Sweeney v. Board of Trustees of Keene State College

• Citation: 604 F.2d 106
• Decision Date: 21 August 1979
• Docket Number: No. 79-1112,79-1112
• Parties: 20 Fair Empl.Prac.Cas. 759, 20 Empl. Prac. Dec. P 30,221 Christine M. SWEENEY, Plaintiff, Appellee, v. BOARD OF TRUSTEES OF KEENE STATE COLLEGE et al., Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 106

604 F.2d 106

20 Fair Empl.Prac.Cas. 759,

20 Empl. Prac. Dec. P 30,221

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

Appellants.

No. 79-1112.

United States Court of Appeals, First Circuit.

Argued June 8, 1979.

Decided Aug. 21, 1979.

Joseph A. Millimet, Manchester, N.H., with whom Devine, Millimet, Stahl & Branch, Professional Association, Manchester, N.H., was on brief, for defendants, appellants.

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 plaintiff, appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and SKINNER, ^** District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

This case is before us for the second time. Our affirmance of the district court's decision that Sweeney's promotion to Professor of Education at Keene State College was delayed because of her sex, Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169 (1st Cir., 1978), was vacated and remanded by the Supreme Court "for reconsideration in the light of Furnco (Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978))." 439 U.S. 24, 25, 99 S.Ct. 295, 296, 58 L.Ed.2d 216 (1978). We in turn remanded to the district court, which again found in Sweeney's favor. No. 75-182 (D.N.H. Jan. 29, 1979). Keene State College once again appeals.

From the beginning, Sweeney has sought to prove her claim of sex discrimination by the methodology in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that case, an individual Title VII plaintiff may proceed by first establishing a "prima facie case" of discrimination; this then requires the defendant to "articulate" a legitimate, nondiscriminatory reason for its adverse action regarding the plaintiff. To prevail, the plaintiff ultimately must prove that the reason given is a pretext for discrimination. See 411 U.S. at 802-05, 93 S.Ct. 1817. Since the Supreme Court vacated our first Sweeney Decision, we have taken pains to point out that, under McDonnell Douglas, the defendant's burden is merely a burden of production, and that the burden of persuasion remains at all times with the plaintiff. Loeb v. Textron, 600 F.2d 1003 at 1011-1012 (1979).

The error that prompted the Supreme Court to vacate our original decision occurred in our discussion of defendants' obligation to "articulate" a legitimate reason for Sweeney's non-promotion once plaintiff had established a prima facie case. We stated erroneously that defendants were required "to prove absence of discriminatory motive." 569 F.2d at 177. In remanding the case to us, the Supreme Court reemphasized the actual language and rule of McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817, and Furnco, 438 U.S. at 578, 98 S.Ct. 2943, that a Title VII defendant need only "articulate" a valid reason, and indicated that defendants surely had done so. See 439 U.S. at 25 n.2, 99 S.Ct. 295. The Court was concerned that we had "imposed a heavier burden on the employer than Furnco warrants." at 25, 99 S.Ct. at 295-296.

On further remand from us, the district court manifested its understanding that defendants had met their limited burden of articulating facially valid reasons for not promoting Sweeney, and concentrated upon the ultimate question: whether Sweeney had proven by a preponderance that the reasons stated were pretexts for discrimination. The court concluded that Sweeney had met her burden in this regard "(Sweeney) proved to my satisfaction that the basic reason for the failure to promote her was because of her sex, that the reasons advanced by the defendants were pretextual, and that plaintiff would have been promoted in the academic year 1974-75 but for the fact that she was a woman."

See Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979) (Title VII plaintiff must meet "but for" standard of proof); Cf. Loeb, 600 F.2d at 1019-1020 (same rule in ADEA cases). ¹

The issue now before us is whether the district court's decision in favor of Sweeney is clearly erroneous. ² Because of the procedural history of this case and the parties' disagreement over the issues before us, ³ we have reviewed the record a second time in light of our current understanding of the law. We conclude that the district court's decision was not clearly erroneous and therefore affirm.

Sweeney initiated the promotion procedure in the fall of 1974; in November Dr. St. John, then Chair of the Education Department, wrote to Dean Davis that Sweeney wished to be considered for full professor and had the support of the department's Advisory Committee on Promotions, although he personally had mixed feelings about her case. ⁴ In any event, she was considered by the 1974-75 Faculty Evaluations Advisory Committee (FEAC) which recommended against her promotion. ⁵ Dean Davis then wrote to Sweeney that she would not be promoted and gave her the "pro forma" explanation that she had,

"not fulfilled the qualifications as stated in the Faculty Manual; namely, that your teaching and research has not been 'marked by the perspective of maturity and experience, or by some creative attribute generally recognizable in the academic world as a special asset to a faculty.' "

In November 1975, however, after the Faculty Appeals Committee (FAC) had urged that Sweeney be given more specific reasons for the adverse decision, See 569 F.2d at 173, President Redfern conferred with Dean Davis and with former FEAC members and then met with Sweeney. The evidence shows that he told Sweeney that the reasons were largely personal ones: that the FEAC members thought that she "personalized professional matters," was rigid, narrow-minded, and inflexible, intolerant of students' views and "old fashioned" in her supervision of student teaching. Her alleged concern with the height of window shades was cited as an example. Redfern also said that her minutes of the graduate faculty meetings were thought not to be of professional caliber, and that she did not show a "give and take" spirit on committees. These reasons were brought out at trial, where they were supplemented by the testimony of Dr. Quirk, who was Chairman of the 1974-75 FEAC.

Dr. Quirk testified that Sweeney's case for promotion was "weak" and "mediocre . . . at best." The 1974-75 FEAC, which consisted of five men, considered five candidates for promotion to full professorships three men and two women. Only two were recommended: one man, James Smart (vote 3-2), and one woman, Janet Grayson (vote 5-0). The vote against Sweeney was five to zero. According to Quirk, the reasons for the vote were "varied."

"There were quite a few reasons. But it was probably just an extremely weak case. I think one has to look at the criteria involved in promotion, and when (sic) one has to keep in mind the fact that that is promotion to the top rank of the college, that is, to full professor, and when you view it that way, the case has to be a positive, a strong positive case for recommendation for promotion to this top rank. If you look at the categories involved, there are basically three categories in which we make a judgment. One of the categories is teaching effectiveness. The other is contribution to the college. And the third is scholarly qualifications."

Defense counsel on direct examination brought out that Sweeney had served on no campus-wide committees except the College Senate, to which she was elected by her department rather than on a campus-wide basis. Quirk also testified that he had served with Sweeney on the Admissions and Standards Committee in 1974-75 and that their relationship had been marked by "some disagreements" over reviewing students' applications to the Education Department for professional education. Quirk felt that Sweeney's advocacy of a "subjective interview" as a requirement for admission, allegedly without any criteria, and her statement, in response to his question, that convicts had "no place in front of the classroom" were examples of her "lack of maturity." ⁶

The reasons given for the 1974-75 denial of Sweeney's promotion thus were, in essence, that Sweeney had a tendency to be narrow-minded and rigid, to personalize professional matters, and to be difficult to work with. Defendants did not state that Sweeney was lacking in scholarly qualifications, but suggested that she had made an insufficient contribution to the college, for example, to its committees, and that her personality interfered with her teaching and colleagueship. ⁷

Sweeney applied for promotion again to the 1975-76 FEAC and was successful. In the interim she had filed charges of sex discrimination, and at trial she expressed the view that the 1975-76 promotion was in response to that action, as "(e)verything else remained constant." Defendants emphasize, however, that in September 1975 Sweeney was made Director of the Education Department's reading program and that, in her November 1975 meeting with Redfern concerning the 1974-75 denial, Redfern said that her performance in that program might lead to her promotion. Defendants' position is that Sweeney had much stronger departmental support in 1975-76 than in 1974-75, in part because of her work in the reading program.

Defendants now contend, in essence, that Sweeney did not introduce evidence sufficient to prove that these reasons which on their face are legitimate and nondiscriminatory were pretexts for discrimination. Reminding us of the Supreme Court's admonition in Furnco, that proof of a prima facie case is not equivalent to a factual finding of discrimination, 438 U.S. at 576, 579, 98 S.Ct. 2943, defendants argue that Sweeney did no more than present a "generalized inference of discrimination," through statistics showing an imbalance of male faculty and the like, and that she failed to disprove specifically the reasons given for her...