Jepsen v. Florida Bd. of Regents

• Decision Date: 06 February 1980
• Docket Number: No. 77-2969,77-2969
• Citation: 610 F.2d 1379
• Parties: 21 Fair Empl.Prac.Cas. 1700, 63 A.L.R.Fed. 881, 22 Empl. Prac. Dec. P 30,624 Laura JEPSEN, Plaintiff-Appellant, v. FLORIDA BOARD OF REGENTS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1379

610 F.2d 1379

21 Fair Empl.Prac.Cas. 1700, 63 A.L.R.Fed. 881,

22 Empl. Prac. Dec. P 30,624

Laura JEPSEN, Plaintiff-Appellant, v. FLORIDA BOARD OF REGENTS et al., Defendants-Appellees.

No. 77-2969.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 1980.

Kent Spriggs, Tallahassee, Fla., for plaintiff-appellant.

Gene T. Sellers, Counsel, State of Florida Bd. of Educ., Tallahassee, Fla., James D. Little, General Counsel, Florida Board of Education, Tallahassee, Fla., Gerald B. Jaski, Charles S. Ruberg, Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before TUTTLE, FAY and THOMAS A. CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

The appellant, an associate professor at Florida State University, filed suit under Title VII, 42 U.S.C. § 2000e Et seq., against the Florida Board of Regents, claiming that the University had discriminated against her on the basis of her sex. She appeals from an order of the district court dismissing the case. We reverse and remand.

Laura Jepsen is employed as an associate professor in the Department of English at the Florida State University, a state institution. She holds a B.A. degree, an M.A. degree, and a Ph.D. degree, which she received in 1946. Dr. Jepsen has written one book, published in 1953 and reprinted in 1971, which was apparently well-received in the academic community. She has also published several articles. Dr. Jepsen was first employed by the University in 1946 as an instructor. In 1947, she was promoted to the rank of assistant professor, a position she held until 1971 when she was promoted to associate professor. Dr. Jepsen has never been promoted to the rank of full professor, and, at the time this suit was filed, she was receiving a salary of $13,905 for a nine-month academic year.

During the time that Dr. Jepsen has been employed by the University, three categories have been considered in granting promotions and salary increases to faculty members teaching, research, and service. Until 1970, a professor's performance in these areas was evaluated by the head of the department, or by an evaluation committee, based upon informal, unwritten criteria. Since 1970, the English Department has relied upon a more specific written set of guidelines in determining a professor's eligibility for promotion or a raise. An elected committee of the department evaluates a professor in each of the three categories, based on a point ranking system. The highest raise goes to the professor in the department with the highest number of points, and the lowest raise goes to the person ranked with the lowest number of points. The promotion system involves evaluation at four different levels. A professor must be recommended for promotion by a departmental committee, an area committee, a college committee, and a University-wide committee.

In 1974, Dr. Jepsen brought suit against members of the Florida Board of Regents Prior to trial, Dr. Jepsen filed a motion to compel discovery, requesting that the court order the University to produce the personnel files of fourteen members of the English Department. The defendants requested a protective order based on the confidentiality of these files under § 239.78 of the Florida Statutes. ¹ Accordingly, the district court ordered that the plaintiff's counsel could personally view faculty evaluation forms, but could not copy the documents or discuss their contents with anyone other than the custodians of the documents, defense counsel, or the Court.

claiming that the defendants had discriminated against her on the basis of sex, in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e Et seq., as amended by the Equal Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103. She alleged that the University has discriminated against her, on the basis of sex, in decisions regarding promotion and salary increases. She also claimed that the defendants were guilty of discrimination prior to 1972, the year in which Title VII was amended to apply to governmental entities. According to Dr. Jepsen, she was restricted to the position of assistant professor for twenty-five years, while a male professor with the same qualifications would have been promoted after five or six years. Although pre-1972 discrimination by a University is not actionable under Title VII, Dr. Jepsen maintained that the earlier failure to promote her has a present discriminatory effect, which the University has failed to correct, on her eligibility for promotion to full professor and on her present salary level.

The case was tried on June 7 and 8, 1976. In the hearing before the district court, Dr. Jepsen sought to introduce evidence of discrimination by the University from 1946 to the present. The district court agreed that, although liability was limited to the post-Act period, evidence of pre-Act discrimination was admissible to show that the plaintiff is presently being discriminated against by the defendant's failure to correct past acts of discrimination. Nonetheless, the court limited evidence of pre-Act discrimination to events occurring between 1964 and 1972.

The court entered its order on April 4, 1977, dismissing the action with prejudice. The district court noted, at the outset of its opinion, that a federal court should seek to preserve the separation of the state and federal systems, and stated:

It would require extremely compelling circumstances for this court to undertake to dictate the administrative policy of a state agency, or to sit as a court of appeals and review decisions of administrative officials. Absent a clear abuse of discretion, it is not the function of this court to substitute its judgment for that of the officials involved. (emphasis added).

The court stated that a claim of discrimination by a faculty member against a University is "different and much more complex" than a claim against a factory or union, since there will invariably be some subjectivity in evaluating professors. As to post-Act discrimination, the court found that the ratings given Dr. Jepsen were based upon her performance rather than her sex, and that she was judged by the same standards as male faculty members. As to the claim of uncorrected pre-Act discrimination, the court again held that the decisions were Dr. Jepsen claims that the district court erred by applying an incorrect standard of proof, by limiting evidence of pre-Act discrimination to events occurring after 1964, and by unduly restricting her use of faculty evaluation forms.

based on merit. The court refused to substitute its judgment for that of Dr. Jepsen's peers, and stated, "There has been no showing of an abuse of discretion here, and absent such a showing, the decisions as to Dr. Jepsen's qualification for promotion will stand." To support its decision, the court cited Green v. Board of Regents, 474 F.2d 594 (5th Cir. 1973), a § 1983 suit in which the court applied an "abuse of discretion" standard.

BURDEN OF PROOF

In considering the evidence presented at trial, the district court imposed upon the plaintiff a more stringent burden of proof than that applicable in Title VII cases. The court noted initially that decisions of University officials were not to be reversed absent "a clear abuse of discretion;" after considering the evidence, the court dismissed the case, finding no abuse of discretion.

The burden of proof to be applied in a Title VII case was enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 668 (1972). The complainant initially has the burden of establishing a prima facie case of discrimination. Once this is done, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. If the defendant meets this burden, the complainant then has the burden of proving that the defendant's articulated reasons were in fact a pretext for discrimination. Id. at 802-03, 93 S.Ct. 1817; Furnco Construction Corp. v. Waters, 438 U.S. 567, 575, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1977). Our Court has applied this standard, and has stated that "the ultimate burden of persuasion by a preponderance of the evidence" rests on the plaintiff. Causey v. Ford Motor Co., 516 F.2d 416, 420 n. 6 (5th Cir. 1975).

That this same standard is to be applied in Title VII suits brought against universities is apparent from the Supreme Court's discussion in Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), a case involving a factual situation very similar to the instant case. Dr. Christine Sweeney filed suit against the Board of Trustees of Keene State College, claiming that the school had discriminated against her on the basis of sex by failing to promote her. The court of appeals noted that courts had seemed reluctant to review salary, promotion, and hiring decisions of colleges and universities:

This reluctance no doubt arises from the courts' recognition that hiring, promotion, and tenure decisions require subjective evaluation most appropriately made by persons thoroughly familiar with the academic setting. Nevertheless, we caution against permitting abdication of a responsibility entrusted to the courts by Congress. That responsibility is simply to provide a form for the litigation of complaints of sex discrimination in institutions of higher learning as readily as for other Title VII suits. (footnotes omitted.)

Sweeney v. Board of Trustees, 569 F.2d 169, 176 (1st Cir.), Vacated and remanded, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). The court then went on to analyze the evidence in terms of the burden of proof established in McDonnell Douglas, 569 F.2d at 176-80. The Supreme Court later vacated the decision, holding that certain language in the decision had increased the defendant's burden under the McDonnell Douglas standard. Board of Trustees v. Sweeney, 439 U.S. at 24-25, 99...