Isabelle Blasdel v. Northwestern Un , 687 F.3d 813 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2075
ISABELLE B LASDEL,
Plaintiff-Appellant,
v.
N ORTHWESTERN U NIVERSITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 5576—Charles P. Kocoras, Judge.
A RGUED JUNE 5, 2012—D ECIDED JULY 19, 2012
Before B AUER, P OSNER, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. This is a Title VII suit for employ-
ment discrimination on grounds of the employee’s sex.
After dismissing as untimely the first count of a two-
count complaint, the district judge granted summary
judgment in favor of the defendant on the second
count and so dismissed the entire suit, precipitating
this appeal.
2 No. 11-2075
The first count had alleged a series of discriminatory
acts beginning when the plaintiff was hired in 2003 by
Northwestern University, the defendant, and ending
with the termination of her employment in 2008.
The second count was confined to her denial of tenure
in 2007 and the ensuing termination, which the parties
treat as the inevitable consequence of the denial of ten-
ure. The judge dismissed the first count on the ground
that liability for all but the acts charged in the second
count was time-barred. 2009 WL 5166218 (N.D. Ill. Dec. 23,
2009). For only the denial of tenure occurred within the
300-day window for filing a charge of discrimination, 42
U.S.C. § 2000e-5(e), though if she proved that the denial of
tenure was unlawful this would void the termination as
well, assuming as we do that it was the automatic conse-
quence of the denial of tenure. We think the judge’s
dismissal of the first count was correct for the reasons he
gave, and do not think it necessary to add our two cents’
worth to his analysis. All we’ll decide is whether the
plaintiff is entitled to a trial on her claim that she was
denied tenure because she is a woman.
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990), in
rejecting a claim that materials submitted for considera-
tion in a tenure determination should be subject to a
privilege grounded either in federal common law or in
the free-speech clause of the First Amendment, held
Title VII fully applicable to such determinations. The
Court explained that the elimination in 1972 of an ex-
emption in the original Act for employment decisions
by educational institutions had “expose[d] tenure deter-
minations to the same enforcement procedures ap-
plicable to other employment decisions.” Id. at 190.
No. 11-2075 3
But although the legal standard is the same whether
the plaintiff in an employment discrimination case is a
salesman or a scientist, practical considerations make
a challenge to the denial of tenure at the college or uni-
versity level an uphill fight—notably the absence of
fixed, objective criteria for tenure at that level. Vanasco
v. National-Louis University, 137 F.3d 962, 968 (7th
Cir. 1998) (“such decisions necessarily rely on subjective
judgments about academic potential”); Namenwirth v.
Board of Regents of University of Wisconsin System, 769
F.2d 1235, 1243 (7th Cir. 1985) (“tenure decisions have
always relied primarily on judgments about academic
potential, and there is no algorithm for producing those
judgments”); Fisher v. Vassar College, 70 F.3d 1420, 1435 (2d
Cir. 1995) (“it is difficult to conceive of tenure standards
that would be objective and quantifiable”), abrogated on
other grounds, Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 147-48 (2000); Zahorik v. Cornell University,
729 F.2d 85, 92-93 (2d Cir. 1984) (“the particular needs
of the department for specialties, the number of tenure
positions available, and the desired mix of well known
scholars and up-and-coming faculty all must be taken
into account . . . . [T]enure decisions are a source of unusu-
ally great disagreement . . . . [T]he stakes are high,
the number of relevant variables is great and there is
no common unit of measure by which to judge scholar-
ship”).
And we must not ignore the interest of colleges and
universities in institutional autonomy. Grutter v. Bollinger,
539 U.S. 306, 328-30 (2003); Regents of University of
Michigan v. Ewing, 474 U.S. 214, 225 (1985); Hosty v. Carter,
4 No. 11-2075
412 F.3d 731, 736 (7th Cir. 2005) (en banc) (“academic
freedom includes the authority of the university to
manage an academic community and evaluate teaching
and scholarship free from interference by other units of
government, including the courts”); Piarowski v. Illinois
Community College District 515, 759 F.2d 625, 629-30
(7th Cir. 1985); Urofsky v. Gilmore, 216 F.3d 401, 412-15 (4th
Cir. 2000) (en banc). Although the Supreme Court in
University of Pennsylvania v. EEOC, supra, 493 U.S. at 195-
201, was emphatic that academic freedom does not justify
immunizing materials submitted in the tenure process
from the EEOC’s subpoena power, courts tread cautiously
when asked to intervene in the tenure determination
itself. They must be mindful that, as Judge Friendly said
in Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980), “to
infer discrimination from a comparison among can-
didates is to risk a serious infringement of first amend-
ment values. A university’s prerogative ‘to determine
for itself on academic grounds who may teach’ is an
important part of our long tradition of academic freedom.
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frank-
furter, J., joined by Harlan, J., concurring in the result)
(citations omitted).”
A disappointed candidate for tenure at a college or
university may well be the best possible candidate along
one dimension but not others. If A publishes an excellent
academic paper every five years on average, is she better
or worse than B, who publishes a good but not excellent
paper on average every six months, so that at the end
of five years he has published 10 papers and she only 1?
Quantity and quality are (within limits) substitutes. A
No. 11-2075 5
company that made the finest automobile in the world,
but made only one a year, would not be the world’s best
automobile manufacturer. Or suppose Professor C used
to publish a paper every six months, but she has
slowed down, while D, who is younger, has not. That is
an ominous sign from the standpoint of granting C
tenure, because a tenured professor is very hard to fire
even if he or she has ceased to be a productive scholar.
With mandatory retirement now unlawful, the grant of
tenure is often literally a lifetime commitment by
the employing institution, barring dementia or serious
misconduct.
In some academic fields, moreover—including as it
happens physiology—research requires costly lab-
oratories financed by grants from the federal government
or from foundations. Proficiency in obtaining grants is
a highly valued capability in such fields; and scholars
differ in their ability to obtain grants. Then too, office
politics frequently plays a role in the award or denial of
tenure; friendships and enmities, envy and rivalry—the
stuff of such academic novels as Publish and Perish: Three
Tales of Tenure and Terror, by James Hynes, or Randall
Jarrell’s Pictures from an Institution—can figure in tenure
recommendations by the candidate’s colleagues, along
with disagreements on what are the most promising
areas of research. In addition, many academics are hy-
persensitive to criticism, especially by younger aca-
demics, whom they suspect, often rightly, of wanting to
supplant them. Although office politics and professional
jealousy are bad reasons for denying tenure, an erroneous
denial of tenure, as such, does not violate Title VII.
6 No. 11-2075
Namenwirth v. Board of Regents of University of Wisconsin
System, supra, 769 F.2d at 1242; Lieberman v. Gant, supra,630 F.2d at 67-68; cf. Anderson v. University of Wisconsin,
841 F.2d 737, 741-42 (7th Cir. 1988).
The decisionmaking process in an academic hierarchy
creates further complication. Granting tenure, like ap-
pointing a federal judge, is a big commitment. The
final decision may be made by a committee, or an official
such as a university provost or president, remote from
the chairman and the other members of a candidate’s
department. Even if invidious considerations play a
role in the department’s recommendation for or against
tenure, they may play no role in the actual tenure
decision, made at a higher level. In the present case
the tenure decision was made by Northwestern’s
provost, and there is no evidence that he was influenced
by the fact that Blasdel is a woman. So she can prevail
only by showing that the provost’s decision was
decisively influenced by someone who was prejudiced.
Sun v. Board of Trustees of University of Illinois, 473 F.3d
799, 812-13 (7th Cir. 2007); Qamhiyah v. Iowa State
University of Science & Technology, 566 F.3d 733, 745-46
(8th Cir. 2009); cf. Schandelmeier-Bartels v. Chicago Park
District, 634 F.3d 372, 378-79, 383-84 (7th Cir. 2011);
Adelman-Reyes v. Saint Xavier University, 500 F.3d 662, 667
(7th Cir. 2007).
And finally, because so many factors influence the
tenure process and because statistical inferences of dis-
crimination are difficult to draw when there is only a
small number of observations (tenure appointments in a
No. 11-2075 7
particular department may be few and far between), it
can be difficult to infer the presence of an invidious
influence such as the sex of the candidate merely by
comparing successful and unsuccessful tenure applicants.
Isabelle Blasdel was hired by Northwestern’s medical
school to be an assistant professor in the physiology
department beginning in 2003. She is an electro-
physiologist—that is, she studies the electrical activity of
the brain. She was 42 years old when hired by Northwest-
ern and before that had worked for eight years as a non-
tenure-track assistant professor at Boston University’s
medical school. And before that she had held, since
receiving her Ph.D. in 1987, postdoctoral fellowships in
France and the United States and junior academic
positions in France, her place of birth. Over her entire
career before coming to Northwestern she had pub-
lished 22 academic articles. Northwestern hired her in
the expectation that she would be doing research on
Parkinson’s disease as well as teaching students and
seeking grants of outside funding for her research.
Several months after arriving at Northwestern she was
told that actually she’d been hired as an associate
professor rather than as an assistant professor (the former
being a higher rank, of course) and that she would be
evaluated for tenure after four years, in 2007, rather
than after six years, the period typically allowed to new
associate professors, or nine years, the period typically
allowed to new assistant professors. The period allowed
to a faculty member at Northwestern’s medical school
before the up-or-out decision on tenure tends to be
8 No. 11-2075
inverse to rank and (what is usually related) previous
experience. The medical school’s stated policy is that
“the probationary period . . . may be abbreviated in
consideration of previous service at another institution”
because the longer the candidate for tenure has been a full-
time academic the greater the opportunity she’s had
to prove herself a worthy candidate. Given Blasdel’s eight-
year stint as an assistant professor at Boston University,
the four-year “tenure clock” given her meant she would
have been an academic for 12 years when it came time
for the tenure decision.
She did not, when hired or for that matter subsequently,
ask for more than four years, although this may have
been because the chairman of the department, James
Surmeier, had told her at the outset that she’d do well
at Northwestern and be awarded tenure. (He had been
her big booster—the principal advocate of her initial
appointment.) Two male faculty hired in the medical
school while Blasdel was there were given shorter
tenure clocks than she.
She knew she was expected to obtain outside funding
for her research (she received an initial inside grant of
$500,000 to set up a laboratory—she was offered $600,000
but requested that $100,000 be transferred to her hus-
band, also a scientist, also hired to work at North-
western’s medical school). She brought some outside
funding with her to Northwestern but it was used
up within months and was not renewed. During her re-
maining time there she obtained only one other grant, of
$900,000 spread over four years for research on drug
No. 11-2075 9
addiction. (Parkinson’s and drug addiction may seem
unrelated, but Blasdel’s research specialty—the effects
of dopamine on neurons, particularly in the subthalamic
nucleus of the brain—relates to both.) That grant was not
renewed either, apparently because she did little if any
research on drug addiction, and published no papers
on the subject, while at Northwestern.
Contrary to Surmeier’s advice that she focus on drug
addiction, she persisted with her Parkinson’s research
and in 2006 published her only academic paper since
joining the Northwestern faculty, which reported on the
results of that research and was published in the Pro-
ceedings of the National Academy of Sciences of the United
States of America (PNAS), a top-ranked scientific journal.
Eventually she asked an associate dean of the medical
school whether she could request more time before she
was considered for tenure, because she had realized
belatedly that she had to reorient her research from Par-
kinson’s to drug addiction. He said she could ask for
an extension, though she didn’t. Surmeier yelled at her
when he learned she’d gone over his head to inquire
about an extension grounded on her needing to reorient
her research, when he had already told her to do that
and she’d refused. And he had already asked the
associate dean to extend Blasdell’s tenure clock, in a
letter stating that “much of [her] promise has not been
realized, largely because of the demands associated
with raising two young boys.” It is a strange letter, but
for reasons unrelated to her being a woman. In it he asks
that she be promoted to associate professor—he seems to
10 No. 11-2075
have forgotten that she already was an associate
professor even though the department originally had
planned to hire her as an assistant professor. He re-
ceived a rather tart response from the associate dean, who
reminded him of Blasdel’s actual rank and said that
family problems were unlikely to justify an extension.
Surmeier’s remark concerning Blasdel’s failure to
realize her full promise because of the kids appears only
in the letter about promoting her to associate professor
and extending her tenure clock. His letter recommending
her for tenure, thus seconding the physiology depart-
ment’s tenure-recommendation letter, makes no
reference to family issues (nor does the department’s
letter). It attributes her failure to realize her full prom-
ise—a failure too obvious not to be addressed if the
letter was to be credible—to purely work-related prob-
lems that were not her fault and had been overcome and
therefore should not be regarded as an obstacle to
tenure, which he urged that she be given.
The same day that Blasdel had started work at North-
western, so had Mark Bevan, also a physiologist. He was
six years younger than she and had been an assistant
professor at another university for only three years; so
although appointed an associate professor like Blasdel
he was given a six-year tenure clock. At a much-criticized
presentation of her work on Parkinson’s disease, Bevan
called her work “shit” and another member of the de-
partment (Charlie Wilson) said she didn’t know what
she was doing. After that meeting she complained to
Surmeier that she wasn’t getting enough feedback from
No. 11-2075 11
Bevan and Wilson and he told her that he understood
her “emotional need to be heard.” Apparently she’d
fought back hard against Bevan and Wilson at the
session in which she had presented her views—Surmeier
described her to them somewhat apologetically as “com-
bative” but asked them to give her another chance to
present her views. She did, but failed to overcome
their criticisms.
As Blasdel’s four-year probationary period neared its
end, she realized that she hadn’t published enough, and
obtained enough external funding, to be awarded tenure.
She needed an extension of time and Surmeier told her
she might be able to obtain it because in his view North-
western should accommodate the needs of “a woman
scientist who reproduced.” The strange formula is
treated by Blasdel’s lawyer (she repeats it incessantly in
her briefs) as sexist. But in context it is apparent that all
that Surmeier meant is that a woman scientist who has
young children, as Blasdel did, should be given more
time to prove herself as a scientist than a man unless
her husband stays home with the kids (and Blasdel’s
husband, also employed by Northwestern as a scientist,
did not) or she is independently wealthy (and the Blasdels
are not); for otherwise she will have to shoulder a heavy
burden of child care.
For whatever reason, Blasdel was not performing to
expectations, as she acknowledged, and Surmeier was
offering the associate dean an explanation that might
persuade him to give her more time to prove herself. He
explained that she was the “primary caregiver to two
12 No. 11-2075
young boys” who had had “difficulty transitioning [from
Boston] to public school in Chicago.” He must have
gotten this information from her, and she doesn’t
suggest that it’s inaccurate. She comes close to arguing
that such remarks, when made by a superior, are “ille-
gal”—but when made to extenuate a woman scientist’s
failing to realize her full promise could be complained
of only by a man denied similar consideration.
Surmeier’s choice of words to denote the class of
women for whom family responsibilities can impede
professional advancement was as we said strange—but
scientists often talk strangely, geekily, as they have chosen
a profession most branches of which are concerned with
things (neurons, quarks, computer code, etc.) rather than
with people. A scientist might say that a donkey is an
ungulate that reproduces and a mule is an ungulate that
doesn’t reproduce, whereas a layperson would just say
mules are sterile. And similarly a layperson would say
that allowances should be made for women scientists
who have young children, while a scientist might
separate women into reproducers and nonreproducers—
and men as well.
We mustn’t forget that Surmeier requested that Blasdel
be hired in the first place, and did so with great enthusi-
asm. Granted, we have rejected “the so-called ‘common
actor’ [sometimes referred to as the ‘same actor’] presump-
tion. When the same person hires and later fires the
employee who claims that his firing was discriminatory,
judges are skeptical, because why would someone who
disliked whites, or Germans, or members of some other
No. 11-2075 13
group to be working for him have hired such a person
in the first place? It is misleading to suggest that this
skepticism creates a ‘presumption’ of nondiscrimination,
as that would imply that the employee must meet it or
lose his case. It is just something for the trier of fact to
consider.” Hernreiter v. Chicago Housing Authority, 315
F.3d 742, 747 (7th Cir. 2001); see also Waldron v. SL Indus-
tries, Inc., 56 F.3d 491, 496 n. 6 (3d Cir. 1995). In this case
it is something that undermines any inference that
Surmeier harbors prejudice against female scientists. See
Harris v. Warrick County Sheriff’s Department, 666 F.3d
444, 449 (7th Cir. 2012); cf. Petts v. Rockledge Furniture
LLC, 534 F.3d 715, 724-25 (7th Cir. 2008).
Blasdel decided not to request that the hands on
her tenure clock be pushed back a year; instead she sub-
mitted her tenure application within the four-year dead-
line. The physiology department recommended tenure
for her in an enthusiastic letter, Surmeier submitted a
supportive letter as we know, and Blasdel also re-
ceived supportive letters from neuroscientists outside
of Northwestern.
An ad hoc reviewing committee in the medical school
seconded the department’s tenure recommendation while
expressing concern about Blasdel’s “moderate publication
record,” “uneven” productivity, and problems obtaining
external funding. The committee’s report was then re-
viewed by two members (one male, one female) of the
medical school’s appointments, promotion, and tenure
committee. They both recommended against tenure for
Blasdel, because of her low publication rate, substantial
14 No. 11-2075
gaps in her publication record, relatively tepid recom-
mendations from outside referees, and inability to ob-
tain adequate external funds and renew the grants
she did obtain. As Mark Bevan noted in his deposition,
success in obtaining renewals of research grants is a
vital consideration in tenure applications in scientific
departments. Because of their expensive facilities and
equipment, without research grants these departments
wither. See, e.g., Sun v. Board of Trustees of University of
Illinois, supra, 473 F.3d at 807; Whaley v. City University of
New York, 555 F. Supp. 2d 381, 406-07 (S.D.N.Y. 2008);
Sundaram v. Brookhaven Nat’l Laboratories, 424 F. Supp. 2d
545, 574 (E.D.N.Y. 2006); see also Harvard Medical
School, “Criteria for Appointment and Promotion,” http://
facultypromotions.hms.harvard.edu/index.php?page=
AE_investigation; Johns Hopkins Medicine, “Faculty
Policies: Appointments and Promotions of Full-
Time Faculty,” § II.C, www.hopkinsmedicine.org/som/
faculty/policies/goldbook/promotions.html; University
of Pennsylvania Perelman School of Medicine, “Guide-
lines for Conversations with Tenure-track Faculty,”
www.med.upenn.edu/mentee/bs1-3.shtml; Stanford School
of Medicine, “Faculty Handbook,” § 2.4.I.1, p. 43
w w w .m ed .st an for d .edu/academ icaffairs/handbook/
documents/Chapter2.pdf. (All web sites were visited
on June 29, 2012.)
Failure to obtain the renewal of a grant is particularly
serious. The initial grant is given in the hope that it will
fund important research. The grant is likely to be renewed
if but only if the hope is fulfilled—in other words only if
the grantor believes that the money was well spent.
No. 11-2075 15
Nonrenewal may therefore imply criticism of the grantee
and make it even harder for him or her to obtain
future grants.
As an example of “comments evidencing gender stereo-
typing and discrimination,” Blasdel’s lawyer quotes the
statement by Robert Lavker, one of the two reviewers
of Blasdel’s tenure application, that “the demands of a
family have been given as one of the mitigating circum-
stances underlying [Blasdel’s] lack of productivity,” that
he (Lavker) “appreciate[d] the weight that family can
exert on one’s career and that the woman quite often
bears the brunt of many of these burdens,” that “many
institutions grant an additional year on the tenure clock
for each child in a family,” and that if this hadn’t been
done for Blasdel “I strongly suggest that her clock be
extended.” This doesn’t sound like “gender stereotyping
and discrimination,” but in any event must be placed
in the context of Lavker’s entire evaluation of the physiol-
ogy department’s recommendation for tenure. We there-
fore quote it in full:
I disagree with the ad hoc committee’s recommenda-
tion of awarding tenure for the following reasons:
1. Since finishing her post-doctoral fellowship in 1994,
Dr. Mintz [Blasdel’s maiden name—it appears that
she uses her maiden name and her married name
interchangeably] has only published 4 papers without
her mentor, and more importantly since joining the
faculty at Northwestern, she has only published 1
original manuscript. While her publications are in
high quality, broad-readership journals, this level of
16 No. 11-2075
productivity is far below what is expected of an indi-
vidual for tenure.
2. Since joining the faculty at Northwestern, she has
presented one invited lecture and has only been
invited to present three lectures in total. Tenure-
worthy candidates usually have many more invited
lectures (e.g., Gordon or Keystone Conferences; visit-
ing professorships) and involvement in symposia
at national meetings both as an organizer and partici-
pant. Such an extremely modest number of invited
lectures fail to make a case for “substantial external
professional recognition.”
3. Dr. Mintz has not held leadership positions in any
professional societies nor serves on any editorial
boards. Such academic service, indicative of profes-
sional recognition is usually [sic] and customary for
tenure-eligible candidates.
4. Dr. Mintz has only served as an Ad Hoc member
once on a Study Section. Tenure-eligible candidates
with this much time since finishing post-doctoral
training usually serve or have served as permanent
members of Study Sections. Again, this focuses on
the issue of external professional recognition.
5. Dr. Mintz has only one current NIH grant and
does not provide evidence of success in competitive
renewals of existing grants. Tenure-eligible candidates
usually have two NIH R01 [Research Project Grants]
grants, and/or evidence of the ability to successfully
renew initial grants.
No. 11-2075 17
6. While the external referees uniformly praised
Dr. Mintz’s scientific contributions and her scientific
spirit, several questioned whether she would
get tenure at their institutions. In addition, it
is disturbing that nine individuals did not write
letters and some claimed not to be familiar with her
work even though many were in neurology and/or
related fields. It is my experience that being a contro-
versial person usually results in the generation of
letters not the absence thereof.
7. The demands of a family have been given as
one of the mitigating circumstances underlying
Dr. Mintz’s lack of productivity. I appreciate the
weight that family can exert on one’s career and
that the woman quite often bears the brunt of many
of these burdens. Many institutions grant an addi-
tional year on the tenure clock for each child in a
family. If this has not been done for Dr. Mintz then
I strongly suggest that her clock be extended.
8. While I agree with [Surmeier] that Dr. Mintz has
“great scientific promise” and “that she will continue
to grow scientifically and elevate her level of produc-
tivity,” in my experience, tenure is not granted for
potential but rather for accomplishments. Therefore,
taking all of the above into consideration, Dr. Mintz
does not meet the requirements for granting tenure.
Unsurprisingly in light of Lavker’s evaluation, and the
recommendation against tenure by the other reviewer as
well (Margarita Dubocovich, who in her report noted
among other things that Blasdel’s “scholarly productiv[ity]
18 No. 11-2075
(publications, abstracts, invited seminars and con-
ferences, national and international recognition) has
been below average, and her teaching and service con-
tributions has been minimal,” and “she has yet to demon-
strate that she can renew her research awards”), the
medical school’s appointments, promotion, and tenure
committee unanimously recommended against tenure
for Blasdel. The dean of the medical school concurred
in the recommendation, as did the university’s pro-
vost—the ultimate decisionmaker.
There is no indication that any member of the medical
school’s appointments, promotion, and tenure committee,
or the dean, or the provost discriminates against women
scientists. In the seven years that the dean had been
in office when he recommended against giving Blasdel
tenure, the percentage of tenure track female faculty in
the medical school had increased from 20.5 to 25.4 percent
and their rate of obtaining tenure had exceeded that of
the male faculty. Nor is it suggested that the committee,
or the dean, or the provost rubber stamps tenure recom-
mendations by any department in the medical school—
and of course if they did Blasdel would have gotten
tenure, because her department recommended her for it.
She argues that she was undermined by Surmeier and
others. But her evidence of their being prejudiced
against women is limited to a handful of stray remarks
of ambiguous import at best—such as “a woman
scientist who reproduces,” “emotional need to be heard,”
“combative,” and Bevan’s once calling her “scary!” Bevan’s
remark may well have been a compliment—the ad hoc
committee noted that “blunt scientific style could . . . be
No. 11-2075 19
viewed as a breath of fresh air in heated scientific dis-
cussions,” and anyway the comment had nothing to
do with the tenure process.
This is not evidence on which a reasonable jury could
base a finding of sex discrimination. Compare Petts v.
Rockledge Furniture LLC, supra, 534 F.3d at 721-24; Sun v.
Board of Trustees of University of Illinois, supra, 473 F.3d at
813; Vakharia v. Swedish Covenant Hospital, 190 F.3d 799, 806
n. 7 (7th Cir. 1999); Morales-Cruz v. University of Puerto Rico,
676 F.3d 220 (1st Cir. 2012); Weinstock v. Columbia Univer-
sity, 224 F.3d 33, 44 (2d Cir. 2000), with Costa v. Desert
Palace, Inc., 299 F.3d 838, 845-46, 851, 861-62 (9th Cir. 2002)
(en banc), affirmed, 539 U.S. 90 (2003). Blasdel’s lawyer
disclaims any contention that there was a “conspiracy”
among the university faculty and officials involved in
the denial of tenure. And this is not a case in which
the ultimate decisionmaker, though himself free from
prejudice, is manipulated by an unscrupulous under-
ling, as would be the case had Surmeier, actuated by a
desire to maintain the physiology department as a male
bastion, falsely charged Blasdel with plagiarism and the
falsity was not discovered until after she was denied
tenure. His fraud would be imputed to his employer, the
university. Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190
n. 1, 1191-94 (2011); Hicks v. Forest Preserve District, 677
F.3d 781, 789-90 (7th Cir. 2012); Cook v. IPC Int’l Corp.,
673 F.3d 625, 628-29 (7th Cir. 2012); Brewer v. Board of
Trustees of University of Illinois, 479 F.3d 908, 917-18 (7th
Cir. 2007).
As for the reference to “male bastion”—a term in-
jected into the case by Blasdel’s lawyer—we note that
20 No. 11-2075
although the lawyer repeatedly states that her client
was the only woman faculty member in the physiology
department, there was another one and she had tenure.
And remember that Surmeier had hired Blasdel with
great enthusiasm, only to be disappointed by her per-
formance at Northwestern.
Blasdel also asks us to infer sex discrimination from a
procedural error in Northwestern’s rejection of her
internal appeal from her tenure denial. Long v. Teachers’
Retirement System, 585 F.3d 344, 352-53 (7th Cir. 2009);
Rudin v. Lincoln Land Community College, 420 F.3d 712, 723
(7th Cir. 2005); Weinstock v. Columbia University, supra, 224
F.3d at 45. The statement by the chairman of the appeals
panel that Blasdel’s “appeal does not sufficiently allege
grounds of appeal within the stated jurisdiction of the
University Faculty Reappointment, Promotion, Tenure,
and Dismissal Appeals Panel . . . [and that therefore he
would] not be convening an appeal body to adjudicate
[her] charges” was indeed mistaken. The faculty hand-
book states that a “faculty member denied . . . tenure” may,
if he or she believes that the denial was based on con-
siderations “not demonstrably related to the faculty
member’s performance,” including discrimination based
on sex, “file a written appeal with the University Faculty
Reappointment, Promotion, Tenure, and Dismissal Ap-
peals Panel,” as Blasdel did. But the procedural bobble
by the appeals panel’s chairman, who was remote from
the process that resulted in the denial of tenure for
Blasdel (he was a music professor), is insufficient to
create a triable issue. See Qamhiyah v. Iowa State University
of Science & Technology, supra, 566 F.3d at 746-47; Weinstock
No. 11-2075 21
v. Columbia University, supra, 224 F.3d at 45; Zahorik v.
Cornell University, supra, 729 F.2d at 93-94. Blasdel doesn’t
allege that the dismissal of her appeal was a Title VII
violation. There is no indication that the music professor
is prejudiced against women scientists.
She also asks us to infer sex discrimination from the
fact that Mark Bevan, who applied for tenure at the same
time she did, applied three years before his tenure deadline
and only six years into his academic career—and his
application was granted. There is no indication that she
and Bevan were competing for a single tenure slot and
therefore that the grant of tenure to him was necessarily
a rejection of tenure for her. It thus is not a case of a male-
female face-off won by the male. Nor is the evidence
considered as a whole that she was better qualified
for tenure than he. He had been the lead author on six
articles during his time at Northwestern, compared to
Blasdel’s one. He had been successful not only at ob-
taining external funding—six grants to her two (the first
being the grant she’d received at Boston University and
that had been used up during her first months at North-
western, and the second the only grant she got while
at Northwestern, and it was not renewed)—but also
and critically in renewing his grants, which she had
failed to do. He had received enthusiastic letters from
senior neuroscientists in support of his tenure applica-
tion (recall Lavker’s reservations about Blasdel’s external
letters of support). And Blasdel herself had described
him as a world-class anatomist—at the top of his
field—and though a layperson would think an anatomist
different from a physiologist, Blasdel described his work
22 No. 11-2075
as very similar to hers. Bevan testified in his deposition
that their approaches were so similar that it wouldn’t
have made sense for them to collaborate on research
papers—collaboration is more productive when the
collaborators have (at least slightly) different approaches.
It is not a ground for suspicion that despite being
younger and not having published in as prestigious
journals, Bevan was preferred for tenure over her.
His frequency of publication while both were at North-
western (and remember that they were hired at the
same time) was higher than hers, and more consistent
over time; there was no indication as there was with
her of lagging productivity. He was also more active in
presenting his research to the scholarly community. And
unlike her he was an excellent “grantsman.” These
are all vital considerations to a university science depart-
ment.
Blasdel complains finally about the grant of tenure to
another man, Lee Miller. Her lawyer says that “Blasdel’s
publication record was far superior to Miller’s.” That is
an overstatement, like the lawyer’s ungrounded assertion
that the record contains “palpable evidence of Surmeier’s
blatant gender bias.” Blasdel had published 23 articles
to Miller’s 20, but his rate of publication was rising
while hers was falling. He had garnered greater external
recognition, had many more research grants, and was
in much greater demand as an external reviewer of
other scientists’ papers—yet had received his Ph.D., and
begun his academic career, three years later than
Blasdel had.
No. 11-2075 23
On the record compiled in the lengthy discovery con-
ducted in this case, no reasonable jury could infer that
Blasdel was denied tenure because she is a woman.
Summary judgment was therefore rightly granted in
favor of the university.
A FFIRMED.
7-19-12