes his own independent evaluation of the candidate's packet and at last submits a recommendation to the Board of Governors. The Board of Governors makes the final decision based on all of the candidate's packet including the President's recommendation.

B.

Bennun was born in Argentina and earned his bachelor's, master's and doctoral degrees from the University of Cordoba in that country. He joined the Department of Zoology and Physiology on Rutgers' Newark campus in 1969 as an untenured Associate Professor of Biochemistry. He became a tenured Associate Professor in 1972. Bennun's road to tenure was not smooth. Though he was unanimously backed for tenure in 1970 by his department he was ultimately denied tenure and given only a one-year terminal contract under the usual academic policy of up or out. Bennun secured tenure only after pursuing his legal remedies in court.

During the academic year 1978-79 Bennun applied for the position of Full Professor. He was turned down. His department had voted in favor of granting him full professorship by a plurality of three votes to two with one abstention. The Dean concurred in the department's recommendation. However, both the Appointments and Promotions Committee and the section voted against Bennun's promotion. The Appointments and Promotions Committee voted against Bennun zero to four. The section vote was two to six against Bennun with an abstention.

In 1980-81, Bennun again sought full professorship. His curriculum vitae then listed twenty-two published articles, including one being readied for publication, twenty-six abstracts, thirty-nine invited lectures, twenty-six paper presentations at professional meetings, sixteen different courses that he had taught at various times at Rutgers, and twenty-nine grants that he had received. Since his 1978-79 review, Bennun had readied one article for publication, given four invited lectures, made one paper presentation at a professional meeting and received two more grants.

The outside evaluations in Bennun's packet included four which had also been included in the 1978-79 packet. Three of these four evaluators were suggested by Bennun and one was solicited by Rutgers. Alfred Lehninger, the evaluator selected by Rutgers, said, while Bennun's work was not directly in his field, he was intrigued by it, thought it original and well supported. Because Lehninger was not directly involved in Bennun's specific academic field he referred Rutgers to Ephraim Racker (Racker).

Racker had already been suggested by Bennun as an evaluator. He was described by Dr. James Hall, Chair of the Department of Zoology and Physiology at Rutgers Newark Campus from 1962 to 1969, as "one of the, maybe 6 to 12 best, most widely known biochemists in the country." Jt. App. at 83.

Racker wholeheartedly supported Bennun for promotion. He wrote that "recent work on the effect of non-adrenaline on brain adenylate cyclase represents a significant contribution to this important field." Similarly, Sabatini, Chair of the Department of Cell Biology at NYU Medical Center, stated that Bennun was "well deserving promotion" based upon his "original scientific work . . . ." Finally, de la LLOSA noted that Bennun's research work on adenylate cyclase was "remarkable."

Bennun, 737 F. Supp. at 1402.

This time Bennun's department supported his application by a vote of five to zero with one abstention. The department rated Bennun outstanding in scholarly/creative activity and research accomplishments, above average in professional activity, above average to average in general usefulness and average in teaching effectiveness. The Dean concurred in the department's recommendation. He rated Bennun's performance as outstanding in scholarly/creative activity, outstanding to above average in research accomplishments, above average in professional activity and average in teaching effectiveness and general usefulness.

The remaining committees remained opposed to Bennun's candidacy. The Appointments and Promotions Committee voted unanimously against promotion, zero to four, ranking Bennun above average in professional activity but average in all other categories. It stated that Bennun's lack of outside grant funding since coming to Rutgers was puzzling and that his research accomplishments were tainted by his lack of experimental follow-up to prove his theoretical papers, the "apparent unwillingness of outside evaluators to commit themselves to detailed and informative judgment," Jt. App. at 1253, and a drop off in his publication rate since coming to Rutgers. The section voted against full professorship. Two members favored Bennun's promotion and four opposed his candidacy. The section concluded that although some of his research work was "substantial" its total was "insufficient to support promotion." Jt. App. at 1256. The Promotion Review Committee said "the record indicates that he hasn't established a scholarly and [sic] research production to reach the level required for the rank of Professor." Jt. App. at 1257. The Promotion Review Committee rated Bennun as active professionally and useful to the graduate program, but only slightly above average in teaching effectiveness, The Board of Governors officially denied Bennun's request on May 15, 1981.

In 1982, undeterred, Bennun again sought the rank of full professor. In the two terms since he had last been considered Bennun had taught five different courses and overseen two research classes. Other additions to his file included publication of an article he had been readying for publication during his last review, another published abstract, two invited lectures, and another paper presented at a professional meeting.

The department recommended that Bennun be awarded a full professorship on a vote of four to zero with three abstentions. The department rated his scholarly/creative activity and research accomplishments as outstanding, his professional activity above average, his general usefulness slightly above average and his teaching effectiveness average. Again, the Dean concurred in the department's recommendation. He rated Bennun's scholarly/creative activity as outstanding to above average, his research accomplishments and professional activity as above average and his teaching effectiveness and general usefulness as average.

All four members of the Appointments and Promotions Committee voted against Bennun's candidacy. The Committee rated him above average in professional activity but average in all other categories just as it had during Bennun's previous review. The Committee criticized Bennun's lack of outside grant support and his diminishing research production. The Appointments and Promotions Committee described his outside evaluations as mixed and criticized Bennun because "his experiments, though carefully done, have not made an impact in his fields." Jt.App. at 1330.

Only three of the eighteen eligible section members voted. Two of the three voted against Bennun. One voted for him. The section said Bennun's publication record was unsatisfactory for a person seeking the rank of full professor. Thereafter, the Promotion and Review Committee failed to recommend Bennun be granted the status of full ...


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