SULLIVAN, C. J.
The defendant, Trinity College, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Leslie Craine. The plaintiff, who had been denied tenure by the defendant, brought this action claiming age discrimination in violation of both the Age Discrimination in Employment Act, 29 U.S.C. § 623, and General Statutes § 46a-60, sex discrimination in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a)
The jury reasonably could have found the following facts. The defendant's faculty manual describes the relationship between the defendant and its faculty and sets out the defendant's criteria for hiring, reappointment and tenure. Basic requirements for appointment to a tenure-track position are professional competence, scholarly activity and fulfillment of the requirements for a Ph.D. or other terminal degree. Throughout the tenure track, an assistant professor is evaluated in teaching, scholarship and service.
Initial appointment is for three years, and an assistant professor is reviewed for reappointment for a two year
Reappointment is a multistep process that involves review by several levels of faculty and administration. Upon initiation of review, the tenured members of the candidate's department discuss the candidate's teaching, scholarship and service and then vote on a departmental recommendation. The chair of the department forwards the recommendation to the appointments and promotions committee, which is made up of faculty members and is responsible for evaluating all candidates for appointment, promotion or tenure. The appointments and promotions committee analyzes the departmental recommendation, the candidate's curriculum vitae, the candidate's statement, external letters of recommendation evaluating the candidate's file and examples of the candidate's work. That committee then makes a recommendation to the joint appointments and promotions committee that consists of faculty and administration. Trustee approval is the final step in promotion and the granting of tenure.
The plaintiff was hired by the defendant to begin teaching in the fall of 1987. She was appointed as a tenure-track, assistant professor in the chemistry department. In accordance with the faculty manual, the plaintiff underwent reappointment review in the spring of 1989, her second academic year with the defendant. Ultimately, she was reappointed and granted an additional two year contract. The letter from the appointments and promotions committee complimented her energy and commitment to teaching despite a more onerous course load than typically given to beginning
In accordance with the faculty manual, review for the plaintiffs second reappointment occurred in the 1990-91 academic year, her fourth year of teaching. To be reappointed a second time, she was required to demonstrate: (1) evident development of teaching effectiveness and involvement in advising students and supervising student research; (2) early promise in scholarship coming to fruition and continuing, focused scholarly activities; and (3) manifest service to the department and beginning service to the college. According to the faculty manual, the second reappointment process duplicates the first reappointment review, and, again, a favorable decision results in an additional two year contract and review for tenure.
In the plaintiffs statement to the appointments and promotions committee, she detailed her efforts in teaching, research and service. In teaching, she stated that she had concentrated on active involvement by students through problem solving, the use of microscale experiments and incorporating a writing element into all of her chemistry classes. In research, the plaintiff stated that she had focused on three main areas: chiral molecules, ionophores and surfactants. Her chiral molecule research had yielded a paper that she successfully submitted for publication to the Journal of Organic Chemistry, the most prestigious publication in her field, and the plaintiff was in the process of coauthoring a textbook and laboratory manual. Finally, in service, the plaintiff stated that she was serving on several committees and supervising the use of new chemistry equipment. These activities were reviewed by outside professors and their response was positive. At the end
The faculty manual provides that, "[a]t the first two reappointments, but especially at the second of these, particular attention is given to a candidate's prospects for tenure, and the Committee shall indicate as clearly as possible those areas to which a candidate needs to address special attention before the next scheduled review." At the time of the plaintiffs second reappointment, the appointments and promotions committee made three comments on the plaintiffs prospects for tenure. First, the committee noted that it appreciated the production of the textbook and laboratory manual but characterized its value as "pedagogical." Second, the committee made the following suggestion: "[W]e believe that [the plaintiff] should devote her scholarly energies to original research projects and, specifically, to the publication of the results of research conducted in her laboratory at [the defendant college]." Third, the committee stated that it would need clear evidence of the plaintiffs teaching effectiveness at the time that she was reviewed for tenure. The committee concluded that, "[o]utside of those specific recommendations, the Committee urges [the plaintiff] to continue along the lines she has so far established during her years at [the defendant college]." The appointments and promotions committee did not make any reference to the number of articles that the plaintiff had published, nor did it specifically mandate that she achieve final publication of additional articles before tenure review.
Under the faculty manual, review for tenure occurs no later than in the sixth year of the tenure track and, if favorable, results in promotion to associate professor and a lifetime appointment to the defendant's faculty. The process is the same as for reappointment, and the appointments and promotions committee applies the following standards. The candidate should have
The plaintiff began review for tenure in the fall of 1992, her sixth year with the defendant. She presented her case for tenure in a thirty-six page candidate's statement detailing her efforts while employed there. In teaching, the plaintiff described her continuing focus on active participation by her students in classroom experiments and exercises, her supervision of student research and her interest in developing new classes. With respect to her research, she listed as completed research projects chiral molecules, the subject of her article in the Journal of Organic Chemistry, ionophores, a project she dropped for lack of results, and coauthorship of the laboratory manual. The plaintiff described two new projects that had grown out of her chiral molecules project as current research underway at the time of her review for tenure. The plaintiff also described three additional areas where she had done some research and planned to work in the future. The plaintiff wrote that one project, on sulfenate ester, "is just now yielding publishable results." The plaintiff also listed the next edition of her laboratory manual as future "chemical education" research. Finally, the plaintiff identified her work on committees at the defendant college as demonstration of her service to the school.
In her candidate's statement, the plaintiff also addressed what she perceived to be a weakness in her
In March, 1993, the appointments and promotions committee voted not to recommend the plaintiff for tenure. The committee recognized the difficult teaching burden that the plaintiff had undertaken in her first years with the defendant, particularly her laboratories, student research supervision and introducing writing into her classes. The committee wrote, however, that the plaintiff was "a good teacher but not an extraordinary one." The committee also found the plaintiffs service to the school to be adequate. The plaintiff fell short, however, in the area of research and scholarship. The appointments and promotions committee stated, "[a]t the time of [the plaintiffs] review for second reappointment, the Committee wrote that it was important for [her] to publish work that came out of her laboratory at [the defendant college]. However, by the time of her tenure review, [the plaintiff] has only one published
The plaintiff appealed to the appointments and promotions committee appeals board, supported by the chemistry department, and the appeals board recommended that the appointments and promotions committee reconsider its evaluation of the plaintiff. The appeal was based on the "fundamental unfairness" of the decision not to recommend her for tenure, one of the grounds for appeal set out in the faculty manual. The appointments and promotions committee reconsidered the plaintiffs candidacy and again decided not to recommend her for tenure.
The plaintiff filed her action in January, 1997, claiming that she was the subject of age and gender discrimination in violation of state and federal antidiscrimination laws; that the defendant had breached its employment contract with her; that it negligently had misrepresented the criteria she needed to meet in order to earn tenure; and that it negligently had inflicted emotional distress on her. The jury returned a verdict for the plaintiff on all claims but the age discrimination claim and found damages of $12,671,304. At the close of the trial, the defendant moved for judgment notwithstanding the verdict, or in the alternative to have the court set aside the verdict, for statutory reduction of the award, for remittitur and for a new trial. The trial court granted the motion for judgment notwithstanding the verdict only as to the claim of negligent infliction of emotional distress, denied the motion to set aside the verdict and denied the motion for a new
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).
DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
The defendant first claims that the trial court improperly denied its motion for judgment notwithstanding the verdict because there was insufficient evidence from which the jury could have concluded that: the plaintiff was discriminated against because of her sex; the defendant breached the parties' contract; and the defendant negligently misrepresented the criteria that would be used to review the plaintiff for tenure. We agree with regard to the claim of sex discrimination and disagree with the defendant's claims with regard to the breach of contract and negligent misrepresentation.
Appellate review of a trial court's refusal to render judgment notwithstanding the verdict occurs within carefully defined parameters. We must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial. Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L. Ed.2d 36 (1986). This standard
We first address the defendant's claim that there was insufficient evidence for the jury to have found that the plaintiff was denied tenure because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a) (Title VII), and § 46a-60.
The plaintiff concedes that the defendant's tenure review process is neutral on its face and does not violate antidiscrimination laws. She claims, however, that the process was applied to her differently because she is female. When a plaintiff claims disparate treatment under a facially neutral employment policy, this court employs the burden-shifting analysis set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed.
This methodology is intended to provide guidance to fact finders who are faced with the difficult task of determining intent in complicated discrimination cases. It must not, however, cloud the fact that it is the plaintiffs ultimate burden to prove that the defendant intentionally discriminated against her because of her sex. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L. Ed.2d 407 (1993) ("the factfinder must believe the plaintiffs explanation of intentional discrimination"); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L. Ed.2d 207 (1981) ("[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff); Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999) ("the ultimate burden of persuasion remains always with the plaintiff); Fisher v. Vassar College, 70 F.3d 1420, 1433 (2d Cir. 1995) (plaintiff has to prove by preponderance of evidence that employer had illegal discriminatory motive for employment decision). In the present case, we conclude that the plaintiff established a prima facie case of discrimination but failed to carry her ultimate burden of proving that the denial of tenure was motivated by illegal sex discrimination.
There is no dispute that the plaintiff established the first three elements of a prima facie case of discrimination because (1) she is a female, (2) she was no less than minimally qualified for tenure,
The most typical method used by plaintiffs to establish the fourth prong of a prima facie case is to introduce evidence that the defendant later considered, hired, granted tenure to, or promoted comparably qualified individuals not in a protected class of individuals.
Nevertheless, where such evidence of later candidates is available in tenure cases, it is persuasive in proving a prima facie case. See id., 94-95 (plaintiffs introduced evidence males were later granted tenure in departments of three of four plaintiffs); Lieberman v. Gant, supra, 630 F.2d 63 (female plaintiff met fourth prong of prima facie case by showing males were later granted tenure in department that had denied her tenure); Kunda v. Muhlenberg College, 621 F.2d 532, 538-39 (3d Cir. 1980) (plaintiff met "qualified" element of prima facie case despite lacking master's degree, which was required by school, because she demonstrated that three males in her department were promoted without master's degree).
We recognize that the plaintiff in the present case has not produced any evidence of similarly qualified males being granted tenure or considered for tenure in the defendant's chemistry department either before or after her unsuccessful candidacy. Nothing in McDonnell
There are differences, however, between these cases and the present case. The procedural irregularities in the cited cases constitute deviations from the simple mechanics of tenure review and the rules that institutions create to govern their decision-making process. Presumably, they can be probative of a defendant's intent because such rules are relatively clear and easy to follow, making deviations from them hard to explain except by a lack of good faith.
The present case, on the other hand, involves a relatively close call on the interpretation of contract language, not the failure to follow the simple procedural rules governing tenure review such as the composition of a committee, failure to collect all of the evidence or neglecting to forward the plaintiffs file in a timely manner. Specifically, the plaintiff claims, and we agree for reasons set forth in part I B of this opinion, that she was not adequately warned that she was in danger of being denied tenure and that the defendant did not provide specific enough guidance on the areas she needed to improve in order to earn tenure. As a result, the plaintiff asserts, the defendant indicated that her scholarship was to be measured by one standard, but it was eventually measured according to a different one. Nevertheless, the breach of contract in this case was improper conduct and was directly related to the tenure decision. Accordingly, we conclude that the plaintiff has established the existence of circumstances permitting an inference of discrimination and thereby has
Under the McDonnell Douglas Corp. burden-shifting analysis, establishing a prima facie case of discrimination creates a presumption that the defendant acted illegally. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 254. "To establish a `presumption' is to say that a finding of the predicate fact (here, the prima facie case) produces `a required conclusion in the absence of explanation'...." St. Mary's Honor Center v. Hicks, supra, 509 U.S. 506. To rebut this presumption, the defendant must only articulate a legitimate, nondiscriminatory reason for denying the plaintiff tenure. McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802-803. This, too, is a burden of production, and the defendant merely needs to state a nondiscriminatory reason. The defendant does not have to prove the absence of discrimination. Board of Trustees v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 58 L. Ed.2d 216 (1978). The defendant in the present case presented evidence that the decision not to grant tenure to the plaintiff was based on a research and publication record that, in the defendant's opinion, had not come to fruition and achieved its early promise, thus falling short of the standard for tenure set forth in the faculty manual. To rebut the plaintiffs prima facie case, the defendant "do[es] not have the burden of establishing that [the] basis was sound." Lieberman v. Gant, supra, 630 F.2d 65. Simply stating a basis for the decision other than the plaintiff's sex was enough.
Once a defendant has stated a legitimate, nondiscriminatory reason for its employment decision, "the
As we have noted, the plaintiff offers the following evidence that the defendant's denial of tenure was motivated by discrimination: (1) the defendant's breach of contract and inconsistent application of tenure review standards between the plaintiff and Chatfield and Russo; (2) statements by Brown that the plaintiff argues reveal bias in the tenure process; and (3) a reference to Chatfield as "old boy Jack." In order to prevail, a fact finder must conclude that this evidence gives rise to the inference of actual discrimination in the hiring process, not merely speculation of discrimination. Bickerstaff v. Vassar College, supra, 196 F.3d 448. We conclude that this evidence is not sufficient to allow a jury reasonably and legally to have concluded that tenure was denied to the plaintiff because of her sex. In other words, we conclude that the evidence was insufficient to permit a finding of sex discrimination unless the jury engaged in speculation.
First, although the plaintiff satisfied the de minimis requirement for a prima facie case, she did not present evidence particularly probative of discrimination when doing so. The plaintiff's prima facie case, namely, the defendant's breach of contract, was consistent with circumstances under which discrimination could have taken place, but she did not provide any evidence that discrimination actually motivated the breach.
Second, with respect to the plaintiff's claim that the defendant's reasons for denying her tenure were pretextual, we note that the issue of pretext is a particularly thorny one in an academic setting. A court must be careful not to substitute its judgment improperly for the academic judgment of the school. "A university's prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom." (Internal quotation marks omitted.) Lieberman v. Gant, supra, 630 F.2d 67, quoting Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L. Ed.2d 1311 (1957). This academic freedom is rooted in the first amendment. Villanueva v. Wellesley College, 930 F.2d 124, 129 (1st Cir. 1991). First amendment protection of academic freedom prevents courts from substituting their judgment for the judgment of the school. In other words, courts should not become "`Super-Tenure Review Committee [s]'." Lieberman v. Gant, supra, 67, quoting Keddie v. Pennsylvania State University, 412 F. Sup. 1264, 1270 (M.D. Pa. 1976). Nevertheless, deference to the judgment of academia
The plaintiff claims that her department and outside reviewers unanimously supported her candidacy, while the defendant, acting through its appointments and promotions committee, had the only negative evaluation of her scholarship. According to the plaintiff, those facts together show that the evaluation was pretextual. But in order to be successful, a plaintiff must "show more than a denial of tenure in the context of disagreement about the scholarly merits of the candidate's academic work, the candidate's teaching abilities or the academic needs of the department or university. Absent evidence sufficient to support a finding that such disagreements or doubts are influenced by forbidden considerations such as sex or race, universities are free to establish departmental priorities, to set their own required levels of academic potential and achievement and to act upon the good faith judgments of their departmental faculties or reviewing authorities." Zahorik v. Cornell University, supra, 729 F.2d 94. A fact finder may not substitute its evaluation of the candidate's qualifications and recommendations for the defendant's standard for tenure. The first amendment guarantees that the defendant may pass its own judgment on the plaintiffs scholarship and accept or reject other evaluations in the process. Accordingly, we conclude that the plaintiff's evidence pertaining to differing evaluations of her performance did not establish pretext.
We first note that it would be an illogical leap to conclude that evidence that a female or minority candidate was denied tenure despite being minimally qualified indicates, in and of itself, that denial was motivated by discrimination. A multitude of factors go into a tenure decision including the quality of a candidate's work, the departmental need for a specialist, the number of tenure positions available, the mix of well known scholars and up-and-coming faculty, the collegiality of the candidate, and the quality of relations with peers and the administration. Id., 92-93. The principle of academic freedom does not provide colleges and universities with immunity from claims of discrimination, but it does require courts to keep sharply focused on whether denial of tenure was actually motivated by discrimination and not by one of the many other possible reasons that a candidate was unsuccessful.
The principle of academic deference guides our view of comparison evidence because the principle that a school may choose its own faculty for any nondiscriminatory reason is never more in jeopardy than when a plaintiff puts before a jury evidence that two individuals
Courts, therefore, should not engage in direct comparison of different candidate files "in the absence of independent evidence of discriminatory intent or a claim that [a female] plaintiffs qualifications were clearly and demonstrably superior to those of the successful males...." Id., 68; see also Jalal v. Columbia University, 4 F. Sup.2d 224, 241 (S.D.N.Y. 1998) (excluding comparison evidence of academic credentials because plaintiffs qualifications were not clearly and demonstrably superior to those of other candidates). In the present case, the plaintiff has characterized the credentials of Chatfield and Russo as similar to her own and not as "clearly and demonstrably" inferior, and there is no independent evidence of discriminatory bias. We also note the facts that Chatfield teaches in the history department and Russo in the math department, which preclude direct comparison of their tenure files. As noted by the Second Circuit Court of Appeals, "[a] denial of tenure by an English department simply cannot be compared with a grant of tenure in the physics
The plaintiffs presentation of all three candidacies is laced with direct comparisons between her own publication record and those of Chatfield and Russo. To compare these publication records would require an inadmissible substantive comparison between the candidates and an improper intrusion into the right of the defendant to decide for itself which candidates satisfied its publication requirements. In the absence of any independent evidence of discrimination, evidence that an academic institution appears to have been more critical of one candidate than of another is not sufficient to raise an inference of discrimination. See Jalal v. Columbia University, supra, 4 F. Sup.2d 241 (rejecting plaintiffs argument that she was subject to "stricter" standard because review would have been improper intrusion into school's academic judgment). Accordingly, we conclude that the plaintiffs comparison evidence was not properly admissible to show that she was more qualified than candidates who received tenure.
The plaintiff claims, however, that the comparison evidence was offered to demonstrate inconsistent application of the procedures for tenure review. She asserts that a comparison of the tenure review procedures applied to her, Chatfield and Russo shows that she was discriminated against because the standard applied to her at her second reappointment did not clearly state what she was expected to have accomplished by the time of her tenure review in order to earn tenure. Specifically, she claims that she was advised that she would be evaluated on whether she "devote [d] her scholarly energies" to original research and publication, which is a standard of effort and quality. The plaintiff was reviewed, however, primarily on the quantity of publications she produced. Although we agree, as set forth more fully in part I B of this opinion, that this conduct
The plaintiff also claims that evidence of bias by individuals involved in the tenure process also may be introduced by plaintiffs in tenure discrimination cases. We note, however, that courts have been unwilling to accept any comments relating to race or gender as proof of discrimination unless there is evidence that the comments reflect bias that actually infected the tenure process. See Bickerstaff v. Vassar College, supra, 196 F.3d 450-58 (holding:  review committee member's criticism of Africana Studies Department did not indicate racial bias against black professor seeking tenure;  affidavits of two Vassar professors stating plaintiff was denied tenure because of race were conclusory opinions and not evidence;  study that teacher evaluations were generally lower for black professors was not proof that plaintiffs low evaluations were motivated by race;  statement that "[w]e can ill afford to tenure as associate professor yet another black faculty member who
The plaintiff offers two pieces of evidence that she argues demonstrate bias by the appointments and promotions committee. First, the plaintiff cites statements made by Brown, a member of the appointments and promotions committee, when Brown was explaining the plaintiffs microscale experiments at trial. To explain his view that developing microscale experiments was not original research, Brown analogized the experiments to a "cookie recipe." "These are recipes. To do an experiment in a laboratory for students is to do a recipe, to follow an experimental protocol to come up with a result which is well known.... If you want
We are not persuaded by the plaintiff's characterization of this analogy and do not think it gives rise to the inference of discrimination in the plaintiff's tenure review for two reasons. First, this analogy was developed as part of the defendant's trial strategy six years after the tenure decision. Second, it is simply too attenuated to conclude that Brown's reference to cookie making reflected a stereotypical and pejorative view of women chemists. Indeed, the plaintiff herself referred to some experiments done by chemistry students as "cookbook" style experiments, indicating that thinking of chemistry in terms of cooking was neither unique to men nor denigrating to women.
The second piece of evidence that the plaintiff relies upon to prove that she was denied tenure because of her sex is the phrase "old boy Jack." The phrase was used by history professor H. McKim Steele, Jr., in a letter to the chair of the history department describing how he thought the faculty would perceive tenure being granted to Chatfield, who was a fixture in the community but, in Steele's opinion, did not meet the standard of scholarship required for tenure at the defendant college. This statement was not a reflection of the process or deliberations that actually took place on the appointments
We conclude that, under Reeves, there is insufficient evidence to support a finding of discrimination in the plaintiffs tenure review. Accordingly, we reverse the trial court's decision denying the defendant's motion for judgment notwithstanding the verdict on the plaintiffs claim of sex discrimination.
Breach of Contract
The defendant also claims that the trial court improperly denied its motion for judgment notwithstanding the verdict on the plaintiffs claim that the defendant breached the parties' employment contract. We disagree with the defendant and affirm the judgment of the trial court.
Before we begin our analysis of the breach of contract claim, we first address the defendant's assertion that courts and juries should not second-guess tenure decisions even when considering breach of contract claims. We note that a "[u]niversity cannot claim the benefit of the contract it drafts but be spared the inquiries designed to hold the institution to its bargain." Kyriakopoulos v. George Washington University, 866 F.2d 438, 447 (D.C. Cir. 1989). The principle of academic freedom does not preclude us from vindicating the contractual rights of a plaintiff who has been denied tenure in breach of an employment contract. Cf. id. ("This case
A faculty manual that sets forth terms of employment may be considered a binding employment contract. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 564, 479 A.2d 781 (1984) ("[s]ometimes the promise has been found in the representations contained in an employee relations manual or handbook"); see Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 532, 733 A.2d 197 (1999) (same). Interpretation of the written
There are three specific provisions that the plaintiff claims the defendant breached when it denied her tenure. First, the faculty manual provides that, at the second reappointment, "particular attention is given to a candidate's prospects for tenure, and the [Apppointments and Promotions] Committee shall indicate as clearly as possible those areas to which a candidate needs to address special attention before the next scheduled review." Second, "a negative decision must be based on failure to meet the standards of improvement derived from expectations for rank and specified in the last letter of reappointment." Third, the defendant's affirmative action policy encourages the hiring and promotion of formerly excluded and previously underutilized groups: "the candidate's scholarly activities, particularly when these are in new or non-traditional fields, must receive a fair and unbiased review." We conclude that the plaintiff presented sufficient evidence to support the jury's verdict on all three grounds.
In the plaintiff's second letter of reappointment, the appointments and promotions committee recommended, among other things, that "[the plaintiff] should devote her scholarly energies to original research projects and, specifically, to the publication of the results of research conducted in her laboratory at [the defendant college]." The letter concluded, "[o]utside of those specific recommendations, the [Appointments and Promotions] Committee urges [the plaintiff] to continue along the lines she has so far established during her years at [the defendant college]." Despite the faculty manual's directive to be as specific as possible and to pay particular
The faculty manual also provides that a negative decision by the defendant was to be "based on failure to meet the standards of improvement ... specified in the last letter of reappointment." The plaintiffs second letter of reappointment suggested that she devote her scholarly energies to original research performed in her laboratory at the defendant college and to the publication of the results of her work there.
The plaintiff introduced considerable evidence supporting this aspect of her breach of contract claim. The quantity of publication was emphasized during the tenure denial but was not clearly emphasized at any time prior thereto. The second letter of reappointment recommended only that the plaintiff "devote her scholarly energies" to research and publication—actual publication being the culmination of a long process.
Additional evidence of a shifting standard can be found in the letters from the defendant to the five outside
Finally, the plaintiff alleges that the defendant did not abide by its institutional affirmative action policy.
For all of these reasons, we affirm the trial court's denial of the defendant's motion for judgment notwithstanding the verdict on the plaintiffs claim for breach of contract.
We now address the defendant's argument that a reasonable jury could not have found that the defendant made negligent misrepresentations in the second letter of reappointment. From our review of the letter, we hold that the jury had a sufficient evidentiary basis for its conclusion.
"[E]ven an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.
In the second letter of reappointment, the defendant suggested that the plaintiff devote her scholarly energies to original research and publication and that she continue along the lines she was already on at the defendant college. At that time, the plaintiff was in the midst of publication of a major article, to which she devoted considerable time and energy before she was reviewed for tenure. Thereafter, the defendant denied tenure to the plaintiff because that one article was not enough to satisfy the scholarship requirements for tenure. Although we recognize that it was within the defendant's discretion to determine what was adequate to meet the scholarship requirement for tenure, we conclude that the jury reasonably could have found that the second letter of reappointment negligently misrepresented that as long as the plaintiff devoted her time and energy to the publication process, tenure would be forthcoming.
The defendant argues that the plaintiff failed to prove reliance on the misrepresentation because she said that she "did all that [she] could" between her second reappointment and tenure review. We reject this argument. The jury reasonably could have concluded that the plaintiff relied on the defendant's unclear statement of expectations and vague reference to her weaknesses,
DEFENDANT'S MOTION FOR A NEW TRIAL
In the alternative, the defendant argues that it is entitled to a new trial because the trial court improperly admitted comparison evidence and expert testimony and because the trial court failed to instruct the jury that it could not second-guess the defendant's tenure decision. We disagree for the reasons set forth in part I A of this opinion and affirm the judgment of the trial court.
"Appellate review of a trial court's decision granting or denying a motion for a new trial must take into account the trial judge's superior opportunity to assess the proceedings over which he or she has personally presided." State v. Hammond, 221 Conn. 264, 269, 604 A.2d 793 (1992).
The defendant argues that the jury instructions given by the trial court were inadequate in two ways and merit a new trial. "Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge.... Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues." (Citation
The defendant's first argument is that the trial court should have given a charge that the jury could not substitute its academic judgment for that of the defendant when considering the plaintiffs contract claim. The defendant claims that the instruction given by the trial court improperly allowed the jury to determine whether the plaintiff met the standards required for tenure, thereby second-guessing the tenure decision. As we discussed previously in the breach of contract analysis, the thrust of the plaintiffs claim was that the defendant deviated from the faculty manual. The jury was specifically charged, "[i]t is your duty to consider whether or not [the defendant] breached its contract with the plaintiff by failing to follow the procedures relating to tenure set forth in the faculty manual fairly to her case." Thus, the jury properly was instructed to decide whether the defendant consistently applied the standards in the manual and the second letter of reappointment. It was not asked to determine whether the plaintiff met those standards.
The defendant relies upon Gupta v. New Britain General Hospital, supra, 239 Conn. 586, in support of its argument that the trial court should have given an academic judgment instruction on the contract claim. This reliance is misplaced. Gupta involved the dismissal of a medical resident for poor performance. This court used a "functional analysis" of the residency agreement to determine that its purpose was educational. In other words, the purpose of a residency and the residency agreement is to educate a medical student, albeit in the context of a job at a hospital. Dismissal for poor performance was therefore an educational decision, akin to giving a poor grade to a student in class. This academic decision deserves deference from the courts. In contrast, the relationship between the plaintiff and
DEFENDANT'S MOTION TO SET ASIDE THE VERDICT
The defendant claims the trial court improperly awarded $2,050,000 in noneconomic damages under the state antidiscrimination law. Because we reverse the trial court's denial of the defendant's motion for judgment notwithstanding the verdict on the plaintiffs sex discrimination claim, we do not address this claim.
The judgment is reversed in part and the case is remanded with direction to grant the defendant's motion for judgment notwithstanding the verdict on the claim of sex discrimination and with direction to modify the judgment and award accordingly; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin...."
"(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness...."