UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
May 16, 1994
Cynthia J. FISHER, Plaintiff,
VASSAR COLLEGE, Defendant.
The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
MOTLEY, District Judge:
Plaintiff's principle claims in this action are that defendant discriminated against her on the basis of sex and age; that defendant discriminated against her in the terms and conditions of her employment; and that defendant retaliated against her for bringing this discrimination claim.
Plaintiff, Dr. Cynthia Fisher, brought this action against Vassar College under Title VII of the Civil Rights Act of 1964, as amended to apply to Universities in 1972 (42 U.S.C. 2000e et. seq.) alleging discrimination against her on account of her gender. The case was tried before the court commencing on June 14, 1993 and was completed on July 2, 1993.
Pursuant to the court's permission during the course of the trial (R. at 2392), plaintiff filed an amended complaint which made the following claims:
1. Plaintiff was discriminated against on account of her sex when she was denied tenure in May of 1985 in that male members of the Biology Department Faculty who had fewer qualifications than plaintiff, both prior and subsequent to her denial of tenure, were granted promotion to Associate Professor rank and tenure;
2. She was discriminated against in the denial of promotion and tenure on account of her status as a married woman;
3. During plaintiff's employment as an Assistant Professor of Biology from 1977 through June 1986, she was Paid less in salary than men Biology faculty with similar assignments in violation of Title 29 U.S.C. 206(d)(1);
4. Plaintiff was discriminated against on account of her age when she was denied promotion and tenure in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623; and
5. Plaintiff suffered retaliation from defendant in violation of 42 U.S.C. 2000e-3 in connection with a new position on the Bard College faculty which she secured after leaving Vassar.
Plaintiff seeks monetary damages, reinstatement on the faculty at Vassar with tenure and attorneys' fees and costs.
B. FINDINGS OF FACT
After hearing the evidence and weighing the testimony, exhibits received in evidence and the credibility of the witnesses, the court makes the following findings of fact:
1. Plaintiff, Dr. Cynthia Fisher, is a married woman with two daughters ages 27 and 24. She holds a Bachelor's degree from the University of Wisconsin and Master's and Ph.D. degrees in Zoology from Rutgers University. (R. at 20.) She engaged in post-doctoral studies at Rutgers Medical School from 1963 to 1965. Between 1974 and 1976, she taught biology as a part-time lecturer at Marist College in Poughkeepsie, New York. (Pre-Trial Order, II, E., 1; Exh. 7.)
2. Defendant, Vassar College, is an employer within the meaning of Title 42 U.S.C. 2000e-2.
3. Plaintiff was employed by the defendant from 1977 through 1986 as a member of the Biology Department Faculty. (R. at 22; Exh. 113.)
4. On March 29, 1985, the Vassar College Biology Department senior faculty recommended by letter to the Dean that Dr. Cynthia Fisher be denied promotion and tenure on the grounds that she did not demonstrate "the outstanding quality called for in the 'Guidelines for Appointment, Reappointment and Promotion of Faculty at Vassar College' as set forth in the Faculty Handbook." (Pre-Trial Order, II, F., 6; Exh. 8.) The letter was confidential and, therefore, not seen by plaintiff until discovery in this action. (R. at 241.)
5. Dr. Fisher was informed of this decision on March 29, 1985, during a twelve-minute meeting with the Chairman of the Department, Leathem Mehaffey. Although Dr. Mehaffey had been delegated to explain to Dr. Fisher the Department's conclusions and reasons for recommending against tenure, he refused to discuss the Department's decision in any detail. (Exh. 98B.) Dr. Fisher received no further explanation of the Tenure Committee's position from the Biology Department, the Dean, the President or anyone else at Vassar. (Pre-Trial Order, II, F., 6; Exh. 98A-C.)
6. The Departmental letter recommending against Promotion and tenure for Dr. Fisher denigrated her scholarship, teaching ability and service; the three criteria considered on review. (Exh. 8.) The negative recommendation was unanimous as were all seven tenure recommendations made by the Department from 1979 to 1985. In 1987, a Dr. Schlessman was recommended for tenure in Biology by a 4-3 vote. (Exh. 24, 29, 32, 36, 39, 43, 117.)
7. Departmental recommendations are forwarded to the Dean and to the Faculty Appointments and Salary Committee (FASC) and each makes an independent recommendation. The Dean and the FASC then meet and compare their recommendations. Afterwards, they meet with the President of the College, who has also made an independent review and come to a final decision. (R. at 1424-25.)
Qualifications for Tenure.
8. The components of the "scholarship" qualification for tenure include peer-reviewed journal publications, the eminence or rank of the journals in which such publications appear, peer-reviewed extra-mural research grants awarded directly to the investigator (as distinguished from fellowship money), professional consultantships to national research institutions, papers presented at professional meetings with abstracts published, extra-mural research appointments, other in-house grants or fellowships and other lesser components.
(R. at 839-41, 1113-15, 2196-97; Fallding Dep. at 25-26.)
9. At the time of her tenure review, Dr. Fisher had seven peer-reviewed publications: six research papers plus an invited chapter. She also had a completed manuscript which was submitted in her dossier to the Biology Department and was subsequently published. Of these eight papers, three were pre-Vassar, and five were based on work done since she started at Vassar in 1977. She was second author on her first publication, and sole or principal author on all seven subsequent papers, including all five published while at Vassar. These publications were:
Leathem, J. H. and Fisher, C. J., Pregnancy and Protein Nutrition. V Congresso Int. per la Riproduzione Animale e la Fecondazione Artificiale Bol. III: 274-276, 1964.
Fisher, C. J. and Leathem, J. H., Effect of a Protein-free Diet on Protein Metabolism in the Pregnant Rat. Endocrinology 76: 454-462, 1965.
Fisher, C. J. and Stetten, M. R., Parallel Changes in vivo in Microsomal Inorganic Pyrophosphatase, Pyrophosphate-Glucose Phosphotransferase, and Glucose 6-Phosphatase Activities. Biochem. Biophys. Acta 121: 102-109, 1966.
Fisher, C. J. and Sawyer, R. H., The Effect of Triamcinolone on the Development of the Bursa of Fabricius in Chick Embryos. Teratology 22: 7-12, 1980.
Fisher, C. J., Chick Embryos in Shell-less Culture. In: "Tested Studies for Laboratory Teaching: Proceedings of the Fifth Workshop/Conference of the Association for Biology Laboratory Education (ABLE)." Kendall/Hunt Publishing Co., Dubuque, Iowa. R. Ecklund, Ed., in Press, 1984.
Fisher, C. J., W. M. O'Guin and R. H. Sawyer. Altered Keratin Biosynthesis Follows Inhibition of Scale Morphogenesis by Hydrocortisone. Developmental Bio. 106: 45-52, 1984.
Fisher, C. J. and R. H. Sawyer. Comparison of Hydrocortisone and Triamcinolone Inhibition on Scale and Feather Development. Teratology 33: 37-45, 1985.
The unpublished manuscript entitled "Vitamin-A-Induced Ptilopody Alters Keratin Biosynthesis," the logic of which was criticized by the Biology Department (Exh. 8) was subsequently published under the authorship and title: Fisher, Knapp and Sawyer, "Retinoic Acid Reticulate Scales." Teratology 38: 321-328, 1988.
(Exh. 71, BH, 7 IV A, 58E-F, 130A.)
10. The Science Citation Index (S.C.I.), published annually by the Institute for Scientific Information, establishes a standard for grading the importance of professional journals in which scientists' works appear. (R. at 1100-03.) The S.C.I. gives the citations to each author's past articles and the number of citations each year to over 4000 scientific journals published worldwide. The journals are then ranked in an annual volume called the S.C.I. Ranking Index from most-cited (number 1) to least-cited. The top-ranked five percent are those journals ranked from 1 to approximately 200. The frequency of citations of a scholar's work as listed in the S.C.I. and the rank of the journal in which the work was published are key measures of scholarship familiar to scientists and widely used by them. (R. at 1100-1115.) Dr. Fisher was published in some of the most prestigious journals and was more often the first author which is meaningful with regard to credit. (R. at 1109-10, 1113-14; Exh. BH.)
11. Among scientists, the number of citations to an article and the rank of its journal are a combined index of the importance of the work. The court has reviewed relevant pages from the S.C.I. for citations to Drs. Fisher, Hemmes, Mehaffey, Suter (three males) and Norrod (single female) and has further checked, with the help of expert testimony, the total numbers of citations in the S.C.I. to the pre-tenure, peer-reviewed publications of doctoral or post-doctoral research for Dr. Fisher and for Drs. Hemmes, Mehaffey, Suter and Norrod, the four recipients of tenure during the period Dr. Fisher was on the faculty to whose records Dr. Fisher's record must have been compared, as well as for Dr. Mark A. Schlessman, the male who was granted tenure in 1987. The court has made the following comparisons as to these journal publications and their comparative importance. (Exh. 108A, 108BB, 108CB; R. at 218-219, 1103-1115):
a) Dr. Fisher had 50 citations to her papers in top five percent journals (ranked 7 to 109) and four citations to a paper in a 766 rank journal. (Exh. 71, 77 p.6, 108BB, 108C; R. at 223-24, 1103-1115.)
b) Dr. Norrod, a single female granted tenure on the recommendation of the Biology Department the year that Dr. Fisher was turned down, had 39 citations to her papers in top five percent journals (ranked 19, 70) and 31 citations to journals ranked 236 to 1,406. (Exh. 73, 78B pp.4-5, 108BB; R. at 212-18.)
c) Dr. Suter, a male who received tenure in 1984 had no citations to papers in top five percent journals and had 26 citations to journals ranked 428 to 3340 out of 4000. (Exh. 69, 77A pp.4-5, 108BB, 108CA; R. at 211-13.)
d) Dr. Mehaffey, a male who received tenure in 1980, and chairman of the Biology Department in 1985 at the time Dr. Fisher was considered for tenure, had no citations to top five percent journals and had five citations to one article in a journal ranked at number 296. At the time of his tenure review, he had five published papers and was first author on only one of them. All these papers were based on pre-Vassar work. At the time of tenure review, he had one paper published from his six and one-half years of work at Vassar and was second author. (Exh. 67, 77A p.3, 108BB, 108CA; R. at 211-13, 1108-09.)
e) Dr. Hemmes, a male who received tenure in 1979, had 21 citations to one article in a top five percent journal which was ranked at number 75. (Exh. 65, 77 p.2, 108BB, 108CA; R. at 211-13.)
f) Dr. Schlessman, a male who received tenure in 1987, did not have any citations to top five percent journals and had six citations to a journal ranked 2634th. His other publications were in journals not listed in the S.C.I., and, therefore, are not counted. (Exh. 124, 77 pp.8-9, 108A, 108BB, 108CA; R. at 211-13.)
12. The court finds, based on the evidence, that Dr. Fisher's publication record in prestigious journals was superior to that of the three males who received tenure prior to the consideration of Dr. Fisher for tenure and the male who received tenure subsequently in 1987 and was relatively equal to that of the single female who was promoted.
13. As part of its negative tenure recommendation, the Biology Department Committee falsely stated to FASC that the journals in which Dr. Fisher had published were "less impressive" than those in which Dr. Pinina Norrod, an unmarried female granted tenure the year Dr. Fisher was turned down, had published. (Exh. 14.) While a major portion of Dr. Fisher's publications appeared while she was teaching at Vassar, all of Dr. Norrod's publications were pre-Vassar. (R. at 1051-52.) There had been no break in Dr. Norrod's career as there had been in Dr. Fisher's. (R. at 1062.) Furthermore, in proceedings before the FASC regarding Dr. Fisher's tenure which took place two months after the Department had made its recommendation, (Exh. 8), the FASC noted that Dr. Fisher's research was performed "under more difficult circumstances than [Dr.] Norrod['s] [and was] somewhat wider in range." (Exh. 14; R. at 2148-2150, 2172.) Therefore, even if Dr. Norrod's publication record was considered to be more impressive than Dr. Fisher's record, her success was achieved without the extra burdens Dr. Fisher faced as a professor of biology.
14. In continuing its criticism, the Department stated to the FASC that the journals in which Dr. Fisher had published "were fairly narrow and highly specialized." (See Glen Johnson Dep. at 15; Exh. 14.) However, in 1984, the Department did not remark on the journal rankings of Dr. Suter's publications or comment on the breadth or narrowness of his research which was exclusively on spider behavior. (Exh. 32.)
15. Dr. Fisher's published research had major importance to other scientists and was the opposite of "narrow and specialized." The three outside experts who evaluated Dr. Fisher's scholarship for Vassar's tenure review process commented that her work was: 1) important to other scientists working on "skin biology, genetics, cellular and developmental biology and mechanism of teratogenesis (birth defects)," (Exh. 12C p.2); that 2) "her papers are published in well-respected and refereed journals," (Exh. 12C, p.1); and 3) that her work "has made an important contribution to the study of development in the skin, which "may have important implications to other areas such as cancer research . . . ." (Exh. 12B, p.1.)
16. The practice in science and among scientists in producing major research papers is to collaborate with other scientists. The first author on a multi-authored paper is the principal investigator, with the other listed authors having supporting roles. The S.C.I. cites the first author. (Exh. 108A; R. at 1109-10.) The Biology Department represented that Dr. Fisher's research was derived from collaboration and was therefore not self-directed. (Exh. 8 p. 5 P 3, 14 p.2.) These conclusions were without foundation in fact. Dr. Fisher's published collaborative papers all resulted from projects she designed and carried out. (R. at 259-64, 852-53; Exh. 7-IV-G.) Moreover, Dr. Fisher's independence as a scholar was further confirmed by her being awarded a number of National Science Foundation (NSF) grants as sole or co-principal investigator while at Vassar. (Exh. 71; R. at 253-56.)
17. Dr. Fisher's research independence may be contrasted with that of Drs. Hemmes and Mehaffey by comparing her number of first authorships with theirs. (Exh. 7, 64, 66; summarized in Exh. 77.) While Dr. Fisher was first author on five collaborative papers, Drs. Hemmes and Mehaffey were first authors on only one paper each at the time of their tenure reviews.
18. Moreover, both Drs. Hemmes and Mehaffey were praised on tenure review for their extra-mural collaborations. (Exh. 24, 29.) In addition to praising the quality of these collaborations, the Biology Department went far to excuse the lack of publication which resulted from these collaborations. (Exh. 24, 29.)
19. Without any support in the factual record, the Biology Department recommendation letter questioned the quality of Dr. Fisher's scholarship by, among other things, criticizing five of her papers. The letter stated, "we have serious questions concerning the quality of the scholarship," -- her work was "purely descriptive" and made "no interpretive claims." (Exh. 8 p. 3 P 5.) Dr. Castellot, an expert witness, noted that one of Dr. Fisher's papers was important in its demonstration that a chemical used in humans to treat a number of diseases could cause birth defects. (R. at 1119.) Another paper addressed possible regulatory mechanisms in chick scale development. (R. at 1121.) However, the Biology Department Tenure Committee only considered the paper "a good experimental report," and concluded that Dr. Fisher was "dependent on her co-authors" in her work. (Exh. 8 p. 4 P 1.) The Committee also concluded from her colloquia presentations, presentations required by the Biology Department for untenured members in a review year, that she "lacks both understanding and expertise" and "does not understand" the "significance [of her work] to [its] interpretation." (Id.) As there were no indications of her inability to understand her work in this paper, the court finds that the Department's criticism of this paper made unwarranted assumptions, was not based on any scientific rationale, and baselessly stated that she did not understand the biochemistry involved. (R. at 1122-23.) The criticism of a third paper stated that the paper represented unsound experimental thinking. (R. at 1125.) But in light of the fact that the Department did not carry out a statistical analysis of the experimental design, the criticism was again unwarranted. (Id.) The Department avoided dealing with the significance of the work which showed the higher potency of one chemical than another in the development of chick scales. (R. at 1127.) As to the fourth paper, the Committee opined that "the logic by which she derives this interpretation is impossible to follow." (R. at 1128.) The Department again made unwarranted critical remarks and failed to check the substance of a reference in the paper which would have answered the questions the Department had concerning the dosage used in that particular experiment. (R. at 1127-31.) As to the fifth paper, the Department failed to acknowledge the value of the paper to research laboratories. Additionally, the Department unduly criticized her work for being based on a high school student's project instead of acknowledging that science always involves input from many people with each person often profiting from the work of others. Therefore, all improvements made by a person on others' work are significant scientific developments. (R at 1132-35.) These comments about Dr. Fisher's work had no foundation in fact, (Fallding Dep. pp. 51-53, 59, 65-67), and clearly demonstrate bias against Dr. Fisher and the pretextual nature of the recommendation against her.
Each of the papers published, or accepted for publication by journals, had already been reviewed by several neutral expert scholars serving as editors of the respective journals. Papers submitted with the kinds of defects described by the Committee's letter are seldom published by these prestigious journals. (R. at 891-898, 1115-1144; Fallding Dep. pp. 169-174, 205.) The Biology Department Tenure Committee's representation that these journals were not "top rank" was pretextual and made in bad faith since the members of the Committee, all of whom are biologists, were familiar with the standards of the S.C.I. and the rankings of the journals in which Dr. Fisher had published since the S.C.I. is well recognized among scientists and science teachers. (R. at 1100-10.) Even without any study of the S.C.I., the Committee should have been aware of the eminence of the journals in which Dr. Fisher published. Moreover, the Department could not in good faith have believed that Dr. Fisher's work was more narrow and specialized than Dr. Suter's work on spider behavior, for which he was commended in the Department's recommendation for his promotion and tenure the previous year, (Exh. 32), or that Dr. Fisher's work was less important than that of Drs. Mehaffey and Hemmes. (R. at 891-898.)
20. Dr. Fisher's published research was commended, without reservation, by all three outside evaluators who evaluated Dr. Fisher for tenure review, by three expert witnesses at trial (two live witnesses, (Drs. Harding and Castellot) and one by deposition (Dr. Fallding)), and implicitly by the dozens of peer experts who reviewed and approved her published papers and her funded research grants. The only criticism of Dr. Fisher's scholarship came from Vassar's Biology Department. Generally, less weight is given to faculty opinion within a department than to outside experts since it is the outside experts who presumably know the field better. (Fallding Dep. pp.169-173.) The court notes that Vassar offered no expert witnesses to counter the expert testimony adduced by plaintiff.
21. The Court finds that the Biology Department's conclusions concerning the journals in which Dr. Fisher had published and the other comments the Department made about her published works in its assessment of her for tenure were disingenuous, pretextual and clearly made in bad faith, particularly in light of the fact that the persons making the statements concerning the assessment knew the false premise on which the conclusions were based.
22. Further on the issue of scholarship, the court has reviewed Dr. Fisher's record concerning extra-mural, peer-reviewed grants and has found that at the time of tenure review, Dr. Fisher had the following grants:
(a) Research Grants: (the last four were obtained during Dr. Fisher's teaching career at Vassar)
NSF Co-op Graduate Fellowship, 1961-63 (Exh. 7I)
American Association of University Women (AAUW) Fellowship, 1961-62 (Exh. 7I)
National Institutes of Health (NIH) Post-doctoral Fellowship, 1963-65 (Exh. 7I)
NSF Small College Faculty Opportunity Award, 1979 ($ 3,900) (Exh. 7I, 61H, 7 IV B)
NSF Scientific Equipment Grant, Principal Investigator, 1981 (No. 8109084: $ 18,480) (Exh. 7I, 7 IV B, 61G)
NSF Research at Undergraduate Institutions Grant, Principal Investigator, 1984-86 (PCM-8402332: $ 40,000) (Exh. 7I, 61A, 7 IV B)
NSF Research Grant, Co-Principal Investigator, 1984-87 (PCM-8402104: $ 204,000 *) (Exh. 7I, 61E, 7 IV B)
(b) Research Equipment for Teaching Grants
NSF Instructional Scientific Equipment Program Grant for Physiology Laboratory at Marist College, Co-Principal Investigator 1976 ($ 12,000 *) (Exh. 7I, 61I)
NSF ISEP Grant for Tissue Culture Laboratory, Vassar College, Principal Investigator, 1980 (SER 8014038: $ 12,500 *) (Exh. 7I, 61F.)
* There are discrepancies concerning the monetary amounts of these three grants. The amounts as listed above were taken from Dr. Fisher's Curriculum Vitae (Exh. 7I.) However, the amounts listed in exhibits 61E, 61I and 61F are $ 145,000, $ 6,000 and $ 6,256 respectively. It is unclear whether there were amendments to the grants which would explain the differences in these amounts.
(c) Vassar College Intra-Mural Grants
1979 Beadle Fund Grant (Exh 60P.)
1979 Mellon Grant for Faculty Development (Vassar College) to attend Scanning Electron Microscopy course at SUNY, New Paltz (Exh. 60W.)
1980 Beadle Fund Grant (Exh. 60Q.)
1980 Mellon Grant for Faculty Development (Vassar College) to attend Transmission Electron Microscopy course at SUNY, New Paltz (Exh. 60BB.)
1981 Beadle Fund Grant (Exh. 60S-T.)
1981 Mellon Grant for Faculty Development (Vassar College) to set up an "in house" Photomicrography Course ($ 2,000) (Exh. 60EE-FF.)
1983 Mellon Grant for Faculty Development (Vassar College) for Microscopy Course, M.B.L., Woods Hole, MA ($ 1,014) (Exh. 7I.)
1983 Beadle Fund Grant (Exh. 7I.)
1984 Mellon Grant for Faculty Development: Research at U. of Grenoble, France ($ 1,470) (Exh. 7I.)
23. The Biology Department Committee, in its negative tenure recommendation, minimized the importance of Dr. Fisher's many grant successes. The Committee incorrectly stated that one of her grants was secured only after five unsuccessful attempts. (R. at 253-54.) While it noted that having to make several attempts is not unusual due to the competitiveness of securing national grants, the Committee misrepresented the facts. (Exh. 8 p. 3 P 1.) This grant was in fact accepted on the fourth revision. (R. at 1833-34.) In addition, the Department down played the importance of Dr. Fisher's Research in Undergraduate Institutions (RUI) grant by incorrectly calling it "less competitive" than regular grant programs when, in actuality, RUI grants are considered equally as competitive. (R. at 857-58, 254; Exh. 8 p. 3 P 1.) The Departmental letter even criticized the soundness of Dr. Fisher's funded grant applications implying that the expert peer reviewers for these highly competitive national awards were somehow remiss in failing to spot the defects in her work which the Vassar Biology Department was able to discover. ( Exh. 8 p. 5 P 2.) Research grants are awarded by the NIH and NSF under extremely competitive circumstances and only after intensive review by a panel of expert peers in the scientific discipline of the person submitting the grant. (R. at 857-58, 860-61; Fallding Dep. pp.47, 70-73.) These criticisms were in sharp contrast to recommendations made concerning the three male candidates who had been granted tenure while Dr. Fisher was on the faculty. (R. at 892; Exh. 8, 24, 29, 32.) None of these candidates was directly awarded any extramural peer-reviewed research grants while at Vassar College.
(Exh. 64, 65, 67, 68, 69, 77.) Dr. Schlessman, a male who was tenured in 1987, had one peer-reviewed research grant from a private foundation, the Research Corporation. (R. at 891; Exh. 124.)
24. It is significant that each of the three named male candidates, in the tenure recommendations of the Biology Department at the time of their tenure review, prior to the review of Dr. Fisher, were excused for not obtaining a funded peer-reviewed grant while Fisher's success in obtaining grants was minimized. (Exh. 24, 29, 32.)
25. The Committee belittled the prestige of Dr. Fisher's grant at the University of South Carolina, which she shared with Dr. Patricia DeCoursey, as co-principal investigator, by stating that "it was not related to her major research interest." (Exh. 8.) This conclusion was erroneous, in fact, since Dr. Fisher's collaborative work with Dr. DeCoursey applied Dr. Fisher's culture technique from Developmental Biology to a behavioral field and to study of the brain. (Exh. 61E; R. at 860-61, 255, 558-59.) Moreover, the Department's inference that a co-principal investigator is less important is "not at all" true. (Fallding Dep. p. 79.)
26. On one NSF grant, "Effect of Adrenal Steroids on Scale Morphogenesis and Keratin Biosynthesis," the Committee misrepresented the record with respect to a letter from Dr. Fisher to Dr. Poodry (the Poodry letter), the Program Director of Developmental Biology at the NSF, in which she enclosed the NSF's assessments on unsuccessful grant applications to show how she had addressed the criticisms therein. Despite the fact that the revised application won the sought after grant, the unfavorable Departmental recommendation quoted language from these unfavorable grant reviews. (Exh. 62A.) The Committee commented that "several flaws . . . not mentioned in the reviewers' comments" in the funded proposal put the Committee in disagreement with NSF which found no weaknesses when it awarded the grant. (Exh. 8 p. 5 P 2; R. at 110-116 581-587, 591, 876-879.) The Poodry letter was part of a revised and renewed application for the grant. The court finds the Committee's quotation of language from the Poodry letter and the attached reviews in its recommendation to be purposeful dishonesty. More specifically the court finds the dishonesty purposeful in light of the fact that the misquotation came about because the chairman of the Department deliberately asked Dr. Fisher to remove clarifying excellent NSF reviews of her work and to leave the critical assessments of the unfunded grant proposals in her departmental file. (R. at 111.) In any event, the other senior members of the Department must have known that grants which receive only fair to good ratings, as the Department characterized her grants, are not funded. (R. at 1135-38.)
27. With respect to the successful grant proposal (Exh 61E) Dr. Fisher shared with her sister, Dr. DeCoursey, the Committee gave all credit to her sister despite the fact that Dr. Fisher was the co-principal investigator, implying that she should not be credited for any scholastic contributions to the project. (Exh. p. 5 P 3.) Dr. Fisher was further criticized for talking about this proposal at her research colloquium because the research had not yet been "perfected." (Exh. 8 p. 3 P 2, p. 6 P 1.) This was a spurious criticism since her colloquium involved a review of the techniques she invoked to secure her grant proposal; which in this instance involved the application of methods she had previously used in another field. (R. at 558-59, 859-63, 1140; Exh. 8 p. 6 P 1.)
28. The same 1985 Departmental Committee which belittled Dr. Fisher's NIH and NSF grants, strongly recommended Dr. Pinna Norrod. (Exh. 39.) In fact, the Department specially pled the necessity for Dr. Norrod's tenure that year in the face of the FASC's recommendation to deny her tenure. (R. at 1874; Exh. 9C.) Furthermore, the Committee emphasized the competitive nature of the grants Dr. Norrod had received and the "respect for her work in the larger scientific community" that such grants represent. (Exh. 39, p.4.) The Committee recommended tenure for Dr. Norrod despite her having been on the Vassar faculty for only three semesters during which time she had no Vassar originated publications or grants. (R. at 1038-42.)
29. The court has found that at the time of tenure review, Dr. Fisher had delivered the following papers at professional meetings:
March 11, 1965: Fisher, C. J. and M. R. Stetten
Parallel Hormonal and Dietary Induced Changes in Microsomal Inorganic Pyrophosphatase, Pyrophosphate Phosphotransferase and Glucose-6-phosphatase activities. Federation Meetings, Atlantic City, NJ.
After joining the Vassar faculty:
March 8, 1980: Fisher, C. J. and R. H. Sawyer
Effect of TAC on the Development of the Bursa of Fabricius in the Chick Embryo. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
March 27, 1980: Fisher C. J.
Mechanism of Action of Vitamin A. University of Maryland.
March 8, 1981: Fisher C. J. and R. H. Sawyer
In vivo Effect of Vitamin A (Retinoic Acid) on the Development of Chick Skin. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
December 28, 1981: Fisher, C. J. and R. H. Sawyer
Effect of Vitamin A (Retinoic Acid) on Chick Development in ovum. American Society of Zoologists, Dallas, TX.
March 19, 1982: Fisher, C. J., J. Gray and R. H. Sawyer
Glucocorticoid Inhibition of Scutellate Scale Development by Hydrocortisone. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
December 29, 1982: Fisher, C. J., J. Gray and R. H. Sawyer
In Vitro Steroid Binding in Chick Embryonic Scale Skin and Glucocorticoid Inhibition of Scale Formation. American Society of Zoologists, Louisville, KY.
March 18, 1983: Fisher, C. J. and J. Gray
Heterogeneity of Glucocorticoid Binding Sites in Avian Embryo Skin. Society for Developmental Biology N.E. Regional Conference, Marine Biological Laboratory, Woods Hole, MA.
December 27, 1983: DeCoursey, P. J. and C. J. Fisher
Circadian Timing: In Vitro Culture of the Suprachiasmatic Nucleus. American Society of Zoologists, Philadelphia, PA.
December 28, 1983: Fisher C. J. and R. H. Sawyer
Beta keratin: A Biochemical Marker for Feather Differentiation. American Society of Zoologists, Philadelphia, PA.
July 5, 1984: Fisher, C. J. and R. H. Sawyer
Altered Keratinization Follows Scale Inhibition by Glucocorticoids. ESCSB Congress, Grenoble, France.
December 27, 1984: Fisher, C. J. and R. H. Sawyer
Mechanism of Action of Hydrocortisone on Scale Keratinization. American Society of Zoologists, Denver CO.
(Exh. 7I.) Dr. Fisher presented twelve papers. Drs. Hemmes, Mehaffey and Suter and Schlessman had each presented six to nine papers at such meetings. (Exh. 77B.) Dr. Norrod had one invited presentation. (Exh. 72.)
30. The Biology Department Committee noted that Dr. Fisher had been invited by the National Institutes of Health to present a paper on Morphogenesis which it conceded represented recognition "by the scientific community." (Exh. 8 p. 2 P 4.) An expert testifying at trial asserted that this kind of recognition was "almost unheard of" for an assistant professor at a liberal arts college and was a great honor. (R. at 851.)
31. At the time of tenure review, Dr. Fisher had the following consultantships to the NSF and the NIH:
1984-85: NSF Panelist for College Science Instrumentation Program (CSIP)
1983: NSF Workshop on government research support at small colleges
1983: NIH: Developmental Biology consultant to Dr. G. Groos at the National Institute of Mental Health
(Exh. 7I, 58C.) All of these consultantships were during her time at Vassar.
32. Drs. Hemmes, Suter, Schlessman and Norrod did not have any consultantships. Dr. Mehaffey had one consultantship. (Exh. 72, 77B, 124.)
Sabbatical Leave Activities.
33. Although the Committee agreed that Dr. Fisher's sabbatical year was productive, the members criticized her sabbatical "leave activities" claiming that she spent only brief intermittent periods in the laboratory which raised concerns "about the choices she made in respect to how to spend her leave year." (Exh. 8 p. 6, P 2.) However, during her sabbatical, Dr. Fisher spent nine months working in the laboratory, during which time she collaborated with four different groups, submitted eight grant proposals, six of which (including two NSF grants) were funded, published one manuscript, wrote one other, served as consultant to both the NSF and the NIH and presented papers at national and international meetings. (R. at 45-47, 717-722; Exh. 7 IV B 1ab, 7I, 16C 57A-B, 58A-F, 61A-E, 17.) These accomplishments made her sabbatical year far more productive than those of the three males who preceded her in tenure in the Department and more than the male who was tenured in 1987. (R. at 891-895; Exh. 65, 69, 124.) The Committee excused Dr. Mehaffey for his lack of scholarly sabbatical activity by commending him for serving on a college committee during his sabbatical leave. (Exh. 29 p.14.) Great portions of the tenure letters for each of Drs. Hemmes, (Exh. 24), and Mehaffey, (Exh. 29), were devoted to excuses for their lack of scholarly results. Despite her many recent grants and publications, the Departmental letter on Dr. Fisher concluded that "there is no sustained in-depth probing of her research problem, leaving us once again to wonder about her commitment." (Exh. 8 p. 6, P 2.) This statement stands out starkly as another demonstration of the Department's bad faith since Dr. Fisher's scholarship was superior or at least equal to the scholarship of the three men and single woman who preceded her in receiving tenure as well as the man who subsequently achieved tenure in 1987. (R. at 841-853, 1107-1113, 1142-43, 1692, 1798-99, 1820, 1833, 1859-60.) Dr. Norrod, the single woman, did not take a sabbatical prior to her review. (Exh. 72.)
34. The court finds that the three outside evaluators, selected to evaluate Dr. Fisher's scholarship record, evaluated her record analytically and in detail, were strongly positive on her scholarship and supported her tenure candidacy. The court further finds that their appraisals of the plaintiff's merit as a scholar were improperly ignored by the defendant college in its final determination to deny plaintiff promotion and tenure in the Biology Department. The Department represented to the FASC and the Dean that Dr. Fisher's outside evaluators did not go into depth or detail about her scholarship and thus their recommendations were not of high quality. (Exh. 126.) This was a disingenuous and pretextual criticism of these evaluations. It is clear upon a comparative reading of Dr. Fisher's outside evaluations and those submitted for the men who had been recently tenured in Biology that Dr. Fisher's evaluations were both more detailed and more unreservedly positive than those the men candidates received. (Exh. 12A-C, 25A-B, 30A-B, 33A-C.) At trial an expert testified on this issue:
As someone who is an expert in that area, I would agree with the outside evaluators whose letters were quite clear on the issue of Dr. Fisher's research accomplishments that in fact she was a very accomplished, very independent, very well respected scientist who had contributed significantly to her own research field and showed every promise of continuing to do so in the future.
(R. at 1142-43.)
35. Particularly revealing on the issue of good faith were the remarks that Dr. Mehaffey, chairman of the Department at the time of Dr. Fisher's tenure review, made to the FASC concerning Dr. Fisher's outside evaluations. Dr. Mehaffey prepared certain notes for the meeting with the FASC on May 3, 1985. He wrote that Dr. Fisher's three affirmative recommendations from the outside scholars were, "not at all analytical," and that the Committee was "in fact disgusted with their quality." (Exh. 126; R. at 1935-36.)
36. The court concludes that different standards were applied to Dr. Fisher. The court bases its conclusion not only on the strongly positive letters of support Dr. Fisher received from the outside evaluators, but also on a comparison with the outside evaluations received by the three men who were tenured prior to Dr. Fisher's review; Drs. Hemmes, Mehaffey and Suter. Not one of these men had as favorable recommendations as Dr. Fisher had. Dr. Mehaffey had only two letters of evaluation rather than the normally required three. Dr. Hemmes and Dr. Mehaffey were each evaluated by someone who knew them personally or had been a mentor, teacher, colleague or friend, and their letters spoke from that vantage point rather that of a disinterested third party. The court's findings are as follows:
Dr. Hemmes was evaluated by three outside evaluators. One, Dr. Eliot Stellar, a distinguished professor at the University of Pennsylvania stated that, based upon the "minor" papers Dr. Hemmes had published, he could not recommend Dr. Hemmes for promotion or tenure on the basis of his "scholarly accomplishment." Dr. Stellar further stated that Dr. Hemmes had not accomplished enough to merit his being "worthy of tenure at that time." (Exh. 25A.)
The second report by Dr. Ann Sullivan at Hoffman-La Roche Co. was complimentary but brief (one-half page), not analytical and had no in-depth commentary. (Exh. 25B.)
The only other evaluator for Dr. Hemmes, Dr. Hirsch, knew him personally and had collaborated with him. (Exh. 26.) Despite this, the Biology Department strongly urged the Dean to place great significance on Dr. Hirsch's recommendation. (Exh. 24 p.5.)
Dr. Mehaffey was evaluated by two outside evaluators. The first, Dr. B. R. Wooten of Brown University, discussed four of Dr. Mehaffey's papers. He was impressed with one of them but said that Mehaffey's three publications on night vision were of "little scholarly interest" and that his "publication rate had been low" but that he showed "great promise." The other, Dr. Margaret Burns, was complimentary, but as Mehaffey himself noted, her evaluation was not particularly useful to the Department's review process and if he "were a member of the FASC and  got that letter [he] wouldn't pay much attention to it." It also appears that Dr. Burns was personally acquainted with Dr. Mehaffey due to her references to him as a warm, sensitive, thoughtful human being. (Exh. 30 A-B, R. at 1943-45.) Typically mentors, friends and/or collaborators are not to write peer reviews for tenure. (See R. at 837.)
Dr. Suter was the only one of the three males evaluated by three outside evaluators, all of whom reported favorably on his work but in conclusive language. One favorable evaluation by Dr. William Eberhard of the University of Costa Rica was limited to observations on Dr. Suter's research on insects and mice. While generally complimentary, Dr. Eberhard found one of Suter's papers "weak" because "some important observations are lacking."
He did not make a recommendation as to tenure. A second
outside evaluator, Dr. McClure, knew Dr. Suter from the University of Indiana where Dr. Suter had been a friend of the evaluator and/or a student in the evaluator's department although Dr. Suter did not work directly with her. Again, an evaluation by a person where this type of relationship exists between the evaluator and the candidate was not considered appropriate. (Exh. 33A-C.)
37. Despite the above record, Vassar's President Smith stated to Dr. Fisher that one of the reasons for her denial of tenure was that her outside "reviews were lacking strength as compared to those for other departmental decisions." (Exh. 128B p.2.) President Smith could have been taking her cue from Dr. Mehaffey's characterization of the Fisher letter as "disgusting." (See Exh. 126.) The court finds that there were no consistent standards or criteria applied for the outside evaluations. (R. at 830, 834-53, 1033-42, 1045-65, 1142, 1151.) This is further proof of the pretextual nature and bad faith demonstrated in the decision against Dr. Fisher.
38. The court finds that the Biology Department Committee recommendation carried great weight in the subsequent deliberations of persons and committees appealed to by Dr. Fisher to reconsider the bad faith and pretextual negative recommendation concerning her promotion and tenure. A record of the FASC's meeting with the Dean and President Smith showed that there was discussion about the Department's strongly negative judgment of Dr. Fisher's research in light of her three outside evaluations which were more positive in tone than the Department's recommendations. It appeared to be of concern to the FASC that there was this disparity between the outside evaluators' and the Department's judgments. (R. at 2153.) The court finds that the FASC's, the Dean's and the President's final characterization of these outside evaluations as being superficial and not critical of Dr. Fisher's scholarship arose from points made by the Department such as Dr. Mehaffey's characterization of Dr. Fisher's evaluations as "disgusting." (R. at 2151-53, Exh. 126.)
39. It is significant that neither the President, nor any member of the FASC, nor the Dean were trained in the natural sciences and therefore were probably more reliant on the Biology Department's recommendation than they might have been in an application for appointment in another field such as the liberal arts. (Glen Johnson Dep. 14.) The President noted that the Departmental Committee's rejection of Dr. Fisher's qualifications for promotion and tenure represented "overkill" on the part of the Department. (Exh. 15.) This notation on Fisher's faculty record card made clear that the President of the College was aware of the pretextual nature of the Committee recommendation concerning Dr. Fisher, but she nonetheless went forward with the denial of Dr. Fisher's promotion and tenure.
Standards Applied to Evaluate Scholarship of Tenure Candidates.
40. One of Dr. Fisher's experts said that "different standards were being used in the case of Dr. Fisher" from the "standards being used for the other faculty members being considered." (Fallding Dep. p.26.) Another stated the following:
Dr. Fisher was very productive. There was no reason to assume that she was going to change overnight. She, despite enormous obstacles, had gone out there and gotten grants and more grants, and changed her research area and produced peer review publications and gotten collaborations and gotten consultantships. And as they say, they don't know if she's going to continue, yet when the men don't even produce a publication they say we know he's willing to make up for this in the future. It's a completely different story.
(R. at 898.)
41. One example of many in the record which demonstrates the arbitrariness of the application of standards and criteria is represented by a sample of the cross-examination of Dr. Pat Johnson, the former chairman of the Biology Department, who drafted the scholarship portions of Dr. Fisher's negative tenure recommendation.
Q. Now on scholarship, and I'm turning now to page 3 of the report of March 28, 1979: "Mr. Hemmes has a broad scholarly interest in the nature of social communication in animals. His doctoral work centered on the maternal-infant bond and the kind of signals generated by mother and by infant which established and maintained that bond . . ."
. . .
Now, as of 1979, [the time of his tenure review] had Mr. Hemmes had any peer review publications while he was at Vassar?
A. Yes, he did . . . . It was a paper entitled -- well, I don't remember the exact title, but it had to do with the reproductive capacity in Zucker genetically obese rats.
Q. And where was the paper published?
A. I believe in the proceedings for the society of Experimental Biology and Medicine.
Q. And did he have any other papers published?
A. As I recall, he had at least one paper published before he came to Vassar.
Q. No. I'm talking about at this moment.
A. At this time, I think that that was the one published paper. He had two additional papers, including the one we are referring to in this paragraph, that were submitted for publication.
Q. I want to be clear on it. He had a paper published while he was at Vassar?
A. That's my memory, one.
Q. Now, did you write about his published works, and I'm referring to page 5: "In summary, while the quantity of his published works is not great, the quality of the papers written and of the studies completed is exceptionally fine. We are certain that Richard Hemmes possesses a keen analytical mind and a creative drive that will keep him immersed in scientific investigation throughout his career?"
Q. You wrote that?
A. That's what we wrote.
Q. "The work that he completes is precisely done, well controlled, thoroughly analyzed and properly interpreted. It should always meet with success in the peer review process."
A. Yes it is.
Q. "We must also add that he has written several grants of various kinds in search of funds to support his work, a task that is comparable to producing a manuscript."
Now what did you mean when you said that?
A. That the creative process, if you will, that goes into producing a grant request is essentially the same kind of creative process that goes into producing a manuscript. It's addressed to describing the kind of work one is going to do, rather than describing the kind of work one has done, but the intellectual input, the detail that has to be presented, the experimental design that is to be described and presented is all of the same nature and quality that goes into producing a manuscript.
Q. Would it be fair to say here, Dr. Johnson, that you were crediting him with a great deal of good scholarship because he had written a grant application even though it had not been funded or approved or thought to be excellent by his peers?
A. Well, we were crediting him with signs of good scholarship based on not only those grant proposals that he had written, but also with the manuscripts that we had for review published--
Q. No, I'm asking about this very language here: "We must also add that he has written several grants of various kinds in search of funds to support his work, a task that is comparable to producing a manuscript."
Now right there are you saying that he should be complimented for writing these grant applications even though they were not peer-reviewed and even though in peer review they were not given a very good or excellent mark and funded?
A. I can't say what kind of mark they were given. All I can testify to is to say they were not funded. And I'm saying yes, that he should be lauded for having written these proposals, yes.
(R. at 1798-1801.)
42. Similarly, when Dr. Pat Johnson was cross-examined about what the Committee said about her endorsement of Dr. Mehaffey, she was asked: "Are you saying there that he really couldn't publish because he couldn't get the research funds to do his work?" She responded, "that's what we are saying, uh-huh." (R. at 1815.)
43. The fact that there were no consistent standards applied in making judgments concerning promotion and tenure was doubly emphasized in the testimony of Dean Sullivan, the Dean of Vassar College at the time of Dr. Fisher's tenure review. When asked to describe the test applied to Dr. Fisher in her tenure review in the light of Dr. Fisher's scholarship record as compared with the men who received tenure in the years immediately preceding her tenure denial, his response was:
. . . [A] tenure decision is not a quantitative analysis. It is a judgment call. It is a judgment based upon evidence as best one understands the evidence. And each case has its distinctive characteristics because each case is an individual case. There may be some matters of analogy, but beyond that, one can say very little.
One is looking at the case as it is presented. One is examining the evidence presented, one is making a judgment based on that evidence, and it's not done then on a comparative basis. . .
(R. at 2204.)
44. Despite Dr. Fisher's impressive record which was superior or equal to the scholarship of the four assistant professors (three men and one single woman) who received tenure between 1979 and 1985 and the one man who received tenure in 1987, the Committee stated, without any apparent basis for its conclusion, that her overall scholarship accomplishments were "mixed." (Exh. 8.) They credited her with "energy," but questioned her "independence" as a scholar and the "depth of the mastery of the field in which she was working." (Id.) Based on the foregoing testimony and evidence, the court finds that these conclusions concerning Dr. Fisher's scholarship were made in bad faith, were pretextual, and represented the application of patently discriminatory standards.
45. Dr. Fisher's classroom performance was never directly observed by any of the five senior Biology Department members who constituted her tenure committee. (R. at 83, 1899.) Accordingly, her teaching performance assessment was based almost exclusively on student teaching evaluations.
46. The Biology Department letter of March 29, 1985, (Exh. 8), regarding Dr. Fisher's tenure heavily emphasized the student course evaluations in its commentary on Dr. Fisher's teaching record, but misrepresented the facts concerning the 24 courses taught by Dr. Fisher from 1977 to 1985. The Committee selectively excluded favorable ratings and focused on the two courses in which Dr. Fisher had difficulties. (Exh. 8 p. 8 P 4, 46 A-P, 49.)
47. In student evaluations, teachers are given a score from one to five by the students in their class, with five being the highest score. (Exh. 129A-B; R. at 84.) In addition to these evaluations, teachers receive assessments from the Student Advisory Committee ("SAC") and from a committee composed of Vassar biology majors. (R. at 89.)
48. The Dean of the Faculty, H. Patrick Sullivan, testified that a 70 percent average of fours and fives on student evaluations "would be considered a good statistic" and "in the good or superior category." (R. at 2147.) During the period that Dr. Fisher taught at Vassar, with the exception of two courses, her overall average of fours and fives was greater than 70 percent. (R. at 89; Exh. 46A-46P.)
49. The Committee reached its unfavorable conclusions as to Dr. Fisher's teaching record by applying different standards to her than were applied to other tenure candidates. The Committee distorted the numbers by counting only fives for Dr. Fisher while counting fours and fives for the other candidates to determine student evaluation rankings. (R. at 298-99, 1146.) Additionally, the Committee emphasized a few critical comments about Dr. Fisher's teaching instead of noting the generally affirmative comments that were made by the student committees. (Exh. 46A-O.)
50. Prior to tenure review in 1985, the Dean's Office produced the student evaluations for Dr. Fisher in 21 of the 24 courses she had taught up to that point. In total, there were 411 student responses to the nine questions on the form which the students filled out. (Exh. 129A.) Dr. Fisher's teaching load was 40.2 students per semester, averaged over fourteen teaching semesters. (Exh. 46A-P, 49B, 112AB-GB; R. at 1293.) A statistical summary of the student evaluations of the 21 rated courses shows that she received the following percentages of fours and fives in the categories listed:
Availability to Students 75%
Illumination of Materials 73%
Clarity of Presentation 76%
Instructor Effectiveness 79%
Openness to Students 87%
Increased Knowledge (to Student) 87%
Mastery of Subject 88%
© 1992-2004 VersusLaw Inc.