Merrill v. Southern Methodist University

• Decision Date: 24 December 1986
• Docket Number: No. 86-1161,86-1161
• Citation: 806 F.2d 600
• Parties: 42 Fair Empl.Prac.Cas. 1045, 42 Empl. Prac. Dec. P 36,777, 6 Fed.R.Serv.3d 921, 36 Ed. Law Rep. 283, 22 Fed. R. Evid. Serv. 218 Dr. Janet I. MERRILL, Plaintiff-Appellant, v. SOUTHERN METHODIST UNIVERSITY, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 600

806 F.2d 600

42 Fair Empl.Prac.Cas. 1045,

42 Empl. Prac. Dec. P 36,777, 6 Fed.R.Serv.3d 921,

36 Ed. Law Rep. 283, 22 Fed. R. Evid. Serv. 218

Dr. Janet I. MERRILL, Plaintiff-Appellant, v. SOUTHERN METHODIST UNIVERSITY, Defendant-Appellee.

No. 86-1161

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 24, 1986.

Frank P. Hernandez, Dallas, Tex., for plaintiff-appellant.

John H. McElhaney, Michael H. Collins, Dallas, Tex., for defendant-appellee.

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

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

On December 28, 1979, Southern Methodist University (SMU) notified Dr. Janet I. Merrill (Merrill) that it would not extend tenure to her. Consequently, she sued SMU, charging it with violating Title VII of the 1964 Civil Rights Act by discriminating against her on the basis of sex and religion. After a three-day bench trial, the district court held that many of the allegedly discriminatory acts were time-barred. As to the remaining claims, the court found that Merrill failed to establish intentional discrimination and held in SMU's favor. Merrill appeals. We affirm.

Facts and Proceedings Below

Appellant Merrill holds a master's degree from the University of Notre Dame and a doctorate in education from Columbia University. Her doctoral emphasis was in guidance, particularly in elementary education. In 1968, after receiving her degree from Columbia, she moved with her husband to Lenox, Massachusetts, where they both taught at Berkshire Christian College, which had an enrollment of about 150 students and offered no graduate work. Merrill also taught part-time at the College of Our Lady of the Elms, a nearby Catholic women's institution with an enrollment of about 600. Merrill was a tenured full professor at Berkshire Christian College and had the title of lecturer at Our Lady of the Elms. ¹

In 1975, Merrill's husband accepted an invitation to teach at the Dallas Theological Seminary. Merrill inquired about job openings at several colleges and universities in the Dallas area. Apparently, SMU was the only institution with an opening in her field. Merrill was one of 107 persons who applied for that position--Assistant Professor of Education--and though SMU ultimately hired a male, Dr. Ronald E. Pound, Merrill, along with two other women, was one of the six finalists. Merrill now asserts that SMU's 1975 selection of Pound over her was an act of intentional sex discrimination.

Some time later, a similar position became available at SMU. Dr. Pound perused the applications that had been received for the job he now held and chose Dr. Merrill to teach part-time during the spring of 1976. At the end of the semester, SMU offered Merrill a full-time, three-year contract, beginning August 30, 1976, as an untenured assistant professor in the Department of Education at the first-year salary of $13,250. Although she had been a tenured full professor at Berkshire Christian College, Merrill acceded to SMU's terms in writing. SMU gave Merrill three years' credit toward tenure eligibility and pledged to consider her for promotion no later than the last year of her contract. Merrill now contends that the terms of this contract--her rank, salary, and untenured status--were the result of intentional sex discrimination.

During the span of this contract, Merrill shared an office with another female teacher, and had difficulty procuring secretarial help to type her manuscripts. She alleged that this was the result of sex discrimination, because most male teachers had private offices and secretarial services. She allegedly carried heavier teaching loads and received lower pay raises than her male colleagues. The primary evidence supporting these two aspects of discriminatory treatment consisted of various charts and tables, which the district court admitted but did not greatly credit because the underlying data was largely hearsay and the faculty sample underlying the statistical comparisons was very small.

Until she was denied tenure, Merrill was satisfied with conditions at SMU. None of these circumstances seemed discriminatory to her and she apparently never vigorously protested any of them. In September 1978, the tenured faculty of the Department of Education, eight men and two women, reviewed Merrill's performance and voted to deny tenure to her. She then requested, and was given, the opportunity to make a personal appeal to the faculty. However, the faculty reaffirmed its previous unfavorable decision. Her colleagues evaluated Merrill in four areas: teaching ability, published research, service to SMU and her profession, and needs of the department. Only her teaching received a favorable vote. ² Not one of the ten tenured faculty members voted her publications sufficient to merit advancement. Her articles were unfocused, short, and not published in refereed journals. At trial, Merrill admitted that she had not published widely or impressively. She fared somewhat better in the area of service to SMU and her profession, though even here a heavy majority of the department faculty rated her deficient. Her most significant contribution was sponsoring a student group that assembled a project designed to teach the virtues of the free enterprise system to elementary and high school students. This project, entered in a national competition sponsored by General Motors, placed second. The final area of evaluation focused less on Merrill than it did on the needs of the Department of Education. Not one faculty member voted that a need existed for Merrill in the department. Indeed, enrollment was dwindling. ³

After the faculty's second rejection, in November 1978, Merrill appealed to James Early, Dean of the College of Humanities and Science, of which the Department of Education was a part. Early convened the College Executive Committee. This committee included two women. The committee unanimously affirmed the Education Department faculty decision. Early informed Merrill of this result on December 13, 1978. Merrill next appealed to the SMU Provost, James Brooks, who assembled an ad hoc committee to review Merrill's case. She was permitted to nominate two persons, one of whom the provost appointed to a position on the three-person committee. Merrill's representative on this ad hoc committee, a woman, joined the other two members in voting against her. Brooks informed Merrill of this decision on December 28, 1979.

Dr. Merrill asserts that this tenure decision was the result of intentional sex discrimination. She asserts that she had written as prolifically as her male colleagues who had tenure. She contends that she was a victim of discrimination on the basis of religion because many of her articles were published in religious-type magazines or were based on religious assumptions, and that her colleagues must have therefore discredited the articles. She stresses that her service to SMU and her profession was exemplary, citing the General Motors project, workshops conducted for various groups, and professional meetings attended. Merrill argues that the faculty had no right to consider the department's needs when it voted against her because this was not a criterion she had been forewarned to address in her presentation. She alleged that it was applied for the first time in her case.

After denying her tenure, SMU gave to Merrill a "terminal" contract for 1979-80, at the end of which Merrill's employment at SMU ended. She subsequently secured a teaching position at Dallas Baptist University, where her starting salary was about $6,000 more per year than her final salary at SMU. Merrill testified that she would not return to SMU except as a tenured full professor.

The district court held that several of Merrill's claims were time-barred. She filed her first complaint with the EEOC on November 16, 1979, and followed this with a second complaint on May 23, 1980. The court barred recovery on any alleged discriminatory act occurring more than 180 days before November 19, 1979. This eliminated many of her claims, such as those based on the initial terms of employment. Thus the court was left to try only claims based on the denial of tenure and allegedly unequal pay. In findings of fact and conclusions of law recited from the bench, the court held that Merrill had failed to show that she was a victim of intentional discrimination.

On appeal, Merrill raises five issues: (1) the district court's holding that certain claims were barred by limitations, (2) and (3) the district court's decision that the tenure denial and pay differentials were not motivated by intentional discrimination, (4) the district court's refusal to certify a class of female SMU employees and its failure to hold an evidentiary hearing on certification, and (5) the district court's refusal to admit evidence of a settlement between SMU and the Department of Labor regarding alleged sex discrimination at SMU.

Discussion

I. Title VII Limitations Period

The district court held that any Title VII claim arising prior to May 20, 1979, i.e., more than 180 days prior to November 16, 1979, the date Merrill lodged her first charge of discrimination with the EEOC, was barred. We agree. This ruling excluded all claims except those based on wage discrimination and the tenure denial, including claims based on Merrill's original terms of employment, the lack of secretarial assistance, the lack of research leave, and the fact that Merrill shared an office with another professor. ⁴

Section 706(e) of Title VII, 42 U.S.C. Sec. 2000e-5(e), requires a discrimination victim to file a complaint with the EEOC within 180 days of the act's occurrence. Any act occurring more than 180 days prior to filing "may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an...