Abramson v. University of Hawaii
| Decision Date | 28 March 1979 |
| Docket Number | 78-1271,Nos. 77-2411,s. 77-2411 |
| Citation | 594 F.2d 202 |
| Parties | 19 Fair Empl.Prac.Cas. 439, 19 Empl. Prac. Dec. P 9136 Joan ABRAMSON, Plaintiff-Appellant, v. UNIVERSITY OF HAWAII, a Body Corporate, Board of Regents, University of Hawaii, Harriet Miziguchi, Wallace S. Fujiyama, Sandra A. Ebesu, Roger C. Evans, John A. Hoag, Ruth Oshiro, Herbert M. Richards, Jr., Kiyoshi Sasaki, Thomas S. Shibano, in their respective capacities as members of the Board of Regents, University of Hawaii, Fujio Matsuda, President, University of Hawaii, in his capacity as President of the University of Hawaii, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James T. Paul (argued), Paul, Johnson & Alston, Honolulu, Hawaii, for plaintiff-appellant.
Edward R. Lebb (argued), Honolulu, Hawaii, Paul Mirengoff (argued), Washington, D. C., for defendants-appellees.
On Appeal From the United States District Court for the District of Hawaii.
Before SNEED and KENNEDY, Circuit Judges, and DAVID WILLIAMS, * District Judge.
This is a consolidated appeal from two separate determinations in appellant's suit alleging that appellees discriminated against her on the basis of her sex. Appellant first appeals from a partial summary judgment as to her claims under Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. Her Title VII claims center around the University's failure to grant her tenure. Appellant also appeals from a final judgment entered on her equal pay claim under the Equal Pay Act of 1963, 29 U.S.C. § 206(d). She had sought to stay adjudication of this claim pending the decision on appeal of her Title VII claims. The court denied her motion for continuance of the trial date, and the claim was dismissed. We affirm the final judgment on the equal pay claim, reverse the summary judgment as to the Title VII claims and remand for further consideration in light of our disposition.
Appellant Joan Abramson was first employed by the University of Hawaii in 1967 for a one-year term as an instructor in the English Department. She was subsequently employed for three consecutive one-year terms ending with the 1970-71 academic year. In late 1970, the English Department's Promotion and Tenure Committee recommended against granting appellant tenure. Thereafter the chairman of the English Department, the Personnel Committee of the College of Arts and Sciences, and the Dean of the College of Arts and Sciences reviewed the recommendation and concurred with it. In early 1971, the University Faculty Personnel Committee reviewed the prior recommendations and recommended instead that tenure be granted. Nevertheless, the decision apparently was made by the President of the University to follow the Department's recommendation, and, on June 10, 1971, the Dean of the College informed her, in accordance with the University requirements, 1 that she would not receive tenure.
Under a provision in her contract, appellant then was offered a "terminal year" of employment, which she accepted for the 1971-72 academic year. During this final year appellant attempted to have the University reconsider the decision conveyed to her in June 1971, as she alleges that it has done in other cases. She pursued her cause first to the Faculty Senate Committee on Privilege and Tenure, which voted unanimously to suggest that tenure be granted. She then attempted to convince the English Department to reconsider its decision, but was unsuccessful. In early 1972, appellant Abramson protested to the President of the University that she had been denied tenure on the basis of her sex. The President referred the matter to his Commission on the Status of Women. The Commission reported on April 19, 1972 that "tenure appears to have been denied on the basis of discernable sex discrimination."
Despite this finding, the President declined to reconsider the University's decision and in June 1972 her then existing contract expired. Later that month appellant lodged a charge with the Equal Employment Opportunity Commission (EEOC) alleging that she had been denied tenure because of her sex.
Appellant subsequently was employed as an instructor in an experimental program of the University, New College, for the 1972-73 academic year. Thereafter several differences arose between appellant and the University. Appellant filed an equal pay complaint with the United States Department of Labor and modified her EEOC complaint to allege that actions taken by the University were in retaliation for her filing of charges. In August, 1973 the University Board of Regents abolished New College, and, on September 6, 1973, the University informed appellant that she would no longer be considered a member of the faculty.
Appellant has been involved in two suits previous to this one complaining of University actions. On September 29, 1972, appellant filed suit individually in the Circuit Court of the First Circuit, State of Hawaii, against the Board of Regents of the University, its individual members, and the President of the University. The suit challenged the 1971 and 1972 actions resulting in her denial of tenure. Counts I and II alleged that the procedures used in denying her tenure violated her contract rights and her rights under the Hawaii Administrative Procedures Act. Count III alleged that the denial of tenure violated the state Constitution's prohibition against sex discrimination. On October 17, 1973, the trial court granted appellant's Motion for Leave to Dismiss Count III without prejudice to her right to file an action in federal court alleging a federal cause of action for sex discrimination. Appellant argued to the state court that her claim of sex discrimination was best left unresolved until after the EEOC completed processing her charge, since the EEOC might be able to conciliate the claim and, if not, trial would still proceed more expeditiously once the EEOC had completed its investigation and made its findings. The state case proceeded to trial on the remaining counts. The trial court gave judgment for the University on appellant's remaining claims and the Hawaii Supreme Court affirmed. Abramson v. Board of Regents, 56 Haw. 680, 548 P.2d 253 (1976). The University did not appeal the trial court's order dismissing Count III without prejudice to a federal sex discrimination suit.
Appellant during 1973 did not restrict her litigation to that just described. On August 27, 1973, the complaint pending in the federal district court for the District of Hawaii, Civil No. 73-3830, entitled O'Reilly v. Chang, was amended to include Abramson as a named plaintiff. The suit was brought against the University by certain students and faculty at New College, the experimental program in which appellant participated during her terminal year and after the expiration of her terminal appointment in 1972. The suit challenged the University's decision to close New College, primarily on due process grounds. Abramson also alleged contractual violations in her firing. The district court found no wrong cognizable under federal law and denied a preliminary injunction September 20, 1973. On March 25, 1975 the court approved and entered a stipulation of dismissal with prejudice.
On February 27, 1974 the EEOC found in favor of appellant on her charges and eventually recommended substantial compensatory and punitive damages. Conciliation efforts with the University failed, and, on March 27, 1975, this action was filed. Appellant amended her complaint August 28, 1975 and again on December 7, 1976. She bases her suit on the charges she had filed with the EEOC and the Labor Department in 1972. On March 29, 1977, the district court filed its written order granting the University's motion for summary judgment with respect to all of appellant's Title VII allegations. The lower court did not then dismiss the equal pay claims.
In entering judgment against appellant's Title VII claims, the district court noted that Title VII was not made applicable to educational institutions until March 24, 1972. The court concluded that the denial of tenure, even if based on Dr. Abramson's sex, did not violate the law since it occurred prior to that date. The court also held that appellant's EEOC charge in June, 1972 was untimely insofar as it challenged the denial of tenure, since it was not filed within 300 days of June, 1971. The court rejected the retaliation claims, holding that to the extent the University may have retaliated against appellant for challenging her tenure denial, such retaliation could not have been unlawful because "the underlying basis was the denial of tenure on account of sex (which) was not an unlawful practice at the time it occurred." It also held the retaliation claims barred by Res judicata "because such claims of retaliation were finally disposed of or should have been raised" in appellant's two previous suits against the University. Appellant appealed from the order dismissing her Title VII claims under 28 U.S.C. § 1292(a), which permits appeal from "interlocutory orders of the district courts . . . refusing . . . injunctions." See Waters v. Heublein, Inc., 547 F.2d 466, 468 (9th Cir. 1976), Cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100 (1977).
Four months after the partial summary judgment, the University moved to reinstate the pretrial conference for the remaining equal pay claim. In response, appellant moved to stay all proceedings pending appeal. After argument, on August 29, 1977, the district court denied the Motion for Stay and set trial for November 7, 1977. Abramson decided to dismiss voluntarily her equal pay claim and so informed the court and the appellees. She then made a final motion for a continuance of her trial date pending decision on appeal. The trial court denied her motion and judgment was entered December 14, 1977. She appealed...
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