eight uncontroverted material facts ninety of which were disputed by the plaintiff doctor maris presented four hundred and fifteen uncontroverted material facts fifty two were disputed answering five key questions is crucial to the determination of whether summary judgment was appropriate in this case number one what were the criteria and standards for achieving promotion in tenure or are they  the same in the s e p in the e p l i departments the facts were undisputed and said yes they were there was no material difference between those standards and they were clear standards and they had objective criteria associated with them number two were the criterion standards specific enough to permit consistency of assessment of candidates or were they so vague and ambiguous that they permitted administrators to interpret them to with their own biases number three what were the standards expected of administration in evaluating the scholarship of a candidate did they have unfettered discretion to decide whether a candidate had met the were the case of z weighing is particularly instrumental in that point number five if these administrators agree and they did that consistency was instrumental in assessing inconsistency that favored male candidates over female candidates were those administrators under a duty our institutional imperative to investigate the data and information presented to them of gender bias in other words when the epidemic tenure regulations speak of excellence in a candidate scholarship are the same standards of the excellence of plaque to male and female candidates or did they permit a moving goal post for male and female candidates if consistency is not practiced this leaves the back door open for the thief of discrimination to enter the institution must be committed to consistency despite frequent turnover of administrators and committee members without consistency the institution in effect it's a get gets a get out of jail free card to claims of discrimination because they can say well we did help if you don't compare somebody else how do you know discriminations ever had and there's no way to determine nowhere in this record in this is key to this no waiter in the record of this case did any administrator assert that an investigation was not warranted because the pick the people that maris was comparing her records to were not comparable no worse the chance experts said that was the standard to do to ensure consistency you have to do a comparison to make sure that every candidate is being treated the same mister smith what we knew say that asserted that the female candidates and then male candidates that if i understand your position is that they were held to different standards for purposes of tenure is that cracked that is correct and  standard are you just saying that it's so subjective that there is no standard because i'm not hearing a particular standard like the men who are held to this type of publication or this number of publications and the women were held to another standard it sounds like it's just it's just come in here because from your view it's completely subjective there is no standard no that's the problem is that the standard was not subject  quality your review publication and the department was required under the provost college or to designate in writing what he considered to be high quality journal articles and it didn't do that this department never followed that provo scholar so how are candace to know what was high quality other then they they published all in peer reviewed journal articles and in book chapters were in category and certain grant publications were about are these standards subjective and and the court had said that the nature of each hand its dossier is inherently unique in that was one reason for denying some in judgment and i was kind of why does he set but what's in those documents is is inherently unique because it's unique to the individual so that seemed to be just some kind of a conclusion restatement that didn't have any factual basis to justify ok the last thing i'll discuss the end is is the issue of similarly situated and i think the facts and the law here that the law is pretty clear there there are three criteria for being so we're situated where that where they are applying for similar jobs yes all of these compare tours were at the assistant professor level of flying for promotion tenure to associate profession was there similar conduct of course there was they were all required to under their guidelines to do teaching research in service to to serve on committees to seek out grants that's all the son ok and then the last one is did they deal with the same supervisor and the answer your supervisors these are the people the determine your raises where you get promoted where your office is they do your performance evaluations so they didn't have the same three people all the time but there was overlap between the supervisors among all the fact that the decision maker here is different in that compared to others decision maker means that there are not some situated compares you know it so it does not mean that the cost often is not their supervisor he does not make those day to day decisions that affect a person's job performance or or determine how they work he's not their supervisor he is merely an administrator who is the ultimate decision maker based on information that's provided to him about and as such this is a case that's governed by the rule that this court applied in the commode of the iowa state case where this court recognized that there are unique facts and circumstances surrounding promotion and and your decisions those decisions are different from a lot of employment decisions because they are inherently subjective they're multifaceted they involve many different viewpoints with lots of participants and those participants are exercising specialized knowledge in these unique circumstances coupled with the fact that the universities promotion tenure decisions implicate the top and all of the academic freedom resulted in this court applying a rule that in order to demonstrate discrimination in this context the plaintiff has to point to more than a mere dispute about her qualifications she has to show that the tenure denial is obviously unsupported and that's the rule of this co iowa to the title seven claims that were before it and applies with equal force to the mh are a claims that are also present in this case title seven of the image or a may require different degrees of causation but they both require the plaintiff to prove discrimination and just like the decision that this court examining the university's decision to deny appellant promotion tenure was a the facts underlying the claims are the same the difference is that the inmates are a only requires the plaintiff to prove causation as a contributing factor while the title seven claims require the plaintiff to prove that discrimination is a motivating been adopted by this court and other courts around the country that reflects the federal courts experience with deciding discrimination claims in the context of promotion tenure you know it's not a different burden or a different standard in every discrimination claim recognized that a person in tenure decision is it's an inherently subjective decision it's a decision that's going to be made based on people who know the candidate are familiar with their scholarship and who have formed an opinion and that all these different opinions will be presented missouri and in federal courts have recognized that the evidence of plaintiff's evidence of discrimination must be evaluated in light of the facts and circumstances of the challenged employment decision and that it's not enough in either federal d or state court to simply show th employer's decision was wrong in come out of this court illustrated that there were rules that it was applying was not a different rule but it was an application of a rule in the context of promotion and tenure it cited cases that are not promotion to new cases they stand for the proposition that it's not sufficient for a planet to simply show that the decision was wrong or that the decision may have been based on mistaken facts the point of ultimately has to provide evidence that shows that discriminate but the decision was based on scrum a nation and it is perhaps at this point an appropriate time to talk about a disagreement that we have with the point that was pressed by my bosun counsel the record in this case does not show that the university's standards for promotion and tenure were objective standards those standards are set forth in universities collected rules and regulations which are enumerated in our statement of uncontroverted material facts and which were not disputed and they describe the standard for tenure as a high standard and in particularly in the area of research which is the area that's at issue in this case candidates must show that they are exceptional scholars and they made an impact on their discipline and that their research activities are at the highest level similarly a department established guidelines for promotion and tenure these guidelines are not sufficient the universities collected rules regulations say the satisfaction of minimum department guidelines doesn't guarantee to hear what those my sense is that there are different types of research that the various candidates are engaged in and it seems to me that it might be that certain types of research lend themselves more to what are kind of typically called high quality journals than others is that is that the case i want to be sure that i keep my response to what's in the record your honor and i think what's on the record is that appellant complained that she didn't have a sufficiently clear understanding of what was considered high quality journals but what the record reflects understand that that the record is showing that there were some communication about whether the journal she was publishing in more of the type that they wanted to see but i did i guess my question when you start out saying this is such a subjective approach and then you add in layers of each dossier is very particular and is unique and that it is hard to compare them because you don't want seventy seven researchers doing the exact same thing that are easily compared so it seems to me that it would least open up the door to possible discrimination if in fact for example the women candidates have an attentive to find themselves in areas of research that the journals just aren't accepting as many of the high quality journals on accepting as many articles so it seems to me that there's sort of baked into the subjectivity the potential for for gender discrimination i wonder if you could speak to that a how the how of the university would protect against that certainly i think there's two responses st this case doesn't involve the type of disparate impact claim that i think you just described whereby there would be a challenge to facially neutral standards that were alleged to have a discriminatory impact and secondly this issue is why looking at the record of recommendations and evaluations of so important the cases regarding promotion and tenure from this court and from other courts recognize that there is inevitably going to be some subjectivity in some application of special has knowledge here and what the court is looking for to determine whether the reasons that were proffered for a tenure denial were discrimination or not is in the words of the support case to doubt is there evidence in the record that supports the evaluation that was offered by the university and here we have consistent evaluations over the pretender period we have external reviewers from outside the university who us describe the publications the journals that the plaintiffs bubbles union as being nd tier journals we have evaluations that every level of review including the college committee which unanimously recommended against a ant and appellant is not accused of discrimination indicating that she published in nd tier journals there are seven levels of review in the appellate promotion and tenure process all of them initially recommended against her for the same reasons concerns about the quality of the outlets of her publications whether they had sufficiently rigorous science in them and whether she had published enough of them as st author to demonstrate that she was the leader of her own programatic line of research and even the campus committee which is the only committee that reversed its recommendation after appeal to recommend in her favor big knowledge that these were legitimate concerns in light of that consistent record it's simply not sufficient for appellant to disagree with it and argue that because the standards are subjective there must be evidence of discrimination it is her burden to prove facts that show discrimination and the principal way that she attempts to do that in this case is through comparatives but she doesn't get across the line there either that standard so with respect to her male compares she is not alleging that they were treated differently from her in the same ways that she was criticized for the don't have tenure she claims that two of her male compared  were not criticized for having a certain number of publications my posy council mentioned the dean dan clay who i think you described does offer any torture and i now says of the departmental the situated with him in all respects and was treated differently when he treated her the same as for alleged compares in this area and i think that the argument about a tortured explanation drives home the fact that concluded that he had just met their guidelines recommend in his favor the department chair recommended in his paper gloated that he had met department guidelines in the college committee disagreed the fact that gene clearly just disagreed with the college committee and agreed with two other committees it doesn't give rise to mentioned doctor wong who is not strictly speaking and compare she is another female candidate who two of the participants in her promotion to her process also recommended against and that is another type of either comparative or me to evidence that just simply doesn't raise an inference of discrimination st of all to the extent that appellant is trying to make a statistical evidence argument to people isn't enough to raise a statistical inference and in any event it's undisputed that doctor mart is again that the same type of appraisal and dispute of qualifications that the comic a says isn't going to be sufficient to raise and his friends of discrimination what what is true with the when cases that actually argues not that she was dissimilarly treated but that she was similarly treated with doctor wang with similar scholarly qualifications and that argument actually enforces the legitimacy of the decision that was made not  undermines it i see that i'm about out of time and i just want to briefly mention there is a nd claim in this case a claim for breach of the duty of good faith and fair dealing that claim is not an expressed contract claim it's not a negligence claim and it's not a discrimination claim to establish that claim appellant had to show that the university exercise discretion in bad faith the denial of tenure is a decision that is bested in the university as a discretionary decision appellant have the burden to show that the university made that decision in a way that was in bad faith or is arbitrary or capricious and again the process that the university followed to make that decision prevents her from making that showing we had a multi level review process with notice an opportunity to respond at every level and the fact that appellant disagrees with the outcome does not show that the university's decision was arbitrary capricious thank you very much f provost in the dean very specific tables showing the quality of the journals the placement of the journals the number of journals published the impact factors  factors associated with those journals she presented all this information far forward all the compared and herself and they didn't even investigate whether those criteria whether they were were true not true they didn't look into it at all even though she brought it up so she didn't just go in and say i think i'm being discriminated against she provided him very detailed and specific data objective data saying look here is my record here they are prepared why did a man get tenure and the women don't me and z y and z wind record if you look at the data she was clearly superior to everybody and she was d she had out of thirty people that voted on her promotion and tenure twenty four of them recommended her for for promotion the only administrators that did mister by to raise the point that she got consistent annual reviews and that's not true she didn't even get any annual reviews the st two years which they required to give her and she was always  unanimously recommended for a continuance on the promotion in tenure track and she met every expectation they put down for her she presented this in data it's in the record that they told her what she needed to do to be successful she get all of that and then how much time i got left forty eight seconds or and said it's ok very good again going back to loftus so even though he's presented data on two other comparable words that he didn't make a decision on he could have gone back and looked at their record and he could have said well what did chancellor date look at how did he apply these same standards the same criterion guidelines to these two individuals records so i can use that and make sure i'm consistent in applying them to these individuals records and he didn't even do th i mean that if that's not enough to to raise an inference that someone is infected this process in a way that is discriminatory towards women that makes the whole was them to a higher standard than what male candidates are held to i don't know that there's such thing i don't know how you would prove it them unless someone was just stupid enough to say well we're not going to give you a promotion and tell you because you're a female  i think the evidence is abundant that there is plenty of evidence to to raise material fact these things should be decided by a jury and not not a court thank you your honor very well thank you for your argument thank you to both counsel