Carpenter v. Board of Regents of University of Wisconsin System, 83-1243

• Citation: 728 F.2d 911
• Decision Date: 23 February 1984
• Docket Number: No. 83-1243,83-1243
• Parties: 34 Fair Empl.Prac.Cas. 248, 33 Empl. Prac. Dec. P 34,199, 16 Ed. Law Rep. 733 Dr. Joseph CARPENTER, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 911

728 F.2d 911

34 Fair Empl.Prac.Cas. 248,

33 Empl. Prac. Dec. P 34,199, 16 Ed. Law Rep. 733

Dr. Joseph CARPENTER, Plaintiff-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM,

Defendant-Appellee.

No. 83-1243.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 19, 1983.

Decided Feb. 23, 1984.

Jeff Scott Olson, Julian & Olson, S.C., Madison, Wis., for plaintiff-appellant.

John R. Sweeney, Wis. Dept. of Justice, Madison, Wis., for defendant-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

PER CURIAM.

Dr. Joseph Carpenter brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, after he was denied tenure at the University of Wisconsin-Milwaukee ("UW-M"). He alleged that he was denied tenure, and consequently fired, because of his race, black. The case was tried without a jury on both disparate treatment and disparate impact theories the disparate impact theory having been introduced only on the first day of the trial. The disparate treatment claim was dismissed at the close of the plaintiff's case and, after the trial, judgment was entered for defendant on the disparate impact claim. On appeal, Dr. Carpenter challenges only the adverse judgment with respect to the disparate impact claim. Because we find none of the factual findings of the district court to be clearly erroneous and, further, no legal errors appear in the record, the judgment is affirmed.

I. Background

The factual and historical circumstances leading to this litigation are described in admirable detail in the district court's seventy-one pages of findings. In fact, the district court's findings enlighten us thoroughly both on the history of the Afro-American Studies Department ("AASD" or the "Department") at UW-M and on the mechanics of obtaining academic tenure. Without in any way depreciating the value of extensive findings in facilitating appellate review, we will attempt to be more brief.

Carpenter was appointed to a tenure track position at UW-M in AASD in 1972. Carpenter had been awarded his Ph.D in 1970 by Marquette University and from 1970 until his appointment at UW-M he served as an assistant professor and director of Afro-American Studies at Carthage College in Kenosha, Wisconsin. Although he had job offers at six other colleges and universities, Carpenter accepted the position at UW-M because he did not want to uproot his family from Milwaukee.

AASD was a relatively young department when Carpenter joined it. The Department was first established as the Afro-American Studies Center in 1969, largely due to pressure from the black student community to recognize the importance to our society of black culture and history. The Center offered several courses for credit but was also envisioned as a place to provide support services for black students and to serve as a black cultural center for the Milwaukee community. The conversion of the Center to an academic department in 1971 required a narrowing of the mission of the Center so that it could concentrate primarily on academic matters. However, UW-M maintained its policy of hiring only blacks as faculty members of AASD.

When Carpenter was appointed to the Department he was informed of the three-pronged test for achieving tenure at UW-M: the candidate must achieve a minimal level of competence and demonstrate a reasonable likelihood of future growth and performance in teaching, in research and scholarly writing and in service to the university community and to the larger community. At UW-M, as is apparently the case at most universities in the United States, faculty members were considered for tenure by the end of the seventh year of service. Because of certain peculiarities of Wisconsin law which required a full year's notice before termination, in practice a candidate was required to submit materials for tenure after five and a half years of service. At UW-M, if a faculty member failed to achieve tenure by the end of the seventh year, the faculty member was terminated.

The district court found that the three-pronged tenure test at UW-M, in the context of the seven year time rule, was not intended to discriminate against blacks. This finding is not challenged on appeal. The district court further found that UW-M did not foresee that the tenure practices might have a disparate impact on blacks or, more specifically, on black junior faculty at the AASD. In fact, the seven year rule was promulgated by the American Association of University Professors to protect its members from the possibility of delays in tenure decisions that could result in negative decisions occurring too late in a professor's career to allow a start at a new position. The district court also found that the three areas of competence covered by the test were related to the fulfillment of the basic function of the university.

The relative newness of the Department created significant additional responsibilities for Carpenter that were not borne by faculty members of other, more established departments. For instance, Carpenter was required to do extensive work in curriculum development and even had to develop courses outside his areas of expertise. Further, the young age of the Department apparently required Carpenter to assume much heavier administrative duties than junior faculty in other departments. In fact, Dr. Carpenter served as Chairman of the AASD for the academic year 1975-76.

The position of the Department in the black community also contributed to Carpenter's increased responsibilities. The district court found that the special needs of black students in the predominantly white UW-M community required Carpenter to engage in a higher level of counselling and advising activities than young professors in the well-established, "white", departments. Carpenter also took it upon himself, admirably, to participate in community service activities such as membership on the Milwaukee Board of Election Commissioners and service for a neighborhood association.

These activities, some forced on Carpenter because of the absence of senior faculty and established courses at AASD, some caused by unique problems of black students at a predominantly white university and some voluntarily undertaken by him apparently curtailed the time available to him for scholarly work, one of the three areas in which proficiency was required to attain tenure. Carpenter, in 1974, requested that one or two years of his prior service be eliminated from the time counted toward tenure so he could defer his tenure application beyond the 1975-76 academic year when it would normally be made. This request was refused, purportedly because university regulations allowed no discretion as to the time when a faculty member must apply for tenure. We must presume, because of the negative finding below on the disparate treatment claim, that any increased responsibilities Carpenter had were not "heaped" upon him as part of a scheme to prevent black professors from gaining tenure.

Carpenter prepared his tenure materials for submission in accordance with university regulations. The materials were submitted to the AASD executive committee in early December, 1975 and the executive committee, on December 15, 1975, recommended to the Dean's office that tenure be granted. William Halloran, Dean of the College of Letters and Science (the "College"), of which AASD was a department, transmitted the recommendation to the executive committee of the Division of Professions. The latter committee unanimously recommended Carpenter be granted tenure.

After the executive committee of the Division of Professions made its recommendation, Carpenter's tenure application went back to the Dean's office for review. An associate dean, Nason Hall, was first to review the materials, and he...