Jew v. University of Iowa

MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT

Bench trial of this case was conducted for 12 days in November of 1989 and 2 days in April and May of 1990. Plaintiff, a tenured associate professor in the College of Medicine’s department of anatomy, University of Iowa, asserts a sex discrimination in employment claim under Title VII of the Civil Rights Act of 1964, as amended. 1 Plaintiff contends that sexual discrimination against her, in large measure manifested by, and resulting from, false rumors that she gained favor with her department head by engaging in a sexual relationship with him, resulted in a hostile work environment and denial of promotion to full professor. Plaintiff also contends that the University retaliated against her for pursuing her sex discrimination claims.

FINDINGS OF FACT

(1)Plaintiff Jean Y. Jew, a medical doctor, is a tenured associate professor in the Department of Anatomy, College of Medicine, at defendant University of Iowa in Iowa City. She is a single woman of Chinese descent. 2 Dr. Jew received her B.S. degree from Newcomb College in 1969 and her M.D. degree from Tulane University in 1973. She accepted a non-faculty appointment as a post-graduate associate at the defendant University of Iowa (hereinafter “University”) in the College of Medicine’s Department of Anatomy (hereinafter “Department”) in 1973, at the age of 24. Dr. Jew received a faculty appointment as an Assistant Professor in 1974. She was granted tenure and promoted to Associate Professor in 1979.

(2) The defendant Board of Regents is an agency of Iowa government created by Iowa Code chapter 262 (1989). It governs the University. Iowa Code § 262.7(1) (1989).

(3) The University has a decentralized administration with a large measure of authority exercised at the collegiate and department level.

(4) The University’s College of Medicine (hereinafter “College”) has 21 academic departments with five to six hundred faculty members or people with instructional titles. The College employs approximately 2,000 people. There are about 700 medical students in the College and about 600 residents or interns in training at the University Hospitals. Also, hundreds of graduate and undergraduate ■ students from outside the College take courses in the College.

(5) The 21 academic departments in the College have department heads who are responsible for their department’s faculty, students and staff. Department heads function as agents of and report to the Dean of the College. The Dean’s responsibility for the faculty is exercised through the department heads. Department heads are responsible for seeing that the College’s academic mission is fulfilled and the finances of the Department are properly administered. Department heads have control over the departmental budget, salaries, *948 space, equipment, faculty recruiting, staff, etc.

(6) The Anatomy Department is one of the “basic science” departments in the College. Faculty of the Department are expected to spend a substantial portion of their time in research.

(7) The present Head of the Department is Dr. Joe C. Coulter. Dr. Coulter took over this position in March 1985 from Associate Dean of the Medical School Dr. Rex Montgomery, who served as Acting Head from the summer of 1983 until March 1985. Dr. Terence Williams came to the University of Iowa to head the Department in 1973 and continued as Head until the summer of 1983.

(8) The Head of the Department reports to the Dean of the College, Dr. John W. Eckstein. Dean Eckstein has been Dean of the College during the entire period of Dr. Jew’s employment. Dean Eckstein reports to the University’s Vice President for Academic Affairs. Dr. Richard D. Remington filled the Vice President position from 1982 to 1988. His predecessor was May Brod-beck.

(9) Dr. Williams was recruited to head the Department from Tulane University, where he was full professor in that university’s Department of Anatomy. While he was at Tulane, Dr. Jew was a medical student there. She did considerable research work under Dr. Williams’ supervision in his laboratory, and her work won her prizes and a scholarship. She learned the technique of electromicroscopy from Dr. Williams.

(10) Prior to Dr. Williams’ appointment in 1973, the Department was split into factions and morale was poor. As it turned out, his appointment did nothing to improve the situation. Drs. Nicholas Halmi, Robert Tomanek and William Kaelber were faculty members in the Department when Dr. Williams began as Head. Their relationship with Dr. Williams was never smooth or cooperative. Dr. Williams had good relations with faculty members that he brought with him to the Department from Tulane — Drs. Ronald Bergman, Paul Heidger and Jew. Dr. Williams projected an image to many that he expected their “loyalty” — that they would get ahead only if they voted his way on departmental matters. Dean Eckstein, in his testimony, characterized the situation in the Department under Dr. Williams as follows:

Well, the biggest complaint was that “Dr. Williams is trying to get rid of me. He’s trying to force me out because I won’t vote the way he wants. I’m not going to join his team.” This was the big thrust, and people were very concerned about what was going to happen to them if they disagreed with Williams.

You see, dissent was not allowed. Questioning was not allowed, you know, and that’s the essence of a university. You’re supposed to be able to have an environment in which you could talk about things and disagree and generate new ideas, and that didn’t happen in that department.

It was a department that was just paralyzed. People were — didn’t know what to do next. They didn’t know what their futures held for them. It was stifling. They were worried. They didn’t understand all of this stuff and all the, you know, meaning of what was happening to them. It was rather personal; but to me, in looking at it at the time of this review and the beginning of it, it was a terrible place. It was a terrible place to be in a university where that kind of thing was going on.

(11) Throughout her employment at the University of Iowa, Dr. Jew has worked closely with Dr. Williams as a research collaborator. They have co-authored numerous scientific publications and continue to collaborate as research scientists. (Dr. Jew has also collaborated with other female and male scientists.)

(12) The professional relationship between Dr. Jew and Dr. Williams has been close for many years. A good social friendship also developed between Dr. Jew and Dr. Williams and his wife, Dr. Glenys Williams, who is a full professor in the College of Medicine’s Department of Family Practice. There has never been a ro *949 mantic or sexual relationship between Dr. Jew and Dr. Williams.

(13) Not long after Dr. Jew came to the Department, communications began to circulate suggesting a sexual relationship between her and Dr. Williams by which she had gained favorable treatment within the Department, and otherwise denigrating Dr. Jew.

(14) Cartoons and pictures were posted on the door and wall outside Dr. Halmi’s laboratory at various times between 1973 and 1980. These cartoons were sexually suggestive. Handwriting on them referred to Dr. Jew and sometimes Dr. Williams. Dr. Halmi was among the most senior of the Department’s faculty and had held administrative responsibilities in the Department prior to 1973. Because of his position, faculty members and students in the Department frequently came to Dr. Hal-mi’s office and passed the posted cartoons. Testimony established that these cartoons appeared throughout the period 1973 through 1980, and remained posted for days at a time. Dr. Jew saw some of these when they were posted, and was embarrassed and ashamed.

(15) Dr. Tomanek, a faculty member at the time Dr. Williams assumed the headship, initiated a pattern of sexually denigrating speech about Dr. Jew as early as 1973. From 1973 to 1986, Dr. Tomanek repeatedly initiated discussions with Department faculty and staff in which he speculated about, or stated that there was, a sexual relationship between Dr. Jew and Dr. Williams. Among other sexually-related inquiries and statements, he told faculty, graduate students and staff members of the Department, sometimes in locker room language, that Dr. Jew had been observed having sexual intercourse with Dr. Williams in Williams’ office, that she was a “slut,” that she and Dr. Williams were having an affair, that they had been seen coming out of a motel together, and that Dr. Jew had received preferential treatment based on a sexual relationship with Dr. Williams. 3

(16) In January of 1979, Dr. Kaelber, in a drunken outburst, yelled sexual epithets at Dr. Jew as she walked down a hall in the Department, calling her a “slut,” “bitch,” and “whore.” In the fall of 1983, Dr. Kael-ber again referred to Dr. Jew as a “whore.” He made this statement to another full professor, Dr. Bergman, shortly before the full professors, including Dr. Kaelber and Dr. Bergman, were to evaluate Dr. Jew for promotion to full professor. Dr. Kaelber was not intoxicated on that occasion.

(17) Sometime after 1980, Dr. Jerry Maynard told people in the Department a “joke,” which is best described by Dr. Maynard’s own testimony about it:

Q. Dr. Maynard, there’s been testimony in this trial that you referred to Dr. Jew as a chink in front of other individuals. Did you do this?

A. No, I did not. I have been accused of that, and I will vehemently deny it to this day. And there was — May I explain this?

Q. I want you to tell the Court what you did say or what you did do that you think might have caused people to say this about you.

A. Okay. To me, there’s two things involved here. One is I apparently was charged with what I would consider a very malicious racial slur. That did not occur, and I would never do that. I did use the word in a very frivolous situation, and I repeated a joke that was told to me by someone in the department; and I’m sorry, I cannot remember who told me. I thought I knew, and I asked that person, and they said they did not tell me that, so I don’t really know who started it. And it was simply a play on words- with no malicious intent at all. And do you want me to repeat it?

*950 Q. I want you to tell the Judge what you said.

A. Okay. At that time there was a story going around, and it was either — It was in the newspapers. Either Earl Butz or James Watt, I think is the time, made a statement that on his staff, there was no prejudice because he had a black, a woman, two Jews, and a cripple. And that was in the newspapers by one of the federal officials.

And somebody in the anatomy department started — or was going around the anatomy department made a statement that said, “We’re even better off than that department, because we have”— And it was entirely a play on words, intended to show the stupidity of that other remark. “We have a black”— meaning Asa Black — “a woman, two Jews” — which, again, was a play on words — meant Dr. Jew and her sister, Evelyn — “and a cripple,” because Dr. Williams was walking with a cane at that time. And then somebody said, “And we’re even better, because our Jews are chinks.”

It was a play on words. It was very frivolous. It may have been stupid, but I may have repeated that story to someone. I can’t even name who all I would have said it to. And that I did say in a very frivolous situation. Now, if that is not the incident—

Also, in the summer of 1984, Dr. Maynard came to Dr. Ronald A. Bergman’s office and asked: “Where’s Terry [Dr. Williams] and his chink?”

(18) At some point between March of 1983 and July of 1986, Dr. James C. Searls stated to Ms. Christina Perry, a clerk typist in the Department, that he had seen Dr. Williams with his hand on Dr. Jew’s “butt.” In approximately May or June 1986, Dr. Searls told Ms. Perry that Dr. Jew and Dr. Williams were having an affair.

(19) Dr. Halmi described Dr. Jew as the “departmental hatchet woman” to Dean Eckstein in 1975. At some point in the late 1970’s, Dr. Halmi, Dr. Thompson and graduate students were discussing arrangements for rooms at the upcoming professional meetings in Louisville, Kentucky. Dr. Halmi said in the presence of the graduate students that he didn’t think they would be seeing too much of Dr. Jew because she would be staying with Dr. Williams at the meetings.

(20) In December 1977 or early 1978, Dr. John Oaks told Dr. Heidger at a casual cocktail party that he could produce a witness at his tenure grievance hearing who had observed Dr. Jew and Dr. Williams in sexual intercourse in a small photographic darkroom in the Department of Anatomy.

(21) Dean Eckstein received anonymous writings on University stationary in approximately 1982 in connection with a grievance filed by faculty member Dr. Asa Black. These writings contained explicit sexually derogatory statements about Dr. Jew and were “repulsive” to Dean Eck-stein.

(22) Explicit sex-based graffiti about Dr. Jew appeared on the wall of the men’s room in the Department when senior faculty were evaluating Dr. Jew in January 1982.

(23) A salacious limerick appeared in the men’s room in the Department on November 1, 1983. The limerick suggested a sexual relationship between Dr. Jew and Dr. Williams. Senior faculty evaluated Dr. Jew for promotion to full professor on the very same day.

(24) Rumors of a sexual relationship between Dr. Jew and Dr. Williams circulated outside of the Department. They were widely circulated within the University and the Iowa City community, and also circulated to faculty of other institutions at national professional meetings of anatomists and neuroscientists.

(25) Although Dr. Jew was not immediately aware of many of the specific incidents, she was aware as early as 1974 of a continuing pattern of conduct suggesting a sexual relationship between herself and Dr. Williams. She saw some of the sexual cartoons posted outside Dr. Halmi’s office. In 1974 or 1975, Dr. Asa Black told Dr. Jew that Dr. Tomanek had approached him and his wife and asked whether they observed *951 Dr. Williams’ car at Dr. Jew’s house, and whether they could see into Dr. Jew’s windows and observe whether she was with Dr. Williams. Dr. Williams told her shortly after their arrival at the University that there was talk of a sexual relationship between them. Dr. Jew heard Dr. Kaelber call her sexually derogatory names in public in the Department in 1979 and documented this and the pattern of sexual harassment in a letter to Dean Eckstein in January 1979. Dr. Bergman and Dr. Heidger made her aware of certain derogatory statements in the 1980’s. Dr. Williams showed her photographs of anonymous graffiti after her promotional consideration in November of 1983. Written complaints made by Dr. Jew in 1979 and 1982 confirm that she was well aware of the situation. Dr. Jew was hurt, humiliated and ashamed by the incidents, and suffered some health problems because of them.

(26) Dr. Jew did not, by word or deed, invite the type of comments made about her and Dr. Williams. Her close association with Dr. Williams may well have invited comment to the effect that she was on his side in matters of Department policy, but nothing she did or said invited comment that she was having a sexual relationship with him or otherwise improperly influencing him on Department policy matters. Indeed, Dr. Jew has conducted herself throughout her employment at the University as a serious and committed teacher, scholar, and member of the academic community.

(27) Dr. Jew’s Department head, Dr. Williams, was aware from the mid-1970’s about the sexual relationship rumors.

(28) Dr. Williams told Dean Eckstein about the sexual relationship rumors not long after Dr. Jew’s arrival at the University. In the mid-1970’s, Dr. Williams told Dean Eckstein that people were calling Dr. Jew at her home to see if .she was there. Dr. Williams told Dean Eckstein that people in the Department were trying to do him in and that they were trying to use Dr. Jew in the process. Dr. Williams advised the Dean that Dr. Jew was vulnerable to damage from these statements because she was not then tenured. He advised Dean Eckstein prior to 1979 of the existence of graffiti directed against Dr. Jew. Dean Eckstein received reports throughout the 1970’s regarding an alleged sexual relationship between Dr. Jew and Dr. Williams. He was aware in the 1970’s that these rumors had spread broadly throughout the University. At the time of the grievance filed by Dr. Oaks in the latter part of the 1970’s, Dean Eckstein advised Dr. Williams that Dr. Oaks had said that if he was not given tenure, he would produce a janitor who would testify that he had seen Dr. Williams and Dr. Jew having sex on a sofa. Dr. Williams told Dean Eckstein that this was false and that it was blackmail. He asked the Dean to remove this “false trail.” Dean Eckstein acknowledged that the situation was “terrible.” Dr. Williams made Dean Eckstein aware of the graffiti regarding Dr. Jew shortly after it appeared in the Department men’s room.

(29) Shortly after the incident involving Dr. Kaelber in January of 1979, Dr. Jew submitted a written complaint of sexual harassment to Dean Eckstein. 4 She notified him of Dr. Kaelber’s conduct and complained to him of a “pattern of sexual harassment in attempts to discredit my professional and personal reputation.” Dr. Jew met with Dean Eckstein and Vice President May Brodbeck at this time to express her concerns. Both Dean Eckstein and Vice President Brodbeck advised her that there was nothing that could be done, and that a single woman has these kinds of problems in a small town, goldfish bowl environment.

(30) In June of 1982, Dr. Jew noted in a letter to Dr. Mark Stinski, a panel member in the grievance proceedings for Dr. Black of the Department, that she had been subjected to sexual harassment and attacks on her personal and professional qualifica *952 tions. Vice President Remington reviewed this letter in connection with the Black grievance at the end of 1982 or the beginning of 1983.

(31) In August of 1983, Dr. Williams, at the request of Dean Eckstein, resigned as Head of the Department. He remained in the Department as a professor. Dr. Montgomery was appointed Acting Head, and the turmoil that had prevailed in the Department for so many years began to subside.

(32) Three tenure-track faculty ranks exist in the College: Assistant Professor, Associate Professor, and Professor. The initial faculty appointment in a tenure-track position is Assistant Professor. After five years in rank, an Assistant Professor is considered for tenure and promotion to Associate Professor. If not recommended and approved for tenure, an Assistant Professor must leave the department and seek an appointment elsewhere.

(33) In contrast to the tenure decision, the decision on promotion to Professor does not implicate the permanency of the candidate’s employment, nor does a favorable decision operate to the detriment of other competing candidates. The promotion to Professor is one which carries with it a small monetary raise and a certain amount of status. Associate Professors in the Department have been promoted to Professor in the ordinary course after five or six years in rank as Associate Professor.

(34) The promotion process for an Associate Professor being considered for promotion to Professor was well described by Dr. Montgomery in his testimony:

Persons being considered for promotion were considered in two phases. The first part was the discussion, which I would call the internal discussion. In consultation with the person being considered for promotion, two faculty persons who were senior to them in rank were asked to review the accomplishments of the candidate.

These two faculty members then reported to all persons senior in rank to the person under consideration at a meeting, and the material was dealing with the teaching, with the research accomplishments, and with service, so that these three items were discussed openly; and a decision was then made at the end of that discussion whether we should proceed with consideration of the candidate for promotion.

Were that to be in the affirmative, or the majority of the people thinking that should be the case, then I would ask the candidate for the names of external reviewers of their work, and I would also ask the faculty for similar names.

And from those two groups, I would choose three from each group. These people would then be sent the University regulations and criteria for promotion and would be asked for their comments.

On the receipt of all of those, the faculty would then get back together, and a discussion would be made about the promotion.

This vote, which would be taken on the promotion, would be advisory to the head of the department, who could take the advice or not take the advice for the promotion.

And the head would then recommend appropriately, in his or her opinion, the recommended — make recommendation to the dean, who would then consider this matter with the executive committee of the college.

That committee would advise him whether they would agree with the promotion or not. And he, again, could take their advice or not; and if he was smart, he would say why he did not if he did not.

And then the recommendation goes from the dean to the vice president for academic affairs, who then agrees or does not agree. And upon appropriate agreement, sends it forward to the board of regents, who are the only people who can really make a promotion.

(35)The promotional process described in the preceding paragraph was implemented in the fall of 1983 for Dr. Jew. If a promotion to Professor had resulted, the promotion would have been effective in the summer of 1984, five years after her pro *953 motion to Associate Professor. Drs. Williams and Heidger reviewed her accomplishments and reported to the Department’s full professors, who met on November 1, 1983.

(36) The professors voted 5 to 3 to deny Dr. Jew promotion. Drs. Williams, Heidger and Bergman voted “yes.” The professors who voted “no” were Drs. Tomanek, Kaelber, Frank Longo, Ramesh Ghalla and Gary Van Hoesen. As Acting Head of the Department, Dr. Montgomery moderated the discussion but did not vote. The Head votes only to break a tie. Dr. Montgomery testified that if there had been a tie vote in Dr. Jew’s case, he would have voted in favor of advancing Dr. Jew’s credentials to the next step in the promotion process.

(37) Evaluation of faculty in the College and the Department for promotion to Professor is based upon three criteria: (1) teaching; (2) research and publications; and (3) service to the institution and the profession. All professors agreed that Dr. Jew fulfilled the teaching and service criteria. Those who voted “no” gave as their reason their opinion that Dr. Jew had not established her “independence” in the area of research and publications.

(38) The conduct and attitude toward Dr. Jew of two of those who voted “no,” Drs. Tomanek and Kaelber, has already been noted, including Dr. Kaelber’s reference to Dr. Jew as a “whore” in a fall, 1983, discussion with Dr. Bergman about persons up for promotion. Additionally, shortly after the promotion deliberations, Dr. Toma-nek stated to Dr. Bergman that they had the votes and could do whatever they pleased. Dr. Tomanek also told Dr. Bergman that “women and blacks don’t have any trouble getting jobs.”

(39) Another professor who voted “no,” Dr. Longo, made a statement during the faculty discussion on Dr. Jew’s promotion to the effect that “women and blacks have it made.” While Dr. Longo denies making this comment, he admits making a statement to the effect that if Dr. Jew wanted to obtain national recognition, she should have taken advantage of special programs designed for women and minorities to foster their career development.

(40) Another professor who voted “no,” Dr. Van Hoesen, commented during the promotion deliberations that Dr. Jew received many more advantages than he had received.

(41) Research productivity is judged by the quality of research, the number of publications and the quality of the journals, whether the candidate has independent grant support as a principal investigator, the amount of independent grant support, service on peer review committees and training of graduate students.

(42) At the time of her performance evaluation and promotional consideration in November 1983, Dr. Jew had authored or coauthored numerous published or in-press articles and book chapters, 24 of which had resulted from work carried out at the University of Iowa. All of the articles were published after a competitive peer review process in prominent research journals.

(43) At the time of her performance evaluation and promotional consideration in November 1983, Dr. Jew had received, as principal investigator, two grants from the National Institutes of Health and one grant from the National Science Foundation. Dr. Jew had been invited to present her work at international symposia and at numerous national scientific conferences.

(44) Dr. Jew had served as a manuscript reviewer for three major national journals by November 1983 — Archives of Neurology, Experimental Neurology, and Physiology and Behavior. By November 1983, Dr. Jew had been selected to serve as a member of a panel for the Association of American Medical Colleges in an analysis of the Medical College Admissions Test. By November 1983, Dr. Jew had been selected as a grant reviewer for the March of Dimes Birth Defects Foundation.

(45) By November 1983, two graduate students, Bang Hwang and Dennis Healy, had achieved their Ph.D.s under Dr. Jew’s direction. By November 1983, six other predoctoral and postdoctoral students had studied or were studying in Dr. Jew’s laboratory.

*954 (46) As noted in paragraph 37, the primary criticism of Dr. Jew’s research record by those faculty who voted against her promotion was that she had not demonstrated the requisite independence of scholarship. University witnesses cited Dr. Jew’s longstanding collaborative relationship with Dr. Williams. The written report that was signed by the senior faculty who voted in the negative in the fall of 1983 suggested that Dr. Jew seek new collaborations. This report also suggested that Dr. Jew had not concentrated on a single theme of research which would have led to more national and international recognition.

(47) None of these reasons were identified during Dr. Jew’s previous developmental evaluation from the senior faculty in January of 1982. The review did not raise any questions about the independence of Dr. Jew’s scholarship, the need to seek new collaborators, or the lack of a single focus in Dr. Jew’s research program. The comments of the faculty, including Drs. Longo and Van Hoesen were: “Research: Is on course except for funding. Reviewers anticipate you being able to get funding in your present research area or a new area. Effort to get funding should remain a high priority. Graduate student training is above average.” Subsequent to the Developmental Evaluation in January 1982 and before her consideration for promotion to Professor in November 1983, Dr. Jew secured funding from the National Science Foundation for a three year-period as principal investigator, in the amount of $150,-000.

(48) Longstanding collaborations among faculty and participation in multi-authored papers are common and expressly encouraged by the College of Medicine and major funding sources. Collaboration with other faculty does not negate the independence of a research scientist. With respect to evaluating independence, faculty rely in part on the opinion of senior collaborators regarding the independence of a faculty member’s contribution to a collaborative project. During the senior faculty’s deliberations in November of 1983, Dr. Williams presented a detailed statement attesting to Dr. Jew’s independent scholarship on their collaborative projects.

(49) Witnesses offered by both parties testified that independence of scholarship is demonstrated by principal investigator status on grants from the National Institutes of Health or the National Science Foundation and invitations to present at national and international scientific conferences. Dr. Jew demonstrated at trial that she had a sustained record of independent grant funding from the National Institutes of Health and the National Science Foundation, and that she had been invited to present her work on numerous occasions.

(50) Some witnesses criticized Dr. Jew’s lack of independence because she was not the first author on many of her publications. However, testimony established that there are numerous conventions for name placement in multi-authored papers. First authorship is not synonymous with principal authorship. In England, where Dr. Williams is from and received his training, the convention is that the name of the senior faculty member in charge of the laboratory appears first on the publication, regardless of the relative contribution of the scientists.

(51) Dr. Jew complained of a pattern of sexual harassment to the University’s Office of Affirmative Action and to Dean Woodward, Associate Dean of Faculty, following her promotion denial in November of 1983. These individuals took no action. Dr. Jew then met with Vice President Remington. She informed him of the pattern of sexual harassment against her. Vice President Remington had overall responsibilities in the area of affirmative action at the University in 1983 and 1984, including the prevention of sexual harassment. Vice President Remington did not take any investigative or corrective measures following this meeting.

(52) Dr. Jew then lodged a formal written complaint of sexual harassment with Vice President Remington through her counsel on January 12, 1984.

(53) The University treated the January 1984 letter by Dr. Jew’s counsel as a formal complaint of sexual harassment. Ms. *955 Julia Mears, assistant to the President, responded to the complaint by correspondence of January 27, 1984. She informed Dr. Jew that Dr. Remington and Dean Eck-stein would appoint a faculty investigative panel after consultation with Dr. Jew to investigate her complaint and recommend administrative action. This investigative panel was within the scope of the University’s existing human rights policy.

(54) In Ms. Mears’ letter, the University requested that Dr. Jew provide an “assurance” that she would “not commence any other action, administrative or otherwise, related to these allegations.” The University’s sexual harassment policy contained no provision requiring a complainant to give such assurances as a condition of obtaining an investigation of a complaint of sexual harassment. The parties subsequently agreed to proceed with the investigation without compromising the legal rights of either party, and on April 6, 1984, Dr. Jew filed her administrative complaint with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment, including discrimination in consideration of her promotion to full professor.

(55) Following receipt of the University’s January 27, 1984, response, Dr. Jew’s counsel and Ms. Mears conferred regarding the mechanics of the investigative panel and the membership of the panel.

(56) Vice President Remington was responsible for selecting the faculty members to serve on the investigative panel. Professor Nancy Hauserman, who had a legal background, was appointed chairperson. Vice President Remington wanted panel members who were familiar with the work environment in the College of Medicine, so Drs. Hansjoerg Kolder and Mark Stewart, both full professors in the College of Medicine, were appointed. Vice President Remington was personally satisfied that the panel members were free of bias and that they were sufficiently distinguished and credible to do a good job.

(57) Vice President Remington provided the panel with the services of a court reporter because he wanted sworn testimony and a record of what happened before the panel. He also appointed Laura Douglas, a lawyer and the University’s Affirmative Action Officer, as a technical advisor to the panel.

(58) Vice President Remington provided the panel with a written “charge” on August 27, 1984. This document contained the questions that he wanted the panel to address to insure that he received the information that he needed to make an appropriate administrative decision. He personally worked on developing the charge in consultation with other members of the University administration. Dr. Jew’s counsel had input.

(59) The panel members met frequently during the period August through November 1984. They discussed the investigation process that they would follow and determined what witnesses were necessary to investigate Dr. Jew’s complaint and respond to their charge. The panel took sworn testimony in the office of the University President from 17 witnesses on August 28, 29 and 30, and September 25,1984. The witnesses included Dr. Jew, Dr. Williams, Dr. Tomanek, Dr. Kaelber and numerous other faculty from the Department as well as administrators. A transcript of the proceedings was prepared at the close of each day’s testimony and made available to the parties.

(60) On November 27, 1984, the panel members submitted a unanimous written report containing their factual findings and their recommendations for administrative action. The panel concluded that Dr. Jew had been defamed and harassed because of her sex and that immediate administrative action should be taken on her behalf.

(61) The panel made a number of specific findings about the conduct that had occurred. The panel concluded that statements were made in the University community and beyond to the effect that Dr. Jew was involved in a sexual relationship with Dr. Williams. The panel found that graffiti and anonymous letters to University personnel impugned Dr. Jew’s moral character. The panel noted that Dr. Tomanek was repeatedly identified as the initiator of *956 much of the offensive speech, and that it had reason to believe that he was an initiator of the defamatory remarks. The panel found that Dr. Kaelber publicly defamed Dr. Jew and that his negative attitude toward Dr. Jew was independent of his sobriety. The panel found that the treatment which Dr. Jew experienced was harassment and was related to her sex.

(62) The panel also made specific findings regarding the effect of this conduct on Dr. Jew. The panel found that the incidents of harassment and defamation tainted Dr. Jew’s work environment and disrupted her privacy. The panel concluded that the harassment had a destructive effect on Dr. Jew’s professional and personal reputation, both locally and nationally. Finally, it found that it was unlikely that either Dr. Tomanek or Dr. Kaelber could judge Dr. Jew objectively.

(63) As requested in its charge, the panel made specific recommendations for administrative action. The panel recommended, among other things, that the Vice President, the Dean and the Department Head arrange for meetings with faculty, staff and graduate students of the Department to inform them of the panel's findings and of the expectations for resolution of the problem. The panel recommended that these administrators make clear to the faculty of the Department that no further harassment would be tolerated, and that they should not encourage harassing statements outside the Department. The panel also recommended that these three administrators meet with Dr. Tomanek and Dr. Kaelber in order to tell them to cease and desist any harassment of Dr. Jew, and to inform them of the consequences of persisting. In addition to this administrative action, the panel recommended several other steps, including: (1) immediate steps to ascertain the authors of the anonymous letters and graffiti; (2) immediate issuance of a strong public statement by the President of the University affirming the University’s commitment to a workplace free of sexual harassment; and (3) a public statement by the University exonerating Dr. Jew, the exact content to be reached by mutual agreement of the parties.

(64) The following University administrators read and discussed the panel’s written report: Vice President Remington; Dean Eckstein; Mary Jo Small, the Associate Vice President for Finance and University Services, whose responsibilities included affirmative action; Ms. Mears; and David Vernon, a law professor. None of the University’s administrators asked the panel to undertake any further investigation or to provide any clarification or augmentation of their written findings. The transcript of the proceedings was available to Vice President Remington, Ms. Mears and Dean Eck-stein, but none of them read it in its entirety-

(65) The University took no overt action in response to the panel report until March 20, 1985, when a handwriting analyst was retained to examine the anonymous graffiti and notes and known handwriting samples of 83 individuals. The handwriting analyst reported to the University on August 14, 1985, that a handwriting sample of one who was not a faculty member was the most likely match to the anonymous writings, and asked for further exemplars from that individual. The University did not supply these exemplars until December of 1988, over three years later.

(66) Dr. Coulter became Head of the Department in April 1985.

(67) The University utilized a Business College Professor, Anthony Sinicropi, who does independent work as an arbitrator, to mediate with the University and Dr. Jew. Mediation meetings were held in October of 1985, but to no avail.

(68) On October 31, 1985, after first obtaining “right to sue” letters, Dr. Jew filed suit against the University and the Board of Regents in Iowa District Court in Johnson County alleging violations of Iowa Code chapter 601A, the Iowa Civil Rights Act. She also named Dr. Tomanek as a defendant alleging that he had slandered her. (See n. 3.)

(69) In early November of 1985, Dr. Coulter met separately with Dr. Tomanek and Dr. Kaelber and presented them with letters, Exhibits 41 and 42, copies of which *957 are annexed hereto as Appendices A and B. No follow-up meetings were conducted.

(70) On November 1, 1985, Dean Eck-stein met with the Department faculty and read to them a prepared statement, Exhibit 37, a copy of which is annexed hereto as Appendix C.

(71) On December 18, 1985, Dean Eck-stein proposed in writing that a peer evaluation of Dr. Jew be performed by a committee of tenured professors from outside the Department to be appointed by Dean Eck-stein after consultation with Dr. Coulter. This committee would be responsible for seeking outside evaluations and other relevant information as it deemed necessary.

(72) Dr. Jew responded to the proposal on January 6, 1986, and raised several concerns. She pointed out that the proposal did not permit her any role in the appointment of the committee. This was. inconsistent with the University’s initial response to Dr. Jew’s sexual harassment complaint which stated that a collegiate committee “appointed by the Dean, after consultation,” would conduct her review. She also pointed out that the proposal left entirely to the committee’s discretion whether, and the manner in which, external reviews would be solicited. The University’s initial response to Dr. Jew’s sexual harassment complaint had indicated that external reviews would be sought after consultation with Dr. Jew. Dr. Jew also pointed out that the University’s proposed procedure included no mechanism to ensure that the committee members were not influenced by the defamatory comments that had been made about her.

(73) Neither Dean Eckstein nor any other administrator in the College responded to the specific concerns that Dr. Jew raised, nor did they propose any modification to the review procedure.

(74) In the years following 1985, the University never again proposed a special review procedure for Dr. Jew. The only procedure which the University made available to Dr. Jew was the standard promotion procedure, which involved an initial review by the full professors in the Anatomy Department, which would, of course, include Drs. Tomanek and Kaelber. She has declined to use that procedure.

(75) If Dr. Jew had been granted promotion to Professor in November of 1983, that promotion would have been effective in July of 1984. Effective 1984-85, Dr. Jew would have received a $2,000 promotional salary increase, which would have continued to the present. Benefits to faculty members are calculated at 25% of salary payments.

(76) Prior to filing her 1984 complaint of sexual harassment, Dr. Jew’s salary increases had averaged 12.10% annually, which had placed her within the top third of faculty in the Department. After filing her complaint, during academic years 1984-85 through 1989-90, Dr. Jew’s merit increase averaged 8.8% annually, which places her at the exact mid-point of the faculty in the Department.

CONCLUSIONS OF LAW

(Including Some Ultimate Fact Findings)

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer * * * 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.” 42 U.S.C. § 2000e-2(a)(1).

Hostile Work Environment

The Supreme Court observed in Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 66, 67, 106 S.Ct. 2399, 2404, 2405, 2406, 91 L.Ed.2d 49 (1986):

[T]he language of Title VII is not limited to “economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “ ‘to strike at the entire spectrum of disparate treatment of men and women’ ” in employment. Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 [98 S.Ct. 1370, 1375, n. 13, 55 L.Ed.2d 657] (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971).

*958 * * * [A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.

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* * * For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.”

The Eighth Circuit has established a five part test to determine whether a plaintiff has prevailed on a hostile work environment sexual harassment claim. A plaintiff must show:

(1) She belongs to a protected group;

(2) She was subject to unwelcome sexual harassment;

(3) The harassment was based on sex;

(4) The harassment affected a term, condition, or privilege of employment; and

(5) The employer knew or should have known of the harassment in question and failed to take proper remedial action. Hall v. Gus Construction Co., 842 F.2d 1010, 1013 (8th Cir.1988); Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir.1986).

I find and conclude that plaintiff has proved by a preponderance of the evidence the five elements of her hostile work environment sexual harassment claim, as set forth by the Eighth Circuit in