Lieberman v. Gant

Decision Date17 July 1980
Docket NumberNo. 1291,D,1291
Citation630 F.2d 60
Parties23 Fair Empl.Prac.Cas. 505, 23 Empl. Prac. Dec. P 31,164 Marcia R. LIEBERMAN, Plaintiff-Appellant, v. Edward V. GANT et al., Defendants-Appellees. ocket 79-7740.
CourtU.S. Court of Appeals — Second Circuit

Susan R. Meredith, New Haven, Conn. (Connecticut Women's Educational and Legal Fund, Inc., New Haven, Conn., Phyllis Gelman, New Haven, Conn., and John W. Watson, Hartford, Conn., of counsel), for plaintiff-appellant.

Thomas F. Parker, Hartford, Conn. (Gross, Hyde & Williams, Hartford, Conn.), for defendants-appellees.

Before FRIENDLY and MANSFIELD, Circuit Judges. *

FRIENDLY, Circuit Judge:

Plaintiff, Dr. Marcia Lieberman, brought this action in the District Court for Connecticut in April, 1973, against eight officials and professors at and the trustees of the University of Connecticut, a state university. She sought damages and injunctive relief because of the refusal of the University to grant her tenure in the English Department in the academic year 1972-73. She claimed that the adverse decision was made because she was a woman and an advocate of women's rights. After extensive discovery, trial before Chief Judge Clarie began on April 20, 1976. This produced a transcript of nearly 10,000 pages and almost 400 exhibits and consumed 52 days of court time. The docket entries stretch over 32 pages. 1 Trial concluded on May 26, 1978. Briefs were directed to be filed no later than July 31, but the court later granted an extension until March 5, 1979, a deadline which defendants met. Although accorded a further extension until July 13, 1979, plaintiff's trial counsel never filed proposed findings of fact and conclusions of law or a brief. All this has at least some bearing on plaintiff's contentions that still further evidence should have been received.

Despite the difficulties arising from the length of the trial, the long gap between its end and the filing of defendants' brief, and the plaintiff's failure to submit any proposed findings and conclusions or a brief, Chief Judge Clarie, on August 2, 1979, rendered an elaborate 24-page opinion, 474 F.Supp. 848, with which familiarity is assumed, concluding that the complaint should be dismissed. He stated the facts with his usual meticulous care, and we shall not repeat them. We also are in general accord with his rulings of law. We write in order to deal with a few of the claims of error advanced by the plaintiff and also in the hope that an opinion may clarify the tests applicable in cases of this kind and suggest means of avoiding such protracted proceedings as were held in this case.

The central provision of Title VII, 42 U.S.C. § 2000e-2(a), on which Dr. Lieberman principally relies, provides:

It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

The starting point when a Title VII plaintiff alleges disparate individual treatment under facially neutral policies is the Supreme Court's analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), which, although a case of alleged racial discrimination, applies equally, with appropriate changes in terms, to discrimination because of sex:

The complainant in a Title VII trial must carry the initial burden . . . of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. (Footnote omitted.)

This extract says nothing about the need to prove discriminatory intent; the evident thought was that proof of the four elements warranted an inference of such intent unless the defendant presented at least some evidence in rebuttal. 2

Applying the McDonnell Douglas test, Chief Judge Clarie concluded, 474 F.Supp. at 863-64, that Dr. Lieberman would make out a prima facie case by proving:

the following four elements: (1) she is a woman; (2) she was qualified for tenure; (3) despite her qualifications, she was rejected; and (4) after her rejection the position remained open and the defendants continued to seek or accept applications from persons of her qualifications.

Dr. Lieberman obviously satisfied elements (1) and (3), and the judge evidently saw no difficulty with respect to element (4) since "males were subsequently granted tenure in the English Department", 474 F.Supp. at 864 n.15. 3

The judge had more trouble in finding that Dr. Lieberman proved that "she was qualified for tenure." Indeed he indicated, 474 F.Supp. at 864, that but for Powell v. Syracuse University, 580 F.2d 1150 (2 Cir. 1978), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1979), he would have found that she was not. Although the Powell court upheld the dismissal of Ms. Powell, it did so on the ground that the university had successfully rebutted the prima facie case she had made out. It made clear that Faro v. New York University, 502 F.2d 1229, 1231-33 (2 Cir. 1974), which it characterized as a "common-sense position", was not to be read as a "policy of self-abnegation where colleges are concerned." 4

We think the judge may have somewhat overread Powell, which concerned renewal of a teaching contract rather than appointment to tenure. In contrast to an ordinary teaching position, terminable at the end of any academic year, and in still greater contrast to employment as a bricklayer as in Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 (7 Cir. 1977), on which the Powell court relied, advancement to tenure entails what is close to a life-long commitment by a university, 5 and therefore requires much more than the showing of performance "of sufficient quality to merit continued employment" which the Seventh Circuit held enough in the case of the bricklayer in Flowers. The policies of the University of Connecticut, like those of most universities, prescribe qualifications for tenure that are considerably higher than those for the making or renewal of an appointment. The Laws and By-Laws of the University stated

Policies for promotion should operate to advance the most promising, and to hold back, or, in accordance with established practices regarding tenure, to eliminate the incompetent and the mediocre. Laws and By-Laws Art. X-K-10-a. (PX-1 p. 37).

As Vice President Wilson explained in an April 21, 1969 memorandum to the faculty long before Dr. Lieberman's case arose:

When in doubt, don't. Since the tenure decision is a commitment by the University to twenty or thirty years of support and several hundred thousand dollars of salary, from which there can be no turning back, we have felt that if we must err, we ought to err on the side of caution; we ought not to gamble widely. (PX-66 p. 3) (emphasis in original).

Under such appropriately rigorous standards, a candidate for tenure does not make out the elements needed for a prima facie case merely by showing qualifications for continuation as an untenured faculty member; indeed to hold that he did would be in effect to negate the requirements beyond minimally satisfactory performance properly entering into the tenure decision. See Labat v. Board of Education of the City of New York, 401 F.Supp. 753 (S.D.N.Y.1975) (Weinfeld, J.) (plaintiff alleging that denial of tenure was racially motivated "assumes one of the four elements . . . used to establish a prima facie case, to wit, that he 'was qualified for (the) job' the very issue presented to the defendants") (quoting McDonnell Douglas) (brackets supplied by the court). However, since any error by the trial judge in finding that Dr. Lieberman had made out a prima facie case operated in her favor, we need not discuss the issue further.

McDonnell Douglas stated that once an employee complaining of disparate treatment has made a prima facie case, "(t)he burden must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection", 411 U.S. at 802, 93 S.Ct. at 1824, after which the plaintiff "must . . . be afforded a fair opportunity to show that (the employer's) stated reason for (the plaintiff's) rejection was in fact pretext." Id. at 804, 93 S.Ct. at 1825. In Furnco Construction Co. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978), the Court later stated that "(t)o dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only" articulate such a reason. Despite these statements, in Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169, 177 (1 Cir. 1978), which involved refusal to promote an already tenured associate professor to a full professorship, the First Circuit spoke in one part of its opinion of "requiring the defendant to prove absence of discriminatory motive" and said that in imposing this requirement the Supreme Court had "placed the burden squarely on the party with the greater access to such evidence." The Supreme Court quickly repudiated this misinterpretation of McDonnell Douglas in Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n.2, 99 S.Ct. 295, 297 n.2, 58 L.Ed.2d 216 (1978). The Court perc...

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