United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1704

___________

Carol M. Lawrence, *

*

Appellant, * Appeal from the United States

* District Court for the Western

v. * District of Missouri.

*

Curators of the University of Missouri, * [PUBLISHED]

*

Appellee. *

___________

Submitted: November 17, 1999

Filed: February 18, 2000

___________

Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

Carol M. Lawrence appeals the district court's grant of summary judgment to the

Curators of the University of Missouri (Curators) on Lawrence's sex discrimination

claim. Having reviewed the record, we conclude Lawrence is not entitled to relief. We

agree with the district court's analysis that there is no substantial evidence in the record

tending to show the Curators' decision for denying Lawrence's application for

promotion and tenure was a pretext for sex discrimination. We thus conclude the

district court correctly granted summary judgment, and we affirm for the reasons stated

in its ruling without further discussion. See 8th Cir. R. 47B.
-2-

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent. 

Carol Lawrence became a "tenure-track" professor on the faculty of the

University of Missouri (the University), College of Business and Public Administration

(Business College), School of Accountancy, in January of 1988. The pertinent written

guidelines regarding promotion and tenure state, among other things: 

2. Quality Research. Good teaching is a necessary but not

sufficient criterion; quality research is also expected of all faculty in the

College. The most convincing evidence of quality research is publication

of research results in refereed journals of high quality.

. . . . 

The specific criteria to be used, the relative weighting to be made,

and the procedures to be followed shall be clearly established by the

appropriate administrative unit prior to evaluations and recommendations.

All relevant information shall be explicitly communicated to the faculty

members and each unit's criteria and procedures shall be consistent with

the College guidelines.

Appellant's Appendix at 225-26. 

Consistent with these guidelines, Lawrence received her first written evaluation

from the School of Accountancy Promotion and Tenure Committee in 1989, after one

year on the tenure track. That evaluation stated, among other things: 

The Committee strongly recommends that you develop on ongoing

'inventory' of four or five active research projects. That will help assure

that you will ultimately accumulate at least five or six publications in
-3-

reputable journals (the apparent minimum research requirement today) by

the time you come up for promotion and tenure.

Id. at 241.

The written evaluation she received in 1990 stated in part:

In the research area, the article that you have forthcoming in

Research in Governmental and Nonprofit Accounting [(RIGNA)]

represents a good "hit," and the four research projects in process indicate

good progress in developing the ongoing "inventory" of research studies

we recommended last year.

. . . . 

Overall, the Committee believes you are coming along fine and

encourages you to keep up the good work.

Id. at 243.

However, the written evaluation she received in 1992, stated, among other

things: 

Overall, your performance to date is viewed quite positively. You

exhibit quality work in virtually everything you do and the Committee is

aware of the extensive effort you are already devoting to your research

program. However, as indicated, increasing concern is developing

regarding the quantity of your research output.

Id. at 244 (emphasis in text). In response, Lawrence accelerated her research

publication efforts and published three more papers in 1994. At the time her

application for promotion and tenure was considered in the fall of 1994, she had three

additional papers accepted for future publication, for a total of seven articles published

or accepted for future publication. 
1Needless to say, the recommendation of this committee, composed of the frontline reviewers and Lawrence's closest academic peers, was critical to the success of her

tenure application. 

-4-

The School of Accountancy Promotion and Tenure Committee was the first to

vote on her application. The committee members voted 4-3 against promotion and

tenure.1 The next committee to review her application was the Business College's

Promotion and Tenure Committee. That committee voted 5-0 against her application.

Both the School of Accountancy promotion and tenure committee and the Business

College promotion and tenure committee were chaired by Professor Earl Wilson.

Professor Wilson explained the adverse recommendations as based upon Lawrence's

record of publications – not because she published too few articles but, rather, because

the research journals in which she published purportedly lacked quality. See id. at 266

(letter from Earl Wilson to Raymond Dockweiler, dated Nov. 1, 1994). This view was

then adopted by the Director of the School of Accountancy, Raymond Dockweiler, who

wrote: "[q]uite simply, she has not yet published in a top-tier research journal," id. at

264 (letter dated Nov. 3, 1994), and by the Dean of the Business College, Bruce

Walker, who wrote: "[i]t would be heartening if one or more of her articles were

published in a journal clearly recognized as one of the very best in the accountancy

field." Id. at 253 (letter dated Dec. 2, 1994). 

When Lawrence's application was reviewed by the Campus Promotion and

Tenure Advisory Committee, they voted 6-2 in favor of promotion and tenure. The

majority concluded that the negative votes Lawrence received at the departmental and

divisional levels were unjustified and, moreover, that the outside reviews were, overall,

"very positive." Id. at 251 (Memo from Charlotte Parker, Chair of the Campus

Promotion and Tenure Advisory Committee, to Chancellor Charles Kiesler).

Notwithstanding that committee's recommendation, as well as the concerns expressed

in writing by Deputy Chancellor Brady Deaton, see id. at 544-47, both the Provost of
-5-

the University, Edward Sheridan, and the Chancellor of the University, Charles Kiesler,

decided to deny Lawrence promotion and tenure. 

As the district court recognized in the present case, the crux of this case is

whether or not the Curators' proffered reasons for rejecting her tenure application

represent a pretext for gender-based discrimination. See Lawrence v. The Curators of

the University of Missouri, No. 97-4109-CV-C-9, slip op. at 14-15 (W. D. Mo. Jan.

28, 1999). I also agree with the district court's observation that, “[i]n evaluating the

issue of pretext in cases involving the denial of tenure, ‘courts must take special care

to preserve the University’s autonomy in making lawful tenure decisions.’” Id. at 15

(emphasis added) (quoting Brown v. Trustees of Boston University, 891 F.2d 337, 346

(1st Cir. 1989) (Brown) (appeal after trial on the merits). It is axiomatic, however, that,

a denial of tenure motivated by gender-based discrimination is not a lawful decision.

Furthermore, though “[a] court ‘may not simply substitute its own views concerning the

plaintiff’s qualifications for those of the properly instituted authorities,’” id. (quoting

Brown, 891 F.2d at 346), nor may the court substitute its own views about the weight

and credibility of the evidence for those of the jury when there is a genuine issue of

material fact. In the present case, if Lawrence presented enough evidence that a

reasonable jury could have made a finding that gender was a motivating factor,

summary judgment was improperly granted. See Brousard-Norcross v. Augustana

College Ass'n, 935 F.2d 974, 976 (8th Cir. 1991) ("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,' summary

judgment is not appropriate.") (internal citations omitted).

The Curators have proffered the following explanation for the decision to deny

Lawrence tenure: 

Lawrence received negative recommendations for promotion in six

out of seven levels of review by the University, and her weak research
-6-

record was cited as the principal reason. The undisputed material facts

show that Lawrence did not publish in any top-tier journals, that her

publications were all co-authored except for one article arising from her

dissertation, and that four of the six outside reviewers who examined her

research expressed criticism of her publication record. 

Brief for Appellees at 21. 

In response to this justification, Lawrence presented evidence and arguments to

discredit each of the reasons given by the Curators for the denial of her tenure

application. As I have stated, her burden at the summary judgment stage was not to

prove her case, but to show the existence of a genuine issue of material fact. In my

opinion, her affirmative evidence of pretext has established an issue of fact as to

whether gender played a role in her peers’ subjective evaluation of her tenure

application. See id. at 3 (the tenure decision “necessarily entails judgment of quality

which is subjectively made by the applicants’ peers”). 

In response to the Curators' assertion that "[t]he undisputed material facts show

that Lawrence did not publish in any top-tier journals," Lawrence introduced evidence

suggesting that the standards for what constitutes a "top-tier" journal changed over time

and, moreover, were applied unequally to her as compared with male candidates. For

example, in 1992, the Director of the School of Accountancy, Raymond Dockweiler,

wrote a letter to the Dean of the Business School, Bruce Walker, supporting a male

tenure applicant, Robin Roberts, and stating in connection with Roberts's publications

in RIGNA (in which Roberts had published two co-authored articles, see Appellant's

Appendix at 502-03): "Since RIGNA is a publication of the American Accounting

Association (AAA) and is the leading outlet for research in the area of governmental

and nonprofit accounting, a growing number of accounting academics view it as a

prestigious journal." Appellant's Appendix at 498. By contrast, when recommending

to Dean Walker that Lawrence be denied tenure, Dockweiler wrote in 1994 –

notwithstanding Lawrence's publication of a sole-authored article in RIGNA – that her
2Dean Walker justified his treatment of RIGNA as a "second-tier" journal on the

basis that it received an "A" rating, as opposed to the "A+" ratings received by seven

other journals, according to a rankings list, see Appellant's Appendix at 324, produced

by the School of Accountancy (but not formally approved by the School of

Accountancy's faculty). See id. at 253 ("the School of Accountancy's ranking of

journals not only was never approved by the faculty but also included an 'A+' category

of journals, which to me reduced 'A' journals (such as Research in Governmental and

Nonprofit Accounting[)] to second-tier status"). I believe, however, the pretextual

nature of this explanation is a matter of genuine dispute if the same treatment was not

applied for male tenure applicants and, moreover, if Lawrence was affirmatively led to

believe that RIGNA was considered to be a sufficiently high-ranking journal. 

-7-

"lone problem area has been in the area of research. Quite simply she has not yet

published in a top-tier research journal." Id. at 264. 

Similarly, when Dean Walker wrote a letter to the Provost in 1992 supporting

Roberts's tenure application, he favorably described RIGNA as "among the top dozen

or so research journals in the accounting field." Id. at 491-92. By contrast, in

recommending that Lawrence not be granted tenure, Dean Walker wrote in 1994 that

the quality of her research fell short – notwithstanding her publication in RIGNA –

because she had not published a single article in "a journal clearly recognized as one

of the very best in the accountancy field." Id. at 253. In other words, while

Dockweiler and Walker praised Roberts for publishing in RIGNA, they all but

criticized Lawrence for publishing in the very same journal.2

Moreover, a review of the evaluations Lawrence received during her years on

the tenure track support the conclusions that she was led to believe, and reasonably did

believe, that research journals such as RIGNA were precisely the type of journals the

department deemed worthy of tenure track publications. See id. at 243 (1990 written

evaluation from School of Accountancy Promotion and Tenure Committee) ("the article

that you have forthcoming in Research in Governmental and Nonprofit Accounting

represents a good 'hit'"). In other words, the evidence suggests that Lawrence met the
-8-

expectations which were presented to her, and she only fell short when the critical

decision makers changed the standards as they applied to her. Indeed, Deputy

Chancellor Deaton, upon reviewing Lawrence's application for promotion and tenure,

described this phenomenon as follows.

She was led to believe that five or six journals articles would be

acceptable . . . . [S]he was also assured that nationally recognized peer

reviewed journals in her subfields would be acceptable. There is now

argument over what constitutes quality journals in this area. 

The quality of her work was praised in annual reviews by the

departmental [Promotion and Tenure] Committee on a consistent basis.

She was urged to generate more quantity of articles which she did in her

last couple of years and was then criticized for the lumpy nature of her

output. 

Joint Appendix at 544-45. 

In my opinion, the apparent eleventh-hour changes in the standards that were

applied to Lawrence – in addition to the evidence of unequal treatment – raise serious

doubts about the sincerity of the Curators' first proffered justification for rejecting of

Lawrence's tenure application, and warrant letting this case go to trial. See, e.g.,

Kobrin v. University of Minnesota, 34 F.3d 698, 702 (8th Cir. 1994) ("Substantial

changes over time in the employer's proffered reasons for its employment decision

support a finding of pretext.").

Lawrence has also responded to the Curators' assertion that she was denied

tenure in part because her publications "were all co-authored except for one article

arising from her dissertation." Again, she introduced evidence indicating that she was

treated differently from male tenure candidates on this matter. For example, Robin

Roberts had also co-authored all but one of his publications at the time his tenure

application was being reviewed. With respect to Roberts, Dean Walker wrote:
-9-

In deciding whether to recommend that an assistant professor be

promoted and tenured, I consider whether the candidate has established

self-sufficiency in the research area. In my judgment, Professor Roberts

passes this test. First, he has published a sole-authored article in one of

the lead journals in the field. . . . Second, he has been the lead author on

all but one of his co-authored pieces. Third, he has demonstrated the

ability to work with a variety of co-authors, ranging from MU PhD

students to faculty members at other institutions. 

Appellant's Appendix at 492. 

By contrast, with respect to Lawrence, Dean Walker wrote: "It would be

desirable if she had demonstrated her self-sufficiency in the research area by having

some sole-authored articles, but only the article based on her dissertation falls into that

category." Id. at 253. 

The Curators also justify the tenure decision on the basis that, according to "[t]he

undisputed material facts . . ., four of the six outside reviewers who examined

[Lawrence's] research expressed criticism of her publication record." In my view, the

interpretation and weight to be given the comments made by the outside reviewers are

matters within the sound discretion of the University in a proper tenure review process.

In this case, however, even assuming that four of the six outside reviewers were

"critical" of her research, their purported criticisms are confined to the following issues:

the number of her publications, the quality of the journals in which she had published,

and the number of co-authored publications. See Brief for Appellees at 9-10

(summarizing the outside reviews). In other words, all of their criticisms involve

matters which have already been discredited as actual reasons for the University's

tenure decision. Based on the evidence discussed above – indicating that Lawrence

was misled into believing that she was meeting the applicable tenure standards and

that male tenure candidates were not held to the same standards – a genuine factual
-10-

dispute remains as to the truthfulness of the Curators' proffered reasons for the adverse

tenure decision. 

Finally, the Curators' assert: "Lawrence received negative recommendations for

promotion in six out of seven levels of review by the University." That assertion,

however, merely begs the question of what motivated those negative tenure

recommendations. Clearly, if those recommendations resulted in part from genderbased discrimination, they cannot serve as an independent basis for the adverse

decision, and thereby insulate the Curators from liability. In the present case,

Lawrence's strongest evidence of pretext corresponds with the earliest stages of the

tenure review process. Moreover, it is reasonable to infer, based upon the evidence,

that the negative opinions formed at the latter stages of the review process were largely

influenced by the negative recommendations made at the earlier stages. The overall

record of negative recommendations, upon which the Curators rely, simply cannot

establish that the Curators are entitled to judgment as a matter of law. 

In sum, because Lawrence has presented compelling affirmative evidence of

pretext, and our de novo review requires us to resolve all reasonable inferences in favor

of the non-moving party, I would hold that there is a genuine issue of fact concerning

gender-based discrimination. Notwithstanding the Curators' repeated argument that

Lawrence had a weaker application that her male counterparts, the comparison is

somewhat beside the point in this case because there are genuine factual issues as to

whether the key decision makers applied materially different standards to her and her

male counterparts and, moreover, whether they gave her misleading signals about their

expectations when she most needed to know what the applicable standards would be.

Because I believe that gender-based discrimination can reasonably be inferred from the

evidence, I conclude that the district court erred in granting summary judgment for the

Curators. 

I would reverse and remand for further proceedings. 
-11-

 A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.