114 F.3d 1332 (2nd Cir. 1995), 1179, Fisher v. Vassar College

Docket Nº:1179, 1303 and 2275, Dockets 94-7737, 94-7785 and 94-9125.
Citation:114 F.3d 1332
Party Name:Cynthia J. FISHER, Plaintiff-Appellee-Cross-Appellant, v. VASSAR COLLEGE, Defendant-Appellant-Cross-Appellee.
Case Date:September 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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114 F.3d 1332 (2nd Cir. 1995)

Cynthia J. FISHER, Plaintiff-Appellee-Cross-Appellant,


VASSAR COLLEGE, Defendant-Appellant-Cross-Appellee.

Nos. 1179, 1303 and 2275, Dockets 94-7737, 94-7785 and 94-9125.

United States Court of Appeals, Second Circuit

September 7, 1995

Argued March 20, 1995.

Amended Dec. 14, 1995.

Argued In Banc June 5, 1996.

Decided June 5, 1997.

Eleanor Jackson Piel, New York City (Herma Hill Kay, Berkeley, CA, on the brief), for Plaintiff-Appellee-Cross-Appellant Cynthia Fisher.

Maurice F. Curran, Mount Kisco, NY (James P. Drohan, Daniel Petigrow, Anderson, Banks, Curran & Donoghue, Mount Kisco, NY, on the brief), for Defendant-Appellant-Cross-Appellee Vassar College.

(Samuel A. Marcosson, C. Gregory Steward, General Counsel, Gwendolyn Young

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Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Equal Employment Opportunity Commission, Washington, DC, for amicus curiae Equal Employment Opportunity Commission.)


JACOBS and LEVAL, Circuit Judges, with whom Judges MINER, WALKER, McLAUGHLIN, and PARKER join [**]:

At the close of a three-week bench trial, the United States District Court for the Southern District of New York (Motley, J.), found that defendant Vassar College ("Vassar") discriminated against plaintiff Cynthia Fisher in denying her tenure as a professor in its biology department. Fisher v. Vassar College, 852 F.Supp. 1193 (S.D.N.Y.1994). Specifically, the district court found that Vassar discriminated against the plaintiff (i) on the basis of her status as a married woman, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; and (ii) on the basis of her age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). The district court also found that Vassar had violated the Equal Pay Act, 29 U.S.C. § 206(d)(1), by paying its junior female faculty members less than its junior male faculty members. Vassar was ordered to pay Fisher an aggregate money judgment of $626,872.12, plus attorneys' fees, and to reinstate Fisher to the rank of Associate Professor in Vassar's biology department.

A panel of this Court found the district court's ruling clearly erroneous and reversed the judgment. Fisher v. Vassar College, 70 F.3d 1420 (2d Cir.1996). During consideration of the Petition for Rehearing in Banc, a question was raised whether our review for clear error violated a rule established in Binder v. Long Island Lighting Co., 57 F.3d 193 (2d Cir.1995). A majority of the Court has decided to limit in banc review to resolution of the question whether a finding of liability under Title VII, supported by a prima facie case and a sustainable finding of pretext, is subject to review for clear error. 1

No rule of law forbids appellate review for clear error in these circumstances. We hold that once an employer has proffered a non-discriminatory reason for an adverse employment action, a plaintiff in a discrimination case must show by a preponderance of the evidence that the reason for the adverse employment action was illegal discrimination. In so doing, a plaintiff may rely on the evidence constituting the prima facie case, together with supportable inferences to be drawn from the false or erroneous character of the employer's proffered reason for the adverse action. Because of the special meaning given by the Supreme Court to prima facie proof in this area of law, evidence constituting a prima facie case prior to the employer's proffer of a reason, coupled with the error or falsity of the employer's proffered reason may--or may not--be sufficient to show illegal discrimination by a preponderance of the evidence. But in any event, a finding of discrimination, like any other determination of fact, is reviewable on appeal for clear error. The panel scrutinized the district court's findings of discrimination, found them insupportable, concluded that Fisher had failed to show by a preponderance of the evidence that Vassar had discriminated against her for an illegal reason, and therefore reversed the finding of discrimination as clearly erroneous. We conclude that the panel was within its powers in reviewing the district court's finding of discrimination for clear error in these circumstances, and we therefore direct the district court to dismiss the plaintiff's suit.

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The facts of this case are fully described in the panel opinion, 70 F.3d 1420, and in the opinion of the district court, 852 F.Supp. 1193. The following brief outline of facts assumes familiarity with those opinions. Plaintiff Cynthia Fisher is a married woman who received a Ph.D. in Zoology from Rutgers University in 1963 and engaged in post-doctoral research from 1963 to 1965. From 1966 to 1974, the plaintiff devoted most of her time to raising her two children, and performed no work outside the home. From 1974 to 1976, the plaintiff took a part-time position as a lecturer in biology at Marist College.

Fisher was hired by Vassar as a visiting assistant professor in biology in 1977, and was placed in a tenure-track position in 1980. In 1982, Fisher was reappointed for a three-year term, at the end of which she was to be reviewed for tenure. During the 1984-85 academic year, Vassar undertook a comprehensive review of Fisher's candidacy for tenure. A five-member committee of tenured professors in the Biology Department, three men and two women, were charged with reviewing Fisher's credentials in accordance with four criteria: scholarship, teaching ability, leadership, and service to Vassar. In a confidential report, the committee found Fisher deficient in all four categories, and unanimously recommended that she be denied tenure. The committee's report and recommendation was forwarded to Leathem Mehaffey, chairman of the Biology Department, who informed Fisher of the committee's recommendation on March 29, 1985.

In accordance with Vassar's procedures, the departmental report and recommendation was also received by the dean of the college, the college president, and the Faculty Appointments and Salary Committee ("FASC"). (At Vassar, the dean, the president, and the FASC each make a recommendation to the Board of Trustees, the entity with the authority to grant or deny tenure.) Between April 19 and May 16, 1985, the FASC, the dean, and the Biology Department committee corresponded about Fisher's candidacy. On May 16, 1985, all five members of the FASC voted against tenure; the dean and the president concurred. Acting on these recommendations, the Vassar Board of Trustees denied Fisher tenure. In the same round of evaluations, one professor (Pinina Norrod) was granted tenure in the Biology Department, and one professor (Edward Tucker) was denied tenure. Fisher's appeal to Vassar's Faculty Appeals Committee was rejected, and she left Vassar in May 1986.

On July 7, 1987, Fisher filed her complaint in the Southern District of New York, alleging that Vassar discriminated against her on the basis of her sex. She subsequently amended her complaint prior to trial to allege discrimination on the basis of her sex conjoined with her marital status. At the close of Fisher's case, she again amended her complaint to include a claim for discrimination on the basis of age, and to add a claim under the Equal Pay Act.

After trial, the district court found that the non-discriminatory reasons proffered by Vassar for denying Fisher tenure were pretextual, a ruling that the panel opinion concluded was not clearly erroneous. The district court went on to find that the real reasons for denying Fisher tenure were discrimination based on age and on sex plus marital status. The panel opinion held that that finding was clearly erroneous, reversed and directed that the complaint be dismissed.


We have limited our in banc consideration to resolution of whether a finding of discrimination that is based on a prima facie case and a supportable finding of pretext may be reversed on appeal as clearly erroneous, or whether such a finding of discrimination must be upheld absent some quantum of evidence that the employer took the adverse action for some other non-discriminatory reason. Several well-established principles of law lead us to conclude that a finding of discrimination is reviewed for clear error like any other factual determination, and thus may be reversed--even if there is a sustainable finding of pretext--if the evidence, considered in the aggregate, will not support a finding by the district court that the reason

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for the adverse employment action was intentional discrimination.

We begin with the statutes. Title VII makes it unlawful "for an employer ... to fail or refuse 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). The ADEA has an analogous provision that prohibits an employer from taking an adverse employment action "because of [an] individual's age." See 29 U.S.C. § 623. The Supreme Court has held that a claim under Title VII may arise if an employer discriminates against an individual because of sex plus another characteristic, such as marital or parental status. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 497-98, 27 L.Ed.2d 613 (1971) (employer discriminated against women with pre-school age children).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court established an "allocation of the burden of production and...

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