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March 17, 1995

BHAMINI M.P. NAYAR, PH.D., Plaintiff,

The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on Defendant Howard University's motion for summary judgment. Plaintiff Nayar, a female born and educated in India, was a faculty member of the Math Department of Howard University from 1984 until 1991 when her application for tenure was denied. Plaintiff sets forth two claims. First, Plaintiff claims that the University discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000(e), because of her sex and national origin. Second, Plaintiff claims that the University breached her employment contract because it did not follow contractually-prescribed procedures when it reviewed her tenure application. *fn1" Defendant contends that Plaintiff can set forth no evidence to create a triable issue of material fact with respect to either of these two claims.


 Plaintiff was hired by Howard University in 1984 for a one year appointment as a Visiting Assistant Professor in the Math Department. In 1985, she was appointed Assistant Professor and held this position until 1991 when she was denied tenure.

 Plaintiff's field of specialty is General Topology. She has published ten papers in Indian math journals which are "refereed," meaning that before the paper is published an expert in the field reviews the paper to assess the paper's merit.

 In the Spring Semester of 1990, Dr. Nayar met with the Chairman of the Math Department, Dr. James Donaldson, regarding her tenure application. Based on Dr. Donaldson's advice, Plaintiff decided to defer her request for tenure until the following (1990 - 1991) academic year.

 At the time of Plaintiff's application, the University's policies respecting promotion and tenure were set forth in the Faculty Handbook Section of the Howard University Manual ("Handbook"); the Guidelines for Appointments, Promotions, and Tenure Committees ("Guidelines"); and the June 1, 1978 By-Laws of the College of Liberal Arts ("By-Laws"). The University's tenure policy was to be "implemented uniformly in all schools and colleges." Handbook at 62.

 Several layers of review are built into the tenure evaluation process. First, the applicant is evaluated by a Departmental Committee on Appointments, Promotion and Tenure ("APT" Committee). The evaluation is then forwarded to the college-wide APT Committee through the appropriate Dean. Ultimately, the recommendations are sent to the Vice President and President for presentation to the Board of Trustees. Handbook, at 65-66.

 In the Math Department, a subcommittee of three tenured faculty members is assembled to coordinate the review of the candidate's file and to make a report and recommendation to the Departmental APT Committee consisting of all tenured faculty. The University recognizes that "scholars in a particular field or activity have the chief competence for judging the work of their colleagues" and the faculty is to establish procedures to ensure that "such competence" is "exercised before either adverse or favorable judgments are made in this regard." Handbook at 40.

 In consultation with Chairman Donaldson, Plaintiff arranged for the following professors to be members of the Math Department subcommittee, the first level of evaluation in the tenure process - Drs. James Joseph, Myung Kwack, and David James. In the summer of 1990, Dr. Donaldson resigned his role as Chairman and Dr. Joshua Leslie was appointed. In August 1990, Dr. Leslie put in place new procedures for the handling of tenure applications. Under the new procedures, the Department Chairman rather than the applicant selects the three subcommittee members. Dr. Leslie appointed a new subcommittee to evaluate Plaintiff consisting of Drs. Neil Hindman (a white male), Cora Sadosky (a white female), and Clement Lutterodt (a black male).

 Dr. Hindman wrote a report in which he described what he termed as serious mathematical errors in ten of Dr. Nayar's eleven papers. *fn2" Plaintiff does not dispute that her papers as published contain "typographical errors, omitted words, and other misprints;" however, she challenges that these errors impinge on the quality of her papers and their significance to her field.

 The tenured faculty considered Plaintiff's application at its December 3, 1990 meeting. By mail ballot, the tenured faculty voted against awarding tenure. Thereafter, Drs. Joseph and Kwack petitioned the faculty to reconsider its vote. Another vote was taken and, once again, Plaintiff failed to get a majority of the votes necessary for the recommendation of tenure. Plaintiff then petitioned the University for additional consideration. After review, neither the college-wide committee nor the President recommended tenure. This action followed.


 Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mere allegations or denials of the adverse party's pleadings are not enough to prevent issuance of summary judgment. The adverse party's response to the summary judgment motion must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Pro. 56(e).

 The Supreme Court set forth the governing standards for issuance of summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In Celotex, the Supreme Court recognized the vital need for summary judgment motions to the fair and efficient functioning of the justice system:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed. Rule Civ. Proc. 1. . . .
Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

 Id. at 327. (citation omitted)

 The plaintiff, as the non-moving party, is "required to provide evidence that would permit a reasonable jury to find" in his favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (per curiam) (citing Celotex, supra). The moving party is entitled to summary judgment where "the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex at 323. Any factual assertions contained in affidavits and other evidence in support of the moving party's motion for summary judgment shall ...

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