Wu v. Thomas, 86-7817

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation847 F.2d 1480
Decision Date07 June 1988
Docket NumberNo. 86-7817,86-7817
Parties46 Fair Empl.Prac.Cas. 1666, 28 Wage & Hour Cas. (BN 1116, 46 Empl. Prac. Dec. P 38,077, 109 Lab.Cas. P 35,092, 47 Ed. Law Rep. 52 Kathleen Johnson WU, Plaintiff-Appellant, v. Dr. Joab THOMAS, President of the University of Alabama, in his official capacity; Douglas Jones, Dean of the College of Arts and Sciences, officially and in his individual capacity, and the Board of Trustees of the University of Alabama, a body corporate, Defendants-Appellees.

Susan Williams Reeves, Reeves & Still, Birmingham, Ala., for plaintiff-appellant.

Paul E. Skidmore, Stanley Jay Murphy, Tuscaloosa, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before RONEY, Chief Judge, TJOFLAT, Circuit Judge, and PAUL *, District Judge.

PAUL, District Judge:

FACTS

Appellant, Kathleen Johnson Wu, is an associate professor in the Department of Philosophy at the University of Alabama, Tuscaloosa, Alabama, having been hired into that department in 1972 at the rank of assistant professor. Appellant was promoted to the rank of associate professor in 1975 and received tenure in 1976. The facts concerning appellant's schooling and employment history, both before and after being employed at the University of Alabama, are chronicled in the memorandum opinion of the district judge and are not in serious dispute. The inferences and conclusions to be drawn from these facts are disputed.

Essentially, appellant was hired by the University of Alabama because it was vigorously trying to recruit her husband, Dr. H.K. Wu, who was then Chairman of the Department of Economics at Boston University, and he required, as a condition to his coming to the University of Alabama, that his wife also be hired. The deal was struck and appellant was offered, and accepted, a regular appointment as an assistant professor in the Department of Philosophy at an agreed salary of $10,500 for a nine month teaching assignment. It appears from the record that this beginning salary was commensurate with her training and experience and comparable to that of Dr. Norvin Richards, a male faculty member hired by the University of Alabama during the preceding academic year (1970-71) as an assistant professor in the Department of Philosophy at a rate of $10,200 for a nine month term; at the time appellant was hired, Dr. Richard's salary was raised to $10,700 for the 1971-72 academic year. Dr. Richards is noted here because he is the individual appellant has chosen as her major comparator to show that female faculty members are treated less favorably than male faculty members, that is, are discriminated against on account of sex.

In 1975, appellant was promoted to the rank of associate professor; she applied for promotion to full professor in each of the academic years 1980-81, 1982-83, and 1983-84 and was denied promotion on each occasion. It is the denial of promotion to full professor that instigated this lawsuit.

The record shows that decisions on faculty promotions are based on a series of reviews and recommendations from several levels within the University, from the departmental level up to the President of the University, with the president having ultimate or final word on each promotion. Further, there is no quota on the number of full professorships available at the University of Alabama and no competition among the faculty for such promotion. The only competition for promotion to full professor is from within one's self to obtain the degree of scholarly work, teaching, and service that would merit such promotion.

The record also shows that beginning with the tenure of Dr. Joab Thomas as President of the University of Alabama, there was an increased focus and purpose to raise the level of academic performance and scholarship, with renewed emphasis on research, so as to make the University of Alabama a major research institution. To accomplish this goal, it appears from the record that, whatever the criteria employed before 1981 (when Dr. Thomas became President of the University), the focus thereafter in considering promotions was the necessity for research productivity. The record further shows a higher level of scrutiny to which promotions, pay raise, and sabbatical leave recommendations were received and acted upon the by upper levels of administration. (Tr. 21). As found by the trial judge "... there is an even greater emphasis on continuing research and scholarship given to applicants for promotion to the rank of full professor, as compared with applicants for promotion to lower ranks or applicants for tenure." (pp. 19-20 of memorandum opinion).

The appellant filed her amended complaint for relief against Dr. Joab Thomas, in his official capacity as President of the University of Alabama; Douglas Jones Count I--based on a denial of "due process" under the United States and Alabama Constitutions, alleging all defendants acted arbitrarily in denying her promotion to full professor;

Dean of the College of Arts and Sciences in both his individual and official capacity; and the Board of Trustees of the University of Alabama in four counts:

Count II--based on a denial of "equal protection" under the United States Constitution, 42 U.S.C. Secs. 1983 and 2000e, alleging she was denied promotion to full professor on account of her sex, that is, she is female;

Count III--alleging a "breach of agreement" causing her economic and professional injury as well as mental distress; and

Count IV--based on the Equal Pay Act of 1963, 29 U.S.C. Sec. 206, alleging discrimination in pay on account of her sex.

Appellant requested the court to:

1) require defendants to confer upon her the rank of full professor;

2) award compensatory and liquidated damages for violation of the Equal Pay Act;

3) award back-pay and pre-judgment interest for violation of 42 U.S.C. Secs. 1983 and 2000e et seq.;

4) award compensatory and punitive damages against the defendants Douglas Jones and Joab Thomas for breach of contract; and

5) award attorney fees under 42 U.S.C. Sec. 1988.

The defendant Douglas Jones was dismissed as a party-defendant by the court, both in his individual and official capacities, in the pre-trial order of May 22, 1985. (RA-Ex. 33); Count three, the plaintiff's breach of contract claim, was dismissed by the court on March 7, 1985 (RA-Ex. 19) because (a) as an alleged oral contract against the defendants Jones and Thomas in their "official capacity" it was subject to dismissal under Alabama law of sovereign immunity, and (b) individually, based on the "... oral representation of plaintiff's counsel ... that plaintiff does not claim to have a contract with any individual defendant."

The court alternatively declined to exercise the pendent state law jurisdiction on the contract claim, fraud claim, or claim based upon the Alabama Constitution (RA-Ex. 19).

Summary judgment was entered in favor of the defendants as to plaintiff's 42 U.S.C. Secs. 2000e et seq. claim pertaining to the application for promotion in both the 1981 and 1982 applications, leaving only the plaintiff's 1983 denial of promotion for trial under 42 U.S.C. Secs. 2000e et seq. Defendant's motion for summary judgment as to the plaintiff's Equal Pay Act claim was denied, leaving this issue also for trial, along with plaintiff's prospective claim for relief under 42 U.S.C. Sec. 1983 and the Fourteenth Amendment. (These rulings were actually made in open court on March 31, 1986 [Vol. 1 of trial transcript] but were memorialized by a written order on May 20, 1986 [RA-Ex. 63].

DISCUSSION
A. Title VII
1. Discriminatory Intent

Appellant contends that the district court erroneously ruled that appellees did not discriminate against her on the basis of sex in their promotional decisions. A complainant in a suit brought under Title VII of the Civil Rights Act of 1964, Secs. 701 et seq., 42 U.S.C. Secs. 2000e et seq., bears the burden of proving a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). To establish a prima facie case of discrimination in promotion, a plaintiff must prove: (1) he or she is a member of a protected minority; (2) was qualified for and applied for the promotion; (3) was rejected despite these qualifications; and (4) other equally or less qualified employees who were not members of the protected minority were promoted. Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 n. 7 (11th Cir.1983). Once the plaintiff has established a prima facie case of discrimination, the burden The district court determined that appellant failed to establish a prima facie case of sex discrimination. A district court's findings of fact are subject to the clearly erroneous standard of review enunciated in Rule 52(a), Federal Rules of Civil Procedure. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is 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). "This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). After a thorough examination of the record and review of the testimony, we cannot conclude that the district court's findings are clearly erroneous.

                shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection."   McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.  If the defendant carries this burden of production, the plaintiff must either "directly persuad[e] the court that a
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