Coser v. Moore
| Citation | 739 F.2d 746 |
| Decision Date | 03 July 1984 |
| Docket Number | D,No. 665,665 |
| Parties | 40 Fair Empl.Prac.Cas. 195, 34 Empl. Prac. Dec. P 34,511, 19 Ed. Law Rep. 43 Rose L. COSER, Ruth S. Cowan, Margaret Delafield, Helen J. Emmerich, Estelle James, Ruth Miller, Joan Moos, Carole Schulkind, Sallie Sears, Rhoda Selvin, Betty Lou Valentine, Alice Wilson, Judith Wishnia, Rose Zimbardo, Ora James- Bouey, S. Elsie Campbell, Doretta Dick, Sylvia Fields, Yvonne Harmon, Mary Jordan, Ilona Kegler, Marion Lewis, Carolee Messi, Vaughn Nevin, Dorothy Popkin, Juanita Rivas, Patricia Rizzo, Gail Sinquefield, Rose Richmond, Diane Fortuna, Linnette Brugmans, Mavis Pusey, K. Ann Stolurow, and Mitsuko Collver, on behalf of themselves and all persons similarly situated, Plaintiffs- Appellants, v. Elisabeth L. MOORE, James J. Warren, Robert R. Douglass, Manly Fleischman, William Hassett, Jr., John Holloman, Jr., Clifton Phalen, Margaret Quackenbush, John A. Roosevelt, Gretchen Siegel, Roger Sinnott, Jeanne Thayer, Thomas Van Arsdale, and Darwin R. Wales, as members of the Board of Trustees of the State University of New York; Ernest Boyer, as Chancellor of the State University of New York; John Toll, as President of the University Center at Stony Brook of the State University of New York, Defendants-Appellees. ocket 83-7767. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Judith P. Vladeck, New York City (Joseph J. Garcia, Vladeck, Waldman, Elias & Engelhard, New York City, of counsel), for plaintiffs-appellants.
Lillian Z. Cohen, Asst. Atty. Gen., New York City , for defendants-appellees.
Before MANSFIELD, PIERCE and WINTER, Circuit Judges.
A certified class of current and former female employees of the State University of New York at Stony Brook ("Stony Brook" or "the University") appeals from a judgment entered on August 8, 1983 by Judge Pratt. 1 After a twelve-day bench trial, he held that Stony Brook had not engaged in a pattern and practice of sex discrimination. 587 F.Supp. 572 (E.D.N.Y.1983).
We affirm.
This action was commenced under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ("Title VII") by thirty-four current and former female employees of Stony Brook. They alleged, inter alia, that Stony Brook had engaged in a system-wide pattern and practice of discrimination against teaching ("faculty") and non-teaching professional ("NTP") women with respect to virtually all conditions of employment including recruitment, hiring, placement at hire, promotion, tenure, and salary.
By a memorandum and order dated June 22, 1977, the district court certified a class under Fed.R.Civ.P. 23(b)(2) "solely with respect to plaintiffs' claim that at Stony all women who in the past may have been or in the future may be discriminated against on the basis of sex by defendants' practices with respect to recruiting, hiring, termination, job assignment, promotion, compensation, and other terms, privileges, and benefits of employment and who either (1) have been employed by Stony Brook as a teaching or non-teaching professional at any time on or after February 11, 1974, or (2) may be so employed by Stony Brook in the future, or (3) once unsuccessfully applied for employment as a teaching or non-teaching professional with Stony Brook at any time on or after February 11, 1974, or (4) who may apply for such employment in the future. Id. at 575.
Brook there exists a system-wide pattern and practice of discrimination based on sex." 587 F.Supp. 571, 574 (E.D.N.Y.1983). The class certified consisted of
After class certification, the parties and the district court agreed to a bifurcated trial in which the class issue of a pattern and practice of system-wide discrimination would be tried first, while trial of the claims of the individual plaintiffs would await final adjudication of the class claim.
The system-wide, pattern and practice claimproceeded to trial after five years of discovery. The evidence consisted largely of testimony and documents concerning the structure and efficacy of Stony Brook's affirmative action program, anecdotal testimony concerning individual cases of discrimination, and experts' reports based largely on statistical data.
Judge Pratt's decision, 587 F.Supp. 572, familiarity with which is assumed, dismissed the complaint as to the class claims and directed that judgment be entered under Fed.R.Civ.P. 54(b). Conceding that "plaintiff's statistics ... show[ed] that Stony Brook's work force [was] 'sex-stratified', in that women [were] distributed primarily in lower-level ... teaching and administrative positions," id. at 576, he nevertheless concluded that this stratification was not the result of Stony Brook's use of gender tainted criteria or of facially neutral criteria that are not job-related and fall disproportionately upon women. Rather, he found that it was largely the result of historic and social conditions over which the defendants had no control.
Plaintiffs have appealed this judgment and have briefed their claims relating to faculty and NTP placement at hire, faculty tenure and promotion decisions, awards of tenure to faculty at hire, and faculty and NTP salaries. They have not briefed their claims relating to hiring and recruitment or comparable worth. We consider these latter claims abandoned on appeal.
We deal here with familiar legal principles. In order to prevail on their claim of a pattern and practice of discrimination, plaintiffs had to show by a preponderance of the evidence that Stony Brook's "standard operating procedure--the regular rather than the unusual practice" is to discriminate on the basis of sex. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977).
Plaintiffs claim that Judge Pratt erred as a matter of law in two respects. Their first claim focuses upon his statement that "plaintiffs' burden was to establish that after February 11, 1974, ... with respect to its teaching and non-teaching professionals, Stony Brook has engaged in a pattern or practice of treating women less favorably than men, solely because they are women." 587 F.Supp. at 577 (emphasis added). Plaintiffs argue that this statement demonstrates that the district court limited its consideration to the issue of discriminatory motive or treatment and did not consider whether the various criteria applied by Stony Brook in making employment decisions had an unlawful disparate impact. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). After reviewing the decision of the district court as a whole, we must reject this argument. Judge Pratt's findings of fact refute not only the use of gender-tainted criteria but also the use of facially neutral criteria that are not job related but have a disparate impact upon women. Indeed, at several places in his opinion, he utilizes disparate impact analysis in concluding that prior experience, prior academic rank, and prior tenure are job related criteria. 587 F.Supp. at 585. In light of the explicit consideration of this claim, we perceive no significance in the isolated use of the word "solely."
The second claim of error of law is that Judge Pratt failed to apply to universities the legal obligations applicable to other employers under Title VII. Plaintiffs argue that he treated universities as a preferred, protected class of employer and point in particular to his statement that a university's "treatment of minorities cannot be evaluated in the same manner as that of, say, a trucking company or factory that can hire many people with less differentiated qualifications." 587 F.Supp. at 584.
Although we agree that the legal obligations generally applicable to employers under Title VII are fully applicable to universities, we do not agree that Judge Pratt held universities to a less rigorous standard. His statement merely pointed out that generalized statistical data may be less persuasive evidence of discrimination where an employer hires "highly educated, specially qualified people" 587 F.Supp. at 584 on a decentralized basis than where the positions in question involve general skills and a central office does the hiring. His statements thus had to do with the logical strength of the inferences which may be drawn from certain kinds of statistics rather than with the legal duty imposed upon particular employers.
Where uncoordinated and independent employment decisions are made by different persons, statistics as to hiring by the overall entity may be less significant in demonstrating bias than where a single office makes all employment decisions. Zahorik v. Cornell University, 729 F.2d 85, 92 (2d Cir.1984). For example, one can draw stronger inferences about hiring criteria when persons are hired or not hired by a central office than when they are hired or not hired by different offices. The same is true when highly specialized jobs are in issue, as opposed to identical positions requiring only general skills. This is so, not because specialists are protected less by Title VII, but because the availability pool for certain specialized positions may be very small. As the size of the sample population declines, we can be less confident of the validity of statistical proof, because pure chance may produce a sample that deviates from population norms.
We also recognize the possibility that the sex characteristics of a particular availability pool may differ from those of the general population because of prior discrimination by entities other than Stony Brook. However, Title VII imposes on Stony Brook only the duty to refrain from using non-job-related criteria that may perpetuate such prior discrimination. Griggs v. Duke Power Co., 401 U.S. at 430-31, 91 S.Ct. at 853....
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