Fisher v. Vassar College

• Citation: 70 F.3d 1420
• Decision Date: 14 December 1995
• Docket Number: Nos. 94-7737,94-7785 and 94-9125,1303 and 2275,Nos. 1799,D,s. 1799,s. 94-7737
• Parties: 67 Empl. Prac. Dec. P 43,883 Cynthia J. FISHER, Plaintiff-Appellee-Cross-Appellant, v. VASSAR COLLEGE, Defendant-Appellant-Cross-Appellee. ocket
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1420

70 F.3d 1420

67 Empl. Prac. Dec. P 43,883

Cynthia J. FISHER, Plaintiff-Appellee-Cross-Appellant, v. VASSAR COLLEGE, Defendant-Appellant-Cross-Appellee.

Nos. 1799, 1303 and 2275, Docket Nos. 94-7737, 94-7785 and 94-9125.

United States Court of Appeals, Second Circuit.

Argued March 20, 1995.

Decided Sept. 7, 1995.

As Amended Dec. 14, 1995.

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.

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

Judith E. Kurtz, San Francisco, CA, Martha S. West, Davis, CA, for amici curiae Equal Rights Advocates and NOW Legal Defense and Education Fund.

Michael A. Olivas, Helen D. Irvin, Ann H. Franke, Washington DC, for amicus curiae American Association of University Professors.

James R. Neely, Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Samuel A. Marcosson, Attorney, Washington, DC, for amicus curiae Equal Employment Opportunity Commission.

Before: McLAUGHLIN, JACOBS, Circuit Judges, and KAUFMAN, Senior District Judge. ¹

JACOBS, Circuit Judge:

Following a three week bench trial, the United States District Court for the Southern District of New York (Motley, J.) found that Vassar College discriminated against plaintiff Cynthia J. Fisher in 1985 when it denied her tenure as a professor in its biology department (a) by reason of her sex together with her status as a married woman, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and (b) by reason of her age, in violation of the Age Discrimination in Employment Act ("ADEA"). The district court rejected, however, plaintiff's claim of "simple" sex discrimination based solely on her status as a woman. The district court further found and concluded that Vassar's discrimination against Fisher violated provisions of the Equal Pay Act. Based on these findings, recorded in a detailed opinion, see Fisher v. Vassar College, 852 F.Supp. 1193 (S.D.N.Y.1994), the district court directed Vassar to pay an aggregate money judgment of $626,872.12 together with Fisher's attorneys' fees. The judgment also ordered that Fisher be restored to the Vassar faculty for a period of two years, after which time she again would be evaluated by the school for the purpose of determining whether she was qualified for promotion to full professor with tenure.

Vassar challenges the findings relied on by the district court to support judgment against Vassar under Title VII, the ADEA and the Equal Pay Act, and seeks to vacate the district court's award of attorneys' fees. In a cross-appeal, Fisher argues that the district court erred in (1) finding that plaintiff had failed to prove a case of "simple" sex discrimination in violation of Title VII, and (2) failing to order her reinstatement with full tenure without further tenure-track service or further tenure evaluation.

The trial focused on two issues: Fisher's qualifications for tenure and Vassar's history of tenure decisions involving candidates who were married women. As to her qualifications for tenure, Fisher sponsored testimony by several experts in the field of biology and voluminous documentation comparing her teaching and scholarly record to other Vassar biology professors who had been considered for tenure. As to Vassar's treatment of married women candidates for tenure, Fisher presented (inter alia ) numbers purporting to demonstrate that no married woman on the Vassar faculty had been granted tenure in the "hard" sciences in the three decades preceding plaintiff's 1985 denial of tenure; the testimony of former Vassar biology professors relating the events of their careers at Vassar and expressing their belief that the Vassar biology department discriminated against married women; and the testimony of a sociologist, describing the discrimination generally experienced by married women in the sciences and opining that Vassar had discriminated against plaintiff. Finally, Fisher served as her own chief witness, recounting her experiences in the Vassar biology department and related anecdotes.

Vassar defended on two fronts: Fisher's lack of qualifications for a tenured professorship in Vassar's biology department, and the absence of any record of discrimination by Vassar on the basis of sex or on the basis of sex conjoined with marital status. Most of the testimony offered by Vassar came from current and former Vassar biology professors and administrators, who described the procedures used in the Vassar tenure review process generally and the care with which The district court's opinion rejected plaintiff's claim of "simple" sex discrimination, but found that, as a married woman, plaintiff had established a claim of "sex plus" discrimination in violation of Title VII of the Equal Rights Act ("Title VII"). After a detailed critique of the department's report recommending against tenure for Fisher, the district court concluded that the department's assessment of her qualifications was biased and that plaintiff had met all the recognized requirements for tenure in the biology department:

Vassar proceeded in Fisher's particular case. Defendant also sought to present its own data concerning Vassar's school-wide record of promoting married women. The district court refused to admit these statistics into evidence.

The court ... finds that the termination of plaintiff's employment resulted not from any inadequacy of her performance or qualifications or service, but from the pretextual and bad faith evaluation by Vassar of her qualifications ...

Fisher, 852 F.Supp. at 1218. In arriving at its conclusions, the court credited plaintiff's theory that Vassar had a practice of discriminating against married women employed in the "hard" sciences, took note of plaintiff's eight-year absence from her career to raise a family, and addressed the contentious issue of whether Title VII permits Vassar to weigh that fact against her in its tenure decision:

At trial plaintiff presented evidence in support of her claim that she was discriminated against because of her marital status: 1) evidence distinguishing between departments in the "hard" sciences (including the Mathematics, Physics, Chemistry, Geology, Biology and Computer Science departments) and the departments in the rest of the College; 2) evidence that traditionally the "hard" sciences faculties have been composed of men (married and single) and women (single only); 3) evidence that although married women constituted 52 percent of the women in science nationally, no married women had ever received tenure in the "hard" sciences at Vassar. Plaintiff claims that it was her decision to be a wife, mother and a scientist before seeking tenure at Vassar that resulted in the denial of tenure application.

Part of plaintiff's claim of sex discrimination due to her marital status involves the fact that plaintiff left formal academia for approximately eight years in order to raise a family. In 1965, when plaintiff left academia, marriage and family went hand in hand for women, especially for women of plaintiff's race and class. Prior to the 1970's Women's Movement and social advances that have permitted women more freedom in shaping their private and professional lives, women who were of plaintiff's race and class rarely had children out of wedlock. Likewise, women of plaintiff's race and class who were married almost always had children. In other words, raising a family was an assumed aspect of marriage.

Subsequent to her parental leave, plaintiff returned to academia and spent nine years in academia before coming up for tenure. She claims that despite her qualifications and her progress in becoming current in her field, her absence from academia was held against her as an insurmountable barrier.

Fisher, 852 F.Supp. at 1225-26 (footnotes omitted). The court also found in favor of Fisher on her claim of age discrimination in violation of the ADEA, and on her claim of salary discrimination in violation of the Equal Pay Act. The district court rejected plaintiff's claim for compensation based on Vassar's alleged "retaliation" against her for the filing of this lawsuit.

Following a thorough survey of the record, we reverse the liability judgment against Vassar because our conviction that a mistake has been committed is definite and firm. We further vacate the district court's order and judgment of attorneys' fees. We affirm, however, the district court's conclusion that plaintiff had failed to establish a claim of "simple" sex discrimination. We do not reach Fisher's cross-appeal concerning the terms of her reappointment to the Vassar faculty.

BACKGROUND

The Candidate's Career. Cynthia J. Fisher was born in 1932. She was honored in the Westinghouse national science competition as a 17-year-old high school senior, and received a bachelor's degree in zoology from the University of Wisconsin in 1955. She pursued graduate studies in zoology at Rutgers State University, earning a master's degree in 1957 and a Ph.D in 1963, and stayed on at Rutgers for two more years doing post-doctoral work.

Plaintiff married Armen G. Fisher on a date not specified in the record; they adopted the first of their two daughters in 1965 and the second in 1968. From 1966 through 1974, Fisher devoted the bulk of her energy to raising her children and did no work outside her home. The district court found that this eight-year break in plaintiff's career was "not a total hiatus". Fisher, 852 F.Supp. at 1216. In her appellate brief, plaintiff claims that throughout this time she "kept in touch with her field by reading journals and keeping abreast of work in the field of biology." Brief of Appellee at 3. In 1974 she took a part-time position at Marist College in Poughkeepsie, New York, and...