Brousard-Norcross v. Augustana College Ass'n

935 F.2d 974, 1991 WL 101604
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 14, 1991
DocketNo. 90-5308
StatusPublished
Cited by3 cases

This text of 935 F.2d 974 (Brousard-Norcross v. Augustana College Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brousard-Norcross v. Augustana College Ass'n, 935 F.2d 974, 1991 WL 101604 (8th Cir. 1991).

Opinions

BOWMAN, Circuit Judge.

Linda Brousard-Norcross appeals from the order of the District Court1 granting the defendants’ motion for summary judgment and dismissing her employment discrimination claims. We affirm.

I.

Linda Brousard-Norcross was a faculty member of the Education Department at Augustana College from 1982 to 1989. At the time of her tenure application in 1987, she was employed as an Assistant Professor. Her tenure review, undertaken by Augustana’s Faculty Personnel Council, commenced in the fall of 1987 and concluded in early 1988 with the Council’s recommendation to Augustana’s Board of Regents that Brousard-Norcross be denied tenure, Brousard-Norcross was informed of this decision in January 1988. She subsequently filed a complaint with the South Dakota Division of Human Rights and the Equal Employment Opportunity Commission. She then filed this action, claiming her tenure denial constituted unlawful sex discrimination under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1988), and unlawful handicap discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988). She also filed a claim under the Equal Pay Act of 1963, 29 U.S.C. § 206 (1988), along with various pendent state law claims. The District Court granted the defendants’ motions for summary judgment with respect to the Title VII claim, the Rehabilitation Act claim, and the Equal Pay Act claim. The District Court also dismissed without prejudice Brousard-Norcross’s pendent state law claims. On appeal, Brousard-Norcross asserts there are genuine issues of material fact with respect to her claims and that summary judgment therefore was not appropriate.

II.

As set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), a Title VII plaintiff initially must establish a prima facie case of discrimination. The burden of production then shifts to the defendant to show a legitimate, nondiscriminatory reason for the employment action. The plaintiff then must show that this proffered reason was merely a pretext for unlawful discrimination. At all times, the burden of proof remains with the plaintiff. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).2

Our review of a tenure decision is approached with trepidation; a grant of [976]*976tenure is a significant decision for a college and one that is not made lightly.3 We do not profess to possess the expertise required to evaluate such decisions for their merit. While Title VII unquestionably applies to tenure decisions, judicial review of such decisions is limited to whether the tenure decision was based on a prohibited factor.

Summary judgment is to be granted only when there is no genuine issue as to any material fact. Thus, “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), summary judgment is not appropriate. When the defendant moves for summary judgment, “the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Id. at 257, 106 S.Ct. at 2509. This affirmative evidence must be something more than the pleadings; there must be specific facts showing a genuine issue for trial. Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

The District Court assumed that Brousard-Norcross had established a prima facie case of sex discrimination. The defendants supported their motion for summary judgment with evidence that her tenure denial was based upon negative student evaluations and negative recommendations from some of her Education Department colleagues. The District Court ruled that Brousard-Norcross failed to establish a factual dispute as to whether these reasons for her tenure denial were pretextual. We agree with the District Court.

A.

Brousard-Norcross claims that the first reason given for her tenure denial, nega-five student evaluations, is a pretext for unlawful sex discrimination because most of her student evaluations were very favorable and a draft of the Personnel Council’s letter to Brousard-Norcross informing her of its negative recommendation v/as changed before being sent. She further claims that an additional “special” survey of her students done in late 1987 is evidence of unlawful sex discrimination. We will accept as true for our purposes that student evaluations of Brousard-Norcross done before 1987 were very favorable; we will also accept as true that a significant number of the student evaluations done in late 1987 praised Brousard-Norcross. But it is also true that many of those student evaluations were highly critical of Brous-ard-Norcross, and she neither alleges nor provides any evidence that the student evaluation forms, or the comments on them, are gender-biased in any way. It is not for us to determine what constitutes a sufficient amount of negative feedback from students before a denial of tenure is justified; we will not sit as a “super personnel council” to review tenure decisions. Suffice it to say that student reaction is a legitimate, nondiscriminatory factor on which to evaluate tenure candidates.

That an additional survey of students was conducted in late 1987 does not call into doubt the College’s proffered reasons for the denial of tenure. The policy of the Personnel Council at the time of Brousard-Norcross’s tenure application was to consider the student evaluations from the spring preceding the fall in which the tenure application was made. According to the Vice-President for Academic Services, defendant Gary Olson, the Personnel Council was made aware of a student complaint [977]*977regarding Brousard-Norcross while the Council was considering her tenure application in late 1987. In response to this complaint, Olson sent student evaluation forms to students in Brousard-Norcross’s Fall 1987 undergraduate classes. These forms were mailed out in December 1987. Brous-ard-Norcross contends that the occurrence of this “special evaluation” is evidence of sex discrimination and that the reliance of the Personnel Council on these evaluations raises a dispute as to whether the tenure denial reasons are merely pretextual. It is true that “[departures from procedural regularity ... can raise a question as to the good faith of the [tenure decision] process,” Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2nd Cir.1984).

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935 F.2d 974, 1991 WL 101604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brousard-norcross-v-augustana-college-assn-ca8-1991.