900 F.

2d 464
52 Fair Empl.Prac.Cas. 979,
53 Empl. Prac. Dec. P 39,822, 16 Fed.R.Serv.3d 1033,
59 Ed. Law Rep. 981

Barbara JACKSON, Plaintiff, Appellant,

v.
HARVARD UNIVERSITY, et al., Defendants, Appellees.
No. 89-1931.

United States Court of Appeals,

First Circuit.
Heard Feb. 9, 1990.
Decided April 9, 1990.

Evan T. Lawson with whom Lawson & Weitzen, Boston, Mass., was on
brief, for plaintiff, appellant.
Allan A. Ryan, Jr., with whom Daniel Steiner, Cambridge, Mass., George
Marshall Moriarty, and Ropes and Gray, Boston, Mass., were on brief, for
defendants, appellees.
Before CAMPBELL, Chief Judge, SELYA and CYR, Circuit Judges.
SELYA, Circuit Judge.

In 1983, Harvard University (Harvard or the University) declined to offer

tenure at its Graduate School of Business Administration (the Business School)
to plaintiff-appellant Barbara Jackson. Jackson sued under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Secs. 2000e through 2000e-17 (1982), charging
gender-based discrimination. She named as defendants both the University and
the dean of the Business School, John McArthur. After a bench trial, the United
States District Court for the District of Massachusetts ruled against her. Jackson
v. Harvard Univ., 721 F.Supp. 1397 (D.Mass.1989). Having carefully
considered plaintiff's arguments on appeal and digested the rather imposing
record, we find no significant legal error and therefore affirm.

I. BACKGROUND

The evidence is exhaustively and accurately detailed in the opinion below, id.
at 1399-1401, 1415-28, and it would be pleonastic to rehearse it here. We offer
instead a synopsis designed to do no more than give needed context to the legal
principles involved.

Tenure decisions at the Business School are subject to an exacting protocol. A

subcommittee comprised of four faculty members measures the aspirant against
the prescribed standards and presents an advisory report to the tenured faculty
as a whole. The full faculty conducts its own review of the candidate. Two
votes are taken by signed ballot, some weeks apart. While these tallies are not
binding stricto senso, the dean will generally not recommend tenure to
Harvard's president and governing boards unless a candidate commands
substantial majority support within the faculty. As a practical matter, a decision
by the dean not to recommend tenure is final.

Appellant began teaching at the Business School in 1973 with the rank of
assistant professor. In 1977, she was promoted to associate professor. She was
considered for tenure twice. At her 1981 review, she requested that certain
faculty members be excluded from the first-level subcommittee. Such requests
are not uncommon and are, for the most part, routinely allowed. In this
instance, Jackson's wishes were honored with one exception: Professor Stephen
Bradley was retained on the subcommittee despite Jackson's claim that Bradley
was biased against women.

The subcommittee, including Bradley, performed its assigned functions. In

general, the subcommittee's evaluation was favorable. Three of the members
believed that Jackson merited tenure and that her main work, a book, met the
required scholastic standards. Bradley disagreed with his colleagues' assessment
of the book but voted to recommend tenure notwithstanding. At the first
meeting of the tenured faculty, a substantial majority of those present favored
appellant's promotion. In the final balloting, however, that majority evaporated
and the faculty split rather evenly.

The Business School temporized: Jackson's appointment was extended for three
years and her tenure review held in abeyance. Appellant acquiesced in this
arrangement. When she was reconsidered for tenure in 1983, however, she
received only a slim majority in the vote of the full faculty. Eventually, tenure
was denied. This litigation followed in due season.

II. STANDARD OF REVIEW

7

The standard of review is crucial to the appellate task in this fact-intensive

The standard of review is crucial to the appellate task in this fact-intensive

environment. "When a district court sits without a jury, the court of appeals
cannot undertake to decide factual issues afresh." Reliance Steel Prod. Co. v.
Nat'l Fire Ins. Co., 880 F.2d 575, 576 (1st Cir.1989). Rather, constrained by the
Civil Rules,1 we review factual findings only for clear error. Keyes v. Secretary
of the Navy, 853 F.2d 1016, 1019 (1st Cir.1988); Irons v. FBI, 811 F.2d 681,
684 (1st Cir.1987); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 71 (1st Cir.),
cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). Fidelity to
Rule 52(a) means that deference must be paid to the findings below: "It is not
enough that [an appellate court] might give the facts another construction,
resolve the ambiguities differently, and find a more sinister cast to actions
which the district court apparently deemed innocent." United States v. Nat'l
Assoc. of Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 717, 94 L.Ed.
1007 (1950); see also Keyes, 853 F.2d at 1020. Put bluntly, "[a]ppellate review
of complex, fact-dominated issues cannot be allowed to descend to the level of
Monday-morning quarterbacking." Anderson v. Beatrice Foods Co., 900 F.2d
388 at 392-393 (1st Cir. Mar. 26, 1990). At the bottom line, "[w]here there are
two permissible views of the evidence, the factfinder's choice between them
cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564,
574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

III. THE MERITS

8

Visualizing the record through the prism of Rule 52(a) clarifies the result we
must reach. We do not pause to restate the recognized burden-shifting
framework characteristic of Title VII cases involving circumstantial proof of
discrimination, see, e.g., Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36
L.Ed.2d 668 (1973); Keyes, 853 F.2d at 1023, but assume the reader's
familiarity with so commonplace a rule. The record leaves no doubt but that the
first two steps in the Burdine pavane were accomplished: (1) appellant made
out a prima facie case and (2) defendants articulated a reason (failure to
demonstrate the required scholarship) which, if authentic, was
nondiscriminatory and sufficient to ground the tenure denial. Plaintiff then
ascended to the framework's next stage, endeavoring to show that defendants'
professed reason was a pretext for discrimination.

Given this posture, the proper focus of appellate inquiry must be the district
court's ultimate finding of discrimination vel non. See Dance v. Ripley, 776
F.2d 370, 373 (1st Cir.1985); Johnson, 731 F.2d at 70. And in that regard,

reviewing
courts should [not] treat discrimination differently from other ultimate
10

questions of fact. Nor should they make their inquiry even more difficult by
applying legal rules which were devised to govern 'the basic allocation of burdens
and order of proof' in deciding this ultimate question.
11

United States Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 716, 103 S.Ct.
1478, 1482, 75 L.Ed.2d 403 (1983) (quoting Burdine, 450 U.S. at 252, 101
S.Ct. at 1093).

12

Stripped of legalistic jargon, appellant's principal contentions rest squarely on

this ultimate question. Her core claim reduces to the assertion that, had the facts
been judged properly, she would have prevailed. In the Rule 52 milieu, this is a
high hurdle to vault, especially since articulation of defendants' reasons
dissipated the evidentiary force of the original presumption. See Burdine, 450
U.S. at 255, 101 S.Ct. at 1094; Keyes, 853 F.2d at 1023. The task of showing
clear error is daunting--more so, perhaps, in a case like this, since courts must
be mindful of the essentially subjective nature of tenure decisions and,
therefore, "must take special care to preserve the University's autonomy in
making lawful tenure decisions." Brown v. Trustees of Boston Univ., 891 F.2d
337, 346 (1st Cir.1989).

13

Appellant attempts to avoid the looming problem by claiming that the Burdine
framework was inapplicable and that the burden of proof should have been
allocated more favorably to her. But upon close perscrutation, this contention
seems no more than an unfounded effort "to wriggle out from beneath Rule
52(a) by claiming that the district court mistook the law." Reliance Steel, 880
F.2d at 577.

14

If a plaintiff can provide direct evidence that gender bias infected the
decisionmaking process, the Burdine framework becomes irrelevant and the
burden shifts to defendant to prove that the same decision would have ensued in
the absence of the alleged discrimination. See Price Waterhouse v. Hopkins, --U.S. ----, 109 S.Ct. 1775, 1787-88, 104 L.Ed.2d 268 (1989) (plurality op.);
Fields v. Clark Univ., 817 F.2d 931, 935-37 (1st Cir.1987). Jackson says her
case qualifies under this rubric by reason of two key evidentiary items: (1)
McArthur told her that "if [the government or the public] wanted women on the
[Business School] faculty in larger numbers, they would have to impose quotas
because otherwise Harvard would go through the affirmative action procedures
but would not actually promote women;" and (2) she was treated differently
from male applicants in that Bradley was allowed to serve as a member of the
1981 subcommittee over Jackson's objection.

15

Plaintiff's glass is half full. The district court, to be sure, found it "likely" that

15

Plaintiff's glass is half full. The district court, to be sure, found it "likely" that
McArthur "made some version of the [attributed] statement." 721 F.Supp. at
1433. The court also found that Jackson had suffered disparate treatment in
respect to Bradley's inclusion on the screening panel. Id. at 1434. Nonetheless,
the glass is also half empty: calling the evidence "direct" does not make it so,
but merely camouflages the terrain. Seen in context, appellant has done no
more than dress two factual disputes in rather ill-fitting "legal" costumery. She
does not profit by such a masquerade. See Reliance Steel, 880 F.2d at 577.
What appellant's analysis conveniently overlooks is that the inference sought to
be drawn from her evidence--that gender bias skewed the decisionmaking
process--is precisely a question of fact, and one which the district court
resolved contrary to the interpretation urged by appellant. We explain briefly.

16

Direct evidence is evidence which, in and of itself, shows a discriminatory

animus. Here, the district court, citing both McArthur's testimony that he held
strong beliefs otherwise and the Business School's widely-admired affirmative
action program, found Jackson's construction of McArthur's comment
"strained." 721 F.Supp. at 1433. The court also found that "whatever caused
Dean McArthur to reject [Jackson's] request to exclude Professor Bradley from
[Jackson's] subcommittee, it was not gender bias." Id. at 1434 (emphasis
supplied). Moreover, Bradley's participation "played at most a de minimis role
in the ultimate decision not to offer plaintiff tenure in 1981." Id. The court
based its conclusions concerning the subcommittee's composition on a medley
of considerations, including the absence of any persuasive evidence that
Bradley was prejudiced against women; his vote to recommend tenure despite
his personal reservations about appellant's scholarship; and the court's finding
that the faculty's doubts anent scholarship, not Bradley's vote, caused the 1981
tenure denial. Plaintiff's "direct evidence" construct thus collapses of its own
weight.

17

The remainder of Jackson's merits-related asseverations, howsoever ingeniously

couched, implicate the weight of the evidence, not its sufficiency or the legal
infrastructure on which the decision rests. Her remonstrances are uniformly
unavailing. The trial judge correctly understood and applied the substantive and
procedural rules for probing sex discrimination in the context of academic
tenure disputes. See 721 F.Supp. at 1401-04. The court's recension of the
evidence and its selection of inferences, albeit not inevitable, has the ring of
utter plausibility. While a different set of inferences could supportably have
been drawn, it is not our province to second-guess the trial court's "election
among conflicting facts or its choice of which competing inferences to draw...."
Irons v. FBI, 811 F.2d at 684. Nor does counsel's eloquent presentation of
Jackson's case carry the day: "the mere repetition of arguments, in strong
language and with evident feeling, is insufficient to the task [of overbearing

Rule 52(a) ]." Reliance Steel, 880 F.2d at 577.

18

In this instance, a painstaking canvass of the record intimates no hint of clear

error. Because we are not "left with the definite and firm conviction that a
mistake has been committed," United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), we must leave the trial
court's findings and conclusions undisturbed.2

IV. DISCOVERY IRREGULARITIES

19

Appellant's next assignment of error implicates the district court's handling of

certain discovery irregularities. There are two prominent bones of contention:
(1) when appellant attempted to obtain access to the files of certain successful
(male) tenure candidates, she found that they had been destroyed in
contravention of the University's rules on document retention and storage; (2)
although appellant sought production of the 1981 faculty vote tallies early on,
defendants did not deliver them until the trial was nearly over, having initially
represented that the records did not exist. Jackson argues that the trial court
erred in finding defendants' conduct merely negligent and in imposing
insufficiently exacting remedies.

20

We examine Jackson's complaints anent discovery in the ensemble. As to the

appraisal of the University's cumulative conduct as negligent, 721 F.Supp. at
1404-05, we find adequate support for the district court's analysis. While the
record is not unarguable as to defendants' intent and degree of culpability,
ambiguity and alternative inference are for trial courts to sift. Since the finding
of negligence is one of fact and falls within the range of plausibility, we cannot
alter it. See Anderson v. City of Bessemer City, 470 U.S. at 573-74, 105 S.Ct.
at 1511-12.

21

Plaintiff's follow-on point is that, with Harvard's misconduct revealed, the

district court should have acted more decisively under Fed.R.Civ.P. 26(g),
37(b), and 37(d) (collectively, empowering the court to levy sanctions for
various kinds of discovery lapses). Jackson requested the judge to draw a
negative inference about the content of the destroyed files and to preclude
defendants from putting the faculty votes into evidence. The judge demurred,
instead reopening the evidence and offering plaintiff a continuance, relaxation
of an earlier privilege restriction, and the right to engage in further discovery.
The court eschewed the imposition of more onerous sanctions, being
"unwilling to decide this case on the basis of evidentiary constructs such as
adverse inferences and preclusionary orders." Id. at 1405.

22

We review a choice of sanctions only for abuse of discretion. National Hockey

League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778,
2780, 49 L.Ed.2d 747 (1976) (per curiam); Anderson v. Beatrice Foods Co.,
900 F.2d at 393; Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1081 (1st
Cir.1990). A district court's discretion to fashion discovery orders and remedies
for misconduct is broad. See In re San Juan Dupont Plaza Hotel Fire Litigation,
859 F.2d 1007, 1019 (1st Cir.1988) (discovery orders); Anderson v. Cryovac,
Inc., 862 F.2d 910, 923 (1st Cir.1988) (discovery misconduct). The same
breadth applies to a district court's decision to impose sanctions less severe than
the outermost limits of discretion would allow, or, within the purview of Rule
37 at least, not to impose sanctions at all. See Benitez-Allende v. Alcan
Aluminio do Brasil, S.A., 857 F.2d 26, 33 (1st Cir.1988), cert. denied, --- U.S. ---, 109 S.Ct. 1135, 103 L.Ed.2d 196 (1989); Craig v. Far West Eng'g. Co., 265
F.2d 251, 260 (9th Cir.), cert. denied, 361 U.S. 816, 80 S.Ct. 57, 4 L.Ed.2d 63
(1959); cf. Unanue-Casal v. Unanue-Casal, 898 F.2d 839, 841 (1st Cir.1990)
(Rule 11 sanctions "legally required" in some cases). Whether harsher
sanctions were the best solution or whether we, if making a fresh diagnosis,
might have prescribed some stronger medicine, are not determinative
considerations. See Marquis Theatre Corp. v. Condado Mini Cinema, 846 F.2d
86, 90 (1st Cir.1988). Rather, appellate inquiry is limited to whether the trial
court's chosen course of action came "safely within the universe of suitable"
alternatives. See Fashion House, 892 F.2d at 1082.
In Fashion House, we observed that:

23
Abuse
[of discretion] occurs when a material factor deserving significant weight is
ignored, when an improper factor is relied upon, or when all proper and no improper
factors are assessed, but the court makes a serious mistake in weighing them.
24

Id. at 1081 (quoting Independent Oil and Chemical Workers of Quincy, Inc. v.
Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988)). We find no
abuse here. The considerations relied on by the district judge were relevant.
Although Jackson disparages the court's findings and the manner in which they
were weighted, she identifies nothing consequential which the court
overlooked. By the same token, she points to nothing improper which the court
examined. And the balance struck does not jar our sensibilities.

25

On this record, it was permissible for the court to conclude that the tardy
production of records and the loss of evidence did not flow from defendants'
consciousness that the documents would hurt their case. Once that finding was
made, the court was entitled to treat it as an important part of the calculus of
relief. See Nation-Wide Check Corp, v. Forest Hills Distributors, 692 F.2d 214,

219 (1st Cir.1982); Allen Pen Co. v. Springfield Photo Mount Co., 653 F.2d
17, 23-24 (1st Cir.1981). After all, where misconduct is not willful or
intentional, "there seems less reason for an adverse presumption." Anderson v.
Cryovac Inc., 862 F.2d at 926. Preclusion and negative inference are grave
steps, "by no means an automatic response to a delayed disclosure ... [or] where
failure to make discovery [is] not willful." Freeman v. Package Machinery Co.,
865 F.2d 1331, 1341 (1st Cir.1988).
26

In this situation, we think it was reasonable for the judge to conclude that "the
sanction needed to be one appropriate to the truth-finding process, not one that
... served only further to suppress evidence." 721 F.Supp. at 1414. The remedy
devised--a continuance and an open run at further discovery--was a concinnous
response to the problems created by the University's negligence. There is
simply no principled way in which we can conclude that the trial court misused
its broad discretion.V. CONCLUSION

27

To recapitulate, the district court's finding that the tenure denial was not a result
of discriminatory animus on Harvard's part was not clearly wrong. Nor did the
court overstep its broad discretionary powers in dealing with irregularities
occurring in the course of pretrial discovery. Indeed, the record establishes,
beyond serious question, that appellant received all the process that was due.
Her most compelling complaint seems simply that, believing herself to be in
the right, she nevertheless lost her case. Her dissatisfaction is understandable.
But the University, on the evidence adduced at trial, had an equal claim to
believe that it had struck no foul blows. Resolving which of the two disputants
was entitled to prevail under applicable law in a close, fact-dominated case is
precisely the sort of grist for which the trial mill was long ago devised.

28

Affirmed.

The Civil Rules provide in pertinent part:

In all actions tried upon the facts without a jury ... the court shall find the facts
specially and state separately its conclusions of law thereon.... Findings of fact,
whether based on oral or documentary evidence, shall not be set aside unless
clearly erroneous, and due regard shall be given to the opportunity of the trial
court to judge of the credibility of the witnesses.
Fed.R.Civ.P. 52(a).

Appellant complains that the district court erred by stating that "whether or not

[Jackson] ... is more qualified than tenured males ... is irrelevant in this Title
VII action." 721 F.Supp. at 1443. Although we question the court's choice of
terminology, we disagree with appellant's characterization of the comment.
Taken in context, the court's statement was an unmistakable reference to a
settled principle: courts do not decide whether candidates' tenure qualifications
were judged incorrectly, but only whether the ultimate decision was based on
an unlawful factor. See Sweeney v. Bd. of Trustees of Keene State College, 604
F.2d 106, 112 (1st Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62
L.Ed.2d 731 (1980); see also Keyes, 853 F.2d at 1026 (even if plaintiff's
qualifications were superior to those of successful male, that would not prove
her case; an employer's mere "[e]rrors in judgment are not the stuff of Title VII
transgressions"). Comparisons may, of course, have evidentiary value in Title
VII litigation, see, e.g., Brown v. Trustees of Boston Univ., 891 F.2d at 347-48
(discussing admissibility of docent-to-docent comparisons in tenure denial
case), but other parts of the district court's opinion render it pellucid that the
judge understood the real relevance of comparisons between Jackson's
treatment and the treatment accorded male candidates. See, e.g., 721 F.Supp. at
1438