Smith v. University of North Carolina

Decision Date30 September 1980
Docket Number79-1222,Nos. 79-1221,s. 79-1221
Citation632 F.2d 316
Parties24 Empl. Prac. Dec. P 31,281 Mary Carroll SMITH, Appellee, v. UNIVERSITY OF NORTH CAROLINA at Chapel Hill; John H. Schutz; Ruel W. Tyson, Jr., Appellants. Mary Carroll SMITH, Appellant, v. UNIVERSITY OF NORTH CAROLINA at Chapel Hill; John H. Schutz; Ruel W. Tyson, Jr., Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Elisabeth S. Petersen, James B. Craven, III, Durham, N.C. (Everett, Everett, Creech & Craven, Durham, N.C., on brief), for appellants.

Edwin M. Speas, Jr., Special Deputy Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., Elizabeth C. Bunting, Asst. Atty. Gen., Raleigh, N.C., on brief), for appellees.

Robert E. Williams, Douglas S. McDowell, Edward E. Potter, McGuiness & Williams, Washington, D.C., on brief, as amicus curiae.

Before WIDENER and MURNAGHAN, Circuit Judges, and HAWKINS *, District Judge.

MURNAGHAN, Circuit Judge:

When the Department of Religion at the University of North Carolina declined to promote or to reappoint Assistant Professor Mary Carroll Smith, she, after unsuccessfully pursuing administrative avenues of relief, filed an action in the United States District Court for the Middle District of North Carolina against the University and several faculty members. Alleging that various University members had violated her federal and state constitutional and statutory rights when they decided not to renew her teaching contract, she sought declaratory and injunctive relief, damages, and either reappointment or promotion with tenure. While numerous issues were raised and decided by the district court, the only remaining issues of concern to us are whether the University 1 discriminated against Smith because of age, in violation of the Age Discrimination in Employment Act (the "ADEA"), 2 and whether the University discriminated against her because of sex and religion, in violation of Title VII of the Civil Rights Act (Title VII). 3

The age discrimination issue was tried before a jury which rendered a verdict in favor of the University. 4 Earlier motions by both parties for summary judgment as to the age discrimination claim were denied by the court as was Smith's later motion to enter a judgment notwithstanding the verdict. The sex and religious discrimination charges were tried to the court. It too found for the University. The final results in the district court, on the merits of each issue raised, therefore have amounted to total victory for the University, total defeat for the plaintiff.

As an interim measure, pending a decision on the merits, this Court had reversed the district court's refusal to enter a temporary restraining order and preliminary injunction. We ordered entry of an injunction to continue in effect "until a trial of the case is had and a decision entered upon the merits." Under the injunction, the University was required

(a) to continue the plaintiff's employment;

(b) to refrain from hiring a replacement for the plaintiff;

(c) to maintain in effect the plaintiff's teaching position;

(d) to pay the plaintiff as theretofore; and

(e) to refrain from disseminating information injurious to the professional or personal reputation of the plaintiff.

Although she failed in the end to prevail on the merits on any of her claims, the court, pursuant to 42 U.S.C. § 2000e-5(k), awarded Smith $8,300 in attorneys' fees and $302.06 in related litigation expenses which represented the costs incurred in obtaining the preliminary injunction.

Smith now seeks our review of the proceedings below, contending that: (1) the court's instructions to the jury were erroneous with respect to the standard applicable to age discrimination claims and to her burden of proof; (2) the court erred when it refused to grant her motions for summary judgment and judgment notwithstanding the verdict on the age discrimination claim; and (3) the court's findings regarding the sex and religious discrimination claims were clearly erroneous. Dissatisfied by the award of attorneys' fees, the University filed a cross-appeal in which it argues that Smith, although successful in obtaining a preliminary injunction, was not a "prevailing party" within the meaning of the pertinent statutory provision and, therefore, is ineligible for attorneys' fees. 5

Factual Background

In early 1973, Mary Carroll Smith was 38 and a recent recipient of a Ph.D. from Harvard University in Sanskrit and Indian Studies. Her predominant area of scholarly concentration, interest, and research was the computer study of Sanskrit texts. 6 Prior to receiving her doctorate, Smith had earned Masters degrees in English and Sanskrit and, for seven years, had taught, first, at a small college and, then, at a community college. In addition to her formal academic religious education, Smith, for ten years, had been a member of a Roman Catholic Sisterhood.

During early 1973, the Religion Department at the University of North Carolina was striving to develop a graduate program in religion. Because the faculty was small and the budget limited, the Department faculty preferred a graduate program of general religion studies which integrated the interests and talents of all department members, rather than a program aimed at specialization. To create an academic balance within the Department, the faculty embarked on a search for a person knowledgeable in nonwestern religions-an area in which the Department perceived itself as weak. Professor Ruel Tyson, a professor of Religion at the University and then acting chairman of the Department, testified that, while they were searching for a specialist in nonwestern religions, they were looking for specialists of a particular type who could move from "the base ... of their expertise in one religion ... and contribute to other courses and other discussions in the Department having to do with their understanding of basic issues and the Study of Religion...."

Through academic channels, Tyson became aware that Smith had training suitable to the faculty vacancy. He, by letter, inquired of Smith whether she would be interested in interviewing for the position. She replied affirmatively. Thereafter the interviewing process commenced.

After interviewing Smith in Boston, Massachusetts, Tyson, desirous for advice, forwarded Smith's resumEe and supporting materials to Professor John Schutz, the chairman of the Department, who was in Europe conducting research. In his letter, Tyson wrote that he was very favorably impressed with Smith and proceeded to enumerate her strengths. Despite his positive impression of her, Tyson did have a few reservations which he expressed as follows:

Her age is sore cause for worry, 38 years in June. However, to be a first woman in the Dept. I place some premium on experience and maturity, a person not susceptible to fads and fashions, and on that score, I have no worry.... The other question concerns the status of her review two years hence for reappointment or tenure, etc. Will we be under pressure to promote after just three years, given her previous experience etc.? ... I should also have added into this question-equation, the factor of age. She is a former nun, but seems to have worked all that out nicely, anyway, all that is some years back.

Reflecting upon these remarks at trial, Tyson said the only reason he mentioned Smith's age was because he, as acting chairman, was a novice in the reappointment process and was unsure what considerations were important. He claimed that he "took an affirmative view toward (Smith's) age," believing that, in her case, it was an indicator of "maturity and experience." With regard to the question about promotion at first review, Tyson again attributed it to his new role and also to Smith's specific inquiry directing his attention to the issue.

Responding to Tyson's letter, Schutz was "less than dazzled by Ms. Smith on paper." His primary concern was that she had "a technical interest in texts which happen to have religion as their subject matter," as opposed to having "an interest in religion as a subject matter." Also troubling Schutz were the periods of time in which Smith failed to explain her activities. Tyson, in a letter, attempted to address and dispel Schutz's concerns.

After much deliberation, Professor Tyson, in April 1973, extended an employment offer to Smith. Tyson explained to Smith that the University was offering her an initial 3-year probationary contract and that during the second year of the probationary period, the department chairman would make a recommendation to reappoint, to promote, or not to renew her contract. Smith accepted the offer and, by letter, stated, "the Faculty Legislation on University Government does not mention the promotion of an assistant professor at the first review .... I am accepting the position in the hopes of promotion at the first review." Responding to Smith's desire for early promotion, Tyson expressed his understanding of the promotion process as follows:

Again, because my experience is not deep in these matters, I think I can safely say that a faculty member may be promoted at any time: such promotions are not tied to first review, second review, etc. I mean by this that the legislation you refer to demands the reviews indicated there, but does not pre-empt early (sic) action than required. Again, departments differ and I have only impressions, but I estimate that over half the assistant professors do serve two terms before being reviewed for promotion. However, so many things enter here it is not safe to generalize. The study of tenure currently underway will produce hard data on this sort of question.

While I am certainly in no position to give you any assurances regarding your hopes for promotion at first review, it is a fact that this is not unprecedented.

In July 1973, Professor John Schutz returned from England and resumed his duties as department chairman. The...

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