Full opinion text
MEMORANDUM OF DECISION CLARIE, Chief Judge. The plaintiff Marcia R. Lieberman was denied tenure at the University of Connecticut after teaching in the University’s English department in a nontenured status for a probationary period of six years. She instituted this action against the University’s Board of Trustees, several of its officers and members of its English department, alleging that the decision not to promote her to a tenured position was made in retaliation for her political activities on behalf of women, was motivated by sexual bias, and was carried out in contravention of the procedures prescribed by the University for evaluating faculty members. The case was tried to the Court without a jury. Trial commenced on April 20, 1976 and consumed 52 days of court time, finally concluding on May 26, 1978. The case was suspended several times because of the Court’s criminal business, but the longest delay was due to the protracted illness of the plaintiff’s attorney. After reviewing all of the evidence, including a trial transcript of nearly 10,000 pages and almost 400 exhibits, the Court finds that the plaintiff has failed to meet her burden of proof, as to any of the five counts of her complaint. The evidence discloses that the decision to refuse tenure to the plaintiff was made in good faith and in conformance with the appropriate procedures, and was not infected with sexual or political bias. Accordingly, judgment shall enter for all defendants. Statement of Facts The plaintiff Marcia Lieberman was first hired by William T. Moynihan, head of the English department, as a part time lecturer to teach one course in the fall of 1967. A major consideration in the hiring of Marcia Lieberman was the University’s interest in her husband, Philip Lieberman, a recognized linquist of considerable professional stature. The University was forming a new department of Linguistics at the time and those who were trying to attract Philip Lieberman felt that finding a job for Mrs. Lieberman would be helpful in enticing Philip to come to the University. (Tr. 5506-07, 5241). Mrs. Lieberman was not hired in the normal manner; in fact, Professor Charles A. Owen, Jr., who was chairman of the English department’s joint committee at the time, testified that the job as lecturer was created for her. (Tr. 6861). In the normal case a candidate would forward his or her dossier to the appointments committee of the English department. The committee would evaluate the dossiers and set up interviews with the top 40 prospects. The committee would then make its hiring recommendations based upon its assessment of the candidates’ merit. (Tr. 7068). Mrs. Lieberman bypassed this procedure, and dealt directly with the head of the department, who was encouraged to find a job for her by Kenneth Wilson, who at that time was Dean of the College of Liberal Arts and Sciences. (Tr. 6945, 2392-94.) Moynihan testified that if Mrs. Lieberman’s application had proceeded in the normal course, she probably would not have survived the initial screening process, and that if she had she would have ranked near the bottom of the 40 candidates who were selected for an interview. (Tr. 6949-50, 7069-70). During Mrs. Lieberman’s first semester at the University a vacancy in a full time position in the English department occurred when Peggy Knapp resigned her position effective as of the end of the semester. (Tr. 1811). Moynihan then appointed Mrs. Lieberman to the rank of assistant professor to fill that vacancy. (DX-DDD). Her letter of appointment made clear that the position was temporary and that her appointment would extend only until July 31, 1968. (PX-91, 92). Moynihan again appointed Marcia Lieberman to a temporary one year position for the following academic year, said appointment to expire on September 15, 1969. (PX-94). During the fall of 1968, i. e., her second temporary year at the University, the plaintiff sought a tenure track appointment from the English department’s executive committee. That group advised her to submit her dossier to the appointments committee, so that her application could be reviewed along with other candidates for permanent positions. (DX-CCC). Upon reviewing Mrs. Lieberman’s credentials the appointments committee informed the department head, Moynihan, that her credentials were not of sufficient quality to earn her an interview. (Tr. 7032). Thereafter the executive committee considered Mrs. Lieberman’s request for a permanent appointment. Three members of the executive committee who were familiar with the subject matter of her dissertation read it, and all three found it unsatisfactory. (Tr. 6267). Professor Clark called it “terrible,” and Professor Sonstroem stated that if he had been her dissertation advisor, he would not have accepted it. (Tr. 7034, 1403). The executive committee unanimously recommended that she not be given a tenure track appointment. (Tr. 6442). Moynihan took a leave of absence from the University in the second semester of 1968-1969 and Charles Owen served as acting head of the English department. Prior to leaving Moynihan informed Owen of Mrs. Lieberman’s interest in another temporary position for the following year, if she could not get a tenure track appointment, and asked him to consider her if a vacancy occurred. (Tr. 7037). Later Owen did offer Mrs. Lieberman a temporary appointment; the letter of appointment specified a one year period, ending September 15, 1970. (PX-95). At Moynihan’s request the English department’s Promotion and Tenure committee considered the plaintiff’s request for a tenure track appointment in the fall of 1969. (Tr. 7053). The promotion and tenure committee, regarding her credentials as inferior to other members of the permanent junior faculty, voted against offering her a permanent position. (DX-TT p. 3). The executive committee, in light of this report and in view of the likelihood of attracting more qualified candidates, voted in December not to offer her a tenure track appointment. (DX-TT p. 3). In January of 1970 the executive committee again considered Mrs. Lieberman for a tenure track position and decided to pursue all candidates whose records were clearly superior to hers. (DX-TT p. 3.). A list of potential candidates was drawn up and Mrs. Lieberman was rated 13 out of 15. Nevertheless, when an English professor resigned his position, Moynihan recommended that Mrs. Lieberman be appointed to the tenure track position, after the 12 people who ranked above her on the hiring list were approached and refused the position. (Tr. 1411-12, 7071). Moynihan made this recommendation notwithstanding the objections of the executive committee, because he wanted Marcia Lieberman to have a chance to prove herself. (Tr. 7073). Her letter of appointment specifies that her appointment was to run nine months, beginning September 10, 1970. (PX-98). Article X-K-3-d of the University’s Laws and By-Laws provides for a probationary period of 7 years before a professor must be considered for tenure. (PX-1 p. 29). Section K-3- e of that Article specifies that the candidate for tenure must be notified of the decision on tenure prior to the conclusion of the faculty member’s sixth year of service. (PX-1 p. 30). Thus a probationary faculty member in effect has six years in which to prove himself worthy of a lifetime appointment; for if he is appointed to a seventh year, he gets tenure automatically. (Tr. 7096). At the time of her initial appointment to the tenure track, Marcia Lieberman requested that her first three years of teaching experience not be counted towards the probationary period; she wished to have an additional six years in which to prove herself. (TX-OOO, Tr. 7083-85). This request was forwarded to William Orr, Associate Provost of the University, who ruled that under Article X-K-3-d her previous two and one-half years of full time experience would have to be counted towards her probationary period. However, the first semester during which she was only serving as a part time lecturer would not be calculated. in the probationary period. Consequently, her probationary period would be four and one-half years from the date of her appointment to the tenure track; i. e., the probationary period would run to January, 1975. However, since all final tenure decisions are made in the spring by the University’s Board of Trustees, her final probationary year would be 1973-1974. (DX-PPP). Since the Laws and By-Laws mandate that a faculty member be informed of the tenure decision at least 12 months in advance, the tenure decision for Mrs. Lieberman had to be made in the academic year 1972-1973. The plaintiff’s June 10, 1970 letter to Moynihan demonstrates that she understood at the outset that her probationary period would be four and one-half years and that the final decision would be made in 1972-1973. (DX-QQQ, Tr. 7877). Mrs. Lieberman began teaching on the tenure track in September, 1970. Pursuant to the procedures which had been adopted for making recommendations to the Board of Trustees on reappointment of tenure track faculty members, she was reviewed first by the English department’s five member promotion and tenure committee. She was then reviewed by a group known as the “joint committee,” which is comprised of members of the promotion and tenure committee plus the members of the executive committee. Both groups recommended her reappointment. Department head Moynihan concurred and Mrs. Lieberman was reappointed by the Board of Trustees for another probationary year. The letter notifying the plaintiff of the Trustees’ action specifies that her reappointment is to run for a year commencing September 10, 1971. (PX-99). In the spring of 1971 the five member promotion and tenure committee met with the plaintiff to give her direction and to advise her as to how she could overcome her shortcomings, so that she might ultimately merit tenure. Mrs. Lieberman was told at that time that she should attempt to improve her teaching and to concentrate her scholarship in a single discipline instead of spreading it over two or three separate areas. (Tr. 7121-22). In the fall of the academic year 1971-1972, when Mrs. Lieberman was commencing her fifth probationary year at the University, she was again recommended for reappointment by the joint committee and Moynihan. (PX-28). Robert Lougee, dean of the College of Liberal Arts and Sciences, concurred in this recommendation, but wrote a warning letter to Mrs. Lieberman on May 5, 1972, indicating that her scholarship to date was inadequate and that she should attempt to remedy this before she came up for tenure. (PX-45). Her letter of reappointment stated that it would be effective for the year commencing September 1, 1972. (PX-101). Mrs. Lieberman was also warned by the promotion and tenure committee about the weaknesses in her scholarship in a meeting in the spring of 1972. She disagreed with some of the comments made, but she did not take the opportunity to state her objections to the committee. (Tr. 2534-37). The general tenor of the remarks made by the committee was that her scholarship did not measure up to the standards required for tenure. (Tr. 1947). The plaintiff was upset with the remarks made by the members of the promotion and tenure committee. She went to see Moynihan and told him that she felt that she had written a sufficient number of scholarly articles. Moynihan responded that it was quality and not quantity which was lacking in her work. When she asked what she must do to get tenure, Moynihan answered that she must write one essay that would convince the committee about the quality of her mind. She rejoined, “Many of my colleagues will never admire my work,” intimating that certain members of the English department were prejudiced against her. She also questioned their competence to evaluate her essays. (Tr. 7196). The academic year 1972-1973 was the year when the tenure decision on Mrs. Lieberman had to be made. The same procedures are followed in tenure decisions as in the case of reappointment; however, the candidate is given much closer scrutiny when up for tenure. The ultimate decision is made by the Board of Trustees. There are three levels of review, before a final recommendation is made to the Board of Trustees, namely, the department, the dean’s level, and the central administration. In the English department there is a two-tiered review. A preliminary recommendation is made by the promotion and tenure committee, a five member panel elected by the members of the English department from among the tenured faculty. After the five member promotion and tenure committee has made its preliminary assessment, that committee meets in conjunction with the executive committee, which is comprised of four tenured faculty members elected by the department and one non-tenured member appointed by the head of the department. This group of ten comprises the promotion and tenure committee of the whole, commonly called the “joint committee.” The non-tenured member of the executive committee normally participates in the joint committee deliberations but does not vote. The joint committee deliberates and votes on the candidate’s merit. This vote is then reported to a meeting of the tenured faculty of the English department. The tenured faculty, though powerless to change the joint committee’s decision, can either approve the joint committee’s action or recommend reconsideration. If the tenured faculty votes for reconsideration, the joint committee deliberates again and then reports its decision to the department head. The latter, who is not bound by either the promotion and tenure committee’s recommendation or that of the joint committee, then makes his own recommendation and forwards it to the dean. At the dean’s level, the case for tenure is initially referred to the dean’s advisory council, a panel of eight faculty members appointed by the dean. A member of the dean’s advisory council who is a member of the same department as the candidate who is up for tenure participates in the deliberations, but does not vote. After the dean’s advisory council makes its recommendation the dean, who is not bound by that decision, makes his own recommendation and reports it to the central administration. At the central administration level the President, the Provost, the Associate Provost and the Vice-President for Academic Affairs jointly decide upon what recommendation they shall make to the Board of Trustees. The results of all of the committee votes as well as the recommendations of the department head and the dean are contained in a promotion and tenure file, which originates with the department head and is presented by the President, along with his own recommendation, to the Board of Trustees. The final decision is then made by the Board of Trustees. Mrs. Lieberman’s tenure case was a close one at every level. She was evaluated for promotion from assistant professor to associate professor at the same time that she was considered for tenure. The preliminary vote of the promotion and tenure committee was 5-0 in favor of tenure and 3-2 against promotion. (Tr. 7255, 7263). The joint committee then convened and voted 5-4 in favor of tenure and 7-2 against promotion. (Tr. 7286). Under the rules of the English department a two-thirds majority was necessary in order for the joint committee to make a favorable recommendation on tenure. Consequently, the 5-4 vote meant that the joint committee had failed to endorse Mrs. Lieberman for tenure. (Tr. 7286). On November 27,1972 the tenured faculty voted 15-15 on the question of whether the joint committee’s action should be accepted. Moynihan, as head of the department, voted for reconsideration, thus breaking the tie and sending the case back to the joint committee. (Tr. 7304). The joint committee reconvened and voted again. This time she lost a vote; the tally was 5-4 against tenure and remained 7-2 against promotion. (Tr. 7309). The joint committee met again to permit the plaintiff a chance to appear before the committee. Mrs. Lieberman came to a meeting on December 8, 1972, made a statement, and submitted letters from scholars outside the University in support of her case for tenure. (Tr. 2223-35). The joint committee then deliberated further and took another vote. This time the vote was the same as the previous one; that is, 5-4 against tenure and 7-2 against promotion. (Tr. 7310-12). On December 26, 1972 Moynihan made his own recommendation against tenure and forwarded the file to the dean’s office. Only six of the eight members of the dean’s advisory counsel voted on Mrs. Lieberman. One member of the advisory council, Professor Rosen, was a member of the English department and therefore did not vote on candidates from his own department. It is probable that if he had voted in the advisory council, Rosen’s vote would have been against granting tenure. He had voted against reconsideration when the joint committee’s recommendation was submitted to the meeting of the tenured faculty. (Tr. 6488). William Masterson abstained because he felt incapable of voting, since he was not present when the plaintiff appeared before the advisory council. (Tr. 4625). With those two not voting the dean’s advisory council divided evenly, 3-3, on tenure and was unanimous against promotion. (Tr. 928-955). Marcia Lieberman was permitted an opportunity to appear before and speak to the advisory council prior to the vote. Joan Hall also spoke on her behalf. (Tr. 2234, 6490-91). Robert Lougee, Dean of the College of Liberal Arts and Sciences, recommended a terminal appointment and forwarded Marcia Lieberman’s file to the central administration. Edward V. Gant, Acting President and Provost, then reviewed the file along with Associate Provost William C. Orr and Vice-President for Academic Affairs Kenneth G. Wilson. Marcia Lieberman was permitted an opportunity on March 15, 1973 to meet with and present her case to these three individuals. (Tr. 8116-17). A decision was made by them to recommend a terminal appointment. At the Board of Trustees’ regularly scheduled meeting on March 24, 1972, the Board, acting on Gant’s recommendation, decided to award Marcia Lieberman a terminal appointment for the year 1973-1974. Mrs. Lieberman taught at the University during the academic year 1973-1974, leaving there in June, 1974. (Tr. 2349). In September of that year she was appointed a visiting scholar at Wesleyan University,' a post which entitled her to use of the library and office but carried no teaching duties or compensation. Although she applied for numerous teaching positions at both the college and preparatory school level throughout New York and New England, the only teaching job she was able to procure after leaving the University of Connecticut was a one year appointment to teach one evening course at the University of Rhode Island during the academic year 1975-1976. (Tr. 2350-51). Jurisdiction The Court has subject matter jurisdiction over the counts of the complaint which charge transgressions of 42 U.S.C. §§ 1983, 1985 and 1986, by virtue of 28 U.S.C. § 1343. Jurisdiction over the claim of sex discrimination is expressly provided for in 42 U.S.C. § 2000e-5. The plaintiff’s state law claims are within the pendent jurisdiction of the Court. Discussion of the Law A. Procedural Due Process To be entitled to the procedural protections of the Fourteenth Amendment the plaintiff must prove that the University’s decision not to grant her tenure deprived her of either a liberty or a property interest. Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 82, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). In other words, “to determine [which] due process requirements apply in the first place, we must look not to the ‘weight’ [of the competing interests involved] but to the nature of the interest at stake.” Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972) (emphasis in original). A public employee who is dismissed from his job can claim a liberty interest only if the reasons given for his termination are false, defamatory and made public by his employer. Codd v. Velger, 429 U.S. 624, 626-28, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). The idea is to permit the public employee a hearing so that he can clear his name of any false charges. Ibid. However, allegations of inadequate job performance, as opposed to charges of dishonesty or immorality, are not sufficiently stigmatizing to implicate a liberty interest. Board of Regents v. Roth, supra, 408 U.S. at 572-74, 92 S.Ct. 2701; Pordum v. Board of Regents, 491 F.2d 1281, 1283 (2d Cir. 1974), cert. den. 419 U.S. 843, 95 S.Ct. 74, 42 L.Ed.2d 71 (1974). Since the only reasons offered by any of the defendants for the decision to give Mrs. Lieberman a terminal appointment were the inadequacies of her teaching and scholarship, she can make no claim that the terminal appointment infringed any liberty interest. Moreover, these reasons were never communicated to anyone except those individuals and committees who had to pass on her case. Consequently, even if those reasons were stigmatizing, no liberty interest would be implicated since the reasons for her non-retention were never publicized by the defendants. Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). To have a property interest in a tenured position at the University, Mrs. Lieberman must have “more than a unilateral expectation of it;” she must be able to prove “a legitimate claim of entitlement to it.” Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. In the latter case Roth had been appointed to teach at a state university for a year. During that year he was informed that he would not be reappointed. Roth instituted a civil action claiming that the school’s failure to provide him with notice and a hearing on the reasons for his non-retention violated his right to due process. The Supreme Court, recognizing that property interests are created by state law rather than by the Constitution, held that the scope of Roth’s claim to renewal was defined by the term of his appointment. Id. at 577-78, 92 S.Ct. 2701. Those terms protected his interest in his employment up to the final date of his appointment; however, since his appointment specified the date on which his employment would terminate and did not guarantee his reappointment, the college was not required by the Constitution to give him a hearing prior to reaching its decision on tenure. Id. at 578, 92 S.Ct. 2701. The position of the plaintiff in the present case is virtually identical to Roth’s. The term of her appointment was expressly limited to one year: ■ “In conformity with the University procedure in regard to the appointment and reappointment of staff members on the annual appointment basis, the Board of Trustees at a recent meeting voted to approve your reappointment as Assistant Professor of English, for the year beginning September 1, 1972.” (PX-101) (emphasis supplied). The University procedures to which the letter of appointment refers specify that it is only faculty members with tenure who cannot be terminated, except for cause. (PX-1, Art. X-K-3-d, pp. 29-30). The Second Circuit has read Roth as holding that an untenured college teacher does not have a sufficient property interest in his job to warrant the invocation of the due process clause. Pordum v. Board of Regents, supra, 491 F.2d at 1283; Lombard v. Board of Education, 502 F.2d 631, 637 (2d Cir. 1974) cert. den. 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975). As was stated in a case which is factually similar to the one at bar: “The Roth decision . . . laid to rest the legal question of procedural due process as it applies to the non-reappointment of non-tenured professors in that it holds that procedural due process does not require a statement of reasons and a hearing.” Waifs v. Board of Curators, University of Missouri, 363 F.Supp. 883, 888 (W.D.Mo.1973), aff’d 495 F.2d 384 (8th Cir. 1974); see also Cotten v. Board of Regents, 395 F.Supp. 388, 393 (S.D.Ga. 1974), aff’d 515 F.2d 1098 (5th Cir. 1975). As an untenured teacher, Marcia Lieberman, like Roth, had no legitimate claim of entitlement to continued employment. Her appointment was limited to the academic year 1972-1973, and she had no property interest in her job once that term was concluded. The plaintiff, relying on cases such as Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), contends that even if the Fourteenth Amendment did not compel the University to afford her procedural due process in the first instance, once the University had adopted certain procedures for determining which of its junior faculty would be awarded tenure, those procedures had to be followed. Thus the argument is that even if she did not have a property interest in the job itself, she did have a property interest in the procedures for determining whether she would receive tenure. A majority of the Supreme Court has declined to adopt this anomalous reasoning: “Respondent also contends that petitioners failed to follow their own rules respecting evaluation of medical students and that this failure amounted to a constitutional violation under Service v. Dulles, 354 U.S. 363, 77 S.Ct. 968, 1 L.Ed.2d 1403 (1957). We disagree with both respondent’s factual and legal contentions. [The Court then noted that the record disclosed that the appropriate procedures had in fact been followed]. As for the legal conclusion that respondent draws, both Service and Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), upon which Service relied, enunciate principles of federal administrative law rather than of constitutional law binding upon the States.” Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948, 956 (1978). Nonetheless, because the statement in Horowitz is technically dictum and in order to present a complete record for appellate purposes, the Court will address the question of whether the University followed its own procedures in this case, The major flaw which is claimed to have poisoned the procedures is Moynihan’s decision to obtain evaluations of Mrs. Lieberman’s scholarship from sources outside the University. Faced with what he considered to be a difficult tenure decision, Moynihan asked Donald C. Freeman, professor of Linguistics at the University of Massachusetts, and Isabel MacCaffrey, professor of Literature at Harvard University, to read and appraise certain articles which the plaintiff had written. Freeman reacted negatively to Mrs. Lieberman’s scholarship, concluding: “I would think more highly of these essays if I saw in them real originality and interesting ideas, however poorly argued. But frankly, I don’t.” (PX-24). MacCaffrey was equally blunt: “The quality of mind displayed in these papers seems to me mediocre though not wholly negligible.” (PX-25). Moynihan only wanted these opinions for his own guidance, and he did not intend to show them to anyone else. (Tr. 7360). The substance of the letters was not disclosed either to the promotion and tenure committee or to the joint committee. However, when the joint committee’s recommendation was brought before the meeting of the tenured faulty, some members of the faculty demanded that the letters be read. Moynihan then read the MacCaffrey letter, and there was no further request that he also read the Freeman letter. The latter’s evaluation was merely mentioned and described as being “mixed to negative.” While it is true that outside evaluations were not sought in the normal tenure case (Tr. 1591), there is no question that Moynihan was justified in obtaining the outside opinions, The Provost’s Rules, which governed the procedures to be followed in reaching the tenure decision, expressly state: “The department head may seek the opinions of colleagues in his department, who are not members of the committee, of individuals outside the department, and of students.” (PX-5 p. 2) (emphasis added). Vice-President Wilson testified that it was entirely permissible for a department head to seek outside evaluations, and that Moynihan did not have to show the letters to anyone else. (Tr. 1342-43). Moreover, Moynihan was not motivated by any malice or prejudice in seeking the letters. In fact, Moynihan only sought the outside appraisals after Mrs. Lieberman had complained that no one in the department was qualified to evaluate her work and that they were biased against her. (Tr. 1586, 7201). The outside letters were to be used only if they were positive; thus Moynihan’s purpose was to help, not hinder, the plaintiff’s case. (Tr. 3641, 5404). Mrs. Lieberman claims that Professor MacCaffrey was unqualified to judge her scholarship because she was not an expert in “feminist criticism.” That field, which was Mrs. Lieberman’s primary area of concentration, focuses on the manner in which women are depicted in literature. Despite the plaintiff’s protestations to the contrary, numerous witnesses testified that one did not need to be a feminist critic to evaluate that kind of criticism. (Tr. 6145, 6480, 8331). While it is true that a specialist in that field would be better able to discuss the scholarly content of the plaintiff’s feminist criticism, any professor schooled in English literature should be able to assess the logic of the positions adopted in the articles and to evaluate the mode of presentation. (Tr. 6095). Moreover, Professor MacCaffrey is recognized as a first rate scholar with a high degree of integrity. (Tr. 5404, 6480). While conceding that Freeman was qualified to judge her article dealing with Linguistics (Tr. 2515), the plaintiff asserts that Freeman was biased. This bias is claimed to stem from the fact that at the time that he read the articles Freeman’s wife was employed as a part time instructor in the English department. Thus, it is claimed that he may have wanted Mrs. Lieberman to receive a terminal appointment so that his wife could be appointed in her place. The evidence discloses no such bias. Mrs. Freeman in fact never asked Moynihan for a permanent appointment, and even Mrs. Lieberman’s supporters admitted that Professor Freeman’s character was such that he would not have submitted a dishonest evaluation in order to secure a position for his wife. (Tr. 4211, 8334). • The plaintiff also complained that Moynihan implied to Freeman in advance that he wanted a negative evaluation. The very evidence by which the plaintiff attempted to substantiate this claim, the letter in which Moynihan requested that Freeman judge some of her articles, refutes her theory. It reads, in relevant part: “Would you be willing to read a couple of short pieces—one of them precisely in your field of interest—for me. We have a particularly difficult tenure decision. Our Committee has already made its appraisal, but we’d like someone outside the University to be in on this one. Anonymity will be religiously kept.” (PX-22). If any sinister meaning is hidden in those lines, the Court is unable to find it. Moreover, preserving the anonymity of both evaluators, to which the plaintiff also objected, is an accepted practice in the academic world and was done in this instance in order to insure more candid appraisals. (Tr. 8481, 8584). Finally, even if there had been some impropriety connected with the solicitation of the outside letters, the plaintiff was not damaged by them. Their contents were not revealed until the meeting of the tenured faculty, and the tenured faculty voted to remand the case to the joint committee for reconsideration—a favorable vote for Marcia Lieberman. The only other major procedural objection which, the plaintiff raised is that the English department’s review did not comport with the procedures mandated by the University’s Laws and By-Laws. Specifically, she contends that the Provost did not comply with Article X-K-10-d-3, which provides: “Before a teacher is placed on permanent tenure the Provost shall appoint at least five teachers to act as advisers, and he may follow the same procedure in other cases of proposed advancement, or at the request of a teacher who desires such consideration. These advisers shall normally include representatives both of the candidate’s department, and of at least two other departments. The selection of advisers shall be confidential, and those who serve shall, without meeting as a committee, report individually to the Provost their answers to such questions as he may submit to them. Reports shall be confidential, and record thereof kept in summary form only.” (PX-1 pp. 40-41). The University concededly did not follow this procedure. Acting President Gant testified that the last time this procedure was utilized by any department in the University was in 1947. (Tr. 3999, 4018). The purpose of this provision was to insure that the faculty would have some input on tenure cases, so that the recommendations going to the Board of Trustees would not be solely those of the department head and the Provost. (Tr. 4002-03). The department review system—with the promotion and tenure committee and joint committee recommendations followed by submission to the tenured faculty—was designed with a view toward getting broad faculty input. There is also further faculty input from the members of the dean’s advisory council. Gant testified that he believed that utilizing the department review system as provided for in the Provost’s Rules (PX-5), in place of appointing a separate five member ad hoc committee for each tenure candidate, was justified by Article X-K-10-d-4 of the Laws and By-Laws. (Tr. 3999). That section states: “The Provost should experiment with various plans for ascertaining the judgment of a candidate’s colleagues concerning his proposed advancement, and should report his results to the Senate for further consideration.” (PX-1 p. 41). Furthermore, Moynihan checked with the chairman of the committee which had drafted the Provost’s Rules and was assured that the English department’s procedures were consistent with the Provost’s Rules which were amended and approved by the faculty Senate in 1972. (Tr. 7571). The opinions of these individuals who drafted these procedures and who work with them on a daily basis must be given “great deference.” Adamian v. Jacobsen, 523 F.2d 929, 932 (9th Cir. 1975); Jablon v. Trustees of California State Colleges, 482 F.2d 997, 999 (9th Cir. 1973), cert. den. 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). The review procedure followed in the Lieberman case was no different than that employed in all tenure cases within the English department, since the academic year 1967-68. The Court concludes that the procedures employed were consistent both with the Laws and By-Laws and with the Provost’s Rules, which were validly promulgated pursuant to Article X-K-10-d-4 of the Laws and By-Laws. The plaintiff contends that there are several other procedural irregularities of a minor nature. The Court finds no basis for any of these claims. She argues that she should have been invited to meet with the joint committee before the committee first voted negatively on tenure and sent its recommendation to the meeting of the tenured faculty. The evidence established that since 1968 no tenure candidates appeared before the joint committee prior to the vote. (Tr. 6527, 6633, 7238-39). The Provost’s Rules guarantee the tenure candidate an interview with the promotion and tenure committee. (PX-5 p. 1). Marcia Lieberman did in fact appear before the five member promotion and tenure committee in the fall of 1972. (Tr. 7139). The joint committee was not also required to grant her an interview. (Tr. 6528). Given the extensive appeals afforded by the University, the plaintiff’s claim of an inadequate hearing borders on the frivolous. She eventually did meet with the joint committee, after the tenured faculty voted to recommend reconsideration. She appealed the department’s decision to the dean’s advisory council and was given a hearing there, and she later presented her case on appeal to the central administration. The plaintiff also objected to the rule requiring a two-thirds majority for a favorable recommendation from the joint committee. This had been voted on by the English department in 1968 and had been the practice since that time. (DX-A). Moreover, even without the two-thirds rule, the joint committee’s initial 5-4 vote in favor of tenure would not have guaranteed her tenure, because it was the University’s policy not to grant tenure where the department itself was divided on the candidate’s merits. (Tr. 8374). There was nothing improper in the joint committee’s decision to vote by secret ballot. While a secret ballot was not the normal practice (Tr. 140), it was not utilized for the purpose of harming Mrs. Lieberman’s case. Rather the committee wanted to avoid any potential embarrassment to its members. (Tr. 7241). The Court cannot discern how the plaintiff could have been prejudiced by the use of the secret ballot. The Provost’s Rules require that the department head inform the tenure candidate of his recommendation; the notification is to be in writing with reasons for his action, if the candidate so requests. (PX-5 p. 2). Moynihan did tell Marcia Lieberman of his decision and the reasons for it. (Tr. 7416). When she requested a written statement he suggested that that might not help her cause, inasmuch as the written reasons would then become a part of her file. She said she would think it over and let him know. She never mentioned the subject again. (Tr. 7415-16). Consequently, he justifiably believed that she was no longer interested in a written statement. The plaintiff asserts that her promotion and tenure file omitted information about some of her publications and neglected to state that she was a member of a certain faculty committee. The tenure candidates themselves supply this information to be inserted into the promotion folder. (Tr. 7453, 7464). Moreover, Mrs. Lieberman signed the statement in her promotion folder certifying that she had reviewed the factual materials contained therein and found them to be accurate. (PX-159 p. 12). Thus any omissions are clearly the fault of the plaintiff herself. The Court finds that the procedures employed in deciding Marcia Lieberman’s tenure case were entirely proper. Moreover, the Court finds that even if there were any procedural irregularities, they were not the cause of her failure to get tenure. Rather, she was denied tenure because of the perceived deficiencies in her cumulative teaching record and her scholarship. Therefore, absent a showing that she would have been granted tenure but for the procedural defects alleged in her complaint, the plaintiff is not entitled to either reinstatement or compensatory damages, even if she were able to prove that the procedures were in fact defective. Carey v. Piphus, 435 U.S. 247, 260, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). B. SEX DISCRIMINATION Title VII of the Civil Rights Act of 1964 prohibits sex discrimination by an employer. 42 U.S.C. § 2000e-2. As noted earlier, Mrs. Lieberman has satisfied the procedural prerequisites to a Title VII action by filing complaints with the Equal Employment Opportunity Commission and receiving a right to sue letter. 42 U.S.C. § 2000e-5. The rule for allocating the shifting burden of proof in a Title VII case can be extrapolated from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The plaintiff bears the initial burden of showing a prima facie case of discrimination. The burden then shifts to the defendant to articulate a legitimate, non-diseriminatory reason for the employee’s rejection. If the defendant is able to articulate such a reason, the plaintiff must show that the stated reason was a mere pretext for discrimination. The ultimate burden of persuasion remains with the plaintiff, who must convince the court by a preponderance of the evidence that he or she has been the victim of discrimination. In order to establish a prima facie case the plaintiff must prove the following four elements: (1) she is a woman; (2) she was qualified for tenure; (3) despite her qualifications, she was rejected; and (4) after her rejection the position remained open and the defendants continued to seek or accept applications from persons of her qualifications. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 93 S.Ct. 1817. The crucial question in the present case in determining whether the plaintiff has established a prima facie case is whether she has proven herself qualified for a tenured position. Mere competence on the part of a faculty member is not sufficient to merit tenure at the University of Connecticut: “Policies for promotion should operate to advance the most promising, and to hold back, or, in accordance with established practices regarding tenure, to eliminate the incompetent and the mediocre.” Laws and By-Laws Art. X-K-10-a. (PX-1 p. 37). In what has become known at the University as “Wilson’s Law,” Kenneth Wilson provided further explication of the standards for awarding tenure in an April 21, 1969 memorandum to the faculty: “When in doubt, don’t. Since the tenure decision is a commitment by the University to twenty or thirty years of support and several hundred thousand dollars of salary, from which there can be no turning back, we have felt that if we must err, we ought to err on the side of caution; we ought not to gamble widely.” (PX-66 p. 3) (emphasis in original). If it were not for a recent Second Circuit opinion applying the McDonnell Douglas standard in the context of a university professor, the Court would find that Mrs. Lieberman has failed to prove that she was qualified for tenure and therefore find that she has not established a prima facie case of sex discrimination. In Powell v. Syracuse University, 580 F.2d 1150 (2d Cir. 1978), cert. den. 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1979), the district court had held that a black female professor had failed to establish a prima facie case of discrimination, because negative faculty evaluations showed that she was not qualified and because the plaintiff had failed to prove that those who received tenure after she was rejected had qualifications similar to her own. The Second Circuit, abandoning the non-interventionist approach announced in Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974), held that this placed too great a burden on the plaintiff. To establish a prima facie case, the court held, the plaintiff need not demonstrate that she was the best qualified candidate for tenure, but merely show that she possessed the basic skills necessary for the job. 580 F.2d at 1155. The court held as a matter of law that the plaintiff had established that she possessed the basic skills by showing that she had been hired after a review of her qualifications and was reappointed after her first year of teaching. Ibid. If that is all that need be shown, Mrs. Lieberman has established a prima facie case of sex discrimination. Once the plaintiff has established a prima facie case, it is up to the defendants to rebut that showing. The Supreme Court has recently clarified the showing that the defendant must make in order to rebut the plaintiff’s prima facie case. In Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169 (1st Cir. 1978), the court of appeals had required the employer to “prove absence of discriminatory motive” once the plaintiff had made a prima facie showing. The Supreme Court vacated the judgment, holding that this standard placed too great a burden on the employer. Emphasizing that the burden of proof always remains with the plaintiff and stressing that the defendant need not prove lack of discriminatory motive, the Court held that all the employer needed to do in order to rebut the plaintiff’s prima facie case is to “articulate some legitimate, nondiscriminatory reason” for the refusal to hire the plaintiff. 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). The Court finds that the defendants have successfully rebutted the plaintiff’s prima facie case. Indeed, rather than merely articulating some legitimate, nondiscriminatory reason for the terminal appointment, the defendants have affirmatively proven that the reason that Marcia Lieberman was not granted tenure was the honest and sincere belief of those who were charged with evaluating her work that neither her teaching nor her scholarship were of sufficient quality to merit a lifetime appointment. Proof of discriminatory motive is critical in a case, such as the present one, in which the nature of the discrimination charged is “disparate treatment” rather than “disparate impact.” Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Thus, the Court’s function is merely to assess the reason for the defendants’ decision not to grant the plaintiff tenure; the wisdom of that decision is not before the Court. As the Second Circuit has recognized: “[T]he law does not require, in the first instance, that employment be rational, wise, or well-considered—only that it be nondiscriminatory.” Powell v. Syracuse University, supra, 580 F.2d at 1156-57. In a similar vein it has been held: “This court is powerless to substitute its judgment for that of the University as to whether plaintiff’s academic credentials are such that tenure should have been awarded. The judiciary is not qualified to evaluate academic performance. . The courts will not serve as a Super-Tenure Review Committee.” Keddie v. Pennsylvania State University, 412 F.Supp. 1264, 1270 (M.D.Penn.1976). Accord, Megill v. Board of Regents of State of Florida, 541 F.2d 1073, 1077 (5th Cir. 1976). Since the plaintiff’s actual qualifications are not at issue, “a sincere belief that a person is not qualified for a job is an adequate justification for an employment decision and rebuts a complainant’s prima facie ease.” Smith College v. Mass. Commission Against Discrimination, 380 N.E.2d 121, 127 (Mass.1978). The credible evidence in the present case demonstrates that at every level of the review process there were sincere doubts about Marcia Lieberman’s qualifications. The three factors which must be assessed when making the tenure decision at the University of Connecticut are teaching, scholarship and service to the University. Marcia Lieberman’s service to the University, particularly her pioneering efforts in a black literature course and her contributions to the women’s liberation movement, were given adequate consideration by the English department. (Tr. 6489, 9223). However, service was considered much less important than the other two criteria, and Vice-President Wilson had stated to Moynihan that her service could not alone warrant tenure if her teaching and scholarship did not measure up. (Tr. 48, 7889-91). The University has developed two methods for evaluating a professor’s teaching ability. Surveys are taken among students who have been enrolled in a particular course, and teachers are rated on a numerical scale. In addition, members of the department review committees may visit classes for a first-hand appraisal. Teachers must be given advance notice of such visits, so that they can put their best foot forward. (Tr. 5383-84). A list of the student ratings in the English department compiled in November, 1972 shows that the cumulative ratings for members of the department ranged from a low of 4.09 to a high of 8.95 (DX-N). Mrs. Lieberman had a cumulative rating of 7.06, which ranked her 12th out of the 15 junior faculty members. (DX-SS, DX-444). However, this 7.06 figure included the ratings from the spring semester of 1971-1972, in which the plaintiff received a rating of 8.18, which was substantially higher than her previous ratings. Prior to this rating in the spring of 1972, the plaintiff’s cumulative rating was 6.7 (Tr. 8264). The promotion and tenure committee delayed reaching a decision on Mrs. Leiberman’s case until the spring ratings came out, in the event that her teaching ratings had improved. (Tr. 7254). The committee had already reached a consensus that her scholarship was so weak that her only chance for receiving tenure would be on the basis of her teaching. (Tr. 7254). Moynihan testified that it would be a mistake to place too much emphasis on a teacher’s rating for a single semester, just as it would be misleading to judge a baseball player by his last week’s performance instead of looking at his batting average for the entire season. (Tr. 7921). Even those who supported Marcia Lieberman’s tenure case did not give her teaching their overwhelming support. Joan Hall, who was a close friend of the plaintiff and acted as her advocate throughout the proceedings, conceded that prior to the spring 1972 ratings the plaintiff’s teacher ratings were not strong enough to merit tenure. (Tr. 9290). Similarly, Lee Jacobus, who voted in the plaintiff’s favor at the meeting of the tenured faculty, testified that he felt she had a lot to learn about teaching. (Tr. 5396). Charles Owen, who voted for tenure when Marcia Lieberman’s case was before the promotion and tenure committee, said her teaching was average. (Tr. 814-, 1888-91). Joseph Cary, who voted in favor of both tenure and promotion in both the promotion and tenure and joint committees, said that he had dreaded visiting one of Marcia Lieberman’s classes in the fall of 1972, because he anticipated that it would not be very good. He was' relieved to find that it was “all right.” (Tr. 7254). Donald Gibson, the other committee member to visit one of the plaintiff’s classes, found her teaching to be average. (Tr. 5961-62). None of these appraisals can be classified as unmitigated praise, such as would overcome a weak record of scholarship. Furthermore, several students had complained that Marcia Lieberman’s courses in literature were one-dimensional, focusing on the feminist aspect to the exclusion of other important themes contained in the writing under discussion. (Tr. 2805, 5573, 6020, 7599-7601). The appraisals of Marcia Lieberman’s scholarship are even more damning. Joseph Cary, who considered himself a friend of Mrs. Lieberman and who had the reputation of being soft on tenure decisions and who had in fact voted in Marcia Lieberman’s favor in the joint committee as well as the promotion and tenure committee and the meeting of the tenured faculty, judged the Linguistics articles which Marcia Lieberman had co-authored with her husband as being not second rate, but fifth rate. (Tr. 3032). In fact he stated that the editor of the journal in which one of the articles was published was “looney” for having accepted it. (Tr. 3085). Jack Davis expressed “grave reservations” about the plaintiff’s scholarship. (Tr. 868). He viewed her feminist essays as advocacy, rather than disinterested scholarship, and stated that the articles endorsed a theory uncritically without considering contrary evidence. (Tr. 869). Davis voted in favor of tenure at both the promotion and tenure committee and the joint committee, in spite of these reservations, because he felt friendly towards her, because he had never voted against tenure in the past, and because he felt there would be trouble if she did not get tenure. (Tr. 908-911). Charles Owen, who had voted in favor of tenure in the promotion and tenure committee, termed Mrs. Lieberman’s scholarship “very marginal.” (Tr. 1888-91). When Moynihan asked Francelia Butler, a member of the English department, for her opinion on Marcia Lieberman’s scholarship, she stated that she admired Marcia’s feminism and her work in the women’s movement and declined to comment on her scholarship, stating she did not wish to say anything that would be detrimental to Marcia’s case. (Tr. 7389). When testifying in court about the quality of a particular article which Marcia Lieberman had written, Professor Butler called it shallow and stated that she herself could have written the article in an afternoon. (Tr. 9098-99). Carol Ohmann, a professor at Wesleyan who wrote an evaluation of Mrs. Lieberman’s work at the latter’s request, testified that she hoped that Mrs. Lieberman would get tenure, in part because she is a woman. (Tr. 9566). Her evaluation, which was prof-erred with a view towards aiding the plaintiff’s case, confesses that one of the three articles she read has a “major fault.” (PX-21). Even Joan Hall, Marcia Lieberman’s most vocal supporter, was not enthusiastic in her praise of the plaintiff’s scholarship. (Tr. 6827-28). In short, the plaintiff’s case in the two departmental committees, was considered borderline. This is reflected not only in the close votes on tenure in the joint committee and the meeting of the tenured faculty, but also in the votes against promotion. Promotion from assistant to associate professor was considered the normal concomitant of tenure; the feeling was that if an individual had not proven herself worthy of promotion after six years, then she was not deserving of a lifetime commitment. (Tr. 1191, 4092, 4804-05, 5365). Even Joan Hall and Thomas Roberts, who wrote a letter to Dean Lougee on behalf of the plaintiff (PX-159, Catalog No. 20), agreed that it was a close case and said they could understand why others would have honest reservations about granting the plaintiff tenure. (Tr. 2389, 386, 7494). The Court accordingly finds that those who voted negatively in the departmental committees on the tenure question did so in the honest belief that the plaintiff was not deserving of tenure, because of the deficiencies in her cumulative teaching record and her scholarship. As weak as the plaintiff’s claim of discrimination in the departmental committees is, the case against the department head is even weaker. It was Moynihan who first offered Mrs. Lieberman a part time position as lecturer. When a vacancy occurred in the second semester, it was Moynihan who gave Mrs. Lieberman the job as instructor. Moynihan reappointed her to a temporary position in 1968-1969, and then encouraged Charles Owen to attempt to secure a posttion for her for the 1969-1970 year, while Owen served as acting head in Moynihan’s absence. Moynihan then recommended that she be given the tenure track position she desired, overruling the English department’s promotion and tenure committee. Moynihan recommended that Mrs. Lieberman be reappointed in each of the next two years. When her case was before the meeting of the tenured faculty, Moynihan voted to break the tie and send the case back to the joint committee for reconsideration. Finally, when the decision was made to offer Mrs. Lieberman a terminal appointment, Moynihan offered his aid in obtaining her a position at one of the branches of the University of Connecticut. She declined this offer of aid. (Tr. 7153-54). During the time Mrs. Lieberman was at the University, a total of 19 people on the departmental committees had read her work. Of these, 13 or 14 found it very weak, and only three had told Moynihan they thought it fair to good. (Tr. 7501). These negative evaluations, combined with Mrs. Lieberman’s low cumulative teacher ratings, would have justified a terminal appointment prior to 1972-1973, However, Moynihan continued to recommend Mrs. Lieberman for reappointment, in order to give her the full probationary period in which to prove her merit. (Tr. 563, 7513). Witness after witness, including some of those who supported Mrs. Lieberman, testified to Moynihan’s fairness, and some stated that he did his best to present her case in the best possible light. (Tr. 5403-04, 6413). Moynihan did not attempt to influence the vote of anyone, and asked only that an objective, professional judgment be made. (Tr. 847, 884). In light of all this evidence, Mrs. Lieberman’s claim that Moynihan was prejudiced against her is incredible. There is a similar dearth of evidence of discrimination in the proceedings both at the dean’s advisory council and the central administration. The review conducted at those levels is akin to that of an appellate court. They do not make an independent assessment of the tenure candidate’s merit, but review the procedures to ensure that the proper factors were considered and the decision was made in an appropriate manner. (Tr. 8319, 8321-22). One member of the advisory council, a retired English professor, did read Mrs. Lieberman’s feminist criticism and reported to the council that it was “trivial or trash.” (Tr. 8003). Even Cynthia Peterson, who voted in the plaintiff’s favor at the dean’s advisory council and testified in her behalf at trial, admitted that it was “a borderline case,” and was unable to point to any concrete evidence of sexism in the department’s proceedings. (Tr. 7999, 8029). The most she could say was that the talk about Mrs. Lieberman not “fitting in” the English department may have been evidence of sexism, but she also conceded that it was just as likely that this was due to Mrs. Lieberman’s abrasive personality. (Tr. 8018-19). A clash of personalities is not a sufficient basis for liability; there must be evidence of sex discrimination. Johnson v. University of Pittsburgh, 435 F.Supp. 1328, 1367 (W.D.Penn.1977). Dean Lougee’s negative recommendation on tenure was precipitated by what he saw in Mrs. Lieberman’s promotion and tenure file, not by any bias. In his three years as dean he had never recommended tenure after negative action by the department, the department head and the advisory council. (Tr. 8098). The issue of possible sexism had been discussed at length in the dean’s advisory council, and the council believed Moynihan when he responded that sexism had played no part in the department’s decision. (Tr. 474, 496, 502-04, 8024). Lougee could justifiably trust Moynihan’s judgment. He had known Moynihan and had worked with him for fifteen years, and had come to trust him. When Lougee reviewed Moynihan for reappointment as department head he polled the members of the English department and all agreed that his fairness and objectivity in personnel decisions was unimpeachable. (Tr. 8095). Vice-President Wilson also had known Moynihan for many years and had come to trust his judgment and his integrity. (Tr. 8327). Wilson also knew Professor Donald Freeman, who had written an evaluation critical of Mrs. Lieberman’s work, and respected his judgment and integrity. In fact, Wilson had been Freeman’s dissertation advisor and he found Freeman’s to be one of the two or three best dissertations that he had advised. (Tr. 8332-33). Professor Thomas Roberts, who interceded with Wilson on Mrs. Lieberman’s behalf, told Wilson that Freeman was qualified to judge her essays and that he himself would have selected Freeman. (Tr. 8334). Roberts stated that Mrs. Lieberman’s scholarship was not strong, but that it was good enough to warrant an award of tenure. (Tr. 8338-39). He told Wilson that the department had been fair to Mrs. Lieberman and that the criticism directed against her was scholarly and not personal. (Tr. 8339). Wilson asked Moynihan, Lougee and others if there were any indications of bias against Mrs. Lieberman, because of her sex or her activities on behalf of women, and he was informed that there was no such evidence. (Tr. 8366, 9235). Gant, Wilson and Orr were so concerned over the question of sexual prejudice that they questioned Moynihan more intensely over Mrs. Lieberman’s tenure case than any other case Moynihan had ever been involved