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SCHNEIDER v. NORTHWESTERN UNIV.

May 13, 1996

BARBARA SCHNEIDER, Plaintiff, -vs- NORTHWESTERN UNIVERSITY, Defendant.


The opinion of the court was delivered by: LINDBERG

 Plaintiff, Barbara Schneider, filed a complaint alleging that defendant, Northwestern University, committed sex discrimination and retaliated against her in violation of Title VII, 42 USC § 2000e, et seq., when defendant denied her tenure and failed to promote her from assistant professor to associate professor.

 FINDINGS OF FACT

 There are 107 numbered paragraphs in plaintiff's proposed findings to which defendant has responded with answering proposals. Some of defendant's answering proposals respond to multiple consecutive paragraphs of plaintiff's proposed findings. The court will follow the lead of the parties and, so far as possible, state its findings in paragraphs numbered to correspond with the numbered paragraphs in plaintiff's proposed findings and defendant's answering proposals. In a few instances, the court's findings will not lend themselves to exact correspondence with plaintiff's proposed findings.

 The court makes the following findings of fact:

 1. Plaintiff, Barbara L. Schneider, is a female citizen of the United States who resides within this judicial district. At all times relevant and material to this action, plaintiff was an "employee" of defendant Northwestern University within the meaning of Title VII.

 2. Defendant Northwestern University is a private university with its main campus located in Evanston, Illinois. At all times relevant and material to this action, defendant employed more than 15 employees and therefore was an "employer" within the meaning of Title VII.

 3. Tenure is a faculty appointment for an unlimited term. The primary purpose of tenure is to protect academic freedoms. Once tenure is conferred, a faculty member may only be dismissed for gross misconduct.

 4. Defendant's Board of Trustees has the ultimate authority to grant tenure.

 5. The dean, the provost, and/or the Board of Trustees have the authority to deny tenure. A dean's decision to deny tenure is final unless the tenure candidate appeals the dean's denial to the University Faculty Reappointment, Promotion, Tenure and Dismissal Appeals Panel (UFRPTDAP) or to the provost. Thus, although the dean's action in this regard is often referred to as a "recommendation to deny tenure," it is in fact defendant's decision to deny tenure unless successfully appealed. See Lever v Northwestern University, 979 F.2d 552 (7th Cir 1992). Ordinarily, the University President is not involved in a decision to deny tenure.

 6. Tenure candidates may appeal a dean's decision to deny tenure to UFRPTDAP or to the provost. An appeal to UFRPTDAP is made on the grounds of improper procedure. If an appeal to UFRPTDAP is taken, the provost defers his decision on the appeal until UFRPTDAP has submitted its recommendation to him.

 7. Northwestern's Schools and Colleges may establish their own tenure procedures within this framework.

 8. Northwestern's School of Education, later renamed the School of Education and Social Policy (hereafter referred to as the "School of Education" or the "School"), established tenure procedures that governed each of plaintiff's tenure reviews. Plaintiff was first reviewed for tenure during the 1984-85 academic year. She was again reviewed for tenure during the 1985-86 academic year. In each of those years, a male received tenure and promotion to the associate professor level when plaintiff was denied tenure. Specifically, Bruce Spencer was tenured in 1985, and Dan Lewis was tenured in 1986. During the period in which plaintiff was employed by defendant and David Wiley was dean of the school, there were five other tenure reviews; Karen C. Fuson and Diana Slaughter were granted tenure in 1979-80, Michael Piechowski was denied tenure in 1982-83, Elizabeth Sulzby was granted tenure in 1982-83, and Fay L. Cook was granted tenure in 1984-85. Plaintiff's 1986 denial of tenure is the subject of this action.

 9. The School of Education's procedures involved a multi-level tenure review process. That process culminated in the dean either denying tenure or recommending to the provost that tenure be granted.

 10. Faculty members at Northwestern are ranked in the following descending order: professors; associate professors; assistant professors; instructors; and lecturers, research associates, and teaching associates and assistants. Generally, professors and associate professors are appointed with tenure. All other faculty members are appointed without tenure for limited terms.

 11. Full-time service in the faculty ranks of instructor, assistant professor, and associate professor count toward tenure accumulation. Service in the ranks of lecturer and research associate is not "tenure accumulating."

 12. Northwestern adheres to the principles of the American Association of University Professors (AAUP) regarding the de facto grant of tenure. Tenure at Northwestern is acquired de facto in the seventh year of a faculty member's full-time service in tenure-accumulating ranks, unless the faculty member receives notice during the sixth year that the seventh year of employment will be "terminal." Tenure de facto is automatic. It is conferred without a tenure review solely by reason of the faculty member's appointments.

 13. To avoid tenure de facto, an assistant professor is typically reviewed for tenure during his or her sixth year of employment.

 14. Most junior faculty hired by Northwestern are appointed as assistant professors for an initial three-year term. At the end of that three-year period, an assistant professor is reviewed for reappointment to a second three-year term. A tenure review typically occurs during the sixth year of the assistant professor's employment (i.e., the last year of the second three-year term). If an assistant professor is granted tenure, the term of the appointment is for an indefinite period. Assistant professors are typically promoted to the rank of associate professor when tenure is conferred. If an assistant professor is denied tenure, the seventh year of employment is designated as his or her "terminal year," that is, the individual's employment terminates at the end of the seventh year.

 15. David Wiley was the dean of Northwestern's School of Education from April 1979 through August 1992. Three tenure review procedures applied to tenure reviews conducted in the School of Education during Wiley's deanship; the 1979 procedures; the 1981 procedures; and the 1984 procedures.

 16. The 1984 procedures governed each of plaintiff's tenure reviews. With respect to her 1984-85 review, Dean Wiley gave plaintiff a choice and she chose to have the 1984 tenure review procedures, instead of the 1981 procedures, apply, except that she was allowed to, and did, elect to have a program review conducted with respect to her teaching and service.

 17. A comparison of the 1984 procedures with the pre-1984 procedures does not reveal that the School of Education faculty relinquished control over tenure review to the dean in 1984. It does reveal that one of the many levels of review in the process was eliminated and that the required composition of ad hoc committees was altered somewhat.

 18. Prior to 1984, a tenure candidate in the School of Education submitted materials to his or her program area for review. The program area evaluated the candidate's materials, solicited peer reviewer letters (from scholars in the candidate's field) and drafted a written report recommending that tenure be granted or denied. The report was submitted to the Faculty Personnel Review Committee (FPRC), a six-person elected faculty committee with oversight responsibility for the tenure review process. The dean then selected an ad hoc committee to review the program area's report. The dean and the FPRC reviewed the ad hoc report for completeness. Once accepted on that basis, the report was sent to the candidate to present additional evidence to the FPRC in oral or written form. The FPRC then considered all of the evidence (the ad hoc report and the candidate's materials) and made a recommendation to grant or deny tenure to the dean and the tenured faculty of the School of Education. The tenured faculty also made a recommendation to accept or reject the ad hoc report to the dean, who made the ultimate decision at the School level either to deny tenure or to recommend granting tenure.

 19. The School of Education faculty and not Dean Wiley requested and approved the changes in the School's tenure review procedures from 1979 to 1981 to 1984. The 1984 procedures eliminated the formal program area review because the review was redundant in view of the ad hoc committee review and made the tenure review process too long. Under the 1984 and pre-1984 procedures, the dean selected the ad hoc committee members. The pre-1984 procedures required the dean to appoint one ad hoc committee member from the FPRC whereas the 1984 procedures required the dean to appoint one ad hoc committee member from the candidate's program area. In addition to selecting a faculty member from plaintiff's program area, Dean Wiley selected an FPRC member to serve on plaintiff's 1985 and 1986 tenure ad hoc committees. The ad hoc committee's role did not change under the 1984 procedures from the pre-1984 procedures.

 20. Once the ad hoc committee submitted its report, the 1984 procedures were almost identical to the earlier procedures. The candidate was given an opportunity to comment on the ad hoc report. The FPRC and the tenured faculty in the School of Education then either accepted or rejected the ad hoc committee's recommendations, and, ultimately, the dean either decided to deny tenure or made a recommendation to the provost to grant tenure in the particular case.

 21. Under both the pre-1984 and the 1984 procedures, the dean's office played a central role in all tenure reviews. The dean collected the candidates' materials, selected the ad hoc committee, disseminated the materials to the ad hoc committee, contacted peer reviewers on the ad hoc committee's behalf, and collected the peer reviews and disseminated them to the ad hoc committee.

 22. Not all individuals reviewing a tenure candidate had equal access to information. In an effort to maintain confidentiality, only the ad hoc committee members and the dean had access to a tenure candidate's unredacted peer review letters. The ad hoc report was made available to the dean, the candidate, and the FPRC. The Senior School Faculty does not receive peer review letters, though they do review the ad hoc committee report at the meeting in which they vote on a candidate's tenure qualifications.

 23. The dean's selection of the ad hoc committee could conceivably affect the outcome of a tenure review. Selection of committee members who were personally biased, either in favor of or against, a tenure candidate could affect the result. Selection of committee members who had unusually high standards or unusually low standards for a favorable recommendation could also affect the result. However, given the subsequent review of the ad hoc committee's report by the FPRC and the Senior School Faculty, senior academics likely to be determinedly independent in their judgments, such selection of an ad hoc committee would by no means assure a particular tenure outcome.

 24. A tenure outcome could also conceivably be affected by sending a less than adequate or representative sample of a candidate's work to peer reviewers. This too would not necessarily assure a particular tenure outcome. Some or all of the peer reviewers could be familiar with the candidate's work and so not be limited in their information. Also, the unredacted letters would be reviewed by the ad hoc committee, and the FPRC and Senior School Faculty would consider the excerpts from the letters used to support the conclusions contained in the ad hoc committee report in making their decisions. However, given the near unanimity of good reviews normally necessary for tenure at Northwestern, the outcome of a tenure review might in some instances be affected by sending a less than adequate or representative sample of a candidate's work to peer reviewers.

 25. Tenure candidates are evaluated in three areas: teaching, service (within the institution and to the academic community), and scholarship. Of these, scholarship was the most important criterion for tenure within the School of Education.

 26. Under the School of Education's 1984 procedures, a tenure candidate's scholarship was initially reviewed by the ad hoc committee and by peer reviewers (scholars in the candidate's field). Dean Wiley used the candidate's publication record in first-tier journals, the evaluations of external peer reviewers, and the ad hoc committee's, the FPRC's, and the Senior School Faculty's recommendations to cross-validate his own conclusions about the candidate's scholarship and qualifications for tenure.

 27. A candidate's scholarship was reviewed in terms of quality and quantity. The ultimate question for tenure was whether the candidate would be "a substantial and important contributor to his or her field of scholarship in the future." In order to merit tenure at Northwestern, a candidate's scholarship must meet the highest professional standards in the candidate's discipline and the candidate must have an established record of scholarly achievement.

 28. Plaintiff's teaching and service were not at issue during her 1986 tenure review.

 29. Northwestern denied plaintiff tenure on the basis of the quality of her scholarship including the failure to have articles accepted by and published in first-tier refereed journals.

 30. Plaintiff began her academic career at Northwestern as an instructor in the School of Education on September 1, 1977. Effective September 1, 1979, she was promoted to the rank of assistant professor. Plaintiff continued as an assistant professor until she was terminated by Northwestern after she failed to attain tenure and promotion to the rank of associate professor during the 1985-86 academic year. Her employment officially ended on August 31, 1987.

 31. Under Dean Wiley, there were four program areas in the School of Education: (1) Administration and Policy Studies; (2) Counseling Psychology; (3) Human Development and Social Policy; and (4) Teaching-Learning Processes. Plaintiff's program areas was "Administration and Policy Studies."

 32. During the first six years of her employment at Northwestern, plaintiff held administrative titles along with her faculty appointments. Plaintiff was director of the Dean's Network--a consortium of deans of schools of education from 21 colleges and universities--from 1977 until 1981. B.J. Chandler, David Wiley's predecessor, first appointed plaintiff to that position which she continued to hold under Dean Wiley. Dean Wiley appointed plaintiff to the newly-created position of Assistant Dean for Research in 1979. Plaintiff held the title of Assistant Dean for Research from 1979 to 1981, and Associate Dean for Research from 1981 to 1983.

 33. Plaintiff's administrative positions impeded her ability to devote full time to scholarship. During the period of 1979 to 1981, plaintiff averaged an 80-hour workweek with fifty per cent of her time devoted to the assistant deanship and the remaining fifty per cent of her time divided equally between the Dean's Network and her scholarship. Plaintiff's work as director of the Dean's Network also provided her with contacts with deans and other faculty members in Schools of Education and during that time she did pursue research with the intent of having the research published. Plaintiff's positions as Assistant and Associate Dean of Research also exposed her to colleagues' scholarship. Dean Wiley allowed plaintiff to resign from the Dean's Network and limit her administrative responsibilities as an associate dean to 20 hours per week so that she could devote more time to her scholarship.

 34. Prior to Dean Wiley's hire, plaintiff began her employment at Northwestern in a full-time administrative capacity although she also held a faculty rank. Because the funding for her initial positions at Northwestern came entirely from outside of the School's faculty budget, plaintiff received a series of one-year contracts instead of the typical three-year faculty appointment of assistant professor. After plaintiff expressed interest in becoming a full-time faculty member and being considered for tenure in the School, Dean Wiley, without taking a vote of the Senior School Faculty but believing he had their agreement, granted plaintiff's request by placing her on tenure track in April 1981 so that she could be considered for tenure. At that time, Dean Wiley also place Lee Blum on tenure track.

 35. Beginning in 1980 orally, and in 1981 in writing, plaintiff requested relief from her administrative responsibilities so that she could devote full-time to scholarship. Dean Wiley for a period of time declined those requests on the ground that plaintiff's faculty appointment was contingent on her administrative appointment. Upon Dean Wiley's approval, plaintiff resigned from her position as director of the Dean's Network effective June 30, 1981. Plaintiff also expressed interest in resigning from her Assistant Dean of Research position during that time. Dean Wiley could not grant plaintiff's request at that time because plaintiff's faculty appointment was predicated upon her administrative responsibilities in that there were not sufficient resources in the faculty budget at that time to shift her position to a regular faculty appointment.

 36. In 1983, Dean Wiley granted plaintiff's request to resign from her Associate Dean of Research position because faculty members had enough experience in the grant application process by that time to assume plaintiff's responsibilities on their own. Plaintiff's 1983 reappointment ad hoc committee recommended that "efforts should be made to insure that her nonresearch duties are minimal." Dean Wiley did not relieve plaintiff of her administrative duties solely because of that advice, although it was a contributing factor.

 37. Administrative duties in the School were not gender-related and did not of themselves preclude a faculty member from ultimately obtaining tenure. Fay Cook, a female faculty member who had administrative duties prior to her tenure review, obtained tenure; male faculty members such as Malcolm Bush, Martin Gill, Michael Rapp, and David Florio who had administrative duties did not obtain tenure; and Michael Piechowski, a male faculty member who did not have administrative duties did not obtain tenure. During David Wiley's deanship, no male assistant professors ever held administrative titles while on tenure track.

 38. When David Wiley became dean, he appointed Margaret Lee, at that time the only tenured female full professor on the faculty, to fill the newly-created position of Associate Dean for Student Affairs. That position focused on undergraduate students in the School of Education. Dean Wiley also appointed Richard Lesh, a tenured male faculty member, to an administrative position.

 39. Prior to Dean Wiley's hire, Lee Blum began her Northwestern employment in an administrative capacity as head of the School's Master's Training Program in Counseling Psychology and also held a faculty rank. In April 1981, Dean Wiley placed Lee Blum on tenure track. At Ms. Blum's request, Dean Wiley appointed a special ad hoc committee regarding her chances of obtaining tenure. This committee, chaired by Elizabeth Sulzby, issued a report informing Ms. Blum that her chances of obtaining tenure were slim. After reviewing the report, Ms. Blum withdrew her candidacy for tenure and made arrangements with Dean Wiley for an administrative appointment, co-terminus with a courtesy appointment as assistant professor in the School. In order to obtain these appointments, Ms. Blum was asked by Dean Wiley to forfeit any right to tenure she might have; in his thirteen years as dean, David Wiley never asked a male faculty member to forfeit any tenure rights. Ms. Blum still holds these appointments, with the exception that she has been promoted from assistant to associate professor.

 40. There was some disagreement between practice in the School of Education and the policy of Northwestern, as expressed by the provost, as to when an individual was on tenure track. In the School of Education, the practice was that an individual could be appointed instructor or assistant professor under some circumstances and yet not be on tenure track. As far as the provost was concerned, being appointed to a tenure-accumulating position (i.e., instructor, assistant professor, associate professor, or professor) was synonymous with being on tenure-track--in fact, was how one got on tenure track--and an individual who was not in a tenure-accumulating position (i.e., who was not on tenure track) should not be called instructor or assistant professor while a full-time administrator. Dean Wiley did not understand tenure accumulation until some time in the process of determining plaintiff's status for purposes of tenure when she was placed on tenure track. The result of the combination of the School of Education's practice and Northwestern's policy as expressed by the provost has been for the School of Education to partially divorce tenure-accumulation from tenure track, making it possible in some cases for time to count toward tenure (i.e., for the position to be tenure-accumulating) at a time when it is understood that there is no commitment by the School of Education that it will consider the individual for tenure and that the individual has no right to be reviewed for tenure (i.e., at a time the individual is not on tenure track).

 41. A faculty vote is generally required to be appointed to a tenure-accumulating position, and was held for initial appointments during Dean Wiley's administration. Under the School of Education's practice, a vote of the faculty has not always been a requirement to place an individual on tenure track. It is, however, very unusual for an individual to be placed on tenure track without a vote of the senior faculty. Some members of the faculty were upset when Dean Wiley placed plaintiff and Lee Blum on tenure track without a faculty vote, as evidenced by the statement of James Hall: "Wiley, this is another one of your pronouncements. . . . What you are doing here, Wiley, is taking these two women and putting them in a lifeboat in the middle of Lake Michigan, then sticking a hole in it and watching them drown."

 42. Plaintiff and Lee Blum were unaware that they had been in tenure-accumulating positions prior to Dean Wiley's informing the faculty that they were being placed on tenure track. Dean Wiley, also, was unaware of this.

 43. Plaintiff believed Dean Wiley when he told her prior to April 1981 that she was not on tenure track. Dean Wiley told plaintiff that a tenure track offer from another research university would lend credence to her desire to be placed on tenure track. Plaintiff obtained an offer from UCLA. That offer was not communicated to the faculty at the April 1981 meeting when Dean Wiley announced that plaintiff and Lee Blum were being placed on tenure track. No male faculty member was ever required to obtain a tenure track offer as a prerequisite to a tenure track appointment.

 44. Plaintiff's non-typical employment history at Northwestern required Dean Wiley to calculate the amount of plaintiff's tenure accumulation in order to determine the length of her 1983 reappointment as an assistant professor. Dan Lewis's atypical one-year employment contracts similarly necessitated a review of his tenure accumulation status in 1983 in order to determine when he might be reviewed for tenure. Because of the interplay between the School of Education's practice and Northwestern's policy as expressed by the provost with respect to tenure accumulation and tenure track, a faculty member's time toward tenure accumulates based on the faculty member's rank independently of whether the Senior School Faculty have agreed that the faculty member is on tenure track and will be considered for tenure. This interplay, previously unknown to both plaintiff and Dean Wiley, resulted in plaintiff and Dean Wiley being surprised to ...


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