Pace College v. Commission on Human Rights of City of New York

• Decision Date: 30 October 1975
• Citation: 339 N.E.2d 880,377 N.Y.S.2d 471,38 N.Y.2d 28
• Parties: , 339 N.E.2d 880, 19 Fair Empl.Prac.Cas. (BNA) 431, 11 Empl. Prac. Dec. P 10,685 In the Matter of PACE COLLEGE, Respondent, v. COMMISSION ON HUMAN RIGHTS OF the CITY OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 471

377 N.Y.S.2d 471

38 N.Y.2d 28, 339 N.E.2d 880, 19 Fair

Empl.Prac.Cas. (BNA) 431,

11 Empl. Prac. Dec. P 10,685

In the Matter of PACE COLLEGE, Respondent, v. COMMISSION ON HUMAN RIGHTS OF the CITY OF NEW YORK et al., Appellants.

Court of Appeals of New York.

Oct. 30, 1975.

Adrian P. Burke, Corp. Counsel, New York City (Ellen Kramer Sawyer and L. Kevin Sheridan, New York City, of counsel), for Commission on Human Rights of the City of New York, appellant.

Judith P. Vladeck, New York City, for Valentine R. Winsey, appellant.

Whitney North Seymour, Sr., Albert X. Bader, Jr., Martin H. Zuckerman and Harold S. Parsons-Lewis, New York City, for respondent.

Margaret A. McKenna, Washington, D.C., for the International Ass'n of Official Human Rights Agencies, amicus curiae.

BREITEL, Chief Judge.

The New York City Commission of Human Rights appeals from the judicial overturning of its determination that Pace College (now Pace University) was guilty of discrimination against women on its faculty. The proceeding before it had been initiated by one Dr. Winsey, a faculty member, who contended that she had been discriminated against by Pace because she was a woman, resulting in her being denied promotion and tenure. She also appeals.

The commission, after a hearing, found that Pace had engaged in a practice of sex discrimination, and in particular had discriminated against Dr. Winsey. It had directed corrective action both generally to prevent discrimination in the faculty and particularly to redress the consequences of discrimination against Dr. Winsey. Special Term set aside the determination of the commission in a wide-ranging opinion, and the Appellate Division affirmed.

The issues are whether there was sufficient evidence, the test in reviewing this administrative action, to support the commission's finding that there was a pattern of discrimination against women on the faculty of Pace and whether, in any event, there was sufficient evidence to support a finding that Dr. Winsey was discriminated against because she was a woman. More concretely, the issues can be restated whether the commission's reliance on broad statistical data and analysis supported a finding of a pattern of discrimination, and whether there was sufficient evidence to support a finding, regardless of a pattern at Pace, of discrimination against Dr. Winsey because she was a woman and was assertive of her rights as she saw them, conduct not tolerated in a woman but which would have been tolerated or even expected of a man in similar circumstances.

The order of the Appellate Division should be modified. There was insufficient evidence in the superficially plausible statistical data before the commission to sustain a finding of a pattern of discrimination or to warrant the extensive and intrusive 'affirmative action program' imposed on Pace. On the other hand, unless the courts pre-empt the fact-finding responsibility of the administrative agency, as they may not, there was sufficient evidence which the commission could credit that Dr. Winsey was being treated differently than a man would have been because of her necessarily aggressive pursuit of promotion despite an acceptable teaching record at Pace.

The unlawful employment practices proceeding which was initiated by the complaint of Dr. Winsey is authorized by the New York City Administrative Code, and the statutory test for determinations by the administrative agency is sufficiency of the evidence to support them (§ 1--9.0). There is a comparable State statute (Executive Law, art. 15, especially § 298; cf., also, U.S.Code, tit. 42, § 2000e Et seq., especially § 2000e--5, subd. (f), par. (1) (Title VII of the Civil Rights Act of 1964)). Pace, founded as Pace Institute in 1906, is a once small but since grown larger university based in Manhattan in New York City. Dr. Winsey, one of a minority of women on the faculty, was an untenured member. At stake in the controversy was her promotion to a higher professional rank and the achievement of tenure. As with many of the universities in the Nation the infusion of significant proportions of women in Pace's faculty did not begin until recently. Indeed, it was in 1960 that Pace employed its first woman faculty member. Of Pace's faculty in 1971--1972, the academic year when the commission hearing was held, 20% Of its 226 members were women, and they were clustered at the lower ranks of the faculty.

Dr. Winsey had been first employed by Pace in the 1966--1967 academic year as an adjunct, part-time, associate professor in the Department of Speech. She holds a doctorate in cultural anthropology and a master's degree in speech and human relations. At the time of her appointment, she had had one-and-a-half years' full-time and approximately 11 years' part-time teaching experience.

After two years, in 1968, Dr. Winsey was appointed, in part through the efforts of the Dean of the School of Arts and Sciences, to a full-time teaching position as an associate professor, in Pace's new Social Science Department. Her efforts to obtain a full-time position in the Department of Speech had been unsuccessful. Dr. Winsey was told by the head of the Department of Speech that he did not like women around him because he could not use 'four-letter' words in their presence. He also stated that he could not pay her as much as a man because it would 'demoralize' his department.

Based on the testimony at the hearing, her prior teaching experience, her committee assignments, and her relatively high compensation, the commission concluded that Dr. Winsey was a highly-regarded and unusually successful teacher. There was, however, a report of an Ad hoc curriculum committee chaired by Dr. Winsey, which produced a negative reaction. The report received mixed response from the faculty and particularly from the historians in the Social Science Department. The historians believed that in recommending a reduction in the number of required history courses, Dr. Winsey had 'sold us down the river'. It is of background relevance that as in many schools of higher learning Pace was experiencing a period of contraction.

Beginning in the summer of 1969, there were conversations of a more or less amicable nature between Dr. Winsey and various administrators and faculty members concerning her promotion to full professor. Her inquiries began with the Dean of the School of Arts and Sciences, and then shifted to her department head when it was pointed out to her that that was the proper channel through which to advance her ambition. The department head referred the inquiry to the departmental committee on promotion, which was composed of men only. The committee reported adversely, and in fact criticized the earlier appointment of Dr. Winsey as an associate professor. In not recommending Dr. Winsey's promotion the department head reported to the Dean that Dr. Winsey did not meet minimum requirements. He also stated that her background was too diversified, that she had no publications, and that other department members for various reasons resented her having attained an associate professorship and would therefore be 'demoralized' if she were promoted further. At an interview with the department head, Dr. Winsey was told that the promotion committee had decided that she 'wouldn't be happy there'. Dr. Winsey protested, and stated, among other things, that she had received from the Dean advice that publication was not necessary for promotion, and had never been advised that she lacked prerequisites to promotion or tenure. She told the department head that she planned to appeal his decision, but in fact she never prosecuted an appeal.

Despite the fact that, according to the Dean, it was proper for an applicant for promotion to appeal a department head's refusal to recommend promotion, in December of 1969, contemporaneously with the promotion committee meetings, Dr. Winsey was characterized as 'troublesome' by the Dean and her department head. They began keeping detailed memoranda of conversations with her, and the department head testified that he then thought of offering Dr. Winsey a terminal contract, that is, one with a clause terminating her employment in one year. In a conversation about Dr. Winsey during the first week of January, 1970 among an executeive vice-president of Pace, the Dean, and the head of Dr. Winsey's department, the vice-president advised Dr. Winsey's department head that the best thing to do was to get rid of any 'troublemaker'.

On February 26, 1970, Dr. Winsey was informed by her department head that she was receiving a terminal contract for the 1970--1971 academic year. At about the same time the Dean wrote to the vice-president stating that it was unlikely that her department head would ever recommend her for tenure. On April 13, 1970, Dr. Winsey resigned. On July 9, 1970, she attempted to rescind her resignation in order to pursue grievance procedures, but her attempt was rejected.

Section B1--9.0 of the Administrative Code provides for the usual limited judicial review of administrative findings. The findings of the commission are conclusive, if supported by 'sufficient evidence' on the record considered as a whole (see Matter of River House in Riverdale Assoc. v. Booth, 51 Misc.2d 403, 405--406, 273 N.Y.S.2d 291, 293--294). This provision is comparable in effect to State legislation providing for administrative regulation of unlawful discrimination in employment (see Executive Law, § 298; Matter of Mize v. State Div. of Human Rights, 33 N.Y.2d 53, 56, 349 N.Y.S.2d 364, 366, 304 N.E.2d 231, 233). Such language confers power upon the commission to 'appraise, correlate and evaluate the facts uncovered' (cf. Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584 (Fuld, J.)). Hence, the sole question before the reviewing court is 'whether there was sufficient evidence in the record to support the (commission's) finding' (State Div. of Human...