Presseisen v. Swarthmore College
| Decision Date | 02 September 1977 |
| Docket Number | Civ. A. No. 74-1313. |
| Citation | 442 F. Supp. 593 |
| Parties | Barbara Z. PRESSEISEN, on behalf of herself and all others similarly situated, and U. S. Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. SWARTHMORE COLLEGE, Theodore Friend, President, Stephen G. Lax, Chairman, Charles E. Gilbert, Chairman, Alice K. Brodhead. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Robert Cohen, Philadelphia, Pa., for plaintiff.
Robert E. Howard, Trial Atty., Equal Employment Opportunity Commission, Philadelphia, Pa., for plaintiff-intervenor.
Henry T. Reath, Philadelphia, Pa., for defendant.
Plaintiff is a former Assistant Professor in the Education Program at Swarthmore College ("Swarthmore"). On February 29, 1972, plaintiff received notification from Swarthmore that she would not be reappointed as an Assistant Professor for the 1972-73 academic year due to "logistical" considerations. After exhausting the appropriate administrative remedies, plaintiff commenced this class action alleging that this nonrenewal was based solely on account of her sex, in violation of, inter alia, the Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103 (1972), 42 U.S.C. § 2000e et seq. (Supp. V), amending, Civil Rights Act of 1964, 78 Stat. 253. (All subsequent citations to Title VII in this Opinion are to the 1964 Act as amended.) The action was bifurcated, and the liability aspect of the case was tried, non-jury, before this Court. After careful review and consideration of the testimony and exhibits presented at trial, the pre- and post-trial briefs and arguments of counsel, and the proposed findings of fact and conclusions of law submitted by the parties, the Court makes the following narrative findings of fact and conclusions of law. The bracketed references to the record set forth the primary sources from which the statements contained herein are drawn.
The only individually named plaintiff, Barbara Z. Presseisen, was employed by defendant Swarthmore as a part-time Lecturer in the academic year 1970-71, and as a full-time Assistant Professor in the academic year 1971-72.
The intervening plaintiff, the U. S. Equal Employment Opportunity Commission ("EEOC"), was granted leave to intervene as a plaintiff by Order dated June 4, 1976.
Defendant Swarthmore is an "employer" within the definition of 42 U.S.C. § 2000e(b).
Defendant Charles E. Gilbert served as the Provost of Swarthmore from the period of 1969 through 1974. The Provost is the chief academic officer under the President and has the primary responsibility for faculty personnel matters. N.T. 23-184.
On June 2, 1972, plaintiff filed a charge against defendants with the Pennsylvania Human Relations Commission ("PHRC") alleging that defendants had discriminated against her on account of sex.
On November 27, 1972, plaintiff filed a charge with the EEOC, alleging that defendants had discriminated against her on account of sex.
After appropriate deferral to the PHRC, and after investigating plaintiff's charge, the EEOC issued a right-to-sue letter to plaintiff on May 6, 1974.
Plaintiff then filed her judicial complaint on May 28, 1974.
Pursuant to plaintiff's motion to amend, this Court granted leave to plaintiff to file an amended complaint, which included, inter alia, class action allegations pursuant to Rule 23, Fed.R.Civ.P. Plaintiff's amended complaint was filed on December 11, 1974.
Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, by Opinion and Order dated March 25, 1976, this Court certified this action as a class action. We defined the class as all present female faculty employees at Swarthmore College, all future female faculty employees at Swarthmore College, all former female faculty employees who left the employ of Swarthmore College on or subsequent to March 24, 1972, and those applicants for faculty positions who applied to Swarthmore College and were rejected on or subsequent to March 24, 1972, who have been, are at present being or in the future may be:
(1) denied hire, promotion and/or tenure at Swarthmore College or were not recruited by Swarthmore on account of their sex; and/or
(2) denied equal compensation for performance of substantially similar work as is performed by male faculty members at Swarthmore College, on account of their sex.
However, we certified the class action as to declaratory and injunctive relief only. A certification ruling on damages in the form of back pay was deferred until after a determination of liability.
In addition, the March 25 Opinion and Order dismissed plaintiff's claims brought under 42 U.S.C. §§ 1981 and 1985(3), and dismissed plaintiff's Title VII claim against those individual defendants (Theodore Friend, Stephen G. Lax and Alice K. Brodhead) not named in plaintiff's charge before the EEOC. By Order dated January 12, 1977, we also dismissed plaintiff's claim brought under 42 U.S.C. § 1983.
At the time trial commenced, the only defendants before the Court were Swarthmore and Mr. Gilbert, and plaintiffs' claims were based solely on Title VII.
Plaintiffs' evidence at trial consisted mainly of the testimony of 16 class members, Barbara Presseisen's own testimony as individual plaintiff, the testimony of a statistical expert witness, Dr. John deCani, Professor of Statistics at the University of Pennsylvania, and numerous exhibits. Plaintiffs included in their presentation of evidence in the class case hundreds of documents from faculty personnel files, which they contend, when considered in conjunction with the testimony and statistical evidence, establish a prima facie case of a pattern and practice of sex discrimination by defendants. The Court directed plaintiffs' counsel to file a written statement to identify specifically what women were unfairly treated due to their sex and in what way. Plaintiffs, in response, submitted "Plaintiffs' Memorandum of Comparisons."
At the close of plaintiffs' evidence, defendants moved for dismissal pursuant to Fed.R.Civ.P. 50(a), and later amended the motion to dismiss pursuant to Fed.R.Civ.P. 41(b). The Court deferred ruling on defendants' motion and requested defendants to present their evidence in defense.
Defendants' primary witness was Harold E. Pagliaro, present Provost of Swarthmore, who described all aspects of Swarthmore's employment practices and procedures regarding the faculty. He further testified with respect to defendants' response to plaintiffs' Memorandum of Comparisons. Ex. D-147. Defendants also presented Dr. Robert Cross, Alice Brodhead and Mr. Gilbert, all of whom testified with respect to Barbara Presseisen's individual case. Finally, defendants offered the testimony of two statistical expert witnesses, Dr. Paul Meier, Professor of Statistics at the University of Chicago, and Dr. Gudmund Iversen, Professor of Statistics at Swarthmore College.
Plaintiffs offered rebuttal testimony, and defendants surrebuttal.
On May 31, 1977, in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, the Supreme Court set forth specific guidelines with respect to the burden of proof of the respective parties in a Title VII class action case. Although Teamsters was a Government-initiated pattern or practice suit, the Court finds, and all parties are in agreement, that the evidentiary bases for a private across-the-board class action suit are almost identical to a Government pattern or practice suit. Accordingly, we will look to Teamsters as our primary source of guidance in this case.
Teamsters makes clear that the plaintiff must prove illegal discrimination in his or her individual case and a pattern or practice of discrimination against the class he or she represents. Quite simply, plaintiffs in this case contend that Swarthmore regularly and purposefully treated women faculty members less favorably than male faculty members. They allege disparate treatment with respect to, inter alia, recruitment, hiring, salary, promotion, reappointments and tenure. Accordingly, as stated in Teamsters, at 335, 97 S.Ct. at 1854, "the ultimate factual issues are thus simply whether there was a pattern or practice of such disparate treatment and, if so, whether the differences were `racially or in this case sexually premised.'" (Citation omitted.) (Footnote omitted.)
Before we address the specific burden of proof with respect to the individual and the class case, we note that the Court in Teamsters recognized that there are two types of discrimination in Title VII cases. The first are claims of disparate treatment wherein the "employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin." Teamsters, supra, at 335 n.15, 97 S.Ct. at 1854 n.15. The other type of claims stress disparate impact which "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. Since plaintiffs concede in their "Post Trial Brief in Support of Findings of Fact and Conclusions of Law," at pp. 2-4, that the entire thrust of their case was to establish that disparate treatment was accorded to women faculty members by Swarthmore in all terms and conditions of employment, we need only concern ourselves with the "disparate treatment" type of discrimination.
The distinction is an important one since, as was stated in Teamsters, supra, at 335 n.15, 97 S.Ct. at 1854 n.15, under a disparate treatment theory, "proof of discriminatory motive is critical," whereas under a disparate impact theory proof of discriminatory motive is not required. Id. See, e. g., Griggs v. Duke Power Co., 401 U.S. 424,...
To continue reading
Request your trial
-
Kohne v. Imco Container Co.
...n.16, 97 S.Ct. at 1855, n.16. The same is also true when those terms are used in a private class action. See Presseisen v. Swarthmore College, 442 F.Supp. 593, 598 (E.D.Pa.1977). 20 In addition to maintaining that assignments result from individuals choosing their jobs, defendant contends t......
-
Bowles v. Keating
...College, 569 F.2d 169 (1st Cir. 1978), Rev'd on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Presseisen v. Swarthmore College, 442 F.Supp. 593 (E.D.Pa. 1977). In recognition of the difficulty of proving intent, however, the United States Supreme Court has established a m......
-
US v. Lansdowne Swim Club
...part); Cooper v. Federal Reserve Bank, 467 U.S. 867, 875-76, 104 S.Ct. 2794, 2799-2800, 81 L.Ed.2d 718 (1984); Presseisen v. Swarthmore College, 442 F.Supp. 593, 599 (E.D.Pa.1977). As stated by Senator Humphrey: "A pattern or practice is present only where the denial of rights consists of s......
-
Coates v. Johnson & Johnson
...& n. 7 (D.C.Cir.1982) (burden of production, but not persuasion, on defendant in disparate impact case). In Presseisen v. Swarthmore College, 442 F.Supp. 593 (E.D.Pa.1977), aff'd without opinion, 582 F.2d 1275 (3d Cir.1978), the district court did not explicitly address the burden of proof ......
-
Pay discrimination claims after Ledbetter.
...(same), aff'd on other grounds, 185 F.3d 542, (6th Cir. 1999), cert. denied, 529 U.S. 1019 (2000); Presseisen v. Swarthmore College, 442 F. Supp. 593, 614 (E.D. Pa. 1977) (same), aff'd, 582 F.2d 1275 (1978) (unpublished). But see Sobel v. Yeshiva Univ., 839 F.2d 18, 34 (2d Cir. 1988) (plain......