Shelley Weinstock v. Columbia University

AFFIRMED. [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]

ANNE C. VLADECK, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY (Anne L. Clark, Kevin T. Mintzer, of counsel), for Plaintiff-Appellant.

Mark L. Goldstein, Goldstein & Morris, LLP, New York, NY (Andrea H. Stempel, of counsel), for Defendant-Appellee.

Beth H. Parker, Equal Rights Advocates, San Francisco, CA, for amici curiae American Association of University Women, Association for Women in Science and New York Chapter of the National Employment Lawyers Association.

Before: CARDAMONE, McLAUGHLIN, AND PARKER, Circuit Judges.

CARDAMONE, Circuit Judge, dissents in a separate opinion.

This case arises from Columbia University's denial of tenure to Shelley Weinstock. Weinstock contends that the decision to deny her tenure was the result of discrimination on the basis of her gender. Because this is an appeal from a grant of summary judgment to the defendant, we recite the facts in the light most favorable to the plaintiff, the nonmoving party. See Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996).

Weinstock was employed by Barnard College, an undergraduate college and affiliate of Columbia, as an Assistant Professor in its Chemistry Department from July 1985 to June 1994. Weinstock became eligible for tenure during the Spring semester of the 1992 1993 academic year. Pursuant to an affiliation agreement between Columbia and Barnard, the Byzantine tenure process for Barnard faculty proceeds through the following votes.

First, (1) the faculty member's academic department at Barnard; (2) the Barnard Committee on Appointments, Tenure and Promotions; and (3) the counterpart department at Columbia, all must vote in favor of tenure. Then, Barnard's President decides whether to recommend that the process move forward. If the President of Barnard votes favorably, she forwards the nomination to the Provost of Columbia. The Provost then convenes a five-person University ad hoc committee to review the nomination. Under the terms of the affiliation agreement, the ad hoc committee consists of two faculty members designated by the Provost, two Barnard faculty members, and one faculty member from an outside institution. The tenure appointment will be made if: (1) the review of the ad hoc committee is favorable; (2) the Provost accepts that review; (3) the President of Columbia follows the advice of the Provost; and, finally, (4) the Trustees of Barnard and Columbia grant tenure.

Weinstock received the support of: (1) the Barnard Chemistry Department; (2) the Barnard Committee on Appointments, Tenure and Promotions; and (3) the Columbia Chemistry Department. The President of Barnard, Ellen Futter, who initially had reservations about Weinstock's scholarship, then recommended that Weinstock's nomination be moved forward.

As required by the affiliation agreement between Barnard and Columbia, the Provost of Columbia, Jonathan Cole, convened an ad hoc committee. He appointed Professor Alan Tall, the Chair of Columbia's Department of Medicine, as the committee's Chair. He also appointed Professor Samuel Silverstein of Columbia's Department of Physiology and Cellular Biophysics, Professor Zanvil Cohn of Rockefeller University, Professor Lila Braine of Barnard's Department of Psychology and Professor Paul Hertz of Barnard's Department of Biological Sciences, as the committee's other members.

Protocol permits the Chair of an ad hoc committee to contact committee members before their meeting to determine whether they need more information to complete the candidate's file. Tall telephoned the committee members to discuss Weinstock's file, and to determine if any committee member wanted additional information. According to committee members Braine and Hertz, Tall also told each of them on the phone that he thought there were problems with Weinstock's candidacy. Both Braine and Hertz (from the Barnard faculty) reported these remarks, which they considered as going beyond a mere inquiry about lack of information, to Barnard's Dean, Robert McCaughey.

The ad hoc committee met on April 12, 1993. Present were all the committee members, Provost Cole and Dean McCaughey. At the outset of the meeting, Dean McCaughey questioned the extent of Tall's telephone calls to Professors Braine and Hertz. Provost Cole inquired whether any of the committee members' opinions of Weinstock had been tainted by their conversations with Tall. None of the members complained that they had been influenced. Provost Cole also reminded the ad hoc committee that the standards for tenure at Columbia were high, because Columbia is an internationally renowned research university. Professor Sally Chapman, the Chair of Barnard's Chemistry Department, then presented Weinstock's case for tenure.

During the meeting, committee members Tall and Silverstein referred to Weinstock, whom they had never met, by her first name, "Shelley," and allegedly commented that she seemed "nice." Weinstock also alleges that she heard from Chapman and Hertz that Tall and Silverstein observed that she (Weinstock) seemed "nurturing." However, neither Hertz, Silverstein nor Tall remembers hearing the word "nurturing."

Tall and Silverstein deemed Weinstock's publications and research papers insufficient to merit tenure. In their depositions, they testified that her research lacked originality and that the journals in which she published were not first-tier scientific journals. Tall and Silverstein were also unimpressed with Weinstock's letters of recommendation. Silverstein noted that the letters were lukewarm by comparison to letters he had examined in other tenure reviews.

The committee eventually voted 3-2 to grant Weinstock tenure. Braine, Hertz, and Cohn voted for tenure; Tall and Silverstein voted against it. A 3-2 favorable vote is considered "underwhelming [in terms of] support," according to Columbia's current President, George Rupp. From 1989 to the present, at least six tenure candidates (five male, one female) were denied tenure after a 3-2 ad hoc committee vote in favor of granting tenure.

The decision to accept or reject the committee's vote moved to Provost Cole's desk. Before Provost Cole made his decision though, he contacted Ronald Breslow, a member of the Columbia Chemistry Department, for his insights. Breslow stated bluntly that, measured by intellectual strength and scientific ability, Weinstock was not in the same league as other tenured members of the Barnard Chemistry Department.

Provost Cole also discussed Weinstock's candidacy with the Chair of the Columbia Chemistry Department, Richard Bersohn. From these inquiries, as well as from a previous inquiry of Bersohn by Associate Provost Stephen Rittenberg, Cole learned that: (1) the general sentiment of the Columbia Chemistry Department was that Weinstock's work was unimaginative and that her publication record was weak; (2) the Columbia Department did not deem her worthy of tenure; but (3) the Columbia Department had voted to recommend her for tenure as a courtesy to their counterpart department at Barnard.

Provost Cole eventually recommended against tenure for Weinstock because he felt that her scholarship was not up to snuff.

The President of Columbia, Michael Sovern, who followed provostal recommendations on tenure as a matter of course, accepted Cole's recommendation and denied Weinstock tenure.

Weinstock learned in May 1993 that she had been denied tenure. Dean McCaughey from Barnard immediately objected to alleged procedural flaws in the tenure process, and requested that Provost Cole either reverse his decision and follow the ad hoc committee's recommendation to grant tenure, or reconvene the ad hoc committee to consider the additional inputs that Provost Cole had gathered from Professors Breslow and Bersohn. Dean McCaughey apparently was disturbed that the committee did not have the benefit of the information - damning as it was - that Provost Cole had collected from Breslow and Bersohn. Provost Cole though, refused to change his recommendation or to reconvene the committee.

Under the rules of the tenure process for Barnard candidates, if the Provost does not accept the vote of the ad hoc committee, he must say why. Provost Cole did this only after Professor Braine wrote two letters requesting such a clarification. In his explanation, Provost Cole stated that: (1) a favorable vote of 3-2 was not a strong endorsement; (2) the two Columbia members of the committee, Tall and Silverstein, felt that Weinstock's research was limited and below the quality expected of a candidate for tenure; (3) candidates from Columbia and Barnard were to be judged for tenure by the same standards; (4) Cohn, the outside member of the ad hoc committee (Rockefeller University), had stated that Weinstock would not receive tenure at a research university such as Columbia even though he conceded that her research was adequate for an institution such as Barnard; and (5) he had collected evaluations from Breslow and Bersohn confirming his assessment that Weinstock did not merit tenure.

Citing procedural irregularities in Weinstock's tenure process, Barnard President Futter urged President Sovern to reject Provost Cole's recommendation and to accept the favorable recommendation of the ad hoc committee. In the alternative, President Futter requested that a new ad hoc committee be appointed to review Weinstock's application.

By this time, George Rupp had replaced Sovern as President of Columbia. In response to President Futter's protest, President Rupp wrote a letter informing President Futter that he had reviewed Weinstock's case and that he agreed with Provost Cole's determination that her research was not up to the standards expected of a tenured faculty member. President Rupp also indicated that he did not believe there were any procedural irregularities in Weinstock's tenure process. Accordingly, Rupp declined to interfere.

In February 1995, Weinstock filed a complaint in the United States District Court for the Southern District of New York (Keenan, J.), alleging that, by denying her tenure on the basis of her sex, Columbia violated: (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; (2) Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq.; (3) the New York State Human Rights Law, New York Executive Law § 296 et seq.; and (4) the Administrative Code of the City of New York § 8-107 et seq..

Upon completion of discovery, Columbia filed a motion for summary judgment. The district court granted the motion, concluding that Weinstock had failed to produce any evidence to establish a triable issue of fact as to the pretextual nature of Columbia's legitimate, non-discriminatory reason for denying her tenure. Weinstock now appeals.

We review a district court's grant of summary judgment de novo. See Bedoya, 91 F.3d at 351.

Summary judgment as a tool for clearing the calendar of doomed lawsuits finds its modern origins in nineteenth century English practice. See John A. Bauman, The Evolution of the Summary Judgment Procedure, 31 Ind. L.J. 329 (1956). When the procedure migrated to this country, it was vastly expanded -- England had limited it largely to actions on negotiable instruments (see Gregory A. Gordillo, Summary Judgment and Problems in Applying the Celotex Trilogy Standard, 42 Clev. St. L. Rev. 263 (1994)) -- and applied to almost all civil cases. In federal practice it was vigorously championed by Yale Law Professor (and later a member of this Court) Charles Clark, who spearheaded the drive to include Rule 56 in the 1938 version of the Federal Rules of Civil Procedure.

In state practice, the great acolyte of summary judgment was Bernard Shientag of the New York State Supreme Court. As he wrote in Pross v. Foundation Properties, Inc., 285 N.Y. 796, 800 (Sup. Ct. 1935):

Why should [the defendant] be harassed and inconvenienced and perhaps damaged in his business and credit if it clearly appears that the plaintiff can entertain no hope of success? True, the defendant will prevail at the trial, but he will have been subjected to considerable expense by way of attorneys' fees and preparation for trial, for which, under our present system, he will not be compensated by the costs imposed. What better way is there for doing away with the multiplicity of unfounded and worthless suits with which our calendars are clogged?

Summary judgment is now appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When viewing the evidence, the court must "assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in [the non-movant's] favor." Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990).

Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. When the motion is made, we go beyond the paper allegations of the pleadings, which were enough to survive the common law demurrer. The time has come, as James and Hazard put it, "to put up or shut up." Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure 150 (2d ed. 1977). Accordingly, unsupported allegations do not create a material issue of fact. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); see also Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

Summary judgment is appropriate even in discrimination cases, for, as this Court noted, "the salutary purposes of summary judgment - avoiding protracted, expensive and harassing trials - apply no less to discrimination cases than to . . . other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Just a few short years ago we went out of our way to remind district courts that the "impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable." McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994); see also Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997) (upholding grant of summary judgment for defendant in Title VII sex discrimination case). The Supreme Court has also recently reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.'" Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2109 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)).

Weinstock contends that the district court erred by holding that she failed to establish a deprivation of her rights under Title VII, and by concluding that there were no triable issues of fact with respect to the pretextual nature of Columbia's legitimate, non-discriminatory reason for denying her tenure. Columbia counters that Weinstock has not produced any evidence to support her sex discrimination claim, and that the district court properly dismissed her case.

Title VII makes it unlawful "for an employer . . . to fail to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).

In a Title VII sex discrimination case such as this, where there is no direct or overt evidence of discriminatory conduct, we apply the three-part burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), to determine whether summary judgment is appropriate. See Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc).1

First, the plaintiff must establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. Here, the district court, viewing the facts in the light most favorable to Weinstock, found that she satisfied her de minimis burden of proof at the prima facie stage.

That is not the end of the story, however. Even if the plaintiff succeeds in presenting a prima facie case, the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); Shumway, 118 F.3d at 63. Upon the defendant's articulation of such a non-discriminatory reason for the employment action, the presumption of discrimination arising with the establishment of the prima facie case drops from the picture. See St. Mary's, 509 U.S. at 510-11; Fisher, 114 F.3d at 1336. For the case to continue, the plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination. The plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].'" Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994)). In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." St. Mary's, 509 U.S. at 519.2

Applying these standards here, the district court held that Columbia had articulated a legitimate reason for its tenure decision - namely, that Weinstock's scholarship was not up to its standards. The district court also found that Weinstock had failed to come up with any evidence that this reason was a pretext. We find no error in the district court's analysis.

1. Columbia's legitimate, non-discriminatory reason for denying Weinstock tenure

Columbia's legitimate, non-discriminatory reason for denying Weinstock tenure was that she did not meet the standard for scholarship uniformly applicable within the University. There can be no doubt that this was a valid reason for her tenure decision.

When a college or university denies tenure for a valid, non-discriminatory reason, and there is no evidence of discriminatory intent, this Court will not second-guess that decision. See Bickerstaff v. Vassar College, 196 F.3d 435, 455-56 (2d Cir. 1999); Fisher, 114 F.3d at 1344-45.

Indeed, in Bickerstaff, this Court recently upheld a grant of summary judgment to Vassar College, dismissing a Title VII sex discrimination claim, because the district court correctly determined that the tenure candidate "did not satisfy the posted criteria for promotion." 196 F.3d at 444.

Here, ad hoc committee members Tall and Silverstein testified in their depositions that they believed that Weinstock's publications and research papers were insufficient to merit tenure. They also testified that her research lacked originality and that the journals in which she published were not first-tier scientific journals. Neither Tall nor Silverstein was impressed with Weinstock's letters of recommendation. Silverstein noted that the letters were lukewarm by comparison to other letters he had examined in other tenure reviews.

Even though the ad hoc committee voted 3-2 to grant Weinstock tenure, Provost Cole recommended against tenure because her scholarship was questionable. Rejecting a committee vote was nothing new, however, because, according to Columbia's current President George Rupp, a 3-2 favorable vote is considered "underwhelming in terms of support," and from 1989 to the present, as earlier noted, at least six tenure candidates (five male, one female) were denied tenure after an ad hoc committee voted 3-2 in favor of granting tenure.

Before Provost Cole made his recommendation to disagree with the 3-2 vote, he contacted Ronald Breslow, a member of the Columbia Chemistry Department for further comment. It should come as no surprise that Cole, who is not a biochemist, did not read Weinstock's publications during the decision-making process, but instead relied upon the input of other professors who had a better grasp of her work. Breslow stated that Weinstock was not in the same class as other tenured members of the Barnard Chemistry Department in terms of intellectual strength or scientific ability. Provost Cole also discussed Weinstock's candidacy with the Chair of the Columbia Chemistry Department, Richard Bersohn. From these inquiries, as well as from a previous inquiry of Bersohn by Associate Provost Rittenberg, Cole learned that: (1) the general sentiment of the Columbia Chemistry Department was that Weinstock's work was unimaginative and that her publication record was weak; (2) the Columbia Department did not deem her worthy of tenure; but (3) the Columbia Department had voted to recommend her for tenure as a courtesy to their counterpart department at Barnard.

We conclude that when Provost Cole recommended to the President of Columbia that Weinstock's tenure be denied, the legitimate, non-discriminatory reason that she was not academically qualified was established.

Weinstock contends, however, that this was all a mere cover for discrimination, because there exists evidence of: (1) gender stereotyping; (2) procedural irregularities in the ad hoc committee process; and (3) disparate treatment. We look at each of these claims in turn.

a. Gender stereotyping

Weinstock contends that during the ad hoc committee meeting, she was referred to in a patronizing tone and that statements were made that stereotyped her and demonstrated gender bias. Specifically, Weinstock claims that committee members Tall and Silverstein referred to her as "nice" and "nurturing," and that these statements are essentially code words for gender bias because they reflect feminine stereotypes. Weinstock argues that this is evidence of pretext. We disagree.

First, there appears to be no admissible evidence to support Weinstock's allegation that anyone on the committee referred to her as "nurturing." Weinstock claims that she heard from Chapman that the word "nurturing" was used. However, in Chapman's deposition, in which Weinstock's attorney took part, Chapman never stated that the word "nurturing" was used. Weinstock claims that Hertz, too, told her the word "nurturing" was used. However, when Hertz was deposed by Weinstock's attorney, Hertz stated, "I don't remember them using the word 'nurturing . . . .'" Silverstein, in his deposition, also stated that he did not remember the word "nurturing" being used. Tall, as well, stated that he did not remember the word "nurturing."

Weinstock has failed to offer any direct evidence, or any testimony, from any person present at the committee meeting, that the word "nurturing" was used during her tenure process. Hertz denies it; Silverstein does not remember it; and Chapman, when deposed, was never even queried on the matter. Therefore, because Rule 56 of the Federal Rules of Civil Procedure provides that an affidavit submitted in opposition to summary judgment "shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence," Fed. R. Civ. P. 56(e), Weinstock has adduced no evidence sufficient to create a genuine issue of fact as to her contention that the word "nurturing" was used. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999).

Second, even assuming that the words "nice" and "nurturing" were used, this fact alone provides no evidence of pretext or discriminatory intent on the part of Columbia. "Nice" and "nurturing" are simply not qualities that are stereotypically female.

Any reasonable person of either sex would like to be considered "nice." It is indefensible to conclude that an employer's use of the word "nice" evinces gender discrimination. Were it so, every time an employer said, "[Bob or Sue], you are a nice person and a hard worker, but I am going to have to let you go," such a statement would become a basis for a Title VII discrimination claim.

This is not a case like Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court held that Title VII was violated when Ann Hopkins was denied a promotion because she was perceived negatively for lacking stereotypical feminine character traits. Specifically, her superior had advised her to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Price-Waterhouse, 490 U.S. at 235. These statements were a clear indication that Hopkins' superiors had discriminated against her on the basis of sex, because she did not fit the sexual stereotype of what a woman should be. Weinstock, on the other hand, faced no such carping.

Nor can "nurturing" possibly be the basis for a Title VII action. The two primary definitions of the verb "nurture" are "to supply with food, nourishment, and protection" and "to train by or as if by instruction." Webster's Third International Dictionary (1961). These are definitions that are in no way stereotypically female.

Finally, there is no evidence that these words were ever used to describe Weinstock's quotidian research, which was the proffered non-discriminatory reason for Columbia's decision to deny her tenure. These words, if used at all, were spoken only in connection with Weinstock's teaching, i.e., her classroom performance. It is simply not objectively reasonable to label these innocuous words as semaphores for discrimination. To do so would preclude tenure committees from ever discussing a candidate's positive personal attributes as a teacher. Niceness and nurturing are not, after all, bad qualities to have in a teacher's mentoring capacity - particularly of undergraduates.

b. Procedural irregularities

Weinstock contends that there was a series of procedural irregularities in her tenure process that evidences discriminatory intent on Columbia's part. Specifically, Weinstock takes issue with Tall's phone calls to the committee members before the committee convened, and Provost Cole's delay in explaining why he rejected the committee's vote and recommended denial of Weinstock's tenure. There is, however, no evidence that Weinstock's sex played a role in any alleged procedural irregularities, and there is, again, no evidence of pretext.

It is true that "'[d]epartures from procedural regularity . . . can raise a question as to the good faith of the process where the departure may reasonably affect the decision.'" Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) (emphasis added) (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984)). In this case, however, whatever irregularities existed did not affect the final decision to deny Weinstock tenure. The phone calls that Tall made prior to the committee meeting had no effect on any committee member's assessment of Weinstock's candidacy for tenure. In deposition testimony, the committee members acknowledged as much. Moreover, the committee voted 3-2 in favor of granting her tenure. Provost Cole made his decision to reject the committee's recommendation; and his delay in explaining his recommendation did not affect that decision itself. Therefore, any possible procedural irregularities in the denial of Weinstock's tenure were not enough to suggest gender bias.

Furthermore, the dissent incorrectly concludes that "procedural defects in the tenure review process[] call[] into question Columbia's proffered nondiscriminatory reason for denying tenure." The phone calls that the dissent characterizes as a "procedural irregularity," in fact, only serve to support Columbia's proffered nondiscriminatory reason for denying Weinstock tenure. The deposition testimony of Professors Hertz, Silverstein, Braine, and Tall all support the conclusion that Professor Tall indicated from the very beginning that he had concerns about the quality of Weinstock's research and that he was concerned that the materials in her dossier were not of "tenurable" quality. The consistency of the viewpoint expressed by Tall - that Weinstock's research was subpar - only further supports Columbia's proffered nondiscriminatory reason for denying Weinstock tenure.

c. Disparate treatment

Weinstock also alleges that she was held to a stricter standard for tenure because she is a woman, and argues that this is evidence of discriminatory intent on Columbia's part. Specifically, she contends that Barnard professors are traditionally held to a lesser scholastic standard than Columbia professors, and complains that she was not cut this slack during her candidacy. The evidence, however, is to the contrary.

According to Columbia, the standard for quality of research that is expected of tenure candidates from Barnard and Columbia is identical, although a lower level of productivity in research and publication is accepted from Barnard candidates because they typically have a heavier teaching load. Any difference in productivity standards, however, is of no import, because Columbia's non-discriminatory reason for denying Weinstock tenure involved the quality, not the quantity, of her research. That the quality of research for both Columbia and Barnard professors must be uniform is undisputed by Presidents Rupp, Sovern and Futter.

Weinstock disagrees. She asserts that Columbia applied a stricter standard to her than to male Barnard candidates in the hard sciences; she believes she was measured by the "higher" standard for tenure required of a Columbia-based candidate. Weinstock's only support for this assertion is her contention that a year after she was denied tenure, Columbia granted tenure to a male Barnard faculty member in its Physics Department, Timothy Halpin-Healy, whose research was supposedly below the standard that would be expected by his counterpart department at Columbia.

Initially, Weinstock fails to support her claim that a different standard was used during the two tenure hearings in question. Provost Cole's notes unmistakably indicate that at both hearings the committee discussed whether the candidate would receive tenure at Columbia. Additionally, Weinstock's only evidence that Halpin-Healy's research was subpar in this regard was the fact that one unidentified member of his ad hoc committee may have expressed the opinion that his research was not up to Columbia University standards. However, there is no other evidence that any other member of his ad hoc committee shared this view, and in fact, the committee voted unanimously to grant Halpin-Healy tenure. It cannot be said therefore that Halpin-Healy was held to a laxer standard than Weinstock when he was granted tenure.

The dissent contends that certain statistical evidence, culled from an amicus brief and never presented to the district court or on appeal, is probative of sex discrimination. Specifically it argues that raw data purportedly describing a pattern of under-representation and unequal opportunity for women faculty at Columbia leads to the conclusion that gender discrimination is in play here. This, however, is little but an unsupported hypothesis providing no foundation for the assertion that there was discrimination in Weinstock's tenure process. See Zahorik, 729 F.2d at 95; Pollis v. New School for Social Research, 132 F.3d 115, 123 (2d Cir. 1997). The "statistical evidence" is also simply not part of the record, and is therefore material that cannot be considered in deciding this case.3 See International Business Machines Corp. v. Edelstein, 526 F.2d 33, 45 (2d Cir. 1975) (per curiam).

Columbia had a legitimate, non-discriminatory reason for denying Weinstock tenure -- she lacked the requisite scholarship required. A claim that a single, supposedly less qualified male received tenure in the hard sciences at Barnard does not signify sex bias because "the record at best indicates a difference of opinion in evaluation of scholarly merit," and not gender discrimination aimed at Weinstock. Zahorik, 729 F.2d at 94.

Trolling for an issue of fact, the dissent marshals twelve supposed "disputed issues of fact," and claims that their existence suggests pretext and should have given Weinstock "her day in court."

The first "issue" found by the dissent involves the phone calls made by committee Chair Tall to the ad hoc committee before it met to discuss Weinstock's tenure candidacy. The dissent contends that the fact that these calls were made at all "calls into question Columbia's proffered nondiscriminatory reason for denying Weinstock tenure." However, as previously noted, it is standard operating procedure for a committee Chair to call members of an ad hoc committee to see if they need anything before the committee meets. Granted, it would be inappropriate to criticize a candidate in this type of phone call; but whether Tall criticized Weinstock is immaterial because no ad hoc c