Cramer v. Virginia Commonwealth University

• Decision Date: 14 March 1980
• Docket Number: Civ. A. No. 75-0271-R.
• Citation: 486 F. Supp. 187
• Parties: Dr. James Albert CRAMER v. VIRGINIA COMMONWEALTH UNIVERSITY et al.
• Court: U.S. District Court — Eastern District of Virginia

486 F. Supp. 187

Dr. James Albert CRAMER v. VIRGINIA COMMONWEALTH UNIVERSITY et al.

Civ. A. No. 75-0271-R.

United States District Court, E. D. Virginia, Richmond Division.

March 14, 1980.

W. H. Cabell Venable, Robert P. Geary, McGrath & Geary, Richmond, Va., for plaintiff.

Richard L. Williams, W. Carter Younger, McGuire, Woods & Battle, Richmond, Va., for defendants.

Yoshinori H. T. Himel, Civil Rights Div., Dept. of Justice, Washington, D. C., Raymond A. Carpenter, Asst. U. S. Atty., Richmond, Va., for intervenors-defendants.

MEMORANDUM

WARRINER, District Judge.

The history of this litigation is set forth in published opinions.¹ A brief statement of the present posture of the case may be helpful to an understanding of the issues presented.

After the complaint was filed and during discovery, the parties reached agreement on a brief, factual stipulation which relieved plaintiff from proof of a number of incidental, but difficult, factual issues, while at the same time granting defendants protection from backpay, hiring, and damages claims.² On this stipulation this Court found clear evidence of invidious sex discrimination against plaintiff. Cramer v. Virginia Commonwealth University, 415 F.Supp. 673, 682 (1976).

On appeal the United States intervened and exhibited to the Court of Appeals a memorandum allegedly signed by responsible members of the Virginia Commonwealth University (VCU) sociology department which cast doubt on the accuracy of the stipulation upon which this Court's opinion had been based. Giving credit to the memorandum³ the Fourth Circuit remanded for the taking of evidence and the finding of facts independent of the stipulation. Cramer v. Virginia Commonwealth University, 586 F.2d 297, 300 (4th Cir. 1978).

After appropriate pre-trial proceedings, the Court heard extensive evidence presented by the Government in September, 1979. The Court has reviewed the transcript and has studied post-trial briefs.

The hiring procedures adopted by VCU to satisfy the requirements of "affirmative action" were so blatantly and pervasively sexist⁴ that even the Government admits in brief that "there was very little chance of hiring a male applicant." This admission was necessary in view of the testimony of the chairman of the sociology department who acknowledged under cross-examination that for a male to break through the female phalanx of applicants and be hired, he would have to be a "superstar."

The hiring processes used by the VCU sociology department to discriminate against males were encompassed with pedagogic legerdemain intended to assuage those of the faculty uncomfortable in the presence of sex discrimination, but the essence of the method was simple. The recruitment committee would select from among women applicants the better qualified women for the job, invite for interview three or four of the women so selected, and hire from among those interviewed. Since the chance that no women would qualify under such a selection procedure approached nil, the converse chance that a male would be hired also approached nil. See generally Transcript pp. 133-34, 147-56, 166-67, 206-11, 282-84.

The explicit language of Title VII, 42 U.S.C. § 2000e-2(a)(1)(2), (j) as adopted by Congress clearly prohibits such sex discrimination. Because the language Congress chose has been lost in a welter of executive orders, "affirmative action plans," and pure bureaucratic pressure tactics, it might be well to set the words forth, if merely for historical interest:

It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire . . . or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify . . applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).

Congress, not satisfied merely to set forth the positive duty not to discriminate, added subsection (j), further explaining its intent that no invidious preferences are to be inferred:

(j) Nothing contained in this title shall be interpreted to require any employer . . to grant preferential treatment to any individual . . . because of the race, color, religion, sex, or national origin of such individual . . . on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section or other area.

42 U.S.C. § 2000e-2(j).

Despite this language the majority of the Supreme Court in an opinion by Mr. Justice Brennan in United Steel Workers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), held that Congress intended that employers, to correct an "imbalance," may prefer persons who are black on racial grounds in employment opportunities. Justice Brennan found this intent by deduction from the fact that "legislators in both Houses who traditionally resisted federal regulation of private business" supported the bill. 443 U.S. at 206, 99 S.Ct. at 2729, 61 L.Ed.2d at 490-91. He also noted that the racial discrimination in question was not "required" but was said to be voluntary.

Though Weber must be accepted by this Court as having established what Congress meant when it wrote the words above quoted, it does not otherwise guide the lower courts in determining what is and what is not permissible race or sex discrimination.⁵ Fortunately for this Court, (and probably for defendant VCU) a resolution of that problem is neither necessary nor appropriate in this case. The case is moot.

The facts brought out at trial show that plaintiff originally came to VCU as a last minute, temporary employee. He was hired in the fall of 1973 barely three weeks before the start of classes. His salary was $14,000.00. Plaintiff, instead of moving to Richmond to assume his position, moved to Rockville, Maryland, for personal reasons and to enable him more conveniently to seek employment in research positions in the Washington, D. C., area. His preference for such a position over continued employment at VCU was contemporaneously acknowledged in conversations with the department chairman, Dr. McGrath. In September, 1973, plaintiff purchased a condominium in Rockville.

During his tenure at VCU, Cramer was not active in departmental affairs and frequently rearranged his teaching schedule to make it more convenient for him to continue residing in Maryland. Though he was aware of the openings of permanent positions in the sociology department he had to be "nudged" into submitting an application. His application, when submitted, consisted of a two-sentence statement without any indication that its submission was other than pro forma.

In the spring of 1974 Cramer applied for and obtained a position with the University of Maryland and he withdrew his application for a position with VCU. His salary at the University of Maryland was commensurate with that he had earned at VCU but the Maryland position was more exciting and desirable to Cramer since it involved considerable travel throughout Europe at a relatively low cost to Cramer and his wife. Upon completion of his stint at Maryland, he successfully sought employment at Georgetown University in April or May of 1975. He applied at no other institution at that time.

It was in June of 1975 that he filed the instant suit. He sought employment, backpay, fringe benefits, and the like. He also sought a declaratory judgment and general injunctive relief against sex based employment discrimination.

In the fall of 1975 plaintiff purchased and occupied a dwelling in Washington, D. C. He presently resides in that dwelling. His starting salary at Georgetown was about $19,000.00 compared with a range of from $14,000.00 to $18,000.00 for a comparable position at VCU.

In the early part of 1976 plaintiff formally abandoned any claims in his lawsuit for monetary relief and desisted in his prayer for employment. The only relief remaining was for a declaratory judgment that the hiring practices of VCU were unlawful and that an injunction issue to prevent continued sex discrimination. Solely on the basis of stipulated facts (not the facts above set out) this Court entered an order granting the declaratory and general injunctive relief on 28 May 1976.

Thereafter, concerned with possible mootness, plaintiff sent a letter of inquiry about employment to VCU on 11 October 1976. Under all the facts and circumstances the Court does not consider that letter to have been a genuine effort by plaintiff to seek employment with VCU. This belief is buttressed by the fact that in his present situation plaintiff is enjoying a salary of approximately $30,000.00 with an opportunity to make as much as $5,000.00 additional through part-time work. At VCU the range of salaries for which he might be qualified runs from $15,000.00 to $25,000.00 per year. This view is further supported by the concessions set forth in the stipulation wherein the plaintiff waived all employment-related avenues of relief such as backpay or rehiring, leaving only declaratory and general injunctive relief issues before the Court.

Despite persistent claims by defendants and intervenor that plaintiff's claims for declaratory relief are moot, plaintiff failed to take the witness stand at the hearing in this case on 6-7 September 1979 to articulate any personal, individualized dispute he has with VCU.

In determining whether an action presents an "actual controversy" within the meaning of the Declaratory...