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FISHER v. VASSAR COLLEGE

May 16, 1994

Cynthia J. FISHER, Plaintiff,
v.
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.

 A. INTRODUCTION

 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:

 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.)

 Scholarship.

 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. *fn1" (R. at 839-41, 1113-15, 2196-97; Fallding Dep. at 25-26.)

 Publications.

 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.) *fn2"
 
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.

 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. *fn3" 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.

 Grants.

 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 ...


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