Melissa A. Maras v. The Curators of the University of Missouri

United States Court of Appeals
For the Eighth Circuit
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No. 19-2875
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Melissa A. Maras
lllllllllllllllllllllPlaintiff - Appellant
v.
The Curators of the University of Missouri; Daniel L. Clay, in his individual and
official capacity; Keith Herman, in his individual and official capacity; Matthew P.
Martens, in his individual and official capacity; Timothy C. Riley-Tillman, in his
individual and official capacity; R. Bowen Loftin, in his individual and official capacity
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: November 18, 2020
Filed: December 29, 2020
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Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.
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ARNOLD, Circuit Judge.
When Melissa Maras's application for tenure as an associate professor at the
University of Missouri was denied, she sued the university's curators (the corporate
body that operates the university) and five participants in the tenure-review process,

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claiming they had discriminated against her on the basis of sex, in violation of the
Missouri Human Rights Act. See Mo. Rev. Stat. § 213.055.1(1)(a). She also
complained that the curators violated Title VII by discriminating against her because
of her sex and violated the implied covenants of good faith and fair dealing in her
employment contract. In an admirably thorough opinion, the district court1 granted
the defendants summary judgment on Maras's claims, and she appeals. Reviewing the
summary-judgment determination de novo, see Gibson v. Concrete Equip. Co., 960
F.3d 1057, 1062 (8th Cir. 2020), we affirm.
Some years ago, the university's College of Education hired Maras as a tenure-
track assistant professor in its Department of Educational, School and Counseling
Psychology. Under the university's regulations, tenure-track assistant professors like
Maras would be employed year-to-year during a probationary period that usually
lasted six years. In the ordinary course, the professor would apply to be an associate
professor with tenure in the final year of the probationary period. If the university
declined to grant tenure, the professor would receive a one-year terminal
appointment.
The university's regulations emphasized the importance of an applicant's
scholarship: "Productivity in research and other scholarly activities is the most
distinguishing characteristic of the faculty of the University . . . . Recommendations
for promotion or tenure involving cases in which such activities are not at the highest
level will be approved only in very rare cases where the documented evidence for
teaching (including extension) and/or service contributions is exceptionally
compelling." Guidelines specific to Maras's department similarly provided that an
applicant for tenure must have "begun to establish a national reputation as a scholar"
1The Honorable Douglas Harpool, United States District Judge for the Western
District of Missouri.
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by publishing ten to twelve "high quality publications" in "high quality, refereed
professional journals" or by writing books or textbooks, among other things. These
publications, the criteria said, must "establish an empirical and programmatic line of
research." Finally, the department-specific guidelines emphasized that "[c]andidates
must show scholarly leadership through first authorship in at least some instances."
In the third, fourth, fifth, and sixth years of her probationary period, Maras
received written annual reviews from a department academic personnel committee
that discussed her progress in satisfying the tenure standards. Between five and
fifteen members of this committee participated in each of the annual reviews. In some
years she also received reviews from her department chair or department
administrator. The overall tenor of these reviews was that Maras needed to improve
her scholarship in three ways—by publishing in better journals, by publishing more
as first author, and by publishing more writings that were empirical rather than
theoretical. Though some performance reviews indicated that Maras improved her
scholarly output as the tenure-application date neared, her reviewers nonetheless
expressed concerns about her scholarship up to the very year of her tenure
application.
As for the tenure application, the district court correctly explained that the
"primary source of information for reviewing candidates for promotion and tenure is
the candidate's dossier." That dossier includes, among other things, the applicant's
curriculum vitae and information about the applicant's teaching history, research
accomplishments, role in obtaining grants, and service contributions. Importantly, the
dossier also includes six to eight letters from reviewers outside the university who
could review the applicant's work objectively.
The six external reviews of Maras's tenure application might best be described
as mixed. Some reviewers spoke well of Maras and her fitness for tenure. Others,
while generally making statements favorable to Maras's application, offered some
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remarks that might give a decisionmaker pause. For example, one reviewer said that
Maras would "likely" be granted tenure at the reviewer's university even though
Maras's "case is somewhat marginal." Another acknowledged that Maras would
probably not be granted tenure at his university even though she should be. A
different reviewer lauded Maras's record of service and "record of secondary
publications" but noted "relative weaknesses" in her other scholarship, including "a
publication rate on the lower end of the acceptable range for a research institution,
lack of first authored publications, lack of external federal funding, and publications
with conceptual, but not methodological, sophistication." As a result, the reviewer
explained, the weakness of Maras's research record "would likely make her case
marginal for promotion and tenure" at that reviewer's university. Finally, one reviewer
stated outright that Maras's scholarship was insufficient because "the number of peer-
reviewed publications is lower than set forth in the department guidelines," "across
all publications, only one reports the results of empirical research," and "the data
suggest a decreasing trend in Dr. Maras'[s] publication rate over the past three years."
That reviewer summarized her opinion by stating that Maras's scholarship record
"would deem her potentially ineligible for promotion and tenure at other research-
intensive universities I am familiar with."
The record shows that the university's tenure-review process is elaborate and
painstaking. It proceeds in numerous stages until it ultimately reaches the desk of the
university's chancellor, who was defendant R. Bowen Loftin at the time Maras
applied for tenure. The chancellor is the final decisionmaker and is not bound by the
recommendations of others. Along each step of the way, however, the relevant person
or committee reviewing the candidate's application would make a written
recommendation, which would then be included in the candidate's dossier and
available for review by those later involved. At each step, if a recommendation was
negative, the candidate was given an opportunity to request reconsideration and
submit a written rebuttal that would be included in the dossier.
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Maras's first review came from her department's academic personnel
committee, which defendant Keith Herman chaired. Herman had also been a member
of or chaired the committee when it gave Maras her annual performance reviews. By
vote of seven to three, the committee recommended against tenure. Maras provided
information to rebut the committee's written explanation, and after an in-person
hearing, the committee voted six to three to uphold its initial recommendation.
Herman voted against tenure both times.
Defendant Matthew Martens, the college's Division Executive Director, and
defendant Christopher Riley-Tillman, the college's Associate Division Director, then
considered Maras's application. Both recommended denying her tenure, and Maras
provided information to rebut their recommendations. Maras received a hearing, but
neither of them changed his mind. Recall that these decisions and appeals are
accompanied by written arguments and explanations that are included in Maras's
dossier for review by people further along in the process.
The next stop along the way was a review by a five-member committee
representing each of the college's five departments. A female professor, who is not
a defendant here, represented Maras's department. That committee unanimously
recommended against tenure, both before and after Maras asked it to reconsider.
Defendant Dan Clay, the college dean, was then asked to make a recommendation.
As had happened at every previous step, Maras received an initial negative
recommendation, and she requested reconsideration. As before, she offered rebuttal
information and appeared in person for a hearing. But once again, the initial
recommendation remained undisturbed.
Maras's application then passed on to a campus-wide committee composed of
tenured faculty members from different colleges and schools of the university. That
committee initially voted nine to two against tenure. This time, though, when Maras
provided rebuttal materials and appeared at a hearing, she obtained a favorable
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result—the committee reversed its initial stand and came down on her side by a vote
of ten to zero.
The provost, who is not a defendant here, then reviewed Maras's application.
He recommended that Maras not be granted tenure, largely because of "concerns"
about her research. Though Maras asked for reconsideration, provided rebuttal
information, and appeared before the provost in person for a hearing, he left his
recommendation unchanged. When Maras's case reached Chancellor Loftin—the
ultimate decisionmaker—he met twice with the provost to discuss the matter. Loftin's
initial determination, just like everyone else's, was against tenure. Maras appealed,
provided rebuttal information, and met with Loftin in person. But he declined to
reverse his decision.
We begin with Maras's Title VII claim. Title VII prohibits employers from
discriminating against employees because of their sex. See 42 U.S.C. § 2000e-2(a)(1).
Without direct evidence of discrimination, plaintiffs must make a prima facie case of
sex discrimination, and if they do, the employer must offer legitimate, non-
discriminatory reasons for the actions taken. If the employer provides such reasons,
the employee must demonstrate that the given reasons are pretext for unlawful
discrimination. See Gibson, 960 F.3d at 1062. We take up this appeal at the pretext
stage, as the university has offered a legitimate, non-discriminatory reason for
denying Maras tenure, namely, shortcomings in her scholarship record.
Courts have recognized that the nature of tenure decisions makes it difficult for
Title VII plaintiffs to succeed as a practical matter. Tenure decisions turn on uniquely
"specialized, multi-factored judgments" involving "numerous decisionmakers," see
Mawakana v. Bd. of Trs. of Univ. of D.C., 926 F.3d 859, 865 (D.C. Cir. 2019), and
they involve a foreseeable, deliberate employment decision that is not prompted by
accusations of malfeasance or nonfeasance. We have said, moreover, that when a
tenure candidate points to her scholarship record to show that she is qualified for
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tenure, a university's conclusion to the contrary must be "obviously unsupported." See
Qamhiyah v. Iowa St. Univ. of Sci. & Tech., 566 F.3d 733, 747 (8th Cir. 2009). The
strength of a tenure candidate's scholarship record, and its overall fit in a department's
or university's educational regime, is quintessentially the type of academic decision
that courts should respect. See Okruhlik v. Univ. of Ark., 395 F.3d 872, 879 (8th Cir.
2005).
Maras argues here that her scholarship record was sufficient for tenure and that
the university thus must be trying to hide discriminatory animus. But we can't say the
university's decision was obviously unsupported. Numerous people over four years
expressed concerns about Maras's record of scholarship in relation to her upcoming
tenure application. Many throughout the application process, including people outside
the university, expressed similar concerns. A widely shared opinion like this,
consistent over a significant period of time, strongly supports the university's
proffered reason for tenure denial. See Qamhiyah, 566 F.3d at 745, 747. It's difficult
to believe that dozens of people, both men and women (many of whom Maras does
not accuse of discrimination), who gave written reasons for their recommendations
for others to see and then stood by them when Maras challenged them, all harbored
sex-based discriminatory animus against her.
Maras nonetheless identifies three male comparators who received tenure
despite, she argues, having scholarly records that were no better than hers. But for us
to draw inferences of pretext based on this type of evidence, comparators must be
"similarly situated in all relevant respects" to the plaintiff, see McGhee v. Schreiber
Foods, Inc., 502 S.W.3d 658, 667 (Mo. Ct. App. 2016), a "test" we have described
as "rigorous." See Beasley v. Warren Unilube, Inc., 933 F.3d 932, 938 (8th Cir. 2019).
This is perhaps especially true in the tenure context where disparate treatment could
be due to a host of reasons other than unlawful discrimination. See Zahorik v. Cornell
Univ., 729 F.2d 85, 93 (2d Cir. 1984).
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In any case, the comparators Maras points to are not similarly situated in all
relevant respects to Maras. The ultimate decisionmaker, Chancellor Loftin, did not
review any of the comparators' applications. One comparator was in a completely
different department. Each of them also had several positive recommendations at
many steps in the tenure process, while Maras did not. And it's not obvious to us that
their records of scholarship were no better than Maras's. As the district court
explained, Maras has not shown "that the other candidates had the same quality of
publications, the same recommendations from each committee level, or the same
outside evaluations."
The district court offered a few statistics that buttress our conclusion. For
example, Loftin reviewed about seventy tenure applications while he was chancellor,
about half of them from men and half from women. He denied six—four men and two
women, one of whom was Maras. Clay reviewed eighteen tenure applications from
assistant professors, twelve of them from women. He made only two negative
recommendations—one for Maras, and one for a man. The other defendants
consistently recommended women for tenure or promotion as well. Though broad
statistics like these do not necessarily foreclose the possibility of a particular instance
of discrimination, when coupled with the other evidence in this record, they lend
support to the conclusion that no reasonable factfinder could think Maras's gender
had anything to do with the university's denial of tenure.
In sum, Maras has not shown "that the circumstances permit a reasonable
inference of discriminatory animus." See Qamhiyah, 566 F.3d at 747. While the
university's decision could have been wrong—a point on which we necessarily
express no opinion—there is nothing here to indicate that it was based on Maras's sex
in any way. We therefore affirm the court's grant of summary judgment on Maras's
Title VII claim. Her related MHRA claim fares no better because, as we just
explained, no reasonable factfinder could conclude that Maras's sex contributed at all
to the university's decision, as the MHRA requires for a plaintiff to succeed. See Denn
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v. CSL Plasma, Inc., 816 F.3d 1027, 1032 (8th Cir. 2016). And since Maras based her
contract claim on the curators' alleged sex discrimination, we affirm the court's grant
of summary judgment on that claim as well.
Affirmed.
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