Ford v. Nicks

• Citation: 866 F.2d 865
• Decision Date: 11 April 1989
• Docket Number: No. 88-5260,88-5260
• Parties: 48 Fair Empl.Prac.Cas. 1657, 49 Empl. Prac. Dec. P 38,659, 57 USLW 2507, 12 Fed.R.Serv.3d 1394, 51 Ed. Law Rep. 769 Dr. Lani FORD, et al., Plaintiffs-Appellees, v. Chancellor Roy S. NICKS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 865

866 F.2d 865

48 Fair Empl.Prac.Cas. 1657,

49 Empl. Prac. Dec. P 38,659, 57 USLW 2507,

12 Fed.R.Serv.3d 1394, 51 Ed. Law Rep. 769

Dr. Lani FORD, et al., Plaintiffs-Appellees, v. Chancellor Roy S. NICKS, et al., Defendants-Appellants.

No. 88-5260.

United States Court of Appeals Sixth Circuit.

Argued Nov. 7, 1988.

Decided Jan. 30, 1989.

Rehearing Denied April 11, 1989.

Charles Hampton White (argued), Richard Colbert, Cornelius & Collins, Nashville, Tenn., for plaintiffs-appellees.

W.J. Michael Cody, Atty. Gen., Christine A. Modisher (argued), Mary E. Walker, Asst. Attys. Gen., Nashville, Tenn., for defendants-appellants.

Before NELSON, Circuit Judge, and PECK and LIVELY, ^* Senior Circuit Judges.

DAVID A. NELSON, Circuit Judge.

In 1971-72 plaintiff Lani Ford, a former secondary school mathematics teacher, was an assistant professor of education at Middle Tennessee State University (MTSU) in Murfreesboro, Tennessee. She was not rehired for 1972-73, and she brought a sex discrimination suit against MTSU, the Chancellor of the State University, the members of the state board of regents and others under Title VII of the Civil Rights The defendants filed a notice of appeal captioned "Dr. Lani Ford, et al., Plaintiffs, vs. Chancellor Roy S. Nicks, et al., Defendants." The body of the document gave notice of an appeal by "the defendants." The form of the notice of appeal raises a question as to the jurisdiction of this court over any defendant other than Chancellor Roy S. Nicks. See Torres v. Oakland Scavenger Co., 487 U.S. ----, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), and Van Hoose v. Eidson, 450 F.2d 746 (6th Cir.1971).

Act of 1964. The district court, sitting without a jury, found in favor of Dr. Ford. The court awarded her back pay for a period beginning in 1972 and ordered that she be appointed to a full professorship with tenure.

As to the merits, the defendants argue on appeal that the district court's finding of intentional sex discrimination was clearly erroneous, as was the court's finding that Dr. Ford had mitigated her damages. The defendants contend further that the district court abused its discretion in ordering the university to reinstate Dr. Ford as a tenured professor and in awarding her back pay for a decade and a half.

We have concluded that all of the defendants are properly before us on appeal, and that the record amply supports both the district court's finding of impermissible sex discrimination and the decision to order reinstatement. We think the district court abused its discretion in awarding Dr. Ford tenure, however, and it seems to us that the district court's resolution of the mitigation of damages issue was clearly erroneous. We shall therefore affirm the judgment in part and reverse it in part.

I

Dr. Ford and her husband, William Ford, both completed graduate studies at Michigan State University in 1970. Mr. Ford received a Ph.D. in business education in the spring of that year, and Mrs. Ford received a Ph.D. in secondary education some months later.

Mr. Ford, who was seeking employment as a professor of business education, was interviewed by the chairman of the MTSU Department of Business Education, Elwin W. Midgett. Mr. Midgett offered Mr. Ford a job as associate professor of business education for the 1970-71 academic year at a salary of $14,040 per year. Mr. Ford accepted the offer.

At the interview with Mr. Midgett, as well as in meetings with other MTSU officials, Mr. Ford expressed a desire to find a position for his wife. Mr. Midgett reported that there were four teaching vacancies in the sociology department, and Mrs. Ford sent a copy of her resume to that department. Mr. Ford, for his part, contacted Ralph White, chairman of the MTSU Department of Education and Library Science, to inquire about the possibility of a job for his wife.

The Fords moved to Murfreesboro in the summer of 1970, before Mrs. Ford had received her Ph.D. degree. After her arrival Mrs. Ford got in touch with Mr. White directly. Mr. White told her that she could not be considered for a position in his department until she had received her doctorate.

In October of 1970 Mr. Ford asked Mr. White about his wife's prospects for employment after she had her doctor's degree. Mr. White responded that the university did not hire wives of faculty members for academic positions.

Mrs. Ford qualified for her Ph.D. in December, and again she approached Mr. White about a job. Mr. White offered her a part-time, nonfaculty teaching job paying significantly less than faculty positions. He also suggested that she apply for work as a secretary and asked her how many words per minute she could type. He told her that being married to a faculty member was a "problem," and that she could not expect to become a regular member of the faculty herself. Mrs. Ford declined the offer of a part-time job, as well as the invitation to apply for work as a secretary.

In the summer of 1971 the Fords met with the president of the university, M.G. Scarlett, to discuss their concerns. Mr. Scarlett then asked various university officials to consider hiring Mrs. Ford with On August 17, 1971, Mrs. Ford was offered a position as assistant professor of education at a salary of $11,100 per year, with all regular faculty benefits. The proposed contract said that her salary was being paid by an outside source and that there was "no commitment expressed or implied" that she would be rehired at the end of the year. Mrs. Ford accepted the job and taught several introductory courses, as well as supervising student teachers. Mr. White rated her work as "satisfactory," but stated that he would be reluctant to hire her permanently because her specialty was in the field of secondary education.

"soft money," i.e., funds from outside sources not included in the regular state university budget.

During the 1971-72 academic year the MTSU Department of Education and Library Science had 40 to 42 full-time faculty members, of whom six, including Mrs. Ford, were in their first year. All of the other first-year people were men. The total number of men in the department came to 34 or 35.

Two male teachers who started at the same time as Mrs. Ford were paid from the same "soft money" as she and taught the same introductory courses. Both of these men resigned at the end of the 1971-72 academic year. Mrs. Ford wanted to continue teaching but was not offered a position. When Mrs. Ford tried to inquire about the possibility of being hired to fill one of the vacancies created by the departure of the male teachers, Mr. White did not return her phone calls. When she asked the university president to intercede on her behalf, she was told that all the positions had been filled.

The Department of Education and Library Science hired eight new professors for 1972-73. Seven of the new people were men, and one of them, Douglas Knox, did not yet have a doctorate. Mr. Knox was working on an advanced degree, but it was an Ed.D., not a Ph.D. Although Mr. Knox was paid with "soft money," his contract did not contain the "no commitment" clause that had been in Mrs. Ford's contract. Mr. White claimed at trial that Mr. Knox was better qualified than Mrs. Ford because his uncompleted Ed.D. degree was in the field of higher education, rather than secondary education, and because his brief experience as a non-tenure track geography instructor was more relevant than Mrs. Ford's longer experience as a schoolteacher, her additional experience teaching educational psychology at Michigan State, and (at the time Knox was hired) her one year of "satisfactory" teaching at MTSU.

Mrs. Ford gave birth to a child in the summer of 1973, but this did not prevent her from contacting both the Talent Bank of the Tennessee Governor's Commission on the Status of Women and the Tennessee Education Association late in 1973 to ask for their assistance in looking for an appropriate job. In addition, both Mr. and Mrs. Ford sent out resumes to institutions throughout the United States, Mr. Ford's contract not having been renewed at the end of the 1972-73 school year.

Their efforts were not successful, and in the fall of 1974 Mr. Ford obtained a Tennessee real estate license and got a job at a local real estate company. He later started his own real estate firm.

Mrs. Ford applied for and was offered a position as assistant professor of education at Tennessee Technological University in Cookeville, Tennessee. This position involved supervising student teachers and teaching introductory education courses similar to the ones she had taught at MTSU. Mrs. Ford declined the offer, expressing concern about the distance between Murfreesboro and Cookeville (70 miles), as well as the additional driving that would be required in supervising student teachers at schools up to 60 miles away from Cookeville.

Mrs. Ford did not actively pursue academic employment opportunities after 1974. She never applied for employment at Austin Peay State University in Clarksville or the University of Tennessee at Chattanooga, two other nearby state universities, although there was evidence that both of those universities advertised numerous openings for entry level professors of education After obtaining a right-to-sue letter from EEOC, the Fords commenced an employment discrimination suit against MTSU in 1977. Mrs. Ford claimed that she had not been rehired because of her sex, while Mr. Ford claimed that he had not been rehired in retaliation for his attempts to help his wife pursue her discrimination claim. After a bench trial, the district court made detailed findings of fact and entered judgment for the plaintiffs. Both Fords returned to teaching posts at MTSU, by court order, in 1983-84, and the defendants appealed to this court. We affirmed the district court's judgment with respect to Mr. Ford's Title VII claim but reversed the judgment on Mrs. Ford's claim and remanded the case for a new trial on the...