APPELLATE COURT OF THE STATE OF CONNECTICUT A.C. NO. 20109
BRIEF OF THE APPELLEE
TO BE ARGUED BY:
JACQUES J. PARENTEAU, ESQ.
MADSEN, PRESTLEY & PARENTEAU, LLC
111 HUNTINGTON STREET
P.O. BOX 1631
NEW LONDON, CT 06320
PHONE: (860) 442-2466
FAX: (860) 447-9206
TABLE OF CONTENTS
TABLE OF CONTENTS ……………………………………………………………………………….
TABLE OF AUTHORITIES …………………………………………………………………………
STATEMENT OF FACTS AND NATURE OF PROCEEDINGS …………………..
COUNTER PRELIMINARY STATEMENT ………………………………………………….
COUNTER PRELIMINARY STATEMENT
A decision to deny tenure to a qualified associate professor destroys that person’s career choice forever. A tenure candidate places her career choice in the hands of the institution and the senior faculty. She relies upon their good faith in the application of published rules. No claim to protected zones of academic privilege can be applied to prevent an aggrieved tenure candidate from gaining access to courts of law on the same playing field as other contract claims.
Defendant’s preliminary statement confuses subsequent review which compares qualifications with a subsequent review as a second look to determine whether the employment agreement was followed. This confusion about qualifications and taking a second look at whether the rules were followed is, by design, and intentional on Trinity’s part, because Trinity’s only choice to prevail on appeal is to define plaintiff’s case below in a fashion which would support a reversal. Trinity’s claim on appeal is a straw man which Trinity sets up in an effort to make this court believe that the trial below involved a jury attempting to compare one person’s academic credentials against another’s to decide whether Trinity violated the common law or federal and state discrimination law.
Unfortunately, defendant has chosen to paint plaintiff’s case with a broad brush of academic judgment of qualifications and academic freedom, when in fact, it is the jury’s verdict which rewarded academic choice by allowing the faculty to enforce an agreement which had been negotiated to provide greater accountability in tenure decisions at Trinity College. Trinity was caught violating its own published rules and no amount of legal, after the fact, spinning of the case law or the evidence produced at trial will cover up this fact. There is simply no error warranting a reversal of this case.
TABLE OF AUTHORITIES
Based upon the twenty-three days of evidence, the jury could have reasonably found the following facts in the light most favorable to sustaining the verdict.
Plaintiff Leslie Craine was hired on tenure track at Trinity College in 1987. Tenure track is a probationary period of employment which, at Trinity, allowed for demonstration of ability in teaching, scholarship and service to the college as those concepts were further defined by the Faculty Manual. In September of 1989, after a year of discussion and debate concerning, among other things, the A & P Committee’s attempt to delete language from the Faculty Manual which required it to base its negative reappointment and tenure decisions on information communicated to the tenure candidate at the last reappointment decision, the faculty at Trinity College adopted language which continued to hold the A & P Committee accountable to statements it had made to the tenure candidate in the tenure process. Thus, going forward from September of 1989, Trinity College’s Faculty Manual specifically defined three stages of decision-making in a probationary tenure track appointment. At each stage of decision-making in the second, fourth and sixth years, the tenure candidate would be reviewed. Recommendations concerning reappointment or tenure would be forwarded to the A & P Committee. At the second year review, no outside peer review of scholarship was required. However, in the fourth and sixth years, recommendations were solicited from outside peer reviewers concerning scholarship which were relied upon by the candidate’s department in making its judgment as to whether the scholarship met the criteria set forth in the Faculty Manual. More importantly, from the faculty member’s point of view, the decision to reappoint in the second and fourth years was combined with the requirement that the A & P Committee state “as clearly as possible” those areas to which special attention was needed in order to best prepare the candidate’s case at the next review for either reappointment or tenure. The A & P Committee was held accountable to what it did say by the bookend obligation which appeared in the Faculty Manual’s provision for the denial of reappointment or tenure. This section required negative decisions would be based upon the failure to meet a “standard of improvement” specified in the last letter of reappointment appropriate to the rank.
The jury could reasonably have found that this procedure governed the tenure decision such that at each stage of reappointment the A & P Committee could decide not to reappoint, but having made the decision to reappoint, the A & P Committee was required to state “as clearly as possible” those areas which required “special attention” in order to successfully gain either appointment or tenure at the next review. In this way, the jury could have found the Faculty Manual required that the A & P Committee to make more explicit the vague, botanical references in the manual which, in the case of scholarship, referred to “promise” at second reappointment and to “promise achieving fruition” at the time of tenure.
The jury reasonably could have found that at the time of the next decision, be it reappointment or tenure, the A & P Committee could only deny reappointment or tenure for a failure to meet a standard of improvement which was specified in the last letter, so long as that standard of improvement was appropriate to the rank. In this way a reasonable juror could have found that the A & P Committee’s discretion at the time of the reappointment or tenure decision was limited in the sense that the A&P Committee was bound by what it did say. In other words, it was reasonable to find that the discretion to make up or employ another reason not communicated was impermissible given the language contained in the Faculty Manual.
The evidence showed that Leslie Craine was unamiously recommended for reappointment and tenure at all stages by the senior members of her department, all males. She was unamiously recommended at all stages by outside peer reviewers, all males. Leslie Craine had received significant public recognition of her work before Trinity, and throughout her career at Trinity, by the acceptance for publication of her article in Chemical Reviews, an internationally renowned journal; by the 1990 publication of her poster by the American Society of Chemists in Chemical and Engineering News, a publication which reported the news of the discovery that she had made working with the students in her laboratory at Trinity College; by the 1993 publication of her seminal article in the Journal of Organic Chemistry; by the publication of the revised laboratory manual she authored; and lastly, in the recognition evident from her outside reviewers, including John Snyder at Boston University and Dana Mayo at Bowdoin College. The jury could have also found excellence in Leslie Craine’s teaching based upon the Arthur Hughes award, which her own department described as an award for teaching excellence, and based upon the overwhelming complimentary statements from her colleagues in the Chemistry Department at the time of the tenure decision, as opposed to the turncoat testimony of some of them at the time of trial.
The jury could reasonably have found that in May of 1991 the A & P Committee wrote to Leslie Craine to announce its recommendation to reappoint her for a second time working toward the tenure decision in the Spring of 1993. The jury could have found that in the letter of reappointment, the A & P Committee stated quite clearly that it appreciated the pedagogical value of Leslie Craine’s laboratory manual, but that she should focus upon the original research projects ongoing in her laboratory and publish the results of her research. Otherwise, the A & P Committee informed Leslie Craine that she should maintain the course that she had established in her time at Trinity.
The jury could have found that the A&P Committee made no reference to any deficits in her research program, her grant funding applications or the quantity of her publications in May of 1991. The jury then would have found that the A&P Committee denied tenure to Leslie Craine in the Spring of 1993 because she did not publish more than one article based upon the research in her laboratory. The jury was permitted to find that, contrary to the rules, the A&P Committee was looking back over plaintiff’s six year period at Trinity offering up negative criticism over the amount of publication in that period of time, despite the fact that on two prior occasions no mention of quantity of publication had been made in the letters of reappointment. A reasonable juror could have found that the A&P Committee denied Leslie Craine tenure for a reason which was different than what the A&P Committee communicated in May 1991. A reasonable juror would have noted that Leslie Craine did all that was required of her as indicated in the May, 1991 letter. A reasonable juror could have agreed with the Department of Chemistry’s claim made in its appeal in 1993 that the A&P Committee’s standard changed between 1991 and 1993, and that Leslie Craine had done all that was required by the rules set forth in the Faculty Manual.
Based upon defendant Trinity College’s reiteration of the same reason set forth in its March 31, 1993 letter to the Connecticut Commission on Human Rights and Opportunities in September of 1994, the jury could have reasonably found that the reasons offered up at trial – – not enough grants, an invisible research program, too long of a delay in the publication of the article which was published in 1993 in the Journal of Organic Chemistry(!) – – were part of a deliberate attempt by Trinity to cover up its brazen failure and/or refusal to follow its own rules. The jury could have easily found Trinity’s witnesses to be messengers of mendacity and facilitators of falsehoods dressed up as serious and conscientious academics disingenuously claiming to have made a good faith judgment concerning Leslie Craine.
A reasonable jury could have found a commitment to affirmative action in the Faculty Manual applicable to Leslie Craine’s case, given the composition of the tenured faculty in the
Department of Chemistry and that it was not traditional to advance females in the hard sciences at Trinity College and elsewhere. The jury could have found the language in the Faculty Manual which professed a commitment to affirmative action was plainly applicable to Leslie Craine on the face of the language and on the facts of the case; particularly those facts which indicated that when the question of the number of publications arose, a reasonable administrator at Trinity College would have taken into account there may exist a “female way” in science which suggests that women scientists do not publish as frequently as men, but that when they do, the quality of the work is higher and the work is cited more often. The evidence shows that each member of the A&P Committee denied making use of the affirmative action policy in Leslie Craine’s case despite its obvious application to her. A reasonable juror might have concluded that Trinity College, acting through its A&P Committee, offered nothing more than lip service to the goal of affirmative action and that its claim to promote affirmative action as a goal by retention of female professors was hypocritical at best.
A reasonable jury could easily have found that the way in which the rules in the Faculty Manual were applied depended upon the gender and/or age of the individual up for tenure. The jury determined gender made a difference. Evidence offered by plaintiff concerning the Jack Chatfield and Paula Russo files clearly revealed a difference in treatment between Leslie Craine’s case and the Chatfield and Russo cases. The difference in treatment to be reasonably found by the jury was that Leslie Craine was treated more harshly. The “critical reading” of Leslie Craine’s file demonstrated by Trinity’s witnesses, including Jan Cohn and Miller Brown, exhibited a good deal of negative interpretation of information which was seen as a positive in the files of Russo and Chatfield. It was clear to a reasonable juror that both Chatfield and Russo should have been denied tenure if the legitimate application of the rules required denial of tenure in Leslie Craine’s case. Chatfield and Russo were treated more leniently. If the rules were applied fairly to Leslie Craine, then neither Chatfield nor Russo should have received tenure.
Russo’s case was strikingly similar to Leslie Craine’s case. Although Russo (Math Department) was 38 years old at the time of the tenure decision and Leslie Craine was 49, they were each up for tenure in the same year. They had each received a nearly identical letter at second reappointment. Both Craine and Russo were unamiously supported by the outside reviewers and by the all male tenured members of their departments. Both departments offered statistical evidence to support their candidate. In Craine’s case the evidence was ignored. In Russo’s case it was considered and relied upon. Both Craine and Russo were told to publish based upon work at Trinity. Each published one article. Although Russo was the second author on her paper, and her article was not published in a research journal, this information was critically read as a positive. Craine’s article was published in the most prestigious research journal in her field. She was accompanied by five students, a feat which was lauded by department and peer reviewers alike. Yet, Craine’s article was dismissed as merely a rewrite of her article submitted to the Journal of Organic Chemistry in 1990. A reasonable juror could have found this claim to be false.
In Russo’s case, the article she published was based upon work which she first exhibited in Boston in 1990, just like Craine. Russo had no more of a “research program” than a plan to publish another paper based on the same work she had presented in 1990. In Craine’s case, three of four ongoing experiments in her laboratory in the Spring of 1993 were related to, and were an extension of, the work which was published in the Journal of Organic Chemistry. A younger Russo received tenure. Leslie Craine was denied tenure and attacked by Trinity at trial. A jury could have rejected the “critical reading” of the Craine and Russo files under the circumstances where it was obvious that the rules were not applied equally or fairly to Leslie Craine.
A reasonable jury could have found that Jack Chatfield’s (History Department) case constituted blatant evidence of disparate treatment. In Chatfield’s case, he was told to publish a significant amount more by the A & P Committee in the letter directed to Chatfield at the time of second reappointment. The evidence was clear that at the time of tenure, Jack Chatfield did not publish one thing more than he had in his file at the time of second reappointment. Jack Chatfield did not receive unanimous support from his department. Indeed, even his supporters in his department and the outside reviewers who supported Chatfield’s scholarship, all declared that his work – – an unfinished manuscript – – containing grammatical errors – – had “promise,” the standard applicable to second reappointment, but no one said Chatfield’s scholarship had “achieved the promise of fruition.” The jury could have found that the A&P Committee turned a blind eye to Jack Chatfield’s failure to achieve even the minimal acceptable for consideration of tenure as defined by the A&P Committee at second reappointment in accordance with the rules set forth in the Faculty Manual.
The jury could have perceived Jack Chatfield’s obtaining tenure as “Old boy Jack getting a bye.” The jury could have concluded that “Old boy Jack” received favorable treatment because he was part of the old boys’ network at Trinity College, having taught there as an adjunct for 17 years prior to being placed on tenure track, and also having been a graduate of Trinity College which, until the early 1970’s, was an all male institution. The jury could have found Chatfield’s tenure decision a clear cut case of Trinity not applying the rules to Jack Chatfield; allowing him to receive tenure while denying tenure to Leslie Craine when she had clearly demonstrated that her publication in the Journal of Organic Chemistry met the requirement set forth in the letter at second reappointment.
The question the jury had to answer in connection with the discrimination claim was why was Leslie Craine treated differently? After rejecting defendant’s dishonest explanation made up for trial – – no grants and no research program, but we’re not counting – – and then after considering the more favorable treatment Chatfield received at the hands of the A&P Committee, for reasons explained by Miller Brown, among others, in his “critical reading” of the file, it was within the prerogative of the jury to reject the explanation of different treatment, to reject “critical reading” as the art which led to the difference in treatment and to draw the conclusion that not only did Craine’s gender not factor positively into the treatment as required by the affirmative action policy, but worse, that she was treated more harshly by people who described her scholarship regarding microscale experiments as “a collection of cookie recipes.” Some reasonable jurors even gasped at this analogy.
A jury could easily find liability on these facts. Then, considering the malicious, deceitful conduct exhibited by defendant’s trial strategy which attacked Leslie Craine’s scholarship, a reasonable juror could be motivated to award punitive damages. Defendant’s witnesses and defendant counsel’s cross-examination went great distances to belittle and demean plaintiff in the eyes of the jury with the “cookie recipe” analogy and the claim that her scientific discovery was simple minded. Defendant’s handling of Leslie Craine’s tenure case at Trinity and at trial exhibited a reckless and callous indifference to disparate treatment which was evident to the jury, a difference in treatment by the same committee which boasted an affirmative action “watchdog” as one of its members. Not only did the A&P Committee reject Leslie Craine once for no good reason in March of 1993 unsupported by application of the rules in the face of unanimous departmental recommendation for tenure, but the same committee did it a second time in August of 1993. On both occasions the A&P Committee assaulted Leslie Craine’s good name and her work at Trinity. Leslie Craine, by all accounts, was an excellent and innovative teacher who was nominated by her senior colleagues for a teaching award. Teaching was most important to Leslie Craine, yet the A & P Committee dismissed her teaching as merely adequate and then falsely characterized her scholarship as minimal and service oriented.
Leslie Craine testified she was devastated by the decision, unable to move from her office when she was denied the second time. This testimony was eloquently supported by her husband Tim. After the second denial of tenure in August of 1993, Leslie was compelled to seek out counseling and to obtain prescription drugs from Kaiser Permanente. This is only the second time Leslie had ever needed prescription drugs to deal with emotional turmoil in her life. The first time plaintiff sought prescription medicine was after being accepted for employment at Trinity in 1987 and realizing the major adjustment and challenge she was taking on in moving her family from the Detroit, MI area to Hartford, CT. Accepting tenure track employment at Trinity College was a major event in her career and life as an academic. The records of Kaiser Permanente and the testimony of Alan Lake showed that her suffering in the Fall of 1993 was related to the tenure decision. Although the condition which required medication was defined as an acute adjustment disorder, the jury could reasonably find by Leslie Craine’s testimony and that of her husband, that Leslie Craine continued to suffer depression and anxiety based upon the fact that she had been denied tenure and the fact that her future and career as an academic was over after being denied tenure.
The tenure decision is the most important employment decision ever to be made in an academic career and, in Leslie Craine’s case, it was the first and only time she would be eligible for tenure. Under the circumstances where there had been an unfair application of the rules, Leslie Craine’s emotional distress which she experienced immediately following the tenure decision was extended by the forced commute to Holy Cross and Westfield State, and the inevitable acceptance of part-time employment at Central Connecticut State University. Additionally, it cannot be overlooked that the harm to Leslie Craine’s reputation and self-esteem was compounded every time she received another rejection of application for employment in tenure track elsewhere.
The jury could reasonably find that the denial of tenure destroyed Leslie Craine’s academic career as she had envisioned it, combining teaching and research at a liberal arts institution. As a result, the emotional consequences are likely to continue into the future. It is clear from the evidence that she was turned down for other tenure track positions. It is clear that she was not able to pick up where she had left off in her research. The crowning achievement of her academic work at Trinity, which had resulted in one publication in the Journal of Organic Chemistry, would not and could not be pursued. The emotional distress that she suffered based upon the denial of tenure closely tracks her continued employment at Central Connecticut State University where she is reminded every day of that unfair denial and it follows the loss of enjoyment of life based upon the destruction of her research career and ability to continue to publish in the area which brought her initial notice in her professional field.
Given that the jury could reasonably have found all of these facts set forth above, there is no question that all of Trinity’s claims attempting to modify the verdict should be rejected.
JJP ADD – Leslie Craine was a mom and a scholar. She was employed under an agreement which had been amended as a result of, in part, the efforts of the campus chapter of the American Association of University Professors. The change in the faculty handbook resulted in obligations imposed upon the A&P Committee. These obligations include the requirement to set forth what is required for tenure on a bi-annual basis and then to base a decision to deny either reappointment or tenure on the language itself. Plaintiff received a letter at second reappointment which directed her to focus on original research projects in her laboratory and publish the results of that research. Upon receipt of that letter, plaintiff followed the direction and published a ground-breaking article in the most prestigious scientific journal in her field. This publication was in accordance with the direction of the A&P Committee. At the time of the tenure decision, plaintiff had four ongoing projects in her laboratory. Despite compliance with this direction, plaintiff was denied tenure. The letter of denial failed to ground that decision in a prior communication. The denial letter also was contrary to the rules which required focus on the two year period from the date of the last review. Plaintiff appealed. Her department supported that appeal providing additional evidence. Particularly, on the question of the exclusion of women professors from the so-called hard sciences. The appeals board in a face saving gesture, asked the A&P Committee to reconsider. The A&P Committee refused to reconsider and in denying plaintiff a second time, it appropriately referred to the standard applicable to a professor instead of an associate professor by using the word maturity set forth in detail Chatfield’s story including the evidence of his getting by and Russo’s story including a similar requirement to publish in order to obtain tenure. State that the defendant changed its position at trial with respect to the reason for denial by referring to failure to garner grants in addition to a paucity of publications. The defendant also attempted to criticize the number of research projects ongoing in plaintiff’s lab. During the trial, there was testimony concerning cookies by the one of the decision makers. Another decision maker, Herzberger, who was the watchdog of the affirmative action office, testified the A&P Committee never even considered the equal employment opportunity policy. As a result of this, plaintiff’s research career was destroyed.
I. Trinity’s Claim that the Verdict should be Set Aside Cannot be Sustained on Appeal
A. Standard of Review
It is the plaintiff’s constitutional right to have a jury decide matters of fact and for that reason, there is a strict standard applicable to reversal of fact finding by the jury. The court is required to consider the evidence in the light most favorable to the prevailing party below and in addition, to construe that evidence in a way which would sustain the verdict, not set it aside.
B. Plaintiff met her Burden Of Proof on the Issue of Sex Discrimination
1. The case which controls the court’s review of the evidence and the jury’s verdict in this case is the United States Supreme Court’s decision in Reeves v. Sanderson Plumbing & Heating. Reeves is significant because it directly reviews the standard which the trial judge should apply when a motion is made to set aside the verdict. In abrogating the contrary holding in Fischer v. Vassar College, among other cases, the Reeves court clearly stated that a plaintiff may establish a claim of disparate treatment by simply establishing a prima facie case and proving that the defendant’s explanation is not worthy of belief. The so-called pretext plus additional independent evidence is not the rule of review. Under Reeves the evidence of inference which plaintiff produces in the prima facie case may be combined with the jury’s disbelief of the defendant’s explanation in order to find discrimination. Such a determination depends in part upon the strength of the prima facie case.
Defendant recognizes that Reeves controls the decision in this case and understanding the import of establishing a prima facie case when there is evidence of pretext, defendant attacks plaintiff’s prima facie case by suggesting the jury could not properly draw an inference of disparate treatment based on the evidence before it. The problem with defendant’s attack is that the standard for establishing a prima facie case is minimal. Zahorik Indeed, the defendant does not question any of the traditional elements except inference. Defendant thus concedes that plaintiff was qualified for purposes of the prima facie case as consistent with the holdings in similar cases. Zahorik Plaintiff’s qualification for tenure was established by the department’s unanimous recommendation that she receive it. Therefore, the battle ground that defendant has laid out in this attack upon plaintiff’s case is inference. Due to other circumstances in this case which suggest that sex based motive may have played a role in the decision making, that there was a sex based motive, plaintiff is not required t show that her gender was the sole motive in order to prevail in this case. Thus, when considering the evidence which was proffered to the jury on this question, the court must interpret the evidence in the light most favorable to sustaining the verdict.
One set of circumstances which the plaintiff asked the jury to consider in order to draw an inference that there was disparate treatment in the application of the rules by the A&P Committee in 1993 was the favorable treatment by Jack Chatfield. The evidence clearly showed that the rules were applied such that Jack Chatfield was granted tenure despite his failure to comply with the direction in the second reappointment letter. The jury was entitled to consider that Jack Chatfield received a “bye” from the A&P Committee and rely upon that evidence to determine that a male received favorable treatment and a female did not. Application of the rules in a consistent fashion was at the core of plaintiff’s case. Contrary to the suggestion that qualifications constituted the centerpiece, the plaintiff never asked the jury to compare the qualifications of one individual against another as was done in the cases cited by defendant. Properly understood, plaintiff’s claim that she was denied consistent application of the rules explains and then defeats all of the defendant’s claims of error.
Another set of circumstances which the jury was entitled to rely upon in order to find disparate treatment was the “cookie recipe” statement made by Miller Brown, one of the members of the A&P Committee. Miller Brown undoubtedly stated something which the jury could decide exhibited a state of mind accepting stereotypes which demean the woman’s status in the workplace. Miller Brown chose to use the recipe analogy. Defendant has, in his explanation as to why the jury should not consider plaintiff’s lab manual as a piece of research, cites Webster’s 9th Edition New Collegiate Dictionary in order to support its claim that the word “recipe” has more than one meaning and Miller Brown was not engaged in stereotyping because he used the word recipe. The fact of the matter is that “recipe” is defined to mean both instructions to create something and instructions to make up a dish of food including cookies. Since the word recipe has two meanings and Miller Brown chose to refer to recipe and the baking of cookies in the same analogy, it was reasonable for the jury to have credited him with the kitchen version of the word recipe. The jury was entitled to infer from the analogy chosen by Miller Brown that he held opinions which picture women in a kitchen making cookies. That image is one of a homemaker. Homemaker is an image inconsistent with a scientist holding a doctorate degree in organic chemistry who at the time of tenure had just published, along with seven students, a paper in the most prestigious journal in her field. The jury may have understood that Miller Brown’s put down of Leslie Craine was an insult which reflected a state of mind which incorporates gender into employment decisions. If Miller Brown’s use of the analogy to reducing a batch of cookies to one is an inference that can go either way, under the standard of review annunciated by Reeves, the plaintiff is entitled to an interpretation which favors upholding the verdict on these set of circumstances.
Another set of circumstances which plaintiff presented from which the jury could have drawn an inference of disparate treatment favoring males involved the A&P Committee’s statements concerning Leslie Craine’s teaching. There was no criticism of Leslie Craine’s teaching in the record. By all accounts, Leslie Craine’s performance as a teacher was excellent. The evidence showed that Leslie Craine had won an award given to junior faculty for teaching. In the year before the tenure decision, sharing that award with Jack Chatfield. In the A&P Committee’s decision concerning Chatfield, his teaching was praised. Leslie Craine’s teaching, on the other hand, was denigrated by the A&P Committee. The difference in treatment to add to other evidence of disparate treatment.
Finally, the evidence revealed that the A&P Committee denied Leslie Craine access to the consideration of Trinity College’s equal opportunity policy in the tenure deliberations. The equal employment opportunity policy, by its very terms, could have been applied to Leslie Craine’s case because the undisputed evidence showed that women were under-represented in the hard sciences which includes Chemistry. Nevertheless, the defendant, through every member of the A&P Committee which took the stand, including Sharon Herzberger, the so-called affirmative action watchdog, admitted that no attempt was made to take into consideration the equal employment opportunity policy in Leslie Craine’s case. The jury was entitled to draw an inference from these circumstances especially in light of the inconsistent application of the rules since the evidence suggested, at the very least, the equal employment opportunity policy be applied to Leslie Craine’s case. The Committee’s failure to consider it suggests that the Committee saw no need to address an imbalance in the number of professors who are granted tenure in the hard sciences.
2. Pretext. Upon establishing a prima facie case, the burden shifts to the defendant to provide an explanation for the decision to deny tenure. This explanation was provided by the A&P Committee in two letters which were contemporaneous with the decision itself. The letters state that Leslie Craine was denied tenure because she did not publish a sufficient quantity at Trinity. That is what the jury could have found. The jury could have also found that at no time prior to the denial letters had Trinity ever stated that it would require a certain quantity of publications in order to grant tenure despite the obligation to make that condition known during the first or second reappointment. The jury could have found that the defendant repeated the justification to deny tenure in its response to the Commission on Human Rights and Opportunities and that the explanation given to the Commission on Human Rights and Opportunities was similar to the one set forth in the letters to Leslie Craine in 1993. In the brief, the defendant want to focus on the s in research projects contained in the letter. No such argument was raised below. What the jury heard from the defendant at trial on more than one occasion was that Leslie Craine not only failed to publish more than one article based on her original research at Trinity (her actual publications based on original research numbered ___. In addition, she had a well received annotation which formed the basis for her original research at Trinity, an article which was accepted by the most prestigious in that field, hardly ever would you find an associate professor publishing in such a journal), but that Leslie Craine did not have enough grants and that she did not have enough ongoing research in her laboratory at the time the tenure decision was made. Two of these three explanations were new to the jury at trial. The spin which Trinity now applies to the evidence that Leslie Craine was advised to have more than one research project ongoing is freshly mended for this court. Now, based on the evidence, the jury could have determined that the A&P Committee applied a quantitive standard contrary to the rules which Trinity published requiring justification of denial of tenure to be based upon a prior communication. The jury could have also determined that the A&P Committee’s focus on the entire six year period of review when the rules could be interpreted to allow the A&P Committee to review only the performance since the date of the last reappointment was also in violation of the rules. Review of the evidence before the A&P Committee included the department’s appeal and Leslie Craine’s candidate statement shows that all were concerned about the number of publications. The jury, thus, would have been entitled to determine that Trinity College was raising an explanation at trial which was never relied upon at the time of the tenure decision to support its claim that Leslie Craine was denied tenure in a nondiscriminatory fashion. The jury could determine that such a shifting explanation is in itself evidence of pretext because Trinity was concerned that the explanation it gave at the time was easily shown to be in violation of the rules. On the question of grants, plaintiff did secure grants and so the jury could decide that the reason offered at trial was false. The jury could have also determined that Trinity exercised bad faith regarding its claim that she had no ongoing projects in the lab when the evidence presented during plaintiff’s rebuttal case showed that there were exactly four new ongoing research projects following the publication of original research in most prestigious journal in Leslie Craine’s field. The jury could have also determined that the defendant’s explanation that the paper which was published in the Journal of Organic Chemistry was the same research and publication offered for publication at the time of second reappointment was not a good faith interpretation of Leslie Craine’s work. Defendant’s claim that there was other evidence regarding the granting of tenure which would defeat the combination of pretext and prima facie case inference evidence is contrary to the standard of review. Indeed, the numbers presented by the defendant to suggest that no discrimination could take place at Trinity can be interpreted to show that women are twice as likely to be denied tenure at Trinity College. The jury was entitled to reject this evidence as relevant to the determination of the way Leslie Craine was treated in her own individual case. In either event, under Reeves the combination of the prima facie case and the case for pretext are sufficient for the jury to find a Title VII violation based upon a preponderance of the evidence and keeping in mind the obligation to view the evidence in the light most favorable to sustaining the verdict, the defendant cannot prevail on its claim that plaintiff failed to present sufficient evidence to go to the jury on a claim of discrimination.
C. Plaintiff’s Evidence was Sufficient to Support a Breach of Contract Claim
It should be pointed out as an initial matter that as in case of the evidence and plaintiff’s theory of the case regarding discrimination, the defendant does not accurately or adequately describe plaintiff’s breach of contract claims. Interestingly, in the process of establishing that the defendant’s explanation for denial of tenure was unworthy of belief, the jury was entitled to find that there had been a violation of the rules. On the breach of contract claim, defendant claims error – – as opposed to their arguments in the footnotes – – in that the jury could not have found a violation of the rules. Further, they argue that the jury was not entitled to second guess on a question of qualifications. Having established before the jury that Trinity failed to justify its decision to deny tenure on a previous communication, plaintiff has succeeded in proving a breach of contract on one of the theories.
In addition, the defendant claims that there is no proof that denial of tenure based on alleged breach of contract occurred. There was a breach of contract by the failure to communicate as required by the rules. There was a breach of contract by failure to apply the rules consistently. There was a breach of contract by failure to base a denial and a reason previously communicated as described. There was a breach of contract, and so found by the jury, by the failure of the A&P Committee to consider the equal employment opportunity policy and there was a breach of contract when, in its decision making, the jury found the defendant failed to abide by the implied covenant of good faith and fair dealing. The jury was entitled to conclude that proper application of the rules resulted in tenure at Trinity. Certainly, this is shown by the number of associate professors who received tenure over a ten year period. Evidence showed that twenty-nine out of thirty-one individuals who stood for tenure receive tenure, well over 90%. Therefore, the jury could determine that it was more likely than not the proper application of the rules resulted in a favorable tenure decision.
D. Trinity is Not Entitled to Judgment on the Negligent Misrepresentation Claim Because if the Defendant failed to Set Forth the Criteria of Quantity in a Previous Publication and then Denied Tenure based on the Failure to Achieve a Quantity, then the Defendant has failed to Exercise Due Care in its Communication to Leslie Carine and the Jury was entitled to Find that to be the Case.
II. TRINITY IS NOT ENTITLED TO A NEW TRIAL
A. Standard of Review The standard of review for errors in the charge are plenary. However, the court must review the charge as a whole and not focus on particular words or phrases.
B. Trinity was Not Entitled to a Charge Regarding Second Guessing
Over plaintiff’s objection, the judge charged the jury on the discrimination claim that Trinity’s decision could not be second guessed. The judge properly refused to give such a charge in the contract case. For reasons which are set forth below, the plaintiff contends that Trinity was not entitled to such a charge to begin with. More importantly, however, the court properly considered the extent to which a second guessing charge would have the potential to confuse the jury. This potential for confusion is amply demonstrated by defendant’s attempt to explain why the charge on second guessing given in connection with the discrimination claim was not sufficient.
1. The trial court’s refusal to give second guessing instruction on the contract claim was entirely appropriate. There is, of course, no support in the decisions of the Connecticut Supreme Court for a no second guessing charge and the cases cited by the defendant do not support a requirement that the jury be charged not to second guess a decision concerning a common law breach of contract claim. The Brown decision does not hold that a judge is required to charge the jury not to second guess. There is no case that holds that a judge is required to so charge the jury. Lacking any support for this argument in the law, the defendant attempts to mischaracterize plaintiff’s contract clai so that it would be within the rubric of an educational decision under Gupta. First, Gupta does not require that the judge charge the jury it cannot second guess a decision made in the academic employment setting. The trial court was correct in its interpretation of the facts that Leslie Craine’s employment relationship with Trinity College was just that, and not an educational relationship. In fact, Leslie Craine’s relationship with respect to Trinity College as it effects the employment decision to be made in her case is similar to the employment decisions which are routinely made in law firms, CPA firms and medical practices, all professional organizations which place individuals on a track toward a decision to be made a permanent member of the firm. Despite Trinity’s attempt to pigeon hole this breach of contract claim into an educational decision, the jury was entitled to determine what the rules were. The rules were stipulated by the parties to be contained in the faculty handbook. The jury had the right to determine as a matter of contract law whether or not the rules were applied fairly and in good faith without reference to a confusing no second guess charge. The jury’s determination as to whether or not the published rules were applied to an employment decision is common place in the employment setting and there is precedent for allowing the jury to review handbooks and determine whether or not the rules in the handbook were followed. Gaudio, Finley (two examples) Thus, there is no support for the defendant’s argument that the court should have provided a no second guess charge under the contract claim.
2. The instruction given by the court with respect to second guessing Trinity’s decision to deny plaintiff tenure was more than adequate. With the presentation of the no second guessing argument that Trinity lays out a position which is at the extreme. Under discrimination law, the obligation to review tenure decisions for disparate treatment is documented. Even the Jalal case cited by defendant recites the well-known proposition that Congress intended Title VII to be applied in the educational employment setting. While there is dicta in cases cited by the defendant regarding second guessing and while this dicta may express a particular opinion or way to approach the review of academic employment decisions, no case cited by defendant holds that it is reversible error for the judge to fail to give an instruction to the jury on the question of whether academic employment decisions may be second guessed.
C. Trinity is not entitled to a new trial because of the admission of so-called comparative evidence.
On this issue, the relevant standard of review is abuse of discretion. The plaintiff was entitled to present evidence which was relevant. Judge Peck determined that evidence of inconsistent application of the rules in the faculty handbook was relevant. The defendant’s claim that plaintiff attempted to prove her “qualifications” were strikingly similar to both Chatfield and Russo is both absurd and misstates the evidence. Again, plaintiff asks the jury to evaluate the application of the rules in the Chatfield and Russo cases in order to prove that the application of the rules in plaintiff’s case was unfair, that the A&P Committee did not act in good faith. When the jury found that Chatfield – – a male – – got a “bye”, there was additional relevant evidence of disparate treatment.
Defendant, on the other hand, asked the jury to compare qualifications when it offered the tenure file of Professor Prigodich and others, something the defendant claims that a jury is not allowed to do. In the Prigodich case, the evidence did nothing to contradict the case that plaintiff presented at trial because, as noted by the judge, there was no claim that the rules were applied in an inconsistent fashion in the Prigodich file. Tenure was granted because Prigodich conformed his conduct to a standard which was previously communicated. Prigodich’s decision predated plaintiff’s decision by two years and was not relevant to any claim in the plaintiff or defendant’s case. Certainly, defendant cannot prove harmful error in the exclusion of the Prigodich evidence especially given the leeway over plaintiff’s objection the defendant had to present evidence of other tenure decisions in the year of plaintiff’s tenure denial.
Defendant also complains about the testimony which was received from one of the outside reviewers, Dr. Dana Mayo. Dr. Mayo was a professor who had been asked by Trinity College to review plaintiff’s work at the time of the tenure decision. He wrote a letter to Trinity which explained his opinion that Trinity should grant tenure to Leslie Craine. Plaintiff disclosed Professor Mayo and others as experts prior to trial and the defendant never contested the qualifications of Mayo to testify as an expert. Dr. Mayo was allowed to explain his letter and to rebut Trinity’s manufactured for trial defense which referred to not enough projects ongoing in the lab, a defense to which plaintiff claimed surprise at trial since the explanation offered at trial by Trinity had never been documented during the tenure process itself. It is interesting to note that Trinity’s complaint that Dr. Mayo was allowed to explain information to the jury which presumably members of the A&P Committee already knew given their repeated claims of expertise in the field of organic chemistry. More to the point, the jury was allowed to consider that Miller Brown’s critical reading of Dana Mayo’s letter as testified to by Miller Brown in defendant’s case in chief demonstrated a higher standard of critical reading in Leslie Craine’s case than was applied to the case of Jack Chatfield. Brown’s inconsistent handling of Mayo’s letter was evidence to support plaintiff’s claim of pretext, as well as breach of contract. Mayo also explained during plaintiff’s rebuttal case why plaintiff’s article which was submitted to the Journal of Organic Chemistry in 1990 prior to application for second reappointment, was far different than the research and writing which plaintiff submitted to the Journal of Organic Chemistry just prior to the tenure decision. Mayo corroborated plaintiff’s claim that defendant’s evaluation of plaintiff’s journal article – – not being any different than the prior version – – was suspect and therefore was evidence of good faith and fair dealing on the part of the A&P Committee. The argument that Mayo’s testimony was harmful because it allowed the jury to reach its own decision on the case of tenure is as absurd as the defendant’s claim that plaintiff expected the jury to compare her qualifications with the qualifications of Jack Chatfield and Donna Russo. On the other hand, the evidence was relevant to demonstrate Miller Brown’s state of mind.
III. THERE IS NO REASON TO SET ASIDE PLAINTIFF’S AWARD OF COMPENSATORY DAMAGES UNDER STATE LAW
A. Standard of Review
The defendant does not claim that the award of $2,050,000.00 as compensatory damages under the facts of the case was excessive. Defendant raises a lot of issues in footnotes which have not been properly briefed. Defendant’s sole issue here is whether the award was proper under Connecticut law involving discrimination. Defendant claims that the jury did not award damages under state law based upon defendant’s interpretation of the interrogatories. However, when the court examines the judge’s charge to the jury and the interrogatories themselves, it is apparent that all parties, including the jury, viewed findings of liability and damages on discrimination to be co-extensive. In the alternative, either the court was allowed to award them because there is no right to a jury trial, or the court was allowed to award that sum of money as equitable relief.
Trinity College’s brief is nothing more than a wholesale misrepresentation of the case presented at trial. Trinity’s brief is well crafted to resemble the case at trial. However, Trinity’s spin on the facts and on the cases designed to persuade the court that there is only one true way to view employment agreements in the college employment setting must be rejected. Trinity hides behind concepts associated with the First Amendment and academic freedom, yet by its action here and at trial, Trinity takes positions contrary to faculty choice and contrary to Leslie Craine’s contract rights. By unanimous vote of her department, Leslie Craine was delcared to have met the criteria for tenure. Based upon the published rules, the Appointments and Promotions Committee lacked discretion to deny tenure to Leslie Craine or so the jury was permitted to find. At no time did the jury decide as a matter of breach of contract whether Leslie Craine, Jack Chatfield or Paula Russo were “qualified”. That was obviously a decision which was made by the faculty in their respective departments at Trinity.
The jury did decide that Trinity broke the rules. The jury determined that the rules were not applied honestly as one party to an agreement exercising discretion to deny tenure. Trinity’s bugle call that court cannot second guess academic decision making misstates the law, it is bad public policy and actually expresses a mixed up concept because courts who state that second guessing is not appropriate are, at some level, applying review of a decision. Albeit, a deferential one.
Nevertheless, deference is not the law. It is not required. Blind deference is contrary to discrimination law. Trinity knows this. Blind deference cannot be the premise for application of state common law. Federal court decisions, including those cited by Trinity, also acknowledge Congress’ mandate to apply Title VII to the academic employment setting. While admittedly more complex than other employment agreements, academic employment agreements must be afforded the same application of contract law without grant of special status or privilege to the academic employer. No matter which position one takes in this debate, in this case, Trinity did not follow its own rules, the failure to the follow the rules in the way Trinity did so formed the basis for a pretext finding. The combination of Trinity’s unfair application of the rules to favor a male tenure candidate, combined with the failure to proffer an explanation worthy of belief – – that Leslie Craine should be denied tenure because she had not published enough groundbreaking articles – – when quantity had never been a specific performance standard in required communications under the rules, presented far and away more than sufficient evidence along with the cookie recipe comment and the failure to follow the equal employment opportunity policy for the jury to find that Trinity was liable for both breach of contract and gender discrimination.
The defendant has failed to provide adequate cause for reversing any decision made by the trial judge and the jury’s verdict must stand.
NO. A.C. 20109
NOVEMBER , 2000
Pursuant to Rules of Appellate Procedure §62-7, I hereby certify that the brief and appendix of Appellant, Leslie Craine, was mailed, via first class mail, postage prepaid, to the following counsel of record on this ____ day of _______________, 2001:
Felix Springer, Esq.
Elizabeth Alquist, Esq.
Day, Berry & Howard
Hartford, CT 06103-3499
Jacques J. Parenteau