Full opinion text
OPINION FREEDMAN, District Judge. I. INTRODUCTION This case is before the Court following a five-day bench trial. At the close of the evidence, the Court instructed the parties to submit proposed findings of fact and conclusions of law and indicated that the Court would then take the matter under advisement. Herein, the Court sets forth its Findings of Fact and Conclusions of Law in accordance with F.R.Civ.P. 52(a). However, before turning to Findings and Conclusions, the Court must first address a troublesome procedural issue which initially arose on the eve of trial and has subsequently persisted while this case was under advisement. A brief account of the history of this litigation is necessary to dispose of the issue. A. Plaintiffs “Motion for Trial” In essence, the factual context of this suit is the denial of tenure to plaintiff at the University of Massachusetts. The initial Complaint was filed in June 1978 and alleged, inter alia, the denial of tenure to plaintiff, the filing of charges with the Equal Employment Opportunity Commission (“EEOC”), and the receipt of a “right to sue letter” from the EEOC. While the plaintiff prayed not only for an order that defendant grant plaintiff tenure with retroactive payment but also damages “for lost earnings, and other damages sustained by plaintiff,” Complaint, Prayer for Relief, ¶ 2, fairly read the Complaint alleged only one cause of action — that is, a Title VII claim pursuant to 42 U.S.C. § 2000e-5 for unlawful national origin discrimination. Discovery ensued, pre-trial conferences were held, and appearances of new counsel and disappearances of former counsel were filed on behalf of both plaintiff and defendant. In August 1981, plaintiff filed a motion for leave to file an Amended and Supplemented Complaint, which was allowed by the Court, no opposition having been filed. The Amended' and Supplemented Complaint alleged two counts, the first reiterating the Title VII claim of the initial Complaint, and the second alleging that “sham” grievance proceedings were conducted by the defendant in plaintiffs case in retaliation against the plaintiff because he had filed a complaint with the EEOC, all in violation of 42 U.S.C. § 2000e-3(a). The prayer for relief again sought an order that defendant grant plaintiff tenure, retroactive to September 1976, “with all payments and emoluments retroactive therefrom,” and that defendant pay damages to plaintiff resulting from the alleged unlawful discrimination. Amended and- Supplemented Complaint, Prayer for Relief, ¶¶ 1 and 2. Defendant filed an answer in November 1981. The sole motion for leave to amend subsequently filed did not address matters of substance, but merely reflected the plaintiff’s change of name. In January 1982 plaintiff filed a motion for summary judgment as to Counts I and II, F.R.Civ.P. 56(c), which motion the Court denied in a bench ruling in June 1982. The case was then noticed for trial on January 17, 1983. Given the allegations of the Amended and Supplemented Complaint, the Court was somewhat perplexed when plaintiff filed a request for individual voir dire of jurors on January 11, 1983. Then, on the day of trial, plaintiff filed a trial brief discussing not only Title VII claims, but also claims pursuant to 42 U.S.C. § 1981 and Massachusetts state law — specifically, state law claims for violation of M.G.L. c. 151B §§ 5 and 9, for intentional infliction of emotional distress, and for violation of the Massachusetts Fair Information Practices Act, M.G.L. c. 66A. After some discussion with counsel, the Court ordered that trial would proceed solely on the Title VII claims. Following trial, plaintiff filed a “Motion to Transfer Claims,” wherein plaintiff stated that: Whereas, the court declined to exercise pendent jurisdiction over the claims in the above-entitled matter arising under 42 U.S.C. §§ 1981 and 1983, M.G.L. c. 151B, c. 66A and tort claims under Massachusetts law, the plaintiff Peter Kumar prays that these claims be transferred to the appropriate state court, the Superior Court of Hampshire County. Plaintiff’s Motion to Transfer Claims, at 1. Defendant filed opposition to this motion noting, inter alia, that such claims were never included in the initial Complaint or in the Amended and Supplemented Complaint. The Court denied the motion in May 1983, endorsing thereon as follows: “There being no authority for such transfer, the motion is denied. So Ordered.” On June 10, 1983, plaintiff filed a “Motion for Trial” and recited therein as follows: The Plaintiff ... moves this Court for trial on the pendent issues and collateral issues raised in the pleadings and acknowledged by the Court at the time of trial and in the prior motion for summary judgment filed, heard and argued and denied by the Court. Whereas the Court has denied for lack of authority the Plaintiff’s motion to transfer the pendent actions to the State Superior Court, the Plaintiff concludes that whereas this Court has and had jurisdiction over all pendent claims that such jurisdiction remains vested in this Court and the Plaintiff has never dismissed such claims nor has the court denied the claims the plaintiff seeks to have these claims pending on the docket for trial. The Plaintiff recognizes that the Plaintiff has not requested a jury on these actions despite his right for the same nor has the defendant. Plaintiff’s Motion for Trial, at 1. On June 21, 1983, defendant filed its opposition to this motion, noting that “no such pendent or other claims were ever raised by the Complaint or Amended Complaint or filed in this Court, the case having been treated since the outset ... as one brought solely under the Civil Rights Act of 1964;” and further arguing that the Court would lack jurisdiction over such claims under the Eleventh Amendment and the jurisdictional provisions of the state statutes to which plaintiff referred. Defendant’s Opposition, at 1. The Court agrees with defendant and denies plaintiff’s motion. The claims to which plaintiff refers were simply never raised in this Court in either the initial Complaint or the Amended and Supplemented Complaint and from the outset, this case has proceeded as a Title VII case. Indeed, the Amended and Supplemented Complaint is expressly structured in two counts, see F.R.Civ.P. 8(e), and no mention is made of 42 U.S.C. §§ 1981 or 1983, or of any state law claims. Even under the broadest interpretation of the pleadings consistent with the concept of “notice pleading,” the complaints filed by plaintiff cannot be said to have afforded defendant fair notice of claims other than the Title VII claims expressly alleged. Further, even if the Court were to treat the plaintiff’s motion as one for leave to file an amended complaint, the Court would certainly deny the motion. While amendments are to be allowed freely, and pleadings may be amended to conform to the evidence at trial, F.R.Civ.P. 15(b), the clear prejudice to defendant of allowing plaintiff, after a five-day trial, to amend his pleadings and advance new theories of recovery never before set forth, and to claim a further trial on such theories militates heavily against allowance of such a motion. The Court therefore denies plaintiff’s motion, having previously ruled that the case would be tried as alleged in the pleadings, that is, as a two-count Title VII case. B. Structure of Opinion In the ensuing sections, the Court sets forth its Findings of Fact and Conclusions of Law as follows: first, findings are made with respect to the parties, the procedures governing tenure decision-making at the University of Massachusetts, and the actual sequence of events in the decision-making process in plaintiff’s case. Second, the Court enters its initial Conclusions of Law discussing Title VII and the legal context of plaintiff’s claims. Third, the Court makes “evaluative findings,” following the approach of Judge Keeton in Banerjee v. Board of Trustees of Smith College, 495 F.Supp. 1148, 1150, 1159-61 (D.Mass.1980), aff’d, 648 F.2d 61 (1st Cir.1981) cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981), and explains the basis for its finding of liability. Fourth, the Court turns to the issue of remedy, making additional findings and discussing the dictates of Title VII. Finally, the.Court explains its reasons for deferring ruling on the issue of attorneys’ fees pending the submission of further materials germane to this issue by the parties. II. FINDINGS OF FACT A. Parties 1. Plaintiff Peter Kumar, formerly known as Prem Kumar, is a resident of Massachusetts and a former employee of the University of Massachusetts. He was born in Rawalpindi, India (now part of Pakistan) in 1943, and at the time of the partition of India and Pakistan in 1947, he left his native area and moved to India. He received his Bachelor of Science Degree from the University of Delhi, India in 1964. Following a period of employment in India, he came to the United States and studied at the University of Wisconsin, receiving a Master of Science Degree in Industrial Engineering from the University of Wisconsin in 1967 and a Ph.D. in Finance from the School of Business of the University of Wisconsin in 1970. He commenced employment at the University of Massachusetts in 1970 and remained there until his employment was terminated in 1977. 2. The defendant Board of Trustees of the University of Massachusetts is an agency of the Commonwealth of Massachusetts established pursuant to M.G.L. c. 15 § 20 and is responsible for the governance of the three-campus state university pursuant to M.G.L. c. 75. B. Initial Appointment of Kumar and Employment Through Tenure Decision Years 3. Plaintiff was initially appointed as Assistant Professor in the University of Massachusetts School of Business Administration in the Department of General Business and Finance by letter dated February 23, 1970 from the President of the University. Plaintiffs Ex. 7. Terms of this appointment included a starting salary of $14,500 a year if plaintiff had completed the requirements of his Doctoral Degree by the appointment’s effective date of September 1, 1970, with a tenure decision to be made in 1975-76, inasmuch as plaintiff was credited with no years of service toward tenure. Kumar accepted the appointment on February 27, 1970, and came to the Amherst Campus of the University of Massachusetts in July or August 1970 after completing his doctoral program at the University of Wisconsin. 4. Plaintiff’s initial appointment was “probationary,” that is, without academic tenure. From 1970 through 1976, his appointment was renewed annually, and for each academic year an “Annual Faculty Report and Evaluation of Professional Activities” was prepared concerning him. Plaintiff’s Ex. 9-15. Kumar taught both an introductory course in “Basic Finance” as well as advanced courses in financial models which he developed. During the period 1972 — 1976, he served as an editorial referee for the Journal of Finance and the American Economic Review. He also researched and published articles both on his own and in conjunction with another author. From 1973 through 1975, he served as the Director of the Master of Science in Finance Program of the Department of General Business and Finance in the School of Business Administration. 5. As previously noted, Kumar’s tenure-decision year was designated at the time of his initial appointment as the academic year 1975-1976. C. Tenure Procedures 6. The policies and procedures governing tenure decisions, as well as other personnel decisions, at the University of Massachusetts were codified in June 1975 in a detailed and specific “University Academic Personnel Policy” (the “Policy”) designated as Document T75-125. Plaintiff’s Ex. 4. While this document was subsequently superseded on June 2, 1976 after the initial tenure review in plaintiff’s case by a policy designated as Document T76-081, Plaintiff’s Ex. 5, the policies and procedures set forth in these two documents do not differ in any respect material to the instant litigation; the Court refers to Document T75125 in citing specific sections. 7. The Policy in Article I, Section 1.4 defines, inter alia, the following terms: “Primary responsibility” ... is the capacity to initiate recommendations, after appropriate consultation, which will be overruled only by written reasons stated in detail. Faculty primary responsibility is the capacity to initiate recommendations in academic matters and in matters of faculty status. “Tenure” — the right of a faculty member to continuous employment in an academic position until retirement age, subject to dismissal or suspension only as established in Trustee policy. “Tenure Decision Year” — the academic year during which a faculty member is considered for an appointment with tenure. 8. Article II, Section 2.4 states that: In all personnel decisions, there will be equal opportunity for all persons without regard to race, color, religion, sex, age or national origin. Consistent with this principle, affirmative action shall be taken to increase representation of women and minority group members throughout the University. All applicable federal and state laws and regulations relating to equal employment opportunity and affirmative action are incorporated herewith, together with campus and University plans and procedures which have been promulgated to implement such laws and regulations. 9. Article III of the Policy is titled “Roles and Responsibilities in Personnel Matters.” Section 3.2 states as follows: In matters of faculty status, such as ... tenure, ..., all components shall observe the principle of joint effort as stated in Trustee Policy T73-098. The Faculty has primary responsibilities in these matters [such as tenure]. The Trustees have the authority to make decisions in matters of faculty status and by statute may delegate this authority only to appropriate administrative officials. As to specific Faculty responsibilities, Sections 3.4, 3.5, and 3.6 provide in pertinent part that: Section 3.4 — In exercising its primary responsibility in matters of faculty status, the Faculty shall subject individual qualifications to peer review based on a full, fair and impartial consideration of the relevant evidence. Section 3.5 — The exercise of primary responsibility by the Faculty shall also entail the following: a) At the department level, the Faculty shall determine, subject to campus policy and governance procedures, the procedure for the exercise of its primary responsibilities in regard to both faculty status and to academic matters, and for appropriate coordination between them. These procedures shall be designed so as to assure that the departmental faculty shall have the appropriate participation in the discharge of these primary responsibilities. b) In each college or school, there shall be a personnel committee of the Faculty to review departmental recommendations, and to advise the Dean on personnel matters. The committee shall be chosen by procedures established on each campus in a manner designed to represent the interests of the Faculty of each college or school. c) ... Section 3.6 — When exercising primary responsibility through the making of personnel recommendations, the Faculty shall have the responsibility to present a clear and complete ease for the recommendation so as to assure the faculty member of a complete presentation of his or her qualifications and achievements, so as to provide the basis for a full review of the recommendation. 10. Section 3.7 states that: In exercising their responsibility, administrative officials shall review departmental recommendations, make their own recommendations, and where delegated authority to do so, make the appropriate decisions. In recognition of the principle of faculty primary responsibility in matters of faculty status, all administrative officials shall make a recommendation or decision which is counter to the Faculty recommendation only for compelling reasons in written detail which shall specifically address the content of the original recommendation as well as the established criteria. The President, in making tenure decisions, should disagree with the campus recommendation only in rare instances. Procedural standards established in Article VI [discussed infra ] shall also be observed by administrative officials. 11. Section 3.8 refers to student participation: Students will be assured the opportunity to participate in the personnel process, through contributing to the evaluation of a faculty member’s effectiveness, particularly in teaching. Procedures for student participation shall be determined on each campus. 12. The remaining sections of Article III discuss the respective responsibilities of administrative officials in the personnel decision-making hierarchy culminating in the Board of Trustees. In ascending order, these officials are the Department Chairperson/Head, Section 3.9, the Dean of the College or School, Section 3.10, the Provost, Section 8.11, the Chancellor, Section 3.12, and the President, Section 3.13, who must seek the concurrence of the Board of Trustees for the award of tenure, Section 3.14. In the context of tenure decisions, as pertinent to the instant case, these sections impose specific responsibilities on the individual administrators. The Department Chairperson/Head coordinates administrative matters, maintains personnel files, and compiles the basic file of material to support a recommendation. Further the Chairperson/Head keeps faculty members informed of their status, rights, and responsibilities, and reviews faculty recommendations concerning tenure and formulates a recommendation to accompany that of the personnel committee mentioned in Section 3.5(b). The Dean looks to the interests of the particular college or school, ensures the establishment of a college or school personnel committee, reviews tenure recommendations from within the college or school, and after formulating a personnel recommendation, forwards the basic personnel file to the Provost. The Provost is charged with ensuring that general criterial and procedural standards are consistently employed in all schools and colleges on a particular campus. The Provost reviews tenure decisions, formulates a recommendation, and forwards the file to the Chancellor. The Chancellor reviews the tenure decision in the context of the particular campus and the University, makes a recommendation and forwards the file to the President of the University. The President is charged with ensuring that general criterial and procedural standards are consistently employed throughout the University. The President reviews the previous tenure recommendations, and if a negative decision is made, must provide written reasons in detail. An award of tenure is subject to concurrence by the Board of Trustees. 13. Article IV of the Policy sets forth “Standards and Criteria for Personnel Reviews, Recommendations and Decisions,” and Section 4.3 thereof provides that: The standards and criteria described in this document and any standards and criteria established in Trustee-approved campus personnel policies shall be the only standards and criteria used in making and reviewing personnel recommendations. A general guidelines for personnel decisions is established in Section 4.1: High professional standards must be the basis for all personnel decisions. Personnel recommendations and decisions shall be made only after a review of all the qualifications and all the contributions of the individual in the areas of teaching; of research, creative or professional activity; and of service. All three areas must be considered, but the relative weight to be given each may be determined in the light of present and anticipated duties of the faculty member. 14. The standards to be employed in considering an award of tenure are established in Section 4.10: The award of tenure can be made only by the President with the concurrence of the Board of Trustees. Consideration of a candidate for tenure shall be based on the following: a) Convincing evidence of excellence in at least two, and strength in the third, of the areas of teaching; of research, creative or professional activity; and of service, such as to demonstrate the possession of qualities appropriate to a member of the faculty occupying a permanent position. b) Reasonable assurance of continuing development and achievement leading to further contributions at the University. c) Detailed justification of the recommendation according to the review described in Section 4.2 [relating to program plans, projected department and college size, and departmental affirmative action goals]. Except in highly unusual circumstances, these criteria for tenure should be sufficient to merit promotion to Associate Professor. 15. Article V of the Policy is titled “Rights of Members of the Faculty in Academic Personnel Matters and Responsibilities as Conditions of Employment.” Section 5.1 provides in pertinent part that: Policies, criteria, and procedural standards established herein and additional policies, criteria, or procedures established on the campuses shall not infringe upon the following rights of faculty members in personnel matters: a) For personnel reviews, recommendations, and decisions, the right to present all materials which he or she believes will be essential to an adequate consideration of the case, and the opportunity to supplement the original presentation with additional relevant information in the event that a review seems to indicate shortcomings in the presentation. d) The right to be considered for tenure if given an appointment or a reappointment through the end of the probationary appointment. e) The right to equitable treatment in personnel matters so as to ensure generally consistent recognition to departmental faculty members whose chosen field, overall professional development, period of service on campus, and quality of contributions, all taken as a whole, are judged to be approximately equal. g) The right to be informed of the personnel recommendation made at the department, college or school, and campus level. i) The right to discuss reasons for a negative personnel decision at all appropriate administrative levels as specified in Section 6.10. j) The right to invoke grievance procedures, under the conditions specified in Trustee grievance policy. 16. Article VI sets forth “Procedural Standards in Personnel Matters.” Section 6.2(f) states that “[i]f tenure is not granted during the tenure-decision year, a terminal appointment for one academic year shall be made.” Section 6.4 provides that the “process for personnel recommendations and decisions shall conform to the following guidelines: a) The faculty member shall be advised by the Department Chairperson/Head as early as possible (in cases of ... tenure, at the beginning of the academic year) that a review of his or her contributions will be made for the purposes of a personnel recommendation. b) The faculty member shall submit to the Department Chairperson/Head any and all materials, for inclusion in the basic file, which he or she believes will be essential to an adequate consideration of the case. c) For ... tenure recommendations, the Department Chairperson/Head shall obtain outside letters of reference from a list of scholars and professionals which includes, but is not limited to, those suggested by the faculty member. d) The basic file will be studied at all levels where responsibility for review, recommendation, or decision has been established. The basic file shall contain such items as those in b) and c) and the following: 1. vita, bibliography, copies and/or reviews of published works; 2. appropriate evaluations of teaching effectiveness, including those of students; 3. evaluations of contributions to extra-departmental activities; 4. recommendations of the department and college or school faculty bodies and of appropriate administrative officials. e) At the departmental level, there shall be a full, fair, and impartial evaluation of the qualifications of the faculty member that is based on the evidence set forth in the basic personnel file. The departmental recommendation when forwarded shall contain: 1. the recommendation of the departmental personnel committee . ..; 2. ...; 3. in cases of reappointments through the tenure year and for tenure, a justification of the recommendation which will include a statement of the relationships described in Section 4.2; 4. if letters of recommendation are part of the basic file, a description of the professional standing of their writers; 5. the recommendation of the Department Chairperson/Head. When the Department Chairperson/Head makes a recommendation contrary to that of the departmental personnel committee, he or she shall send a copy of the recommendation to the chairperson of that committee, and to the faculty member. f) At the college or school level, there shall be a review by the Dean and the college or school personnel committee of the departmental recommendation that is based on all the evidence in the basic personnel file. The following considerations shall apply to the college or school review and recommendation: 1. prior to a possible recommendation that may be contrary to that of the Department, the Dean shall invite the Department Chairperson/Head to provide additional information for the basic file or clarification of the departmental recommendation; 2. all information added during reviews of departmental recommendations shall become part of the basic file; 3. review of departmental recommendations shall take into consideration the qualifications of the individual and, for reappointments and the award of tenure, the justification of the recommendation within the context of college or school long-range plans; 4. when forwarded to the Provost, the recommendation shall include that of the college or school committee and that of the Dean. When the Dean makes a recommendation contrary to that of the originating department, he or she shall do so only for reasons written in detail, which shall specifically address the content of the original recommendation and the established criteria, and the Dean shall transmit a copy to the Chairperson/Head of that department and to the faculty member. g) At the campus level, there shall be a review of the college or school recommendation that is based on all the evidence in the basic personnel file. The following considerations shall apply to the campus review, recommendation, and where appropriate, decision: 1. Prior to a recommendation or consideration that may be contrary to the recommendation from the next lower level, the Provost and Chancellor shall invite the officer at that level to provide additional information for the basic file or clarification of the recommendation; 2. Review of the recommendation shall take into consideration the qualifications of the individual, and, for ... the award of tenure, the justification of the recommendation within the context of campus long-range plans; 3. When the Provost and Chancellor make a recommendation or decision contrary to the recommendation from the next lower level, it shall be only for compelling reasons, written in detail, which shall specifically address the content of the recommendations and the established criteria; 4. Copies of recommendations made by the Provost and Chancellor shall be sent to the Dean, the Department Chairperson/Head and the faculty member. h) At the University level, there shall be a review of the campus recommendation for the award of tenure that shall be based on all the evidence in the basic personnel file. The following considerations shall apply to the University review and decision: 1. Prior to a decision that may be contrary to the recommendation of the Chancellor, the President shall invite the Chancellor to provide additional information for the basic file or clarification of the recommendation; 2. Review of the recommendation shall take into consideration the qualification of the individual and the justification of the recommendation within the context of University long-range plans; 8. The President should disagree with the campus recommendation only in rare instances and for compelling reasons in written detail which shall specifically address the content of the recommendation and the established criteria. 17. Section 6.10 of the Policy provides: Once a decision has been made by the appointing authority, the candidate may exercise the right of discussion at all administrative levels, beginning on the level where the first adverse recommendation was made. Prior to and at the level of the delegated appointing authority, such discussion may lead to a reconsideration of the recommendation or a change of decision. Beyond the level of the appointing authority, the discussion may lead to a request that the appointing authority review the decision. For decisions taken at the level of the President, the right of discussion may be exercised with the President and subsequently with the Chairman of the Faculty and Educational Policy Committee of the Board of Trustees. D. Sequence of Events in Review of Kumar’s Tenure Case 18. In accordance with the Policy, plaintiff’s tenure review commenced in the Fall of 1975. On October 10, 1975, the Faculty Personnel Committee of the Department of General Business and Finance in the School of Business Administration recommended plaintiff for tenure by a 5-2 vote. Plaintiff’s Ex. 53. By memorandum dated November 19, 1975, Plaintiff’s Ex. 54, the Department Chairman, Sidney Sufrin, forwarded a positive recommendation for tenure to the Personnel Committee of the School of Business Administration. Sufrin summarized Kumar’s qualifications in this memorandum setting forth Kumar’s teaching, service, and publishing contributions, and commenting on his teaching as follows: Professor Kumar has been given the responsibility of developing quantitative courses in Finance that reflect (a) recent advances in the field, and (b) standards of high quality. At the undergraduate level he developed several new courses ... while simultaneously teaching Finance 201. Teaching technical matter has never been easy, but when the charge is to do this with mathematical rigor before an audience that contains a significant number of members who can be characterized as inimical to mathematics, the burden on the professor is indeed heavy. That Professor Kumar persevered, exhibited patience, and managed to offer sound courses of high quality attests to his maturity as a teacher. Student response to both his graduate courses ... and his honors section ... has been gratifying; enrollments have mushroomed from 25 to 60. Subsequently, he has assumed responsibility for the Financial Institutions courses.... His graduate teaching has included Micro Theory of Finance and Seminar in Finance. These too, Professor Kumar has taught with rigor and competence. 19. The School of Business Administration Personnel Committee by a vote of 6-0 recommended tenure for Kumar, and by memorandum dated November 18, 1975, Plaintiff’s Ex. 52, summarized its position in forwarding its recommendation to Dean of the School, George S. Odiorne. In the memorandum, the Committee noted that: Professor Kumar has established extremely high standards of class performance which he expects his students to meet. His student evaluations of teaching have not been as high as the Committee would like to see, but there is evidence of improvement in this area, and the Committee is satisfied that Professor Kumar is making determined efforts to improve his teaching performance. Professor Kumar has demonstrated a record of growth and achievement in the academics of the School of Business Administration and this trend is expected to continue. It is the opinion of the School of Business Personnel Committee that Professor Kumar’s promotion will clearly be in conformance with the objectives of the Finance Program of the School of Business Administration and of all standards of professional accomplishment and personnel policy. 20. Dean Odiorne recommended Kumar for tenure and forwarded his recommendation to Associate Provost David Bischoff in a memorandum dated December 17, 1975, Plaintiff’s Ex. 21. In the memorandum, Odiorne remarked upon Kumar’s distinguished scholarship in rigorous research and analysis at a quantitative level, and noted that: There is a note of concern about his teaching, which was communicated to the Dean and Associate Dean, as noted in Dr. Wolf’s letters. Kumar is foreign born, and his modes of communication are not that of a native born American. He is perfectly lucid in his language, but combined with one of the most technical and difficult courses, tends to produce lower ratings among non-majors in core courses. He is concerned about it and works at improving this dimension. The content of his courses is impeccable, his rigor unmatched, and the best students praise him highly. In technical sessions for his peers he is articulate and they have no problem. When the chairman of the economic department at Princeton states a firm recommendation and indication from other persons of equal competence and prestige suggests that he would merit tenure at any institution, I would suggest that it would be great error to let him get away from us. The personnel committee deliberated upon his teaching and concluded that rigor and competence, specially at the advanced level would merit a unanimous recommendation. The possibilities that he may gravitate toward graduate courses where he is more successful and less in the introductory courses where the non-majors and less quantptatively] competent students find him less pleasing is a possible solution. I concur with his chairman, his personnel committee, the school’s personnel committee, and recommend approval of tenure and promotion. 21. By memorandum dated April 9, 1976, Associate Provost Bischoff expressed concerns to Dean Odiorne that while the Kumar file exhibited strength, and possibly excellence in research, Bischoff was unable to “find convincing evidence for strength in either teaching or service.” Plaintiff’s Ex. 88. Bischoff requested Odiorne’s reaction to Bischoff’s “firm belief that Professor Kumar’s teaching has been and still is well below average for the department and the School. Unless this perception can be altered, I will have to recommend that he be denied tenure.” 22. In response to Bischoff’s memo, Dean Odiorne sought out additional information, on the one hand requesting that the departmental personnel committee review its recommendation, and on the other hand requesting, that Associate Dean Jack Wolf garner additional information concerning Kumar. The Chairman of the Personnel Committee of the Department of General Business and Finance, George Burak, by memorandum dated April 15, 1976, Plaintiff’s Ex. 24, responded to Odiorne’s request for information. Burak explained that he had met with two other members of the Personnel Committee and that their evaluation led them to conclude that Kumar’s record supported a positive recommendation for tenure. Specifically, Burak commented: Professor Kumar’s selection of teaching materials, degree of preparation, manner of presentation, enthusiasm for subject matter and students, and organization are familiar to his colleagues. Based upon these factors, his rating is excellent. However, student reaction to the same set of factors has been uneven and in some cases somewhat disturbing to Professor Kumar and his colleagues. With both understanding and encouragement from colleagues, Professor Kumar has been more theoretically oriented in his teaching and research than the majority of his colleagues in the School of Business Administration. [Given] [t]he fact that a significant minority of School of Business students are “turned off” by theory, it is not surprising to find in a required masters level foundations course, with emphasis on theory, that some students might react negatively. Students’ comments that are written exclusively for the instructor show negative reaction to the way in which Professor Kumar organizes the material. Generally, his organization departs significantly from that of the texts that are suitable for the courses Kumar has been teaching. Instead of giving Professor Kumar the benefit of the doubt that he may be leading the pack in terms of organization, students have a tendency to reject Professor Kumar’s approach as being too different from that of the text. His colleagues appreciate the fact that he is at the frontier of the subject matter; some students could care less. In the long run, whose concern should be primary? We believe that peer review is more capable of appraising these facts then first year masters level students in Business Administration. Additionally, Burak noted Kumar’s improved teaching evaluations for the Fall of 1975, and the fact that evaluation in the larger section of one course placed him near the top of all School of Business faculty teaching in the Master’s of Business Administration Program. Moreover, Burak indicated that the content of his memorandum had the unanimous approval of the committee. 23. Associate Dean Wolf responded to Odiorne’s request by submitting to him a tabulation of twenty-four responses to a questionnaire composed and disseminated by a student organization comprised of students in the Master’s of Business Administration Program. This tabulation of the results of an uncontrolled poll of students was to become known simply as the “Wolf Report,” Plaintiff’s Ex. 23, and was highly unfavorable to Kumar. 24. By memorandum dated April 23, 1976, Dean Odiorne responded to Bischoff. Plaintiff’s Ex. 22. Submitted with this memorandum were the memorandum from Burak and the tabulation of the student poll which Odiorne referred to as the “Wolf Report.” In the memorandum, Odiorne summarized the nature and details of the review conducted, and in somewhat veiled terms discounted the value of the Wolf Report. Although some concerns about Kumar’s record were expressed, in conclusion, Odiorne stated that the departmental faculty, the School of Business Administration Personnel Committee, and the Dean all recommended tenure. In commenting upon Kumar’s teaching, Odiorne mentioned that “[h]e is Asian born, speaks clear English but with an Indian accent, [and] close concentration is often required of his students.” 25. By memorandum to Dean Odiorne dated April 27, 1976, Plaintiff’s Ex. 25, Bischoff thanked Odiorne for his response, but indicated that he would recommend denial of tenure in Kumar’s case. Specifically, Bischoff stated: While I may be willing to grant Kumar has achieved excellence in research, I am not convinced from the data available to me (i.e., the Wolf Report, etc.) that Dr. Kumar is even an average teacher in spite of what you cite as peer judgment about the content of his courses. This along with your assessment that his service is below adequate places Dr. Kumar well below the standards envisaged by the University. My assessment of Dr. Kumar’s service is that it has been far less than should be expected of a faculty member in the professional schools. 26. By memorandum dated April 30, 1976, Professor Kent Monroe informed Dean Odiorne that Professor Kumar had shared a copy of the Wolf Report with him and set forth his evaluation of the poll. Plaintiff’s Ex. 86. Monroe wrote that “[a]s a professional researcher, I am appalled with the procedure used in producing Dean Wolf’s Report, and I am also appalled that the report should have been forwarded to the Provost’s Office.” Monroe severely criticized the methodology, or lack of methodology, employed in preparing the Report, expressed his view that forwarding the Report was a “serious professional error,” and opined that Kumar had a legitimate grievance because of the use made of the Wolf Report. Monroe also expressed his opinion that expecting favorable student reaction to required, prerequisite courses of a theoretical and quantitative nature was “folly.” 27. By memorandum dated May 3, 1976, Dean Odiorne replied to Bischoff concerning the negative recommendation in Kumar’s case. Plaintiff’s Ex. 28. Odiorne related the substance of Monroe’s memorandum, and informed Bischoff that a petition in support of Professor Kumar signed by thirty students had been submitted to the Dean, a copy of which was attached. Odióme also wrote as follows: Your letter stating your position is appreciated. It has not changed the position of the departmental colleagues, of the School’s Personnel Committee and the Dean affirming our judgment that Kumar should be awarded tenure. Your letter also raises an interesting question about the personnel documents and policies: How can the judgment of one individual who doesn’t know the field of finance be superior and diametrically opposed to that of his academic peers? [Emphasis in Original] We are presently in the process of upgrading our Master’s Program through stiffening its requirements. Kumar has already achieved that in his teaching through his rigor and depth of content. One further response to your letter with respect to service is indicated. Dr. Kumar is Director of the Master’s Program in Finance. You state that this is merely “adequate” for service. It is our contention that it is adequate for tenure. 1. He directs one of the largest graduate programs in the University. There are departments elsewhere with fewer graduate students in the program that he directs who consider such administration (without relief from teaching) superior service. 2. None of our assistant professors are permitted to engage in extensive service early in their careers. It is our feeling that such distraction will consume too much of their time at a crucial point in their career, and such nonacademic assignments are severely limited by conscious policy. They are directed to work on teaching, research, and personal advancement. Thus, Kumar is not inferior in service but exceptionally high for his rank and age, and this is adequate for service. Also on May 3, 1976, Dean Odiorne forwarded to Bischoff a summary of official University student evaluations of Kumar for the Fall of 1975 which were highly favorable of Kumar, and noted Kumar’s request that his evaluation for the Spring of 1976 also be considered in his tenure case. Plaintiff’s Ex. 27. 28. By memorandum dated May 11, 1976, Kumar requested of Dean Odiorne that the Wolf Report be expunged from his tenure records as violative of University policy. Plaintiff’s Ex. 30. 29. Chancellor Bromery and Acting Provost Alfange by memorandum dated May 14, 1976 informed Dean Odiorne that they would support Bischoffs recommendation that Kumar not be granted tenure and instructed the Dean to process a one-year terminal appointment. Plaintiff’s Ex. 29. Bromery and Alfange based their action on their conclusion that Kumar had “failed to achieve excellence, within the meaning of the Academic Personnel Policy, in any of the three areas of evaluation.... ” The Chancellor and Acting Provost indicated that their decision had been made without considering the Wolf Report, as Kumar had requested. Further, they explained: [W]ith regard to teaching, while we have taken note of the fact that the evaluations of Professor Kumar’s classes have improved dramatically in the past year, and that there is now a modest amount of vigorous student support for the award to him of tenure, the fact remains that all the available evidence of his teaching pri- or to this year indicates that its quality is well below average. On the basis of this, and even allowing for the sharp improvement in quality in the past year, it is impossible for us to conclude that Professor Kumar can in any way be described as having achieved excellence in teaching. With regard to research, we note the brevity of his list of scholarly publications. In six years, he appears to have only three full-fledged articles (as opposed to research notes or book reviews) in refereed journals. While the journals in which this work has appeared, are unquestionably of top quality, the limited amount of actual publication makes it impossible to characterize his scholarly achievement as excellent, particularly in light of the serious deficiencies which have been noted in the teaching record. With regard to service, Professor Kumar has engaged in a modest amount of such activity within the School of Business Administration and off-campus. However, his involvement in service seems to have been at about the level we would routinely expect of all faculty members, and there is no evidence that it can be said to have risen to the level of excellence in any respect. 30. The Bromery-Alfange memorandum essentially terminated what may be referred to as the initial review of Kumar’s tenure case. Subsequent proceedings in his case followed three identifiably distinct, although practically interrelated, courses. First, the tenure process itself continued through Kumar’s exercise of his “right of discussion” as set forth in the Policy, Section 6.10. Second, Kumar invoked specific grievance procedures provided for under University rules mentioned in the Policy. See, e.g., Policy, Section 5.1(j). Thirdly, Kumar filed complaints initially on June 28, 1976, with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission (“EEOC”) which culminated in this litigation. During the academic year 1976 through 1977, Kumar continued in the employ of the University under the one-year terminal appointment mentioned in the Bromery-Alfange memorandum. 31. By memorandum dated June 17, 1976, Plaintiff’s Ex. 31, Kumar requested of Dean Odiorne that a grievance committee investigate the circumstances of his case. Dean Odiorne in a memorandum dated July 27,1976, Plaintiff’s Ex. 33, informed Kumar that the Academic Policy Committee of the School of Business Administration had considered his grievance, and that Odiorne had consulted the Chancellor’s office with respect to the grievance. Odiorne indicated that since every component of the review process in the School of Business Administration — that is, department, school, and Dean — had recommended tenure, Kumar’s grievance was with the Provost and Chancellor, and Kumar, if he should so decide, should take his grievance to the University Faculty and Tenure Grievance Committee. Odiorne further stated that he was informing this committee of the “favorable attention at our school level” given Kumar’s grievance and indicated that Kumar should “make personal contact with the appropriate chairman of the Faculty Tenure and Grievance Committee of the Senate and request that they act further on your behalf.” This memorandum terminated consideration of plaintiff’s grievance at the school level. 32. On August 24, 1976, Kumar pursuant to his right of discussion met with Provost Alfange. Associate Provost Bischoff also attended this meeting briefly. In the course of discussions, Kumar learned that not only was the Wolf Report still in his file, but also that important substantive data was missing from the file, including all his research and publication material, the official University course evaluation questionnaires for several of his courses, and his annual faculty reports, Plaintiff’s Ex. 9-15. Alfange informed Kumar that he could resubmit the missing material, and indicated that the Wolf Report would not be considered. He also indicated that Associate Provost Bischoff would conduct the subsequent review. 33. On September 1, 1976, the EEOC assumed jurisdiction over plaintiff’s case.. 34. By September 3, 1976, Kumar had resubmitted the materials found to be missing in his file, and during September, October, and November, Kumar met three times with Bischoff. Together they reviewed the materials in the file, including faculty evaluations and student evaluations of Kumar’s teaching. By memorandum dated December 14, 1976, Plaintiff’s Ex. 34, Bischoff wrote to Dean Odióme as follows: As you well know, I have been involved for some time with Dr. Kumar’s appeal in regard to my earlier decision relative to his tenure. There are still several aspects of the case about which I need further written clarification. In the matter of Dr. Kumar’s service, I have been convinced by Dr. Kumar and by you that his work in reviewing articles for professional journals should be counted as professional service. What I now require is evidence that Dr. Kumar’s Department— especially his professional peers — have actively considered his total [emphasis in original] service and agree that his record in the service category is excellent. This may include an elaboration of the position. I understand was taken in defense of Dr. Kumar’s case when Robert Rivers, George Burak, Sidney Sufrin, and yourself met with Chancellor Bromery and Acting Provost Alfange on May 11,1976. In the matter of his teaching, the April 15 [1976] memorandum from Professor Burak indicates that he has been rated by his colleagues as “excellent” in terms of his “selection of materials, degree of preparation, manner of presentation, enthusiasm for subject matter and students, and organization of materials are familiar to his colleagues.” This statement is certainly important in my consideration of his case. What I require is more detail from the Department and Dr. Kumar’s peers as to the basis for such a statement and more specific identification of the group identified as “his colleagues.” 35. The Personnel Committee of the Department of General Business and Finance in response to Bischoff’s request met and by memorandum dated January 12, 1977, Plaintiff’s Ex. 35, its Chairman, George Burak, informed the Department Chairman H. Richard Hartzler of the results of the meeting at which the entire committee attended — as well as Hartzler himself. Burak explained that three junior faculty members appeared before the committee and made statements in the presence of Kumar. Burak explained that the comments of these three faculty members were based primarily on hearsay in the form of “unsolicited” comments from students, that the three faculty members had failed to avail themselves of the opportunity to present comments to the committee during the previous year’s evaluation, and that the three faculty members had made no efforts to ascertain the validity of the students’ comments. For these reasons, Burak continued, the remarks of the three faculty members were considered invalid as an “unbiased” evaluation of a teacher’s competence. Burak also set forth in detail the basis for the committee’s conclusion of excellence in service, remarking that the three junior faculty members did not concur in this view, but noting that two of the three had the opportunity to observe Kumar’s service contributions for less than a year. Burak remarked that as “noted earlier, all members of the committee are tenured and have observed Professor Kumar in his service role for the entire probationary period. The committee prefers to rely on its own collective judgment and by giving substantial weight to the journal review activity, the committee finds Professor Kumar’s service activity is indeed excellent.” With respect to teaching, Burak discussed the evidence considered, reiterated the committee’s reasons for discounting the remarks of the three faculty members (“None of them had ever provided any feedback to Professor Kumar with respect to the students’ comments.”), and expressed the committee’s conclusion that “Professor Kumar’s recent performance as a teacher warrants a finding of excellence.” The committee’s conclusions were unanimous. 36. Dean Odiorne attached Burak’s January 12, 1977 memorandum to a memorandum dated January 17, 1977 from Odiorne to Bischoff, Plaintiff’s Ex. 36, and in his accompanying memorandum summarized his view that “[i]n my opinion the information newly presented here confirms and bears out the position taken by the personnel committee when it appeared before the Chancellor on May 11, 1976.” Odiorne noted that the “statements of the three untenured professors appearing [before the committee] state that his review service is meritorious and that his class materials are good.” Additionally, Odiorne indicated that “the basis for their appearing in opposition are spelled out in separate memoranda which each prepared and which have been placed in Professor Kumar’s file. They indicated that they based their evaluation on student comments or evaluations.” 37. By memorandum dated January 28, 1977, Plaintiff’s Ex. 38, Provost Puryear expressed an arrangement concerning delegation of his signatory responsibility, whereby, inter alia, he would exercise Provost’s responsibility for tenure recommendations for faculty in the School of Arts and Sciences, Associate Provost Bischoff would “continue to have final responsibility for ... Tenure Recommendations ... for Faculty in the Professional Schools,” and Acting Associate Provost Vere Chappell would have signatory responsibility for other matters. 38. By memorandum dated February 2, 1977, Plaintiff’s Ex. 37, addressed to Provost Paul Puryear via Acting Associate Provost Vere Chappell, Associate Provost Bisehoff related the facts of the initial tenure review in the Kumar case, summarized the process of Kumar’s right of discussion, and indicated that his inquiries and concerns “at every turn” had been answered “in the most positive and unequivocally supportive terms,” further noting that “[i]n addition, faculty members who felt it important to express their views in the case appeared to have been given the opportunity to do so (see January 17 memorandum from Dean Odiorne).” Bischoff concluded as follows: At this point, in the face of the support of the School of Business Administration for Dr. Kumar at all levels [emphasis in the original], coupled with the persuasive responses provided to all my questions and concerns, I feel that I have no other choice than to recommend that Dr. Kumar be granted tenure and am forwarding his file to you for your review and consideration. 39. The news that Bischoff had reversed his previous position in Kumar’s case was greeted with satisfaction by Dean Odiorne, some of Kumar’s colleagues, and of course Kumar himself. Plaintiff’s Ex. 39, 39A. However, in a memorandum dated February 9, 1977, Plaintiff’s Ex. 40, addressed to Bischoff and Odiorne, Department Chairman H. Richard Hartzler attacked the prior leadership of the department, its tenure decision-making, especially in the case of Kumar, and expressed his intention to leave the University. Specifically, Hartzler wrote: The Kumar decision should have resulted in a harsh reprimand of the participants, if it was judged to be a bad decision, rather than creating a situation where members of the Department were provided an opportunity to second guess each other, divide and redivide, and further develop their mutual hostilities. The position I took with the faculty under the circumstances was — “it was a bad decision; but do not divide. Providing information is the only proper response to developments in the Provost’s Office.” I believe I was right. Kumar subsequently learned of this memorandum and requested a copy from Hartzler, who by note informed Kumar that he could not find a copy but that as he recalled, “it was a reaction to the charge that our department made bad decisions. I tried to say we made tough ones so that the Provost would not be prejudiced against future decisions we will make.” Plaintiff’s Ex. 40A. Subsequently, Hartzler provided a copy to Kumar with a note stating “[f]or obvious reasons do not show this to Sid Sufrin or to Alex. This was intended to smooth the way for future cases.” Id. Hartzler subsequently circulated a memorandum dated April 28, 1977 addressed to the Faculty of the General Business and Finance Department and entitled “Apology.” Plaintiff’s Ex. 41. Hartzler wrote: Recently in response to charges levelled at this Department by the Assistant Provost, David Bischoff, I expressed my frustrations in a self-serving memo. Being in an intemperate mood, I said many things without sufficient caution in my choice of words. Hardly anyone in the Department escaped my attention. That memo, which was intended as a confidential communication between administrators was used in a public way to the discredit of us all and with probable severe damage to some specific people. As author of the document, I must accept responsibility for its contents and its misuse. Specifically, I apologize to Jim Ludtke, Alex Barges, Sid Sufrin and the four area coordinators who served when the department was formally structured in groups. I apologize to Prem Kumar for any injury that improper use of this document may cause him. And generally, I apologize to you all. I am sincerely sorry that I uttered words that now can have no other effect than to aggravate the deep seated problems of this Department. As subsequently revealed, Hartzler’s initial memorandum was made part of Kumar’s tenure file, although it was not included in the files of any other faculty member mentioned therein. Moreover, Hartzler’s apology was not included in Kumar’s file. 40. Acting Associate Provost Vere Chappell by memorandum dated February 16, 1977, Plaintiff’s Ex. 49, addressed to Dean Odiorne indicated that the “Kumar case has now been referred to the Provost for review and consideration” and requested that the memoranda of the “ ‘three untenured professors’ who apparently opposed the Personnel Committee’s recommendation” be forwarded to him. In a postscript he remarked that he had added Hartzler’s February 9, 1977 letter to Kumar’s file and requested that the letter be added to Odiorne’s file and that of the Department as well. Associate Dean Wolf supplied the memoranda, noting on a copy of Chappell’s memorandum that “They have been here awaiting a request.” Plaintiff’s Ex. 87. 41. By memorandum dated May 11, 1977, Plaintiff’s Ex. 42, addressed to Bischoff with copies to Chancellor Bromery, Associate Provost Chappell, Dean Odiorne, and Professor Kumar, Provost Puryear indicated that he had conducted his review pursuant to Bischoff’s February 2,1977 memorandum, and expressed his conclusion, based on his thorough study of the original tenure file and the material added since that time, that the original decision of April 1976 was correct and there was no basis for reversing the recommendation to deny tenure. Puryear stated that “[i]t is clear that teaching is the crucial factor in the judgment that Kumar ought not to be awarded tenure,” and while noting that the file contained “a great deal of evidence intended to establish strength ... which no doubt points in that direction,” nonetheless observed that: [T]here is also a significant amount of contrary evidence. Indeed, I have rarely seen a tenure file with negative assessments of teaching approaching the volume, variety, and credibility that one finds in Kumar’s case; and the negative evidence, in my judgment, clearly outweighs the positive. It is not of course, a matter of proportion of positive to negative comments. One has to judge in the appropriate context, and to compare this file with the general run of tenure files as a whole. In this light, the negative material on Kumar’s teaching becomes decisive. Puryear closed the memorandum by indicating that since there was no basis for reversing Bischoff’s original recommendation, the “current situation” remained unaltered, and Kumar’s termination date remained August 31, 1977. 42. By May of 1977, the EEOC investigation of Kumar’s complaint was underway. Dean Odiorne on May 19, 1977 spoke with an EEOC investigator. In a memorandum dated June 16, 1977, Plaintiff’s Ex. 89, Bischoff wrote to Odior