Davis v. Weidner
| Decision Date | 06 April 1979 |
| Docket Number | No. 78-1836,78-1836 |
| Citation | 596 F.2d 726 |
| Parties | 19 Fair Empl.Prac.Cas. 668, 19 Empl. Prac. Dec. P 9118 Dr. Judith M. DAVIS, Plaintiff-Appellant, v. Edward WEIDNER, Individually and as Chancellor of the University of Wisconsin-Green Bay, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Cheryl Rosen Weston, Madison, Wis., for plaintiff-appellant.
Robert D. Repasky, Asst. Atty. Gen., Madison, Wis., for defendants-appellees.
Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and EAST, Senior District Judge. 1
Plaintiff Judith M. Davis brought a complaint pursuant to 42 U.S.C. § 2000e-5(f)(3) alleging that the termination of her teaching position at the University of Wisconsin-Green Bay constituted a sexually discriminatory employment practice. The district court granted defendants' motion to dismiss the complaint at the close of plaintiff's case. We affirm the result reached by the district court.
Plaintiff was hired as a nontenured instructor in the University of Wisconsin-Green Bay (University) Analysis-Synthesis Concentration beginning in the academic year 1970-71. This appointment was renewed for the following academic year. In the fall of 1971 plaintiff received her doctoral degree and consequently was promoted, becoming an assistant professor. Her teaching and academic duties were not changed by this promotion.
Probationary faculty, like plaintiff, at the University are reconsidered annually for retention or termination. Primary responsibility for these decisions rests with the tenured faculty within each concentration; the dean and chancellor can negate an affirmative employment decision made by the departmental faculty, but they cannot themselves decide to retain or tenure a faculty member. In April 1972 the executive faculty committee of plaintiff's department reconsidered plaintiff's status and voted not to retain her. According to University regulations, one year notice of termination was required; thus, plaintiff's employment after this decision was to be terminated at the completion of the 1972-73 academic year. A rehearing was conducted pursuant to University rules in July 1972 and the termination decision was affirmed.
Plaintiff appealed this decision to the University Committee, a faculty committee established to advise the University Chancellor on personnel matters. The University Committee recommended that the nonretention decisions be voided because of procedural unfairness. The Chancellor did not void the personnel decisions, but instead substituted different grounds for the nonretention decision and permitted the nonretention notice to stand. The Chancellor ordered that plaintiff be reconsidered for retention with other probationary faculty in light of substantial budget cutbacks at the University. In November 1972 plaintiff filed charges of sex discrimination with the Equal Employment Opportunity Commission (EEOC).
Pursuant to the Chancellor's budgetary directive, Dean Beaton ordered the Analysis-Synthesis Concentration Executive Committee to review its probationary faculty and select two members of this faculty for termination. Prior to the review of the full Executive Committee, a subcommittee of the Concentration composed of two women and two men foreign language teachers recommended that plaintiff be terminated. On January 4, 1973 thirteen tenured faculty members voted to select the three probationary faculty (out of five) who would be retained. The results of this committee vote placed plaintiff fourth; accordingly, her notice of nonretention remained in effect. Plaintiff filed additional discrimination charges with the EEOC. Plaintiff sought but was unable to obtain other employment at the University. Her employment at the University was terminated in 1973. To date she has not found other employment as a college French teacher.
The complaint in this case was filed April 22, 1974. Originally, the case was assigned to Judge Reynolds in the Eastern District of Wisconsin. The court granted defendants' motion to dismiss that portion of the complaint seeking damages under 42 U.S.C. § 1983. The bench trial commenced on October 25, 1977. On October 27 the trial judge declared a mistrial and transferred the case to another court. The matter was reassigned and the parties stipulated to use of the transcript of the previously held proceedings as part of the record in this new trial. On January 4, 1978 the new district judge dismissed the Board of Regents as a party. The trial commenced on May 15, 1978 and concluded May 17. At the conclusion of the presentation of plaintiff's case, the court granted defendants' motion to dismiss. Plaintiff appeals both the dismissal of the Board of Regents and the dismissal of her complaint.
As a preliminary matter, we hold that the district court's order dismissing the Board of Regents of the University of Wisconsin as a party defendant was improper. The Board was dismissed because it was not named by plaintiff in her charges before the EEOC, and the failure to file charges of discrimination before the EEOC generally precludes bringing an action in federal court pursuant to 42 U.S.C. § 2000e. Terry v. Bridgeport Brass Co., 519 F.2d 806 (7th Cir. 1975); Williams v. General Foods Corp.,492 F.2d 399 (7th Cir. 1974). This filing requirement provides notice to the party charged with a violation and gives that party an opportunity to comply with Title VII before the institution of an action in federal court. Williams, supra, 492 F.2d at 404.
Plaintiff consistently named "The University of Wisconsin-Green Bay" as her employer in her discrimination charges. Technically, for the purposes of suit, the University of Wisconsin-Green Bay is not a person but a place. Wisconsin law designates the Board of Regents of the University of Wisconsin System as the corporate entity capable of being sued under Title VII. Wis. Stat. § 36.07. To a layperson, the employer of a teacher at the University of Wisconsin-Green Bay is the University, not a corporate entity created by the state for purposes of suit. And despite the technical discrepancy in plaintiff's formal charges, the Board of Regents appeared by legal counsel through all the administrative proceedings prior to the suit in federal court. Thus, the dual objectives of the requirement that charges be filed with the EEOC were met. We are unwilling to penalize a layperson for failing to heed the precise EEOC filing requirements prior to a federal suit pursuant to 42 U.S.C. §§ 2000e Et seq. under these circumstances. See Love v. Pullman Co., 404 U.S. 522, 526-27, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). Thus, we conclude that the district court's dismissal of the Board of Regents as a party defendant was improper.
The appropriate legal standard for "the order and allocation of proof in a private, non-class action challenging employment discrimination" was established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). See also Furnco Constr. Co. v. Waters, 438 U.S. 567, 572, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). The Court stated:
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
Id. at 802, 93 S.Ct. at 1824 (footnote omitted). After a plaintiff establishes such a prima facie case, the "burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employer's rejection." Id. See also Taylor v. Philips Industries, Inc., 593 F.2d 783, (7th Cir. 1979). If some such reason is advanced by the employer, the focus returns to the plaintiff so that he can "be afforded a fair opportunity to show that (the employer's) stated reason for (the employee's) rejection was in fact pretext." McDonnell, supra, 411 U.S. at 804, 93 S.Ct. at 1825.
We see no compelling reason why this model for pleading and proving an employment discrimination claim, "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination," should not have been applied in this case. Furnco, supra, 438 U.S. at 577, 98 S.Ct. at 2949. Certainly, as the Supreme Court noted in McDonnell :
The facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.
McDonnell, supra, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824. In this case, however, we believe that the McDonnell test should have been applied.
The district judge, in his ruling from the bench dismissing plaintiff's complaint, suggested that the McDonnell standard for a prima facie employment discrimination case was inapplicable because this was a "nonretention" rather than a "failure to hire" case. This distinction has no merit. There is no language in McDonnell suggesting such a limitation to its applicability. Further, the Supreme Court applied McDonnell to a discharge case in McDonald v. Santa Fe Trial Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Finally, the district court offered no rationale, and we can conceive of none, which would justify translating the factual distinction between nonretention and hiring described by the district judge into a legal distinction about the appropriate pleading and proof model for an employment discrimination case.
The University argues that McDonnell should not be applied because ...
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