Merwine v. Board of Trustees for State Institutions of Higher Learning

• Decision Date: 08 March 1985
• Docket Number: No. 84-4036,84-4036
• Citation: 754 F.2d 631
• Parties: 37 Fair Empl.Prac.Cas. 340, 36 Empl. Prac. Dec. P 35,054, 1 Fed.R.Serv.3d 44, 23 Ed. Law Rep. 34 Glenda MERWINE, Plaintiff-Appellant, v. BOARD OF TRUSTEES FOR STATE INSTITUTIONS OF HIGHER LEARNING, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 631

754 F.2d 631

37 Fair Empl.Prac.Cas. 340,

36 Empl. Prac. Dec. P 35,054, 1 Fed.R.Serv.3d 44,

23 Ed. Law Rep. 34

Glenda MERWINE, Plaintiff-Appellant,

v.

BOARD OF TRUSTEES FOR STATE INSTITUTIONS OF HIGHER LEARNING,

et al., Defendants-Appellees.

No. 84-4036.

United States Court of Appeals, Fifth Circuit.

March 8, 1985.

George McKee, Starkville, Miss., James D. Waide, III, West Point, Miss., for plaintiff-appellant.

William H. Ward, H. Russell Rogers, II, Starkville, Miss., Ed David Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.

James S. Whitehead, Mary Hutchings Reed, Chicago, Ill., for amicus curiae.

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

Before REAVLEY, TATE, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

In her complaint in this case, appellant Glenda Merwine alleges intentional sex discrimination against Mississippi State University (MSU) and members of its hiring committee under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000(e) et seq., and under 42 U.S.C. Sec. 1983, respectively; she also alleges that the imposition of MSU's published entry-level requirement for a faculty librarian position--a Master of Library Science degree from a school accredited by the American Library Association (ALA-MLS)--had an adverse impact on women in violation of Title VII. Merwine's complaint arises from her unsuccessful application for a faculty librarian position with the Mitchell Memorial Library at MSU in 1980.

The action was tried before magistrate Charles Powers and a jury with stipulation that any appeal would be taken directly to this Court. 28 U.S.C. Sec. 636(c). The jury found against appellee George Lewis, director of the Mitchell Memorial Library, and awarded Merwine $5,000 actual damages and $5,000 punitive damages for intentional sex discrimination in violation of Sec. 1983. ¹ Magistrate Powers took under advisement Merwine's claims against MSU under Title VII based upon the alleged disparate treatment of Merwine and the alleged disparate impact upon women of the ALA-MLS degree requirement. He then rendered a final opinion granting Lewis' motion for judgment notwithstanding the verdict and dismissing all other claims including those claims against MSU under Title VII. Merwine duly perfected this appeal.

Merwine challenges the magistrate's grant of judgment notwithstanding the jury's verdict against Lewis. Preliminarily, though, she contends that Lewis' failure to move for a directed verdict at the close of all the evidence precluded the magistrate from addressing Lewis' later motion for judgment notwithstanding the verdict. Finally, she contends that the magistrate's determination that she had failed to establish her Title VII claim of disparate impact was clearly erroneous. For the reasons that follow, we affirm.

I. Facts

In 1978 MSU imposed as a requirement for employment in the faculty position of librarian the holding of an ALA-MLS degree. In November 1979, MSU advertised in various national library publications a vacancy in the faculty position of branch librarian of the College of Veterinary Medicine. Not having filled the position, MSU readvertised in various national publications in April 1980. In each of the advertisements an ALA-MLS degree constituted the published entry-level educational requirement. The attorney for Merwine conceded at oral argument before this Court that the advertisements for the position Merwine sought did not state that the entry-level requirement was an ALA-MLS or its equivalent. As a result of each of the advertisements, applications were received from across the nation.

Merwine, a thirty-three year old white female, filed her application for the position in May 1980. Thereafter all applications were considered by a search committee composed of one staff and one faculty member from the College of Veterinary Medicine and two female faculty members from Mitchell Memorial Library. Lewis served as chairman of the committee. Between May and August of 1980, the committee reviewed the applications and interviewed two applicants possessing the ALA-MLS degree and one applicant in the process of receiving her ALA-MLS degree. No applicant was interviewed who did not have the ALA-MLS degree. Merwine knew that the ALA-MLS degree was one of the minimum requirements before she applied. Because Merwine did not possess this degree, her application was not considered further. Subsequently, MSU hired a male applicant who did possess the ALA-MLS degree.

During the period in which applications were considered, Merwine was in the process of receiving a Masters of Education Degree with a major in Secondary Education. She testified, however, that her degree should have been termed a "Master of Education with Major in Secondary Education Library Science" as planned out with the professor. MSU introduced evidence, however, that it does not offer a Masters in Library Science, accredited or unaccredited, and does not have a graduate degree in library science of any kind. MSU also offered uncontradicted evidence indicating that eighty to ninety percent of all college and university libraries require the ALA-MLS degree as an entry level requirement for professional-faculty level librarians.

MSU introduced statistics relevant to the disparate impact claim indicating that of the Master of Library Science degrees conferred in this country over the past fifteen years, seventy-nine percent of the ALA-MLS degrees have been conferred upon women, the remaining twenty-one percent upon men. Merwine, however, introduced statistical evidence of the respective percentages of females and males possessing the ALA-MLS degree who applied for professional librarian positions at MSU from 1971 to 1977. Her statistics indicate that 54 percent of the female applicants possessed the ALA-MLS degree while 89 percent of the male applicants possessed the ALA-MLS degree. Thus, she argues, imposition of the degree requirement in 1978 selects out or preempts a much larger percentage of women than men. These statistics form the basis for Merwine's disparate impact claim.

II. Was Judgment N.O.V. Properly Entertained?

Defendant Lewis failed to move at the close of all evidence for a directed verdict on Merwine's claim of intentional sex discrimination under Sec. 1983. Accordingly, Merwine contends that Fed.R.Civ.P. 50(b) precluded the district court and now precludes this Court from entertaining Lewis' motion for judgment notwithstanding the verdict. Merwine urges strict adherence to form in complying with Rule 50(b). In Bohrer v. Hanes Corp., 715 F.2d 213 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984), however, we noted agreement with the Seventh Circuit's pronouncement that although

[i]t is certainly the better and safer practice to renew the motion for directed verdict at the close of all the evidence, ... "[t]he application of Rule 50(b) in any case 'should be examined in the light of the accomplishment of [its] particular purpose[s] as well as in the general context of securing a fair trial for all concerned in the quest for truth.' "

Id. at 217 (quoting Bonner v. Coughlin, 657 F.2d 931, 939 (7th Cir.1981)). In Villanueva v. McInnis, 723 F.2d 414, 417 (5th Cir.1984), we recently restated two purposes of Rule 50(b):

to enable the trial court to re-examine the question of evidentiary insufficiency as a matter of law if the jury returns a verdict contrary to the movant, and to alert the opposing party to the insufficiency before the case is submitted to the jury, thereby affording it an opportunity to cure any defects in proof should the motion have merit.

Lewis argues that the facts of this case are similar to those of Bohrer where we excused defendants' technical noncompliance with Rule 50(b) and that the holding in Bohrer should apply as well here. We agree.

In Bohrer, defendants moved for directed verdict at the close of plaintiff's evidence and the motion was expressly taken under advisement by the court. After the defendants had introduced evidence damaging to plaintiff, the plaintiff offered no rebuttal evidence; further, the defendants did not renew the motion at this time. Similarly, Lewis moved for a directed verdict against Merwine at the close of her case. ² While this motion was denied, Merwine was alerted to a possible deficiency in her proof by the court's statement that it would "overrule the motion at this time and allow the proof to be further developed by the defendants." In addition, Lewis' motion was renewed toward the end of the jury trial and taken under advisement at that time by the court. Finally, as in Bohrer, after the motion was taken under advisement, Lewis called two defense witnesses and concluded all the evidence; Merwine then failed to offer any rebuttal evidence. On the record here the accomplishment of the purposes of Rule 50(b) have been fully met. See Villanueva, supra. Because we believe that our decision in Bohrer controls this issue, we excuse any arguable noncompliance by Lewis with the requirements of Rule 50(b) which might constitute a bar to the consideration of his motion for judgment notwithstanding the verdict.

Our holding is further bolstered by the fact that Merwine did not object or complain when the trial court continued to act on other motions to dismiss that the court had taken under advisement. The court dismissed two defendants after taking the renewed motions to dismiss under advisement, and retained the motions to dismiss from the two remaining defendants, Lewis and Miller. This conduct by the court, at the time the case was submitted to the jury, indicates that it was aware of potential evidentiary problems with Merwine's Sec. 1983 claim. See Jack Cole Co. v. Hudson, 409 F.2d 188, 191 (5th Cir.1969) (citing Roberts v. Pierce, 398 F.2d 954, 956 (5th Cir.1968)). In addition, Merwine's awareness of the pendency...