Leftwich v. Harris-Stowe State College
| Decision Date | 15 March 1983 |
| Docket Number | 82-1692 and 82-1815,Nos. 82-1676,HARRIS-STOWE,s. 82-1676 |
| Citation | 702 F.2d 686 |
| Parties | 31 Fair Empl.Prac.Cas. 376, 31 Empl. Prac. Dec. P 33,429, 9 Ed. Law Rep. 1184 Bob H. LEFTWICH, Appellee, v.STATE COLLEGE; Board of Regents, Harris-Stowe State College; William G. Gillespie; James A. DeClue; Paul Brammeier; Velma Martin; Thomas F. Rafferty; William Diehm, Appellants. Bob H. LEFTWICH, Appellant, v.STATE COLLEGE; Board of Regents, Harris-Stowe State College; William G. Gillespie; James A. DeClue; Paul Brammeier; Velma Martin; Thomas F. Rafferty; William Diehm, Appellees. Bob H. LEFTWICH, Appellee, v.STATE COLLEGE; Board of Regents, Harris-Stowe State College; William G. Gillespie; James A. DeClue; Paul Brammeier; Velma Martin; Thomas F. Rafferty; William Diehm, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas A. Mickes, Bradley S. Hiles, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, Mo., for Bob H. Leftwich.
Ann H. Franke, Lawrence White, American Ass'n of University Professors, Washington, D.C., Roger L. Goldman, St. Louis, Mo., for amicus curiae.
Michael N. Martinez, Gen. Counsel (Acting), Philip B. Sklover, Associate Gen. Counsel, Vincent Blackwood, Asst. Gen. Counsel, Barbara Lipsky, Atty., E.E.O.C., Washington, D.C., for amicus curiae E.E.O.C.
Before HEANEY and McMILLIAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.
Defendants Harris-Stowe State College and the members of its Board of Regents appeal from the district court's 1 finding, 540 F.Supp. 37, that they violated the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964 by excluding Dr. Bob Leftwich from the faculty when the Missouri legislature transferred the college from the St. Louis Board of Education to the state college system. Plaintiff Leftwich cross-appeals from the
court's finding that he was not unconstitutionally denied due process and from its denial of his request for certain relief. We affirm the district court's finding that the defendants engaged in unlawful age discrimination. We also hold that Leftwich is entitled to reinstatement as an associate professor with accrued seniority, back pay, attorneys' fees and certain costs.
Prior to 1979, the St. Louis Board of Education operated Harris-Stowe College. In 1978, the Missouri legislature enacted a statute to transfer control of Harris-Stowe to the state college system. Shortly thereafter, the governor appointed a six-member Board of Regents for Harris-Stowe State College.
After the transfer, the accreditation, facilities, curriculum and student body of the college remained largely unchanged. The Regents, however, decided to hire a new faculty for the "new" state college. For assistance in the transition and faculty selection processes, the Regents hired an education consultant, Dr. Warren Joseph.
Joseph advised the Regents to reduce the number of full-time faculty members in order to reduce instructional costs and to permit the "new" state college to compare more favorably with the costs of other institutions in the state college system. Specifically, Joseph recommended a plan which would reduce the faculty from fifty-one members to approximately thirty-four. Under that plan, the Regents would initially select a designated number of faculty members who were tenured at the "old" city college and a designated number of nontenured teachers from that college.
The Regents agreed to adopt Joseph's plan. Neither Joseph nor the Regents revealed this tenure-based selection plan to the faculty at the "old" city college; instead, the defendants merely invited those faculty members to submit applications for positions with the "new" state college.
After reviewing all applications, Joseph recommended thirty-three faculty members from the "old" city college to be selected for the "new" state college. 2 The Regents accepted all of these recommendations. The teachers who were not selected were sent termination letters. After the termination notices were received, the Regents held hearings to review the applications of certain discharged teachers who had requested such review. The Regents "rehired" two faculty members on the basis of their hearings.
One of the faculty members who was not recommended by Joseph, nor selected by the Regents after a review hearing, was plaintiff Leftwich. He is a white male; and at the time of his discharge, he was forty-seven years old. Leftwich joined the Harris-Stowe faculty as a lecturer in 1968. In 1972, he obtained a doctorate in biology and was promoted to the rank of assistant professor. The college promoted him to associate professor in 1975, and appointed him chairman of the biology department in 1977. While on the faculty of the "old" city college, Leftwich received a number of research grants and contributed several articles to professional journals.
Leftwich was one of three biology teachers at the "old" city college who applied for a position with the "new" state college. Under Joseph's plan, the "new" college had only two biology positions available--one tenured and one nontenured. The Regents selected Nathanial Watlington, a sixty-two-year-old black male for the tenured position, and Dr. Terry Werner, a thirty-year-old white male, for the nontenured position. Although the defendants denied that Leftwich had tenure status in response to his due process claim, they concede that he, along with Watlington, were only considered for the tenured vacancy in the "new" biology department. The defendants considered no one other than Werner In August, 1979, Leftwich filed charges of race and age discrimination with the Equal Employment Opportunity Commission (EEOC). After unsuccessfully attempting to conciliate the matter, the EEOC issued a right-to-sue letter in January, 1981. In February, 1981, the plaintiff filed suit in the Eastern District of Missouri, naming as defendants Harris-Stowe State College and its Board of Regents. The district court held that the defendants' discharge of the plaintiff violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. Secs. 621 et seq. The district court held against Leftwich on his claim that he was denied due process in violation of the Fourteenth Amendment. It awarded the plaintiff reinstatement, attorneys' fees and costs. Both the plaintiff and defendants appeal.
for the nontenured biology position on the "new" faculty. The defendants concede that Leftwich received a higher score than either Watlington or Werner on each of the evaluation measures devised by Joseph. To explain the defendants' choices for the two biology positions, Joseph told the plaintiff that he had been a "victim of tenure density."
The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer "to fail or refuse to hire or to discharge or otherwise discriminate against any individual * * * because of such individual's age." 29 U.S.C. Sec. 623(a)(1). The plaintiff, relying on a disparate impact theory, contends that the defendants' faculty selection plan for the "new" state college discriminated on the basis of age in violation of the ADEA.
To establish a prima facie case of age discrimination under a disparate impact theory, a plaintiff need not show that the employer was motivated by a discriminatory intent; he or she need only demonstrate that a facially neutral employment practice actually operates to exclude from a job a disproportionate number of persons protected by the ADEA. Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). See Griggs v. Duke Power Co., 401 U.S. 424, 431-432, 91 S.Ct. 849, 853-54, 28 L.Ed.2d 158 (1971). The court below found that the defendants' plan to reserve certain positions on the "new" state college faculty for nontenured staff had a disparate impact on employees protected by the ADEA--faculty members between forty and seventy years of age. See 29 U.S.C. Sec. 631(a). We affirm that finding.
Dr. H.R. Hollingsworth, the plaintiff's statistical expert who conducted several studies of Harris-Stowe, testified that the mean age of the tenured faculty at the "old" city college was 45.8 years, while the mean age of nontenured faculty was 34.3 years. He also testified that the mean annual salary at the "old" city college for tenured faculty was $17,900 compared to $13,025 for nontenured faculty. In addition, Dr. Hollingsworth performed a statistical correlation test which showed a positive, significant correlation between age and salary for faculty members at Harris-Stowe College.
Based on these findings, Dr. Hollingsworth stated that, in his opinion, the defendants' faculty selection system which reserved certain positions for nontenured faculty would have an adverse effect on the employment of older faculty members. He also concluded that the defendants' use of salary as a factor in the selection process would have an adverse impact on older faculty members.
Statistical evidence such as that presented by Dr. Hollingsworth is clearly an appropriate method to establish disparate impact. See, e.g., Hazelwood School District v. United States, 433 U.S. 299, 306-309, 97 S.Ct. 2736, 2740-42, 53 L.Ed.2d 768 (1977); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 337-340, 97 S.Ct. 1843, 1855-57, 52 L.Ed.2d 396 (1977). In contrast, the defendants did not The defendants argue for the first time on appeal that the overall impact of their faculty selection process was not discriminatory because the average age of the "new" faculty was virtually the same as the average age of the "old" faculty. We, of course, need not consider arguments that were not...
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