983 F.2d 509 (3rd Cir. 1992), 91-1741, Ezold v. Wolf, Block, Schorr and Solis-Cohen

Docket Nº:WOLF, BLOCK, SCHORR AND SOLIS-COHEN, Appellant at No. 91-1741.
Citation:983 F.2d 509
Party Name:Nancy O'Mara EZOLD, Appellant at No. 91-1780, v.
Case Date:December 30, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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983 F.2d 509 (3rd Cir. 1992)

Nancy O'Mara EZOLD, Appellant at No. 91-1780,


WOLF, BLOCK, SCHORR AND SOLIS-COHEN, Appellant at No. 91-1741.

Nos. 91-1741, 91-1780.

United States Court of Appeals, Third Circuit

December 30, 1992

Argued May 21, 1992.

As Amended Feb. 1, 1993.

Rehearing Denied Feb. 3, 1993.

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Judith P. Vladeck (argued), Vladeck, Waldman, Elias & Engelhard, P.C., New York City, for Nancy O'Mara Ezold.

Arlin M. Adams (argued), Schnader, Harrison, Segal & Lewis, Mark S. Dichter, Morgan, Lewis & Bockius, Philadelphia, PA, for Wolf, Block, Schorr and Solis-Cohen.

Linda J. Wharton, Carol E. Tracy, Judith L. Riddle, Women's Law Project, Philadelphia, PA, Pamela L. Perry, Camden, NJ, for amici curiae Women's Law Project; Nat. Bar Ass'n, Women Lawyers Division, Philadelphia Chapter; Nat. Ass'n of Black Women Attorneys; Hispanic Bar Ass'n of Pennsylvania; New Jersey Women Lawyers Ass'n; San Francisco Women Lawyers' Alliance; Pennsylvania Nat. Organization for Women; Women's Alliance for Job Equity; American Ass'n of University Women, Pennsylvania Division; American Ass'n of University Women; AAUW Legal Advocacy Fund; Business and Professional Women/USA; Center for Women Policy Studies; Nat. Ass'n of Com'rs for Women; Nat. Ass'n of Female Executives; Nat. Organization for Women; Nat. Women's Law Center; NOW Legal Defense and Educ. Fund; Women Employed; Women's Legal Defense Fund; Employment Law Center; California Women's Law Center; Equal Rights Advocates, Inc.; Northeast Women's Law Center; and Women and Employment, Inc.

Present: HUTCHINSON, COWEN and SEITZ, Circuit Judges.


HUTCHINSON, Circuit Judge.

Wolf, Block, Schorr and Solis-Cohen (Wolf) appeals from a judgment of the United States District Court for the Eastern District of Pennsylvania granting relief in favor of Nancy O'Mara Ezold (Ezold) on her claim that Wolf intentionally discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1981 & Supp.1992), when it decided not to admit her to the firm's partnership effective February 1, 1989. At trial Wolf contended that it denied Ezold admission to the partnership because her skills in the category of legal analysis did not meet the firm's standards. The district court disagreed and found that this articulated reason was a pretext contrived to mask sex discrimination. Wolf argues on appeal that the district court improperly analyzed the evidence before it and that the evidence, properly analyzed, does not support the district court's ultimate finding of pretext.

This case raises important issues that cut across the spectrum of discrimination law. It is also the first in which allegations of discrimination arising from a law firm partnership admission decision require appellate review after trial. 1 Accordingly, we have given it our closest attention and, after an exhaustive examination of the record and analysis of the applicable law, have concluded that the district court made two related errors whose combined effect require us to reverse the judgment in favor of Ezold. The district court first impermissibly

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substituted its own subjective judgment for that of Wolf in determining that Ezold met the firm's partnership standards. Then, with its view improperly influenced by its own judgment of what Wolf should have done, it failed to see that the evidence could not support a finding that Wolf's decision to deny Ezold admission to the partnership was based upon a sexually discriminatory motive rather than the firm's assessment of her legal qualifications. Accordingly, we hold not only that the district court analyzed the evidence improperly and that its resulting finding of pretext is clearly erroneous, but also that the evidence, properly analyzed, is insufficient to support that finding and therefore its ultimate conclusion of discrimination cannot stand. We will therefore reverse and remand for entry of judgment in favor of Wolf. This disposition makes it unnecessary to address the issues raised in Wolf's appeal concerning the remedy the district court awarded to Ezold or those in Ezold's cross-appeal concerning her claim of constructive discharge.


Ezold sued Wolf under Title VII alleging that Wolf intentionally discriminated against her because of her sex when it decided not to admit her to the firm's partnership. She further alleged that she was constructively discharged by reason of the adverse partnership decision. The court bifurcated the issues of liability and damages. After a lengthy bench trial the district court rendered its Findings of Fact and Conclusions of Law on November 29, 1990. See Ezold v. Wolf, Block, Schorr and Solis-Cohen, 751 F.Supp. 1175 (E.D.Pa.1990) (Ezold I ). It entered judgment in favor of Ezold on her claim for intentional discrimination and against her on her claim for constructive discharge.

The district court held that the nondiscriminatory reason articulated by Wolf for its rejection of Ezold's candidacy--that her legal analytical ability failed to meet the firm's partnership standard--was a pretext. It stated:

Ms. Ezold has established that the defendant's purported reasons for its conduct are pretextual. The defendant promoted to partnership men having evaluations substantially the same or inferior to the plaintiff's, and indeed promoted male associates who the defendant claimed had precisely the lack of analytical or writing ability upon which Wolf, Block purportedly based its decision concerning the plaintiff.... Such differential treatment establishes that the defendant's reasons were a pretext for discrimination.

Id. at 1191-92 (Conclusion of Law (COL) 11). The district court also held that four instances of conduct by Wolf supported its finding of pretext: (1) Ezold was evaluated negatively for being too involved with women's issues in the firm; (2) a male associate's sexual harassment of female employees at the firm was seen as "insignificant" and not mentioned to the Associates Committee prior to the partnership decision; (3) Ezold was evaluated negatively for being very demanding, while male associates were evaluated negatively for lacking assertiveness; and (4) Ezold "was the target of several comments demonstrating [Wolf's] differential treatment of her because she is a woman." Id. at 1192 (COL 12).

In holding that Ezold had failed to establish that she was constructively discharged, the district court stated:

A reasonable person in Ms. Ezold's position would not have deemed her working conditions to be so intolerable as to feel compelled to resign.

Id. (COL 16). This holding became relevant to the issue of damages. By way of relief, Ezold sought backpay as well as instatement in the firm as a partner, and if such instatement was impractical, front pay. Wolf argued to the district court that its holding that Ezold was not constructively discharged limited her relief to back pay covering the period from her unlawful denial of admission to the partnership, effective February 1, 1989, until the date of her voluntary resignation from the firm on June 7, 1989. On March 15, 1991, the district court decided that its holding against Ezold on her constructive discharge

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claim did not preclude her from obtaining relief for the period following her voluntary resignation. See Ezold v. Wolf, Block, Schorr and Solis-Cohen, 758 F.Supp. 303 (E.D.Pa.1991) (Ezold II ).

The parties then briefed the issue of whether Ezold properly mitigated her damages as required by section 706(g)(1) of Title VII, 42 U.S.C.A. § 2000e-5(g)(1). On July 23, 1991, the district court issued its final memorandum and order. It ruled that Ezold had properly mitigated her damages and that her rejection of Wolf's offer to admit her as a partner as of February 1, 1990 if she accepted responsibility for its domestic relations practice did not toll Wolf's liability for back pay. The court then awarded Ezold back pay in the amount of $131,784.00 for the period from her resignation on June 7, 1989 to January 31, 1991. The parties agreed that if the court's November 27, 1990 and March 15, 1991 orders were affirmed on appeal, Ezold would be instated as a partner. 2 The court incorporated this agreement into its orders. The district court also awarded Ezold attorney's fees and costs. Wolf timely appealed from the district court's orders. Ezold filed a protective cross-appeal from the district court's denial of her constructive discharge claim.


Ezold was hired by Wolf as an associate on a partnership track in July 1983. She had graduated in the top third of her class from the Villanova University School of Law in 1980 and then worked at two small law firms in Philadelphia. Before entering law school, Ezold had accumulated thirteen years of administrative and legislative experience, first as an assistant to Senator Edmund Muskie, then as contract administrator for the Model Cities Program in Philadelphia, and finally as Administrator of the Office of a Special Prosecutor of the Pennsylvania Department of Justice.

Ezold was hired at Wolf by Seymour Kurland, then chairman of the litigation department. The district court found that Kurland told Ezold during an interview that it would not be easy for her at Wolf because "she was a woman, had not attended an Ivy League law school, and had not been on law review." Ezold I, 751 F.Supp. at 1177 (Finding of Fact (FOF) 18). Subsequent to this meeting, but prior to accepting Wolf's offer of employment, Ezold had lunch with Roberta Liebenberg and Barry Schwartz, both members of the litigation department. She did not ask them anything...

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