Kobrin v. University of Minnesota

• Decision Date: 16 September 1997
• Docket Number: No. 96-2674,96-2674
• Citation: 121 F.3d 408
• Parties: 120 Ed. Law Rep. 428 Nancy KOBRIN, Appellant, v. UNIVERSITY OF MINNESOTA; The Regents of the University of Minnesota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 408

121 F.3d 408

120 Ed. Law Rep. 428

Nancy KOBRIN, Appellant, v. UNIVERSITY OF MINNESOTA; The Regents of the University of Minnesota, Appellees.

No. 96-2674.

United States Court of Appeals Eighth Circuit.

Submitted March 10, 1997.

Decided Aug. 12, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

16, 1997.

Kay Nord Hunt, Minneapolis, MN, argued (Stephen C. Rathke, Minneapolis, MN, on the brief), for appellant.

Julie Fleming-Wolfe, St. Paul, MN, argued, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and MAGILL, ¹ Circuit Judges.

MAGILL, Circuit Judge.

We revisit this sex discrimination case as Nancy Kobrin appeals from the district court's ² order that both adopted the special master's ³ findings of fact as well as granted judgment in favor of the defendant, the University of Minnesota (University). Kobrin argues that the district court's order should be reversed for any one of the following three reasons: (1) she was entitled to have a hearing before a panel of three persons rather than the special master alone; (2) the special master applied the wrong legal standard when reviewing Kobrin's claim; and (3) the University was unable to produce all of the documents that the University is required to maintain under its own hiring guidelines. We affirm.

I.

In 1980, the University settled a class action sex discrimination suit, Rajender v. University of Minnesota, No. 4-73-435 (D.Minn. Aug. 13, 1980), by entering into a consent decree. Under the terms of the Rajender consent decree, the University must conduct a nationwide search to fill any academic, non-student position. The University must also make a good faith effort to hire "approximately equally well qualified" female candidates under an affirmative action plan until the percentage of women employed at all levels within a University department equals the percentage of women available for hiring. Rajender Consent Decree at 3-4. To comply with this requirement, the University annually compiles faculty gender statistics of the percentage of women employed at each level within each department of the University. As part of its good faith effort, the University has written hiring guidelines for each department. The hiring guidelines require each department to keep extensive records of its hiring process. These hiring guidelines, however, are not part of the Rajender consent decree.

Kobrin became a Ph.D. candidate in the University's Department of Comparative Literature (Department) in 1978. She also pursued psychoanalytical training as an advanced research fellow at the Institute for Psychoanalysis in Chicago. Before receiving her Ph.D. in comparative literature from the University in 1984, Kobrin served as the Acting Program Director for the University's Center for Humanistic Studies (CHS). ⁴

After Kobrin received her Ph.D. in 1984, she applied, interviewed, and was selected for the position of CHS Program Coordinator. This selection process complied with the provisions of the Rajender consent decree. The position of CHS Program Coordinator was a non-tenured, year-to-year position that Kobrin held until 1988. In addition to her duties as CHS Program Coordinator, Kobrin also taught some classes for the Department. In 1988, however, the University closed the CHS. Consequently, Kobrin's position as CHS Program Coordinator was eliminated.

Around the same time, two professors resigned from the Department. On the recommendation of one of the resigning professors, the University hired Kobrin as a lecturer ⁵ for the Department. Kobrin's position as a lecturer for the Department was funded by a "soft money fund," a type of University grant given to a department for a specific purpose on an annual basis. Kobrin was notified that her job would last from September 16, 1989, through June 15, 1990.

After Kobrin was hired as a lecturer, the University informed Kobrin that the creation of the lecturer position for which she had just been hired triggered the need for a search pursuant to the Rajender consent decree. Kobrin objected to the need for a Rajender search, arguing that she did not occupy a newly created position because the position was not substantially different from her previous position as CHS Program Coordinator. The deans of the Department disagreed with Kobrin and decided that a Rajender search was necessary because, in their opinion, Kobrin's new position was materially different from her old one. By the time the deans had made this decision, however, there was not enough time to conduct a Rajender search prior to the start of the academic year. Therefore, Kobrin was allowed to keep her position as a Department lecturer for one year. However, the University's Equal Opportunity Office made it clear to the Department that Kobrin could not continue in her position as lecturer unless she was selected for that position in the course of the Rajender search that would be conducted before the start of the next academic year.

To conduct a Rajender search, the Department must first form a search committee. The committee's job is to make a final selection for the advertised position based on characteristics such as a candidate's training, his or her experience, the quality and quantity of a candidate's published works, and the academic recommendations submitted on behalf of each candidate. If a Rajender search results in the hiring of a male candidate, the search committee must list the three most qualified women who were considered and document the committee's reasons for not hiring one of these women.

In 1988, the Department approved funding for a new senior faculty position and a new junior faculty position. Both of these were tenure-track positions. To fill the two positions, the Department formed a search committee of three women and four men and then advertised for candidates with a solid background in critical theory and a background in at least one of the following areas: literature with an emergent critical interest, continental European critical interest, continental European literature of a period after 1600, or media studies. About one hundred people applied to the Department for the junior faculty position, including Kobrin. The search committee narrowed this pool to a group of about fifteen candidates, which included Kobrin. The search committee further narrowed the pool of candidates to a group of approximately three finalists. Kobrin, however, was not chosen as a finalist because, in the opinion of the search committee, there were several other candidates that were better qualified than she.

Ultimately, the search committee selected a male, Prabhakara Jha, for the junior faculty position. He had a strong background in literature with an emergent critical interest. For the senior position, the search committee selected a candidate who ultimately declined the offer. Finding no other suitable candidates for the senior position, the committee received permission from the University to hire a second junior faculty member instead. Before filling this position, the University did not recalculate the Department's faculty gender statistics for the junior faculty level, even though the hiring of professor Jha was likely to have changed the percentage of males and females at that level within the Department. The committee finally selected Peter Canning to fill the second junior faculty position. The chair of the search committee informed Kobrin of the committee's decision by mail in July 1989.

After receiving news of the search committee's decision, Kobrin asked for the documents that the Department is required to create under its own hiring guidelines. The Department was able to produce some, but not all, of these documents.

Kobrin filed a Rajender sex discrimination claim against the University in the district court. ⁶ In her complaint, Kobrin alleged that the Department had discriminated against her based on her sex when it failed to hire her for the second junior faculty position. The University subsequently elected not to renew Kobrin's lecturer position. Kobrin then filed a second Rajender claim against the University in the district court, this time alleging that she was terminated in retaliation for having filed her first claim.

Kobrin's sex discrimination and retaliation claims were considered by a special master, who recommended that the district court grant the University's motion for summary judgment on all claims. The district court adopted the recommendation of the special master and granted the University summary judgment. Kobrin appealed the district court's decision to this Court. We affirmed the district court's grant of summary judgment to the University on the retaliation claim. Kobrin v. University of Minn., 34 F.3d 698, 705 (8th Cir.1994) (Kobrin I ). However, we found that Kobrin had established a prima facie case of sex discrimination and that there was a genuine issue of fact as to whether the University's proffered reasons for failing to hire Kobrin were mere pretext. Id. at 702-03. Accordingly, we affirmed in part and reversed in part the district court's grant of summary judgement, and remanded the case for further proceedings. Id. at 705.

On remand, the district court appointed special master Leonard E. Lindquist to hear Kobrin's case. The special master held a hearing on Kobrin's sex discrimination claim from April 3, 1995, through April 7, 1995. Although Kobrin was entitled to a hearing in front of a three-person panel under the terms of the Rajender consent decree, at no time before or during the hearing did Kobrin object to the fact that the special master was presiding by himself, nor did Kobrin ever assert before the special master her right to a three-person panel. During this time, Kobrin's counsel was an attorney who was simultaneously representing several other claimants suing the University pursuant to the Rajender consent decree.

After the conclusion of the hearing, the special...