On appeal from the Superior Court, Appellate Division, whose opinion is reported at 215 N.J. Super. 333 (1987).
For affirmance and modification -- Chief Justice Wilentz and Justices, Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J. O'Hern, Justice, concurring. O'Hern, J., concurring in the result.
This appeal concerns the interest of a university in maintaining the confidentiality of peer review materials used in its tenure and promotion decisions, and a faculty member's competing interest in obtaining such materials to establish a prima facie claim of unlawful sex discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. We reject the University's request to create a qualified privilege to protect the confidentiality of academic peer review materials. While we hold that the requested peer review materials are discoverable in the context of an anti-discrimination suit, we instruct trial courts to issue appropriate protective orders to ensure that discovery of the confidential materials is not unnecessarily broad and that access to such materials is limited. We likewise reject the contention that the collective bargaining agreement between Rutgers and the American Association of University Professors (AAUP)*fn1 precludes discovery of the peer review materials. We thus affirm the judgment of the Appellate Division as modified. Dixon v. Rutgers Univ., 215 N.J. Super. 333 (1987).
In 1971 Rutgers hired Dr. Ruth Dixon, a black female, as Assistant Professor and Chairperson of the Educational Opportunity
Fund Instructional Department, later known as the Academic Foundations Department, at Rutgers' Camden College of Arts and Sciences (Camden College). In August 1976 Rutgers notified Dixon that she would be evaluated for tenure and promotion to Associate Professor during the 1976-1977 academic year. If Dixon were denied tenure, university regulations provided that she would receive a one-year terminal contract as a lecturer. Pursuant to university procedures, Dixon was first evaluated by an ad hoc faculty committee, and then by the Appointments and Promotions Committee, and by the Dean of Camden College. These three evaluators unanimously recommended that Dixon be granted tenure and promotion. Dixon's promotion packet was then forwarded to the university-wide Promotion Review Committee (PRC). The PRC, appointed by the University president, reviews all evidence previously considered in connection with a proposed promotion and granting of tenure, including the confidential letters of recommendation from sources outside the University, and then submits its recommendations to the president. In February 1977 the PRC declined to recommend Dixon for promotion and tenure because of "insufficient evidence of distinction in teaching, creativity and research."
In April 1977 the Dean of Camden College informed Dixon that she would not receive tenure and promotion, and offered her a terminal contract as a lecturer. Eight days later Dixon filed a complaint with the Division of Civil Rights (DCR), alleging discrimination in the tenure and promotion process based on her race and sex contrary to the LAD. Dixon also availed herself of the University's internal grievance procedures. During this grievance process two neutral readers are appointed to review the confidential outside letters. Although the Rutgers-AAUP agreement expressly provides that "[t]he confidentiality of the contents and identity of the writers shall be protected at all times," the AAUP states that after this review "the contents of the outside letters are disclosed, in paraphrase and in substance, to unsuccessful candidates in the
grievance procedures." The record on hand provides no further detail on the extent of this disclosure.
The University's own Grievance Review Committee ordered the PRC to reconsider its initial recommendation based on a finding that the teaching effectiveness category used in the evaluation was inapplicable to Dixon. After reconsideration the PRC again recommended against promotion and tenure. This time the PRC reasoned that Dixon could not be recommended for promotion and tenure because her record reflected "insufficient evidence of research and scholarly activities expected of a faculty member in [the] Academic Foundations [department]." Four months later, however, the Board of Governors of the University decided to award tenure to Dixon, retroactive to July 1, 1977. The record before us does not contain any explanation for this reversal by the Board of Governors. The Board of Governors did not, however, reverse that portion of the PRC's recommendation that denied Dixon promotion to the position of Associate Professor.
Dixon's major allegation in her complaint was that she received "disparate treatment" in that she was treated less favorably than two men, Assistant Professors William Jones and Henry Eng, who were granted tenure by Rutgers at approximately the same time the University denied her tenure and promotion. Unlike Dixon, who had no teaching responsibilities due to her role as Department Chairperson, both of these men were primarily teachers -- Jones in English and Eng in mathematics. Nevertheless, all three were chairpersons of the Academic Foundations Department of their respective campuses. The PRC examined the promotion and tenure records of Jones and Eng the day before that committee reviewed Dixon's record. However, the PRC gave the men favorable recommendations. The PRC recommended that Eng, an Assistant Professor at Livingston, be given tenure, and that Jones, an Assistant Professor at Newark, be given both tenure and a promotion to the rank of Associate Professor. Rutgers' Board of Governors
later adopted the PRC's recommendations concerning Jones and Eng.
As part of its investigation into Dixon's allegations of discrimination, the DCR served interrogatories on the University. In response to those interrogatories, the University supplied the DCR with the promotion packets of Jones, Eng, and Dixon. Those promotion packets contain all the materials that were before the PRC when it made its promotion and tenure decisions. The packets include the personnel file of each candidate, recommendations of each of the peer review committees, materials submitted by each candidate in support of his or her application for promotion and tenure, as well as confidential letters evaluating the candidate submitted by individuals outside the University at the latter's request. Rutgers agreed to release the packets of Jones and Eng to the DCR provided that they be used exclusively by DCR personnel involved in the investigation. In a letter to Rutgers' counsel, the DCR assured the University that access to the packets would be limited to DCR personnel, but added that "should a public hearing be ordered in this matter the information may be entered into evidence."
On September 28, 1982, almost five years after the complaint was first filed, the DCR issued a Finding of Probable Cause to credit Dixon's allegation of sex discrimination in the original tenure and promotion decisions. At the same time, the DCR did not find probable cause to credit the allegation of unlawful discrimination based on race since both Jones and Eng were members of racial minorities. The DCR's sex discrimination finding was based on its conclusion that Dixon received "substantially different [treatment] than her male counterparts . . . markedly reflected in . . . promotion and tenure policies." As expressed in the DCR's Finding of Probable Cause, the DCR reached this conclusion because it found that the two men had demonstrably inferior credentials in comparison to Dixon:
At the time Complainant initially applied for promotion with tenure she had nearly completed the requirements of her doctoral degree and had also produced
at least one document for publication. Regardless of these credentials she was denied both promotion and tenure.
In comparison, William Jones, a black male, possessing only a M.A. degree, and never having produced any documents for publication was granted promotion with tenure. Henry Eng, an oriental male, possessing only a B.A. degree, who also had not produced any documents for publication, was granted promotion with tenure. In both comparisons the males were unconditionally granted professional advancements while . . . [Dixon] was denied these same privileges.
Following the DCR's Finding of Probable Cause to credit the allegations of sex discrimination, the Dixon matter was transferred to the Office of Administrative Law. Pursuant to a pretrial order, Rutgers moved before the Administrative Law Judge (ALJ) to strike and suppress from evidence various confidential documents, including the promotion packets of Jones and Eng and the confidential letters of the outside evaluators in Dixon's packet. The University argued that (1) the documents were subject to an applicable qualified privilege; and (2) the express provisions of the relevant collectively negotiated agreements between Rutgers and its branch of the AAUP mandated strict confidentiality of the documents in question.
In support of its motion to suppress the peer review materials, Rutgers argued that the promotion packets of Jones and Eng were not relevant since University tenure and promotion policies operated on a noncomparative basis. As support for this position Rutgers submitted the affidavit of Susan A. Cole, Rutgers' Vice President for University Administration and Personnel:
Candidates for promotion are not compared to other candidates for promotion during the evaluation process. Rather, they are judged by the levels of achievement and accomplishment expected by colleagues in the field at Rutgers University and elsewhere; i.e., they are evaluated by institutional and national peers in accordance with standards of accomplishment appropriate to their discipline and rank. Thus, to justify an award of promotion with tenure, candidates must have a sufficiently distinguished record of achievement appropriate to the particular rank as defined by their institutional and national peers in their discipline. There is no competition among candidates for promotion and tenure. Nor is there a limited number of tenure positions or promotion opportunities available for which the candidates compete.
The DCR contested this statement with the affidavit of a DCR field investigator who certified that one PRC member had admitted to him that on at least one occasion during its deliberations the committee had compared Jones to Dixon. In addition, another PRC member told the field investigator that "you cannot stop one from comparing people in the same department."
On March 6, 1986, the ALJ denied the University's motion to suppress the promotion packets. The ALJ held that the files would be relevant at the time of hearing in order for Dixon to establish a prima facie case of unlawful discrimination on account of sex "by demonstrating differential treatment between males and females without legitimate reason." In denying the University's motion to exclude the files from evidence, the ALJ did, however, allow the striking of the outside authors' names "so long as Rutgers did not place greater weight on one outside specialist over another because of reputation in the academic community."
Rutgers filed a petition for interlocutory review of the ALJ's decision with the Director of the DCR. Once that petition was denied, the University moved before the Appellate Division for interlocutory review of the ALJ's order. The Appellate Division granted the motion, and affirmed the ALJ's order. Dixon v. Rutgers Univ., supra, 215 N.J. Super. 333.
The Appellate Division held that the public interest in eradicating unlawful discrimination, which the court said "has always been of predominant concern in our State," outweighed the public interest served by maintaining the confidentiality of the promotion packets of Rutgers' faculty. Id. at 339. The court ruled that the files in question were relevant and "seemingly . . . essential to a [comparative] determination as to whether disparate treatment was rendered." Id. at 339-40. It also "perceive[d] no merit in Rutgers' contention that differences in job responsibilities and disciplines between [Jones,
Eng, and Dixon] . . . vitiate the relevancy of the comparison." Id. at 340.
The Appellate Division also rejected Rutgers' claim that disclosure of the promotion and tenure material would impair the integrity of the peer review system. It noted that this system was already not one of strict confidentiality since the evaluation materials could be discoverable in a Title VII federal proceeding and the people being evaluated have access to all of their promotion packets except for outside evaluation letters. The court felt that any "chilling" that might result from disclosure was outweighed by "the demands of fair employment," and noted that such disclosure would "always [be] subject to appropriate protective measures." Id. at 341. The court also rejected Rutgers' claim of privilege based on academic freedom since such freedom, it said, "does not encompass disparate treatment in acting upon faculty promotions or the shielding of records which might reveal evidence of discrimination." Id. Finally, the court held that Rutgers' claim of protection from disclosure via Evid.Rule 34 (precluding disclosure of official information) was "clearly without merit," and that the Rutgers-AAUP collective bargaining agreement could not serve as a bar to disclosure since: (1) the DCR was not a party to that agreement, and (2) "[i]n any event, judicial considerations of the proper scope of compelled disclosure in a discrimination proceeding are not constrained by a collective bargaining agreement." Id. at 342.
The Appellate Division modified the ALJ's opinion only to provide additional protection to the University by prohibiting "disclosure of the material[s] to persons not involved in the proceedings." 215 N.J. Super. at 342. This Court granted Rutgers' motion for leave to appeal. 108 N.J. 199 (1987).
Before determining whether any of the confidential materials should be protected by a qualified privilege, we first must
determine whether the material is relevant to Dixon's efforts to prove sex discrimination. Evid.Rule 1(2) defines "relevant evidence" as "evidence having any tendency in reason to prove any material fact." Accordingly, the disputed confidential materials will be relevant if they assist Dixon in proving that there was "an intent to discriminate for an unlawful purpose." Kearny Generating System v. Roper, 184 N.J. Super. 253, 261 (App.Div.), certif. den., Roper v. Kearny Generating System, 91 N.J. 254 (1982).
This Court has counselled that the standards developed under related federal anti-discrimination provisions in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.S. §§ 2000e to 2000e-17 (Title VII), can be applied where "useful and fair" to the state law context in determining whether an unlawful discriminatory purpose is present. Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 81 (1978). Thus in this case Dixon is attempting to prove discrimination by means of one of the most commonly accepted standards, namely, by showing that she was a victim of "disparate treatment." As noted by the Peper court,
[this] is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [ Id. at 81 (quoting Teamsters v. United States, 431 U.S. 324, 334 n. 15, 97 S. Ct. 1843, 1854 n. 15, 52 L. Ed. 2d 396, 415 n. 15 (1977)).]
In trying to define the burden that must be met to show discrimination through disparate treatment, we have adopted a three step procedure: (1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant then must show a legitimate non-discriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application. Peper, supra, ...