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April 24, 1998

Dr. ARIE HAREL, Plaintiff,

The opinion of the court was delivered by: WALLS


 Walls, District Judge

 Dr. Arie Harel ("Harel") brings this civil rights action against Rutgers, the State University of New Jersey ("Rutgers" or "the University"), Dr. Joseph Seneca, Vice President for Academic Affairs ("Seneca"), and Dr. Francis Lawrence, President of Rutgers ("Lawrence"). Harel alleges that the defendants denied him tenure on account of his Israeli national origin and gender in violation of 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Defendants have moved for summary judgment. Under Fed. R. Civ. P. 78, the Court decides this motion without oral argument by counsel. For the following reasons, the Court grants summary judgment to all defendants.

 Factual and Procedural History

 I. The Parties

 Harel is an operation management scientist who was born in Liberitz, Czechoslovakia October 9, 1946. When he was six months old, he was taken to Israel *fn1" and became an Israeli citizen upon the declaration of that nation's statehood in 1948. In 1980, Harel came to the United States to begin doctoral studies at Columbia University. He joined Rutgers as an adjunct assistant professor in September 1985 and, after receiving his doctorate degree in management science, became an assistant professor in the Quantitative Studies Department *fn2" at the University's Graduate School of Management in 1986 or 1987.

 Defendant Seneca, the University's Vice President for Academic Affairs, served as chair of the Promotion and Review Committee during plaintiff's 1992-93 and 1994-95 tenure evaluations. Defendant Lawrence is the President of Rutgers. He opposed Harel's tenure bid on several occasions.

 II. The Tenure Evaluation Process at Rutgers

 Rutgers utilizes a multi-level evaluation process to determine whether to award tenure to members of its faculty. The University Policy with Respect to Academic Promotions (the "Policy") provides that teaching, scholarship, and service should be considered in deciding whether to grant tenure:

For general teaching/research faculty, scholarship, including research accomplishments, is the primary criterion. Excellence in scholarship . . . is necessary to the achievement of tenure; effective teaching . . . is also normally a condition for the achievement of tenure. Only in rare instances where an individual's scholarship has enabled his/her teaching to achieve national recognition, that is, to make an impressive and recognized impact on teaching in the discipline as a whole, not limited to this University, may teaching become a basis for tenure. Significant accomplishments in the activities specified under the criterion of service will strengthen a candidacy for tenure. Such accomplishments are expected in a member of the profession, but cannot replace scholarship and research or teaching effectiveness as a justification for tenure.

 See John J. Peirano Certif. ("Peirano Certif."), Exh. A at 6. The Policy further provides that only "those faculty members who have made the most important contributions to the University and have discharged their duties with the greatest distinction will be considered for [tenure] . . . . Advancement to a higher rank is not automatic." Id. at 4.

 The defendants contend that Harel was denied tenure because of the deficient quality of his scholarship. See Defendants' Rule 56.1 Statement P6. The Policy outlines how scholarship should be evaluated in the making of tenure decisions:

Scholarship, as measured by peer recognition of its originality, impact on, and importance to the development of the field, is demonstrated most typically by refereed publications, such as journal articles and books of high quality. Scholarship and research accomplishments are also demonstrated by the design and execution of applied research in the laboratory or in the field; through the presentation of papers at organized scholarly meetings, usually at the national or international level; through the attraction of external support or competitive fellowships and awards appropriate to the faculty member's field of study; through such activities as editing, . . . the compilation of information, and the development of materials that make information more assessable to researchers, other scholars, and practitioners; and through publication in other academic or professional journals and lecturing in professional and other public forums.

 Peirano Certif., Exh. A at 2. According to Ronald Armstrong, the current chair of plaintiff's department, the factors employed to assess the impact of a candidate's scholarship include: (1) the quality of the journals in which the candidate's articles appear; (2) the frequency that the works are cited; (3) whether the work is published in refereed journals; (4) whether the work is co-authored; (5) the level of recognition of the work by the candidate's peers; (6) the number of publications; (7) whether the candidate has received awards for his scholarship; and (8) whether the candidate has published on subjects beyond his dissertation topic. See Santos Certif., Exh. 2 P 13.

 The Academic Reappointment/Promotion Instructions describe the procedures one must follow to seek tenure. See Peirano Certif., Exh. C. *fn3" The candidate prepares a promotion packet that generally consists of his/her curriculum vitae and additional documents and materials submitted in support of the application such as recently published works. The packet will include any confidential letters submitted by academics who are in the candidate's field outside of the University. The department chair is responsible for soliciting these required external letters of evaluation. See id., Exh. C.

 At the first level of the process, tenured faculty within the candidate's department review the promotion packet. The department chair may appoint a reading committee to prepare a written assessment of the candidate's scholarly work. The chair then convenes the departmental committee to discuss the candidate's qualifications and vote on the tenure bid. A positive recommendation requires approval of two-thirds of those voting. The department produces a report that reflects the majority and any minority views among the peer review group. See id.

 The candidate's promotion packet and the departmental report are then submitted to the Dean's Advisory Committee on Appointments and Promotions ("A & P Committee"). The A & P Committee, formed of two faculty members appointed by the dean and two faculty members elected by the faculty, evaluates the promotion packet and makes a written recommendation to the dean. See id.

 Then the dean evaluates these materials and makes his own independent recommendation of the merit of the tenure application. If his recommendation differs from that of the department, the dean must discuss the matter with the department chair before submitting his recommendation. See id.

 If either the dean or the department favors the grant of tenure, the application materials are advanced to the Promotion Review Committee ("PRC"), which purpose is to advise the University President on appointments and promotions to positions of tenure. The PRC is chaired by Rutgers Vice President for Academic Affairs, defendant Seneca, a non-voting member. Its task is "to assure the President that the prior process of decanal judgment and peer review has integrity, in the sense that the peers in the same or adjacent fields who have expressed their judgment are indeed at the leading edge of their fields, that appropriate evidence and analysis have been presented of accomplishment and impact on the field to support these judgments, and that the dean has applied the highest, University-wide standard of quality." See id. at 13.

 After making these assessments, the PRC forwards a written recommendation to the President, defendant Lawrence, who in turn evaluates the evidence and materials accumulated during the process and makes his own recommendation to the Board of Governors. After considering all available information, the Board makes the final tenure determination. See id.

 III. The Consideration of Harel for Tenure

 A. Harel's 1990-91 Evaluation for Tenure

 The University first reviewed Harel's candidacy for tenure in the 1990-91 academic year. The seven department faculty members who evaluated his promotion packet voted unanimously to recommend tenure. Four ranked his scholarship as "outstanding," one rated it as "between outstanding and above average," and two found it to be "above average." Jimmy M. Santos Certif. ("Santos Certif."), Exh. 11. The A & P Committee and the Dean also favored tenure. The PRC, however, did not recommend that Harel be promoted to the rank of associate professor with tenure because it found "insufficient evidence of peer recognition for sustained, original scholarly contributions of importance to the development of the discipline to justify promotion and award of tenure at this time." See Peirano Certif., Exh. H. He was ultimately denied tenure. Harel did not grieve this decision nor did he allege at that time that the adverse result was because of any type of discrimination.

 B. Harel's 1992-93 Evaluation for Tenure

 Plaintiff was next considered for tenure in the 1992-93 academic year. By then, Harel had published seven refereed journal articles (three of which he co-authored) and one refereed letter to the editor, had one journal article at press, and had four works in progress (one of which he co-authored). See Peirano Certif., Exh. J. Plaintiff's scholarship focuses on his field of expertise, queueing theory. His promotion packet included fourteen letters from external evaluators who had assessed Harel's work relative to this and his previous tenure application. In the main, these letters were laudatory. Ten of these evaluators explicitly supported the promotion. See id., Exh. DD. None of the evaluators recommended against tenure. See id. One of the 1990 external evaluators remarked that Harel was "at the top of his peer group[.]" Id. But another expressed doubts concerning the creativity of his work: "While Dr. Harel's work represents quality, it is perhaps less outstanding in terms of creativity." Id. Among the distinguished scholars who submitted letters of evaluation in 1992, one referred to the plaintiff as "the number 1 expert in the study of convexity in queuing systems" while another ranked him "in the top twenty percent of Assistant Professors coming up for promotion to Associate Professor at research oriented Universities[.]" Id. Evaluators, though, generally praised his earlier work on convexity in queues more than his more recent work on polling and random walks. See id. Some of the reviewers suggested that his scholarship lacked "elegance." One noted that his results are sometimes derived from "a lot of seemingly burdensome mathematics[.]" See Santos Certif., Exh. 15. Some of the evaluators expressed concern with Harel's relatively small number of publications; one noted that he "does not have a very long publication record." See Peirano Certif. Exh. DD. However, most agreed that his works had appeared in top journals.

 Dr. Nabil Adam, who had been elected to chair the department that year, appointed Dr. Michael Katehakis and Dr. Ted Szatrowski to serve as plaintiff's reading committee. These individuals previously had served on Harel's reading committee for his first evaluation in 1990-91. Harel contends that they were not qualified to serve on the committee and that their report negatively influenced his candidacy. See Santos Certif., Exh. 1 (Pl.'s Aff.) PP 146, 153. Seven department members, including Dr. Adam, voted in favor of tenure, one voted against it, and one abstained. In its positive report, the department gave Harel's scholarship an overall rating of "average to above average[.]" See Peirano Certif., Exh. K.

 The A & P Committee voted unanimously to recommend Harel for tenure. The Dean, Dr. George Francis, also supported his candidacy and commented in his written recommendation that Harel's "number of publications is not great, but most of them appear in the most prestigious journals in the field." Id., Exh. L. The Dean forwarded Harel's promotion packet to the PRC. Seneca, writing for the PRC to Lawrence, recommended against tenure:

Professor Harel's record since being appointed an Assistant Professor indicates only a moderate publication level and there is some concern about the long term significance and impact of his work. The Committee, therefore, concludes that, based on the assessment of his record, Professor Harel has not achieved a level of sustained, scholarly accomplishment to justify promotion to the rank of Associate Professor with tenure.

 Id., Exh. M. President Lawrence concurred with the PRC's evaluation. Plaintiff was informed on April 6, 1993 that he had again been denied promotion. All of the evaluators involved in plaintiff's tenure consideration process in 1992-93 were males save two.

 C. Harel's 1993 Grievance

 Rutgers has a collectively negotiated agreement with the Rutgers Council of the American Association of University Professors ("AAUP Agreement") that provides for a grievance procedure "to help ensure the integrity of the reappointment, promotion, and tenure procedures; to provide a process for determining whether evaluations resulting in negative personnel actions were flawed . . . and to provide remedies in cases where defects are found." Ambrose Aff., Exh. B (AAUP Agreement). The grievance procedure permits a faculty member to contest an adverse decision on the grounds that it was the product of procedural violations, discrimination, or enmity; that a recommendation against promotion/tenure was materially inconsistent with the facts in the promotion packet; or that it was arbitrary and capricious when viewed in light of the criteria for granting promotions. If the Grievance Committee finds merit in the allegations, its sole and exclusive remedy is to order a remand. See id.

 On August 18, 1993, Harel filed a grievance to protest the decision to deny him tenure. He made numerous complaints about his 1992-93 tenure evaluation including allegations that members of the reading committee, his department, and the PRC had acted in an arbitrary and capricious manner by not providing a rigorous and fair review of his work; that the reading committee and department reports contained material factual errors; that the department had committed material procedural violations through its failure to circulate to the reviewing bodies favorable materials submitted by Harel and its non-adherence to the established practice related to external reference letters; and that the members of the reading committee and Dr. Adam had exhibited enmity towards him. See Peirano Certif., Exh. D (1993 Grievance). Harel did not charge that his denial of tenure was motivated by discrimination based on either his national origin or gender.

 After extensive hearings, plaintiff and the University entered into a "Remand Agreement" that required that Harel's application for promotion be returned to his department for another evaluation. In exchange, Harel agreed to withdraw all of the allegations in his grievance except those that Dr. Adam, Dr. Katehakis, and Dr. Szatrowski had demonstrated enmity in their evaluation of his candidacy. He agreed that he would not bring any future claims based on the withdrawn allegations in any future grievance or before any other forum. The Remand Agreement provided that the decision on remand would be based on the materials submitted in the 1992-93 promotion packet, a letter submitted by Harel to update the status of the listed works in progress, and a personal statement. Dr. Szatrowski would not participate in the remanded evaluation. See id., Exh. N (Remand Agreement).

 On June 26, 1994, the Grievance Committee issued its findings with regard to Harel's claims of enmity. The Committee concluded that Dr. Adam had not acted with enmity. Although the Committee found that Dr. Katehakis' actions were not motivated by enmity, it did find that he "negatively prejudged Harel's capabilities" and acted in an "inappropriate" manner. Peirano Certif., Exh. O at 6-7. With regard to Dr. Szatrowski, the Committee concluded that he had demonstrated enmity toward Harel through his conduct during the evaluation. The Committee unanimously agreed that Dr. Szatrowski had "guided the preparation and presentation of the Reading Committee report in a way that was calculated to produce a negative result." Id. at 9. The Committee found that such enmity was the only explanation for Dr. Szatrowski's decision to edit the 1990 report to eliminate positive references and for his various misrepresentations concerning the significance of Harel's work. See id.

 D. Harel's 1994-95 Evaluation for Tenure

 The University gave Harel a remanded evaluation during the 1994-95 academic year. In accordance with the Remand Agreement, Harel submitted an update of the scholarship section of his original promotion packet, which included two additional published articles co-authored by him, one of which had been previously listed as a work in progress. See id., Exh. P. His 1994-95 promotion packet also included the grievance findings, a copy of the Remand Agreement, and the materials considered in connection with his 1992-93 candidacy.

 Dr. Hannoch Levy and Dr. Ronald Armstrong were appointed to serve on plaintiff's reading committee. Dr. Levy is Israeli and Dr. Armstrong is American. The reading committee concluded that the type and number of citations to Harel's work was "impressive" and "consistent with the best new researchers in the field." His impact on the field was described as "very significant." Santos Certif., Exh. 15.

 According to Dr. Armstrong and Dr. Douglas Jones, another faculty member who participated in the 1994-95 review, Dr. Adam conducted the departmental vote by secret ballot, even though such votes on personnel matters were usually conducted in an open manner. See Santos Certif., Exhs. 2 and 3. Four faculty members voted to recommend him for tenure, three voted against it, and one abstained. Dr. Julius Surkis, a Jewish member of the department, was in favor of Harel's promotion in 1990-91 and 1992-93 but has testified that he did not vote for him in 1994 because of "a decline in productivity in his work[.]" Id., Exh. Y (Dr. Surkis' Dep.) at 16. Dr. Adam has explained that he voted against Harel because he no longer saw the "strong potential" in Harel's scholarship that he had observed in 1990. Id., Exh. X. Because less than two-thirds of the department members favored Harel's promotion, the department issued a report that recommended against granting him tenure. The report failed to specifically articulate the views of those who had voted against tenure as required by the Academic Reappointment/Promotion Instructions. See id., Exh. C. The University contends that explanations of the negative votes were omitted because the faculty members who opposed Harel wished to avoid any potential future "confrontation" with him. See Santos, Exh. 58.

 The A & P Committee voted unanimously to recommend Harel for elevation and evaluated his scholarship as "outstanding." Id., Exh. DD. The dean, who at that time was P. George Benson, also supported Harel's candidacy and wrote that Harel had published in "leading journals" in the field and "very few faculty ever achieve this record of publication in these journals by the time they are reviewed for tenure." Id., Exh. R. Although the dean noted that other candidates may produce a higher number of publications, he concluded that Harel's "scholarly record [was] deserving of tenure and promotion." Id.

 In a March 23, 1995 memorandum, the PRC, per Vice President Seneca, again did not recommend tenure to Harel:

In the area of scholarship, however, Professor Harel's record over this period does not demonstrate sufficiently substantial productivity and, although his contributions are respected by external peers, it is not apparent from the record that his work has had a significant national impact on developments in the field. The Committee, therefore, concludes that, based on the assessment of the record, Professor Harel has not achieved a level of scholarly accomplishment to justify promotion to the rank of Associate Professor with tenure.

 Id., Exh. S. President Lawrence also declined to support plaintiff's candidacy. The University notified Harel that he had again been refused tenure on April 14, 1995. Of those persons who evaluated Harel's candidacy in 1994-95, the overwhelming ...

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