Sweeney v. Board of Trustees of Keene State College

• Citation: 569 F.2d 169
• Decision Date: 04 January 1978
• Docket Number: Nos. 77-1243 and 77-1244,s. 77-1243 and 77-1244
• Parties: 16 Fair Empl.Prac.Cas. 378, 15 Empl. Prac. Dec. P 8030 Christine M. SWEENEY, Plaintiff, Appellee, v. BOARD OF TRUSTEES OF KEENE STATE COLLEGE et al., Defendants, Appellants. Christine M. SWEENEY, Plaintiff, Appellant, v. BOARD OF TRUSTEES OF KEENE STATE COLLEGE et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 169

569 F.2d 169

16 Fair Empl.Prac.Cas. 378, 15 Empl. Prac.

Dec. P 8030

Christine M. SWEENEY, Plaintiff, Appellee, v. BOARD OF TRUSTEES OF KEENE STATE COLLEGE et al., Defendants,

Appellants.

Christine M. SWEENEY, Plaintiff, Appellant, v. BOARD OF TRUSTEES OF KEENE STATE COLLEGE et al., Defendants,

Appellees.

Nos. 77-1243 and 77-1244.

United States Court of Appeals First Circuit.

Argued Sept. 13, 1977.

Decided Jan. 4, 1978.

Joseph A. Millimet, Manchester, N. H., with whom Devine, Millimet, Stahl & Branch, Manchester, N. H., was on brief, for Board of Trustees of Keene State College et al.

Jack B. Middleton, Manchester, N. H., with whom Robert A. Wells, and McLane, Graf, Greene, Raulerson & Middleton Professional Association, Manchester, N. H., were on brief, for Christine M. Sweeney.

Before COFFIN, Chief Judge, TUTTLE, ^* Circuit Judge and CAMPBELL, Circuit Judge.

TUTTLE, Circuit Judge.

This appeal presents important issues relating to the existence of discrimination against women in the awarding of promotions and the fixing of salaries at Keene State College. Dr. Christine Sweeney, a faculty member in the Department of Education at Keene since 1969, failed twice in her efforts to achieve promotion to the rank of full professor before finally succeeding in 1976. Attributing her earlier failures to sexual bias, she seeks a backdating of her promotion to the date of her first attempt and an accompanying adjustment in her salary for the intervening years. In addition, the plaintiff alleges that sex discrimination accounts for the disparity between the average salaries of males and females on the Keene faculty and claims that she has been paid less than men who carry a substantially equal workload.

Dr. Sweeney has brought suit under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103; the Equal Pay Act of 1963, 29 U.S.C. § 206(d), as amended by the Education Amendments of 1972, 29 U.S.C. § 213(a), Pub.L. No. 92-318, 86 Stat. 235; Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution. Named as defendants are Keene State College, its Board of Trustees, ¹ its president, and two former deans.

Following a four-day trial, the United States District Court for the District of New Hampshire ruled against Dr. Sweeney on the Equal Pay, § 1983, Fourteenth Amendment, and Title IX counts, but permitted her a partial recovery under Title VII. The district court found that Dr. Sweeney had been a victim of sex discrimination in her second effort to gain promotion and ordered her promotion backdated to 1975, with the appropriate back pay. The court also awarded the plaintiff attorneys' fees and costs of $17,766.56. Although the court specifically found a pattern of sex discrimination against females in hiring, promotion, and salaries, no injunction against further discrimination was issued.

In their appeal, the defendants seek to persuade this Court that the plaintiff's evidence was insufficient to prove a violation of Title VII. They further contend that Dr. Sweeney has failed to prove that a discriminatory motive accounted for her unsuccessful promotion attempt. Dr. Sweeney cross-appeals from certain adverse findings of fact and rulings of law, and particularly seeks reversal of the trial court's holding that she failed to prove sex discrimination as to her level of pay as an associate professor or professor. For the reasons discussed below, the judgment of the district court is affirmed.

I.

Keene State College, a division of the University of New Hampshire, is a small liberal arts college located in Keene, New Hampshire. Originally dedicated to the training of teachers, it presently grants bachelor's degrees in a variety of other fields as well as a master's degree in education. Dr. Sweeney earned a bachelor of education degree from Keene in 1943, a master of arts from Catholic University in 1956, and a Ph.D. from Catholic University in 1962. She taught at the primary and secondary levels from 1943 until 1960 and served as a graduate assistant at Catholic University in the 1961-62 school year. Appointed an instructor at Catholic University in 1962, Dr. Sweeney remained there until 1966, when she joined the faculty at Emmanuel College as an assistant professor. She was promoted to the rank of associate professor at Emmanuel, effective in the fall of 1968, with an anticipated salary of $9,000, but left that school before the start of the 1968-69 academic year. In January, 1969 Dr. Sweeney was appointed an associate professor of education at Keene and received $5,000 for the spring semester. Her initial position was supervisor of student teaching, but she has subsequently assumed various other teaching responsibilities in the department of education. In addition to her course load, Dr. Sweeney has served on numerous college and department committees and on the Professional Standards Board for the State Board of Education. This summary of her credentials is by no means exhaustive but suffices to demonstrate that Dr. Sweeney possesses the education and experience typical of college teachers.

From the record it appears that Dr. Sweeney's career at Keene went smoothly until 1971. In the spring of that year, she was selected by a committee within her department to accompany a group of students to England the following fall. The trip was part of a student exchange program developed by the Department of Education, and Dr. Sweeney had been quite active in the program. At the time of the plaintiff's selection, a man was selected for a second fall trip and another woman was selected as an alternate. Final approval of the faculty advisors rested with Dean Clarence Davis, and he refused to permit Dr. Sweeney to make the trip, selecting the alternate instead. Although the dean refused to tell the plaintiff his reasons for this decision, he testified at trial that he had acted upon the recommendation of the coordinator of the program, a female, who had advised him that the alternate was better qualified.

Plaintiff attempted to convince the trial court that this decision resulted from sex discrimination by showing that no women have been selected for subsequent trips and that no men have been disapproved. However, the trial court specifically found that the dean's decision rested on factors other than sex discrimination. This fact finding is amply supported by the evidence, because a woman took Dr. Sweeney's slot and the unfavorable recommendation came from a woman. Nevertheless, the incident plays a role in later developments and is mentioned for that reason. Dr. Sweeney testified that the incident alerted her to the possible existence of sex bias on campus. More importantly, she feared that the refusal to permit her to make the trip would affect her later efforts to seek promotion.

In spite of the England incident, Dr. Sweeney was granted tenure in 1972 with no apparent difficulty. In the 1972-73 academic year, she sought promotion to the rank of full professor, the highest rank in the academic setting. ² Like many other colleges and universities, Keene employs a peer-review system for screening requests for tenure and promotion. These requests, initiated either by the faculty member or by the department chairman on behalf of the faculty member, are sent to the dean of the college, who, in turn, forwards the matter to the Faculty Evaluations Advisory Committee (FEAC), a five-member panel elected each year by the entire faculty from persons in the highest two academic ranks. The FEAC measures the record and qualifications of the applicant against the standards set forth in the faculty manual ³ and makes a recommendation to the dean either for or against promotion. Although the FEAC functions in an advisory capacity, its recommendations are usually adopted by the dean. If the FEAC recommends promotion and the dean concurs, the request is sent to the Board of Trustees for final approval. If, however, the dean concurs in a negative FEAC recommendation, the applicant can seek reconsideration by the dean and the FEAC. If still unsuccessful, an appeal can be taken to the Faculty Appeals Committee (FAC), also composed of elected faculty members. This panel's authority is limited to determining whether due process has been accorded or whether new evidence has been presented. The FAC presents its findings to the college president, who in turn submits any favorable recommendations to the Board of Trustees. The president expressed a reluctance to overturn an FEAC decision unless the FAC found arbitrary or unfair action.

The plaintiff was recommended for promotion by her department and its chairman, Dr. Paul Blacketor, during the 1972-73 school year. ⁴ An all-male FEAC voted unanimously against promotion and Dean Davis concurred. Dr. Sweeney was given no reasons for the adverse decision. Upon the advice of Dean Davis, Dr. Sweeney secured letters of support from faculty members and persons outside Keene to assist the FEAC in its reconsideration, but to no avail. The plaintiff appealed to the FAC in July 1973, citing the lack of reasons as evidence of unfairness. In a letter to President Leo Redfern eight months later, the FAC stated that the FEAC had refused to explain its adverse decision and that Dean Davis had declined to discuss his disapproval of Sweeney for the England trip. Therefore, the committee could not determine whether the trip incident had influenced the FEAC decision. Giving Dr. Sweeney the benefit of the doubt on the question of unfairness, the FAC strongly recommended that Dr. Sweeney be considered by the current (1973-74) FEAC even though she herself had not initiated a new request for promotion during that academic year because of her pending appeal. The president declined to permit what he viewed as a...