Gottlieb v. Tulane University of Louisiana, s. 85-3085

• Decision Date: 10 February 1987
• Docket Number: 86-3070,Nos. 85-3085,s. 85-3085
• Citation: 809 F.2d 278
• Parties: 45 Fair Empl.Prac.Cas. 67, 42 Empl. Prac. Dec. P 36,874, 43 Empl. Prac. Dec. P 37,083, 37 Ed. Law Rep. 58 Dr. Marise S. GOTTLIEB, Plaintiff-Appellant Cross-Appellee, v. TULANE UNIVERSITY OF LOUISIANA, the Administrators of the Tulane Educational Fund, and Dr. John J. Walsh, Individually and as Chancellor of the Tulane Medical Center, Defendants-Appellees Cross-Appellants. Dr. Marise S. GOTTLIEB, Plaintiff-Appellee Cross-Appellant, v. TULANE UNIVERSITY OF LOUISIANA, the Administrators of the Tulane Educational Fund, and Dr. John J. Walsh, Individually, and as Chancellor of the Tulane Medical Center, Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 278

809 F.2d 278

45 Fair Empl.Prac.Cas. 67, 42 Empl. Prac.

Dec. P 36,874,

43 Empl. Prac. Dec. P 37,083, 37 Ed. Law Rep. 58

Dr. Marise S. GOTTLIEB, Plaintiff-Appellant Cross-Appellee, v. TULANE UNIVERSITY OF LOUISIANA, the Administrators of the

Tulane Educational Fund, and Dr. John J. Walsh, Individually

and as Chancellor of the Tulane Medical Center,

Defendants-Appellees Cross-Appellants.

Dr. Marise S. GOTTLIEB, Plaintiff-Appellee Cross-Appellant, v. TULANE UNIVERSITY OF LOUISIANA, the Administrators of the

Tulane Educational Fund, and Dr. John J. Walsh,

Individually, and as Chancellor of the Tulane Medical

Center, Defendants-Appellants Cross-Appellees.

Nos. 85-3085, 86-3070.

United States Court of Appeals, Fifth Circuit.

Feb. 10, 1987.

Rehearing Denied April 9, 1987.

Margaret E. Woodward, Barham & Churchill, Mack E. Barham, Fredericka L. Homberg, New Orleans, La., for plaintiff-appellant cross-appellee.

David L. McComb, Chaffe, McCall, Phillips, Toler & Sarpy, Kevin L. O'Dea, New Orleans, La., for defendants-appellees cross-appellants.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GARZA, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge.

Dr. Marise Gottlieb brought a Title VII action against Tulane University of Louisiana, et. al., alleging that, because of her sex, she was terminated from her position at the School of Public Health and Tropical Medicine and was "demoted" to the rank of Research Associate Professor in the School of Medicine. After a bench trial, the district court held that Gottlieb failed to establish intentional discrimination. In a pleading filed after trial but before the decision on the merits, Gottlieb also contended that after filing her Title VII action against the university, the School of Medicine took retaliatory action against her. The district court refused to reopen the case to consider the retaliation claim because of an asserted lack of jurisdiction. This court is asked to review the district court's findings against Gottlieb, and the failure to reopen the case. Tulane cross-appeals the denial of its request for attorneys' fees and costs. We affirm the district court's handling of the disparate treatment case, but we reverse and remand for further proceedings on Dr. Gottlieb's retaliation claim.

FACTUAL BACKGROUND

In 1974, plaintiff Dr. Marise Gottlieb, an M.D. epidemiologist, was a tenured member of the Rutgers University Medical School. In the fall of that year, after her husband, Dr. Arthur Gottlieb, accepted a department chairmanship at Tulane University School of Medicine, Dr. Gottlieb began employment discussions with Tulane. In February, 1975, Dr. Gottlieb accepted a full-time dual appointment as an associate professor in the School of Medicine and the School of Public Health, ¹ with time allowances granted for work at the Louisiana Department of Health and the Louisiana Tumor Registry.

Gottlieb's appointment, as confirmed by her October 10, 1975 appointment letter, was a non-tenured "special" appointment ² with employment beyond one year dependent on "supportive funds, institutional and program needs and satisfactory performance." All of Dr. Gottlieb's subsequent appointments were one year "special" appointments dependent on these same conditions. In 1977, however, in response to a Tulane University Senate directive, the Medical Center began reviewing all special appointments to determine the propriety of converting them to regular appointments. Dr. Gottlieb was never converted to a "regular" appointee.

The following chronology details Dr. Gottlieb's claims of sex discrimination:

i) The School of Public Health. In October 1978, a departmental faculty committee ³ consisting of three men and six women Most of the faculty's concern resulted from a dispute over a National Cancer Institute ("NCI") grant for the study of cancer in Southern Louisiana. Dr. Gottlieb attempted to obtain the NCI grant and submitted a proposal for the research project through the School of Medicine. A proposal was also submitted by two of Gottlieb's colleagues at the School of Public Health in conjunction with the LSU School of Medicine. Gottlieb had not informed the faculty or the dean of the School of Public Health of her proposal. After learning of the competing proposal, and her colleagues' involvement, Gottlieb requested that Tulane forbid the competing faculty members from participating in the LSU proposal. This request was denied and Dr. Gottlieb subsequently submitted a formal protest. The NCI rejected the protest and commented on Dr. Gottlieb's critical attitude toward her peers.

reviewed Dr. Gottlieb's performance and expressed a number of concerns which they felt jeopardized her reappointment as a part-time associate professor. The committee pointed to an unexpectedly low number of publications since being at Tulane, compared with her past performance; they also felt that Dr. Gottlieb did not "allow colleagues the latitude that their professional status dictates that they deserve"; and they felt that she had been obstructive and failed to cooperate in furnishing her colleagues with access to data sources. Finally, they expressed "concern about other aspects of her professional behavior toward colleagues within and without the university" and feared "that some of her actions could damage the professional reputation of the department and even that of the school vis-a-vis the community."

Dr. Gottlieb's conduct in relation to the NCI grant also strained university relations with LSU. Pending her protest, Dr. Gottlieb contacted various hospitals designated to be involved with the NCI research and informed them of her bid protest. The district court concluded that the letter included disparaging remarks about the competing bid and "came very close to requesting non-cooperation with her successful competitor." Responding to this letter, the dean of the LSU School of Medicine sharply criticized Dr. Gottlieb's actions and threatened to withdraw university support from the Louisiana Tumor Registry if Dr. Gottlieb was reappointed to that organization. Although Dr. Gottlieb sent a conciliatory letter to the hospitals, she was not reappointed to the Tumor Registry.

In June 1979, the faculty of the School of Public Health unanimously recommended that Gottlieb be given a one-year "terminal" appointment for the academic year 1979-1980. The faculty committee explained that her actions while at Tulane were "non-collegial, overly aggressive and detrimental" to the university. The committee concluded that it "would have a difficult time defending a colleague whose definitions of cooperation and limits of autonomy can depart so radically from those of the majority as yours have in some instances. Given our limited financial resources, we are reluctant to invest in a faculty member to whom we cannot guarantee this kind of support." Gottlieb accepted this terminal appointment under protest, however, and appealed the decision to the departmental grievance committee. There her termination was again unanimously approved by the grievance committee.

Dr. Gottlieb contends that her behavior was neither unreasonable nor unwarranted and that even if she was aggressive and "non-collegial," this type of behavior was tolerated in the males of the School of Public Health, hence, the justification for her dismissal was merely pretextual. She introduced testimony of colleagues who found her to be very cooperative and unabrasive. Her evidence also suggested that the School of Public Health was male dominated and that aggressiveness in females was not tolerated to the extent that it was in males. Dr. Gottlieb presented statistical evidence that tended to show a disparate salary structure between males and females, suggesting a pattern of discrimination ii) The School of Medicine. Dr. Gottlieb also claims that she was discriminated against by the Tulane School of Medicine. In the fall of 1979, the faculty senate approved an amendment to faculty guidelines which established a new tier of appointments for the School of Medicine. The amendment created a non-tenured "research appointment" for those whose activities center primarily around research and who performed minimal teaching duties. After completing her 1979 terminal appointment at the School of Public Health and her 1979 part-time appointment at the School of Medicine, Dr. Gottlieb was notified that the School of Medicine had converted her from an Associate Professor to a Research Associate Professor. By its terms, the new appointment depended solely on her ability to secure research grants and other funding. Dr. Gottlieb claims that this change in status was effectively a "demotion" because such a position never leads to tenure, it is considered second-rate, and the title is a disadvantage in obtaining research funds because of its lack of prestige. Moreover, Dr. Gottlieb asserts that her demotion was based on her sex and is consistent with the School of Medicine's treatment of all women. She points out that the School of Medicine has many women on its faculty, but only one is a full professor and only one other woman holds the rank of associate professor.

INTENTIONAL DISCRIMINATION

i) Prima Facie Case.

Gottlieb attaches particular significance to her argument that the district court misapplied the three-step analysis of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), which, she argues, "impermissibly colored" the district court's ultimate findings. Her reliance on the district court's preliminary analysis is misplaced. Following United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), we have often repeated that "by the time a fully-tried case reaches us on appeal, the parties'...