Lamphere v. Brown University, 80-1524

• Decision Date: 22 July 1982
• Docket Number: No. 80-1524,80-1524
• Citation: 685 F.2d 743
• Parties: 29 Fair Empl.Prac.Cas. 701, 29 Empl. Prac. Dec. P 32,928, 6 Ed. Law Rep. 8, 11 Fed. R. Evid. Serv. 388 Louise LAMPHERE, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellees, Claire Rosenfield, Claimant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 743

685 F.2d 743

29 Fair Empl.Prac.Cas. 701,

29 Empl. Prac. Dec. P 32,928, 6 Ed. Law Rep. 8,

11 Fed. R. Evid. Serv. 388

Louise LAMPHERE, et al., Plaintiffs-Appellees, v. BROWN UNIVERSITY, et al., Defendants-Appellees Claire Rosenfield, Claimant-Appellant.

No. 80-1524.

United States Court of Appeals First Circuit.

Argued March 1, 1982.

Decided July 22, 1982.

Jordan S. Stanzler, New York City, for claimant-appellant.

Peter J. McGinn, with whom Tillinghast, Collins & Graham, and Beverly E. Ledbetter, Gen. Counsel, Providence, R. I., were on brief, for defendants-appellees.

Linna M. Barnes, Washington, D. C., on brief for The Women's Equity Action League, amicus curiae.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

PER CURIAM.

This is a claim of sex discrimination against Brown University (Brown) brought pursuant to the procedures established by a consent decree entered into by Brown and a class of female faculty members who alleged various acts of sex discrimination in employment violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. See generally Lamphere v. Brown University, 491 F.Supp. 232, 238-46 (D.R.I.1980) (text of consent decree). As provided by paragraph 2(M)(2)(h) of the decree, plaintiff-appellant Claire Rosenfield was entitled to and sought a de novo hearing in the district court from a hearing panel decision, decided partially in her favor. ¹ Appellant claimed illegal sex discrimination in the fixing of her salary at the time of her initial hiring in 1969 as well as in 1970-71, in Brown's failure to grant her a pay raise in 1971-72, and in its failure to "catch up" her salary during 1972-78. She also claimed that Brown illegally discriminated against her by refusing to appoint her to the editorial board of NOVEL, a scholarly journal published at Brown, by delaying her grant of tenure, and by refusing to promote her to a full professorship. The district court, applying the standards of proof articulated in Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106 (1st Cir. 1979) (Sweeney II ), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62 L.Ed.2d 731 (1980), and Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979), found that as to each claim appellant had established a prima facie case of discrimination, that Brown had produced sufficient evidence to meet her prima facie case, and that she failed to prove by a preponderance of the evidence that Brown's articulated reasons for its actions were pretexts for illegal discrimination. Accordingly, the district court dismissed appellant's action.

Some general facts about the hiring process at Brown are a necessary prelude to our analysis. Throughout the period relevant to this appeal, the chairman of the department in question, in consultation with the provost of the University, made salary and hiring decisions. The provost established a budget for each department, and the department chairman would recommend certain salary levels to the provost for his approval. Although some effort was made to achieve overall salary comparability between departments, each department chairman had wide latitude in setting individual salaries. Professor Mark Spilka was chairman of the English Department from 1968 to 1973. Professor A. D. Van Nostrand succeeded Spilka from 1973 to 1978.

Faculty salaries for both visiting and regular appointments were not determined according to objective standards. Rather, they were based on a number of considerations, including departmental need, teaching experience, publication record, service to the "community" (i.e., within the department, the University, and the greater Providence community), and "market factors". These factors included conditions in the academic job market, an applicant's prior salary history, and competing offers from other institutions. The relative significance of all of these considerations varied with each appointment, and individual salaries varied within each department.

I. Liability for Pre-Act Discrimination

Because Title VII did not become applicable to educational institutions until March 24, 1972, see Pub.L.No. 92-261, 86 Stat. 103, we first address Brown's potential liability for any discrimination that appellant may have suffered prior to this date. Generally, the amendments are prospective only, and only independent acts occurring after the effective date are actionable. Abramson v. Univ. of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979); Scammel v. Dallas, 565 F.2d 955, 956 (5th Cir. 1978) (per curiam); Faulkner v. Federation of Preschool & Community Educ. Centers, Inc., 564 F.2d 327, 328 (9th Cir. 1978); Cohen v. Illinois Inst. of Tech., 524 F.2d 818, 821-22 & n.4 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976); Weise v. Syracuse Univ., 522 F.2d 397, 409 (2d Cir. 1975). Prior to March 24, 1972, therefore, Brown was free, as far as its treatment of appellant was concerned, to discriminate in its employment practices. Weise v. Syracuse Univ., 522 F.2d at 410; see Hazelwood School Dist. v. United States, 433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977); United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); cf. Chisholm v. United States Postal Service, 516 F.Supp. 810, 877 (W.D.N.C.1980).

Evidence of pre-Act violations is relevant, however, to show a pattern of illegal conduct, purpose or motivation with regard to independent violations that occurred after the effective date of the Act. Hazelwood School Dist. v. United States, 433 U.S. at 309-10 n.15, 97 S.Ct. at 2742-43 n.15; Jepsen v. Florida Bd. of Regents, 610 F.2d 1379, 1383 (5th Cir. 1980), citing United States v. Jacksonville Terminal Co., 451 F.2d 418, 438 (5th Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972); cf. Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527, 540 (5th Cir. 1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981). A discriminatory discharge decision, made prior to the effective date of the Act but implemented post-Act, is actionable. EEOC v. Tufts Inst. of Learning, 421 F.Supp. 152, 157 (D.Mass.1975). Similarly, a decision to hire an individual at a discriminatorily low salary can, upon payment of each subsequent pay check, continue to violate the employee's rights. Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980); Mobley v. Acme Markets, Inc., 473 F.Supp. 851, 857-58 (D.Md.1979); Corbin v. Pan Amer. World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal.1977); see generally Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017-19 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980).

Applying these principles to the case at bar, we conclude that appellant cannot recover damages for any discrimination she might have suffered prior to March 24, 1972. Appellant's right to a remedy is further restricted by the district court's order of March 6, 1978, in the class action suit: "Claimants cannot seek relief under the consent decree for acts which occurred before February 2, 1974 unless the University actively covered up evidence concerning its alleged discriminatory actions." The only claims that are not time-barred as to damages are appellant's allegations that she received a discriminatorily low wage after 1972 as a result of pre-1972 discrimination, and that Brown discriminated against her by failing to "catch-up" her salary between 1972 and 1978. We agree with the district court, however, that a review of the other claims is necessary "to determine whether acts of the University subsequent to the effective date of the statute perpetuate pre-Act discrimination."

II. Standards of Disparate Treatment Claims

The general rules for examining a disparate treatment discrimination claim are often quoted, but they pose "no little difficulty" in their application. Loeb v. Textron, Inc., 600 F.2d at 1011. First, plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. If he or she succeeds, the defendant must articulate a legitimate, non-discriminatory reason for its challenged actions. If defendant does so, plaintiff is then given the opportunity to prove by a preponderance of the evidence that the asserted reason is a mere pretext for unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1980), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Holden v. Commission Against Discrimination of the Commonwealth of Mass., 671 F.2d 30, 35-36 (1st Cir. 1982); T & S Serv. Assoc., Inc. v. Crenson, 666 F.2d 722, 725-27 (1st Cir. 1981).

In meeting appellant's prima facie case, Brown need not prove the absence of a discriminatory motive; it need only articulate a legitimate, nondiscriminatory reason. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), rev'g, 569 F.2d 169 (1st Cir. 1978) (Sweeney I ). The University can accomplish this by introducing "admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1095. The reason proffered is sufficient if it raises a "genuine issue of fact as to whether (Brown) discriminated against the plaintiff." Id. at 254-55, 101 S.Ct. at 1054. Brown must

"clearly set forth, through the introduction of admissible evidence, the reasons for (the employment decision). The explanation provided must be legally sufficient to justify a judgment for the defendant .... Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with...