731 F.2d 465 (8th Cir. 1984), 82-1930, Craik v. Minnesota State University Bd.

Docket Nº:82-1930.
Citation:731 F.2d 465
Party Name:Mary CRAIK, Julie Andrzejewski, Joan Hemmer, and June Goemer, Appellants, v. The MINNESOTA STATE UNIVERSITY BOARD; St. Cloud State University; Garry Hays; Charles J. Graham; Lowell R. Gillett; Kenneth A. Ames; Frank G. Chesley; Arnold C. Anderson; Howard B. Casmey; Thomas P. Coughlon; Robert W. Irvine; Donald G. Jackman; Timothy J. Penny; Mary Thor
Case Date:March 23, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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731 F.2d 465 (8th Cir. 1984)

Mary CRAIK, Julie Andrzejewski, Joan Hemmer, and June

Goemer, Appellants,

v.

The MINNESOTA STATE UNIVERSITY BOARD; St. Cloud State

University; Garry Hays; Charles J. Graham; Lowell R.

Gillett; Kenneth A. Ames; Frank G. Chesley; Arnold C.

Anderson; Howard B. Casmey; Thomas P. Coughlon; Robert W.

Irvine; Donald G. Jackman; Timothy J. Penny; Mary

Thornton Phillips; Orrin v. Rinke; Kennon V. Rothchild;

Derwyn L. Anderson; Charles J. Boltuck; Mary A. Boltuck;

Mary A. Dwyer; Edwin C. Hark; Douglas A. Kleiber; Jack

Knutson; William Kukuk; Albert H. Krueger; David Lesar;

Albert G. Luker; John E. Mason; Gerald C. Mertens; Robert

J. Murphy; Dennis Nunes; Eugene Perkins; Mary L.

Petersen; Robert R. Prochnow; Arthur J. Redding; Eugene

Rosenthal; Joseph B. Steen; Dorothy D. Wollin; and Inter-

Faculty Organization/Minnesota Education Association, Appellees.

No. 82-1930.

United States Court of Appeals, Eighth Circuit

March 23, 1984

Submitted June 13, 1983.

Opinion on Denial of Rehearing and Rehearing En Banc June 15, 1984.

Page 466

[Copyrighted Material Omitted]

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Hubert H. Humphrey, III, Atty. Gen. of Minn., Charles T. Mottl and Carl M. Warren, Sp. Asst. Attys. Gen., St. Paul, Minn., for appellees.

Richard Quiggle, Little Rock, Ark., John J. Sommerville, Sommerville, Nixon, Whalen & Fowler, Minneapolis, Minn., on brief, John W. Walker, Little Rock, Ark., on brief, for appellants.

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Before LAY, Chief Judge, SWYGERT, [*] Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

This suit was brought on June 16, 1976, by Dr. Mary Craik 1 against St. Cloud State University (SCSU), the Minnesota State University Board, the Inter-Faculty Organization/Minnesota Education Association (IFO/MEA), and various individuals, 2 alleging classwide and individual sex discrimination in employment at SCSU in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 1983, and the Fourteenth Amendment. Specifically, the plaintiffs allege that they and other female faculty members at the University have been subjected to unlawful discrimination with regard to (1) appointment to chair positions, (2) rank, (3) compensation, (4) appointment to administrative positions, and (5) sexual harassment. The District Court certified a class consisting of

females who are or have been employed by St. Cloud University in a teaching capacity and who have been, continue to be, or may in the future be discriminated against because of their sex with respect to promotion, compensation ... and other conditions and privileges of employment.

Designated Record (D.R.) 29. 3 The case was tried by a United States Magistrate under the consent provision of 28 U.S.C. Sec. 636(c) (Supp. V 1981). After a trial which lasted 32 days the magistrate concluded that the defendants were not guilty of unlawful discrimination either as to the class or as to the individual claims of the named plaintiffs. After reviewing the briefs, record, and arguments, we are "left with the definite and firm conviction that a mistake has been committed," United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), as to certain claims. Accordingly, we reverse in part, affirm in part, and remand for reconsideration of some of the individual claims for relief.

I. LEGAL STANDARDS

A.

Most of the plaintiffs' claims are based on the theory of disparate treatment. 4 All disparate-treatment claims brought under Title VII 5 turn on one basic

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issue: whether the employer intentionally treated "some people less favorably than others because of their race, color, religion, sex, or national origin." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). In order "to sharpen the inquiry into the elusive factual question of intentional discrimination," Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981), courts require Title VII plaintiffs to establish a prima facie case--"a legally mandatory, rebuttable presumption," id. at 254 n. 7, 101 S.Ct. at 1094 n. 7--on that issue. The "plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act." Teamsters, supra, 431 U.S. at 358, 97 S.Ct. at 1866 (footnote omitted). How the prima facie case is established and the consequences of its establishment, however, depend on whether the case is (1) brought by a single plaintiff on his or her own account or (2) a class action alleging a pattern or practice of discrimination.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Court prescribed a model for the establishment of a prima facie case in "private, non-class" Title VII actions, id. at 800, 93 S.Ct. at 1823. The plaintiff must prove that he or she belongs to a protected class, applied for an available job for which he or she was qualified, but was rejected under circumstances which allow the court to infer unlawful discrimination. Id. at 802, 93 S.Ct. at 1824; Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093. 6 The court may infer discrimination because, by establishing the prima facie case, the plaintiff has eliminated the two most common legitimate reasons for failure to hire: that there was no vacancy in the job for which the plaintiff applied or that the plaintiff was not qualified for the job. Teamsters, supra, 431 U.S. at 358 n. 44, 97 S.Ct. at 1866 n. 44. As the Court explained in Burdine,

Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.

450 U.S. at 254, 101 S.Ct. at 1094 (footnote omitted).

Once the prima facie case is made out, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp., supra, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, supra, 450 U.S. at 253-55, 101 S.Ct. at 1093-95. For example, in McDonnell Douglas Corp., the employer met this burden by producing evidence that it refused to rehire the plaintiff because he had participated in illegal demonstrations at the employer's plant. 411 U.S. at 803-04, 93 S.Ct. at 1824-25. If the defendant carries its burden, thus raising a genuine issue of fact, the presumption of illegal discrimination drops from the case. The plaintiff at all times retains the burden of persuasion and must prove, by showing that the defendant's explanation was not the true reason for the employment decision, that he or she was the victim of intentional discrimination. Burdine, supra, 450 U.S. at 254-56, 101 S.Ct. at 1094-95.

On the other hand, for cases brought by private plaintiffs or by the government on behalf of many employees, charging that an employer engages in discriminatory practices throughout most or all of its operations, the Supreme Court, in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444

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(1976), and Teamsters, supra, prescribed a different order of proof. The trial of class actions is usually bifurcated into a liability phase and a remedial phase. See Teamsters, supra, 431 U.S. at 360-62, 97 S.Ct. at 1867-68. First, in the liability phase of the action, the plaintiff must prove by a preponderance of the evidence that the defendant engaged in a pattern or practice of unlawful discrimination in various company policies, that "discrimination was the company's standard operating procedure--the regular rather than the unusual practice." Teamsters, supra, 431 U.S. at 336, 97 S.Ct. at 1855. Normally, the plaintiff will produce statistical evidence showing disparities between similarly situated protected and unprotected employees with respect to hiring, job assignments, promotions, and salary, supplemented with other evidence, such as testimony about specific incidents of discrimination. The defendant, in rebuttal, will attempt to show that the plaintiff's "proof is either inaccurate or insignificant." Id. at 360, 97 S.Ct. at 1867. If it fails, the "trial court may then conclude that a violation has occurred and determine the appropriate remedy." Id. at 361, 97 S.Ct. at 1867. 7

By proving that the defendant engaged in a pattern or practice of discrimination, not only is the plaintiff class's eligibility for appropriate prospective relief established, a prima facie case with regard to the remedial phase of the suit, in which relief for individuals is considered, is also made out. Id. at 359, 97 S.Ct. at 1866. Thus, the court presumes that the employer unlawfully discriminated against individual class members. In pattern or practice cases, however, the presumption shifts to the employer not only the burden of production, but also the burden of persuading the trier of fact that it is more likely than not that the employer did not unlawfully discriminate against the individual. 8

The [plaintiffs] need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination .... [T]he burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.

Id. at 362, 97 S.Ct. at 1868; see also Franks, supra, 424 U.S. at 772, 96 S.Ct. at 1268. The burden of persuasion shifts to the employer with regard to the claims of both named plaintiffs and unnamed class members. E.g., Taylor v. Teletype...

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