Kunda v. Muhlenberg College
| Decision Date | 19 February 1980 |
| Docket Number | No. 79-1135,79-1135 |
| Citation | 55 A.L.R.Fed. 806,621 F.2d 532 |
| Parties | 22 Fair Empl.Prac.Cas. 62, 55 A.L.R.Fed. 806, 22 Empl. Prac. Dec. P 30,674 Connie Rae KUNDA v. MUHLENBERG COLLEGE, John H. Morey, Individually and in his official capacity as President of Muhlenberg College, Philip B. Secor, Individually and in his official capacity as Dean of Muhlenberg College, Harold L. Stenger, in his official capacity as Dean of Muhlenberg College, Muhlenberg College, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
David M. Rabban, Washington, D. C., for amicus curiae American Ass'n of University Professors; Victor J. Stone, Champaign, Ill., Mary Gray, Washington, D. C., of counsel.
Issie L. Jenkins, Joseph T. Eddins, Beatrice Rosenberg, Paul E. Mirengoff, Washington, D. C., for amicus curiae Equal Employment Opportunity Commission.
Christine Young Topping, Sheldon Elliot Steinbach, Washington, D. C., for amici curiae Nat. Institute of Independent Colleges and Universities, the American Council on Ed., and the Ass'n of Governing Boards of Universities and Colleges.
Harry Reagan, Roberta S. Staats (argued), Philadelphia, Pa., for appellants; Morgan, Lewis & Bockius, Philadelphia, Pa., of counsel.
Michael L. Golden (argued), Roy Yaffe, Philadelphia, Pa., for appellee.
Before SEITZ, Chief Judge, GARTH and SLOVITER, Circuit Judges.
This case raises significant questions regarding the application in an educational setting of the statutory provisions prohibiting discrimination on the basis of sex and the appropriate relief to be awarded when discrimination has been proven.
Connie Rae Kunda, an instructor in the Department of Physical Education at Muhlenberg College in Allentown, Lehigh County, Pennsylvania, brought this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976), alleging that Muhlenberg had discriminated against her on the basis of sex when it failed to promote her and denied her tenure. 1 Kunda sought an injunction requiring Muhlenberg to appoint her as an Associate Professor of Physical Education with tenure, backpay, and costs and attorneys' fees.
After a trial on the merits, the district court found that Muhlenberg discriminated against Kunda on the basis of sex. In its Order of October 19, 1978, amended November 17, 1978, the court ordered that Muhlenberg grant Kunda (1) reinstatement; (2) backpay, from the date of termination, less amounts earned in the interim; (3) promotion to the rank of Assistant Professor effective September, 1973; and (4) the opportunity to complete or substantially complete the requirements of a master's degree within two full school years from the date of the Order and, if the master's degree is successfully achieved, an award of tenure effective September, 1975. Kunda v. Muhlenberg College, 463 F.Supp. 294 (E.D.Pa.1978). Muhlenberg has appealed. For the reasons that follow, we affirm the Order of the district court.
The procedure for awarding of promotion and granting of tenure at Muhlenberg at the time in question was set forth in the Muhlenberg College Bylaws and the Muhlenberg College Faculty Handbook. Normally, the Department Head initiates the action with regard to promotion and/or tenure of a faculty member in his or her department by submitting to the Dean a written recommendation. This recommendation is forwarded by the Dean to the Faculty Personnel and Policies Committee, hereinafter "FPPC", composed of six elected faculty members, which has the responsibility, inter alia, of reviewing recommendations concerning promotion and/or tenure submitted by the Department Head and making and submitting its own recommendation to the President of the College. The three recommendations, that of the Department Head, the FPPC, and the independent recommendation of the Dean, are reviewed by the President who must make his own recommendations to the Board of Trustees Committee on Educational Policies and Faculty Affairs, hereinafter "Trustees Committee." The Trustees Committee reports to the full Board of Trustees, which is vested with the power to award promotion and grant tenure.
The exhibits show that in practice the Board of Trustees, at least since 1970, invariably followed the President's recommendations, granting tenure on his recommendation and similarly denying it when he recommended against it, even when there were contrary recommendations by the Dean or FPPC. The same was true for promotions. There is one additional procedure available to those faculty members who wish to appeal from adverse decisions regarding promotion and/or tenure. There is a Faculty Board of Appeals, hereinafter "FBA", created by the Board of Trustees on November 5, 1973, composed of seven non-administrative faculty members and three alternates elected by the faculty, which can consider the appeals of individual teaching-faculty members pertaining to questions of promotion and tenure and then make its own recommendation to the President. Thus, in effect, there are two separate faculty committees which independently review a candidate's credentials and performance and which make recommendations to the President on behalf of the faculty members of the College regarding promotion and tenure.
The faculty ranks at Muhlenberg are Professor, Associate Professor, Assistant Professor, Instructor, and Lecturer. The policy for promotion, as set forth in the Faculty Handbook, is:
Promotion Requirements
Promotion is awarded for meritorious service to the College. For promotion to Professor or Associate Professor, the Ph.D. or its scholarly equivalent or recognized achievement in a field shall be required. These requirements normally apply to the rank of Assistant Professor also, although this rank may be obtained without the Ph.D. if there is sufficient evidence of progress toward the completion of all requirements for the degree.
For faculty members in the Physical Education Department, the terminal degree for purposes of tenure and promotion is the master's degree.
The Faculty Handbook does not articulate the requirements for tenure as it does for promotion. The President of the College testified that the academic qualifications for the grant of tenure were similar to those published for promotion, i. e. possession of the terminal academic degree or its scholarly equivalent or recognized achievement in the field.
A college's policy for tenure and promotion often encompasses not only the qualifications needed but also the time schedule in which a candidate must show achievement of the necessary credentials. In the case of promotion to Assistant Professor, the rank relevant in this case, the Faculty Handbook provides that "no person may remain indefinitely at the rank of Instructor although contracts as Instructor may be renewed annually for no more than nine years."
The relevant Faculty Handbook provision regarding tenure is:
Tenure is granted only by action of the Board of Trustees upon recommendation of the President. A faculty member shall obtain continuous tenure upon reappointment after seven years' full-time college or university teaching at the rank of Instructor, Assistant Professor or Associate Professor, at least four of which shall have been at Muhlenberg. Not more than three of the total seven years shall be served at the rank of Instructor. No person, however, shall teach at Muhlenberg for more than nine years without obtaining tenure.
Although there were different interpretations as to the meaning of the above provision, the President testifying that a faculty member must have served at least four years at a professional rank, i. e. above Instructor, before entitlement to tenure and a contrary position taken by the faculty member who helped draft the policy, the trial court found that the Board of Trustees retained the power to grant tenure to a faculty member who had not served at a professional rank for four years.
Connie Rae Kunda was appointed as an instructor in the Department of Physical Education of Muhlenberg College in September 1966, a position she held until June 1975 following annual reappointments. At the time Kunda was hired she had a Bachelor of Arts degree in Physical Education. The trial court found that at the time she was hired she was not told a master's degree was needed for employment or advancement at the College.
At all relevant times, Raymond Whispell was the Chairman of the Physical Education Department, Philip B. Secor was the Dean, and John H. Morey was the President of Muhlenberg.
The first recommendation of Kunda for promotion occurred on October 14, 1971 (her fifth year on the faculty) when Professor Whispell wrote to Dean Secor recommending that she be promoted to Assistant Professor. Kunda's name was sent to the FPPC which divided equally on whether to recommend her promotion. Dean Secor did not recommend Kunda for promotion. President Morey also did not recommend the promotion, testifying that he considered the FPPC tie vote to be a failure to recommend promotion. At the request of Professor Whispell the FPPC reconsidered the Kunda promotion at its March 15, 1972 meeting. Dean Secor, who did not usually attend such meetings of the FPPC, spoke in opposition, stating that the future of the Physical Education Department was doubtful and that the decision to promote Kunda should be made at a later date. Thereafter, the FPPC voted not to recommend the promotion by a vote of 4 (no) to 2 (yes).
In the spring of 1972, in an effort to ascertain the reasons for denial of the promotion, Kunda met separately with Professor Whispell, Dean Secor and President Morey. The trial court found that:
None of those persons told Mrs. Kunda that she was not promoted because she lacked a masters degree, or stated that a masters degree would be mandatory in order for her to be promoted or considered for tenure in the future.
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