781 F.2d 632 (8th Cir. 1986), 85-1394, O'Connor v. Peru State College

Docket Nº:85-1394.
Citation:781 F.2d 632
Party Name:Kathy O'CONNOR, Appellant, v. PERU STATE COLLEGE, et al., Appellees.
Case Date:January 02, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 632

781 F.2d 632 (8th Cir. 1986)

Kathy O'CONNOR, Appellant,


PERU STATE COLLEGE, et al., Appellees.

No. 85-1394.

United States Court of Appeals, Eighth Circuit

January 2, 1986

Submitted Sept. 13, 1985.

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Kathy Goudy, Lincoln, Neb., for appellant.

George C. Rozmarin, Omaha, Neb., for appellees.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

Kathy O'Connor appeals the dismissal after a bench trial of her claims against her former employer, Peru State College, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2 (1982), under Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 et seq. (1982), and under 42 U.S.C. Sec. 1983 (1982). The district court found that O'Connor was not subjected to discriminatory employment conditions and was not discharged either for discriminatory reasons or in retaliation for her criticism of the school's treatment of women athletes. The court further found that O'Connor failed to state a claim under Title IX because there was no showing that the appropriate program received federal funds, or in the alternative, that her Title IX claim failed because she did not prove her suit was the "catalyst" for subsequent improvements in the conditions and status of female athletes at Peru State. O'Connor challenges these conclusions as clearly erroneous and based on improper evidence. We affirm.

Kathy O'Connor was hired by Peru State College as a physical education teacher and women's basketball coach for the 1981-82 academic year. She was assigned an average teaching load in terms of credit hours but was given a large number of "activity classes," that is, classes which required two or three hours of classroom supervision (but supposedly less outside preparation) for each credit hour awarded. Among O'Connor's activity classes were several in dance, in which she had no training and thus had to spend abnormal amounts of preparation time. Her other duties at times included coaching also the junior varsity women's basketball team, recruiting high school athletes, organizing a girls' high school invitational basketball tournament, assisting with the women's track team, and chaperoning and transporting the cheerleaders to men's events.

Despite low evaluations, O'Connor was rehired for the 1982-83 academic year; however, on December 9, 1982, she was notified that she would not be rehired for

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the 1983-84 academic year because Peru State wished to "establish confidence" in its women's basketball program. In a further list of reasons for her nonrenewal presented at a hearing in February 1983, Peru State faulted O'Connor for missing a national athletic association meeting; for failing on one occasion to send a team roster to tournament officials; for arriving late to one basketball game and getting the team to others late; for once scheduling varsity and junior varsity games for the same day in different cities; for using an unauthorized assistant; for leaving basketball practices unsupervised when she had to be absent; for poor recruiting; for poor staff relations; for organizational problems regarding the high school invitational tournament; and for inattention to detail in keeping track of basketball expenses.

After Peru State reaffirmed its employment decision, O'Connor in April 1983 filed this suit in federal court 1 plus a complaint with the Office of Civil Rights of the U.S. Department of Education. The OCR investigators concluded that while Peru State during the years of O'Connor's employment had been in violation of Title IX because of inequities in certain portions of its men's and women's athletic programs, the college would be found in compliance because it had already begun implementing a plan that would correct the disparities within a reasonable time. O'Connor's court action ultimately came to trial in October 1984, with the results already stated. O'Connor v. Peru State College, 605 F.Supp. 753 (D.Neb.1985).

O'Connor's challenges on appeal go mostly to the district court's findings of fact; thus, our review is governed by the "clearly erroneous" touchstone. Anderson v. City of Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see Fed.R.Civ.P. 52(a). Under this standard we may not make our own independent determination of the facts and reverse if we would have decided the case differently: If there are two permissible views of the evidence, the factfinder's view must be affirmed. Craft v. Metromedia, Inc., 766 F.2d 1205, 1212 (8th Cir.1985) (citing Anderson, 105 S.Ct. at 1512). We may overturn the result below only if on the entire evidence we are left with " 'the definite and firm conviction that a mistake has been committed.' " Anderson, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Findings based on credibility determinations particularly may "virtually never" be clear error. Anderson, 105 S.Ct. at 1512, quoted in Craft, 766 F.2d at 1212.


O'Connor argues that the district court clearly erred when, in rejecting her Title VII claim based on conditions of employment, it concluded that she was not assigned a heavier load either as to classes or outside duties and that she was not required to spend more of her own time and money in recruiting. 2 O'Connor indisputably taught more activity classes than any of the male coaches, and it would not be a complete answer to say that course loads were measured only by credit hours had it been proven that activity courses were clearly more onerous and that they fell disproportionately to female faculty. The record, however, suggests that it was primarily dance classes, because of her lack of background, rather than activity classes that O'Connor found onerous; and the district court found from conflicting testimony that new instructors were "plugged in"

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to the schedules of their predecessors. O'Connor, 605 F.Supp at 757. While such a finding would not shield Peru State if its "plug in" practice were perpetuating the effects of past discriminatory assignments of activity courses, see Peters v. Missouri-Pacific Railroad, 483 F.2d 490, 498 (5th Cir.), cert. denied, 414 U.S. 1002, 94 S.Ct. 356, 38 L.Ed.2d 238 (1973), O'Connor has not shown that the female predecessor from whom she inherited the dance classes did not have that load because she was qualified in dance. Furthermore, O'Connor herself notes that she was the only person at Peru State qualified to teach aquatics, which accounts for other of her activity classes. The record does show that in the only instance in which a male was assigned a dance class, the class was actually taught by a female; but while we may have found this fact more suggestive than did the district court, it alone is insufficient to leave us with the "definite and firm conviction" that O'Connor's class assignments were colored by the fact that she was female.

Also in relation to class schedules, O'Connor asserts that, contrary to her own experience, males in the physical education department were never assigned to do general admissions work for the college when one of their classes failed to fill. The record does include the testimony of one male coach who twice had hours that did not fill; but while he stated unequivocally that he was never assigned admissions work, on at least one of those occasions he substituted additional coaching duties. Also, male faculty from other departments of the university were assigned admissions duty. We cannot find that the district court clearly erred in failing to characterize this one possible isolated incident as a sexually discriminatory employment condition. Cf. Hill v. K-Mart Corp., 699 F.2d 776, 778 n. 3 (5th Cir.1983) (no discriminatory treatment when employer failed to call plaintiff to two out of nearly 100 meetings).

With respect to outside activities, as the district court notes, it is difficult to compare and evaluate the time and effort involved in dissimilar activities, O'Connor, 605 F.Supp. at 765; and although the record is quite clear as to O'Connor's duties, it does not show that male faculty had no or fewer outside duties, only that those duties did not exactly correspond with O'Connor's. For example, there was testimony that while attempts to have a boys' high school basketball tournament failed from lack of interest, a male coach was responsible for coordinating a junior high school invitational track meet. O'Connor sponsored the cheerleaders for less than a semester; and while less seemed to be expected of the male coaches who subsequently took that duty, the circumstances of the switch and the fact that the cheerleaders are no longer the responsibility of the physical education department indicate more just a change in the structure and functioning of cheerleaders at Peru State than the discriminatory imposition of greater burdens on female coaches. O'Connor's dual role in coaching both varsity and junior varsity women's basketball while the men's junior varsity was student-run could have been related to the need for more supervision given the greater number (particularly the first year) of males participating. Furthermore, the testimony was that the student coaches were volunteers obtained by the men's basketball coach, and there is no suggestion that O'Connor had solicited such student volunteers but was denied their use. The assistant who was held to be unauthorized was neither a student nor an employee at Peru State, and testimony is equivocal as to whether male coaches ever actually used such persons as assistants.

O'Connor's final claims of error in the finding of no discriminatory job conditions go to recruiting and the alleged requirement that she report her absences while male coaches did not have to report theirs. The testimony on the absences issue was equivocal,...

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