Kunda v. Muhlenberg College

GARTH, Circuit Judge,

concurring and dissenting in part:

I agree with the majority that we should affirm the district court’s finding that the College had discriminated against Kunda. I also agree that it is appropriate to affirm the remedy of reinstatement with promotion and back pay. Thus, I join parts I through VII of the majority opinion.

I part company, however, with the majority when, in the absence of an essential finding of face, and, of more importance, in the absence of record evidence supporting *552 such a finding, it unconditionally directs that Kunda be granted tenure if she obtains her master’s degree within two years. 1 This remedy, in my view, is not called for on this record and constitutes a serious judicial intrusion upon the obligations and responsibilities of Muhlenberg’s Board of Trustees.

The majority properly concedes that tenure is “the most provocative issue raised on [this] appeal” (At 546); that tenure determinations include, among other considerations, judgments of future enrollment, budgetary factors, determinations of different and higher priorities, and the like; and that tenure decisions comprehend “discretionary academic determinations” (At 547) entailing review of the candidate’s work product. These decisions, the majority admits, are most effectively made within the university. The majority also properly acknowledges that the responsibility for tenure is that of the particular institution and that “courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college.” (At 548). Moreover, the majority acknowledges that the evaluation of tenure should be made by professionals “since they [the evaluations] often involve inquiry into aspects of arcane scholarship beyond the competence of individual judges.” (At 548). The majority also recites, without dispute, the appellants’ argument that the district court’s order dealing with tenure is unique and that this is the first case in which judicial award of tenure is sustained.

Having recognized these concepts, however, the majority then ignores them and grants Kunda tenure. Perhaps I could agree with the majority if there indeed was an unequivocal finding of fact which was based on sufficient evidence: that all levels of tenure review had considered all aspects of Kunda’s qualifications, as well as all elements involved in the granting of tenure, and had then determined that the only missing ingredient was Kunda’s graduate degree. But this is not that case. As I demonstrate in the remainder of this dissent, the record does not reveal the requisite finding, the requisite evidence or such circumstances as would mandate that we, as judges, should “substitute [our] judgment for that of the college with respect to the qualifications of faculty members for . . . tenure.” (At 548).

I would therefore reverse so much of the district court order as directs that tenure be granted to Kunda when she obtains her master’s degree, and I would leave the decision of whether tenure should be granted, to the Board of Trustees, on whom that obligation rests. This, in my view, would restore Kunda to the position in which she would have been had there been no discrimination. Title VII requires no less and we can do no more.

I.

As the majority recognizes, the goal of the relief granted under Title VII to a successful plaintiff is to place her in the position she would have been but for the defendants’ unlawful discrimination. Thus, the district court’s conditional grant of tenure in this case depends wholly upon a finding of fact that Kunda would have been granted tenure if she had her master’s degree. On my reading of the district court’s opinion, I cannot discern such a finding. And in any case, based upon my review of the record, I am convinced that such a finding, if made, would be clearly erroneous.

In the portion of its opinion labelled “Findings of Fact,” the district court finds that Kunda did not receive the same ccunselling given to men about the need for an advanced degree, 463 F.Supp. at 305; that this disparate treatment was discriminatorily motivated, id.; and that, if properly counselled, Kunda would have made every *553 effort to obtain the requisite degree, id. Significantly, the court does not proceed to the essential additional finding that, if Kunda had obtained her degree, she would have been granted tenure.

In the portion of the district court’s opinion labelled “Discussion,” under the subheading “III. Relief,” the court repeats its findings of disparate counselling, discriminatory motive, and Kunda’s likely effort to obtain her degree, id. at 813. The court then concludes that “Therefore, in order to make the plaintiff whole for the discrimination she suffered, we must somehow restore to her this ‘lost opportunity’ to obtain the masters [sic] degree prior to being considered for tenure,” id. Shortly thereafter the critical “finding” appears: “If plaintiff is able to complete the requirements for her masters [sic] degree within this time period, then plaintiff should be granted tenure retroactive to September, 1975. This is the date that tenure would have been granted to plaintiff if she had not been subjected to unlawful sex discrimination” id. In the next paragraph, after it has awarded Kunda reinstatement with back pay, the district court states: “The award of these remedies is premised upon the assumption that plaintiff would have been granted tenure but for defendant’s discriminatory acts” id. at 313-14 (emphasis added).

I have grave reservations as to (1) whether the court’s statement that “[September, 1975] is the date that tenure would have been granted to plaintiff if she had not been subjected to unlawful sex discrimination,” was intended, or should be construed, as a “finding” of fact by the district court; and (2) whether that “finding” is supported by evidence. The court clearly divided its opinion into three parts, labelled “Findings of Fact,” “Discussion,” and “Conclusions of Law.” In the section labelled “Findings of Fact,” the district court marshalled record support for its determinations after each material finding. While all other factual premises relied upon in the court’s discussion of the appropriate relief are, as noted, expressly set forth in the “Findings of Fact” portion of the opinion, the statement that Kunda would have been granted tenure but for the discrimination, is not. It appears from the opinion that this statement is not offered as a finding of fact, but rather as an assumption employed for the purpose of fashioning appropriate relief. Indeed, the district court itself expressly refers to its statement that Kunda would have been granted tenure, as an “assumption” upon which “[t]he award of these remedies is premised,” see id. at 313-14. Thus, I hesitate to accord the district court’s “assumption” the dignity of an express finding of fact, particularly since it leads to a remedy which, even the majority must concede, is unique.

II.

Assuming, however, that an “assumption” made by the district court should be read as a finding of fact, it is a “finding” that has no evidentiary support in the record. Indeed, what evidence there is suggests a contrary conclusion. Thus I must conclude that this “finding,” if such it be, is clearly erroneous, and cannot support the relief granted by the district court. My review of the record reveals the following:

(1) In his letter of November 30, 1973 to President Morey recommending .that Kunda be denied tenure, Dean Secor wrote that he made his negative recommendation “with an eye primarily on the present and future financial condition of the College.” He elaborated as follows:

I wish I could recommend her for tenure, for I think that her performance justifies a permanent appointment. I must take into account the fact that she is one of only three members of a very large department who is currently untenured. Furthermore, from an administrative point of view I find it important to make some assessment of the likelihood over the long run of maintaining a Physical Education Dept, of the size which we presently have. Certainly I hope that this will be possible. However, I must be realistic to perceive that if the financial pinch becomes very severe in the years immediately ahead, we may need to elim *554 inate certain departments or drastically to curtail them. Long before I would recommend the curtailment or elimination of most other academic departments I would have to recommend the serious curtailment of the Physical Education Department. This means that it does become important to keep one’s options as open as possible in this particular area.

Dean Secor also wrote that he felt possession of a master’s degree should not weigh against a grant of tenure: “Such considerations, however, as the relevance of advanced degrees and of scholarly publications are very questionable when it comes to many people in Physical Education.”

(2) The minutes of the meeting of the Faculty Board of Appeals on January 16, 1975 indicate that the FBA committee had spoken to Dean Secor and President Morey about the reasons for denying Kunda tenure. Dean Secor stated at this time that financial considerations did not play a role in the decision. President Morey stated that he recommended a denial of tenure because Kunda had twice been denied promotion and did not possess the requisite master’s degree.

(3) The FBA memorandum to President Morey dated January 20, 1975 reports that the FBA “has no evidence which would indicate that in this particular case there were significant fiscal considerations that mandated the ultimate decision.”

(4) President Morey, in his memorandum of February 24, 1975 to the Trustees Committee considering Kunda’s appeal, stated:

In all of this my position has been that an exception had been made in 1966 when Mrs. Kunda was hired without the M.A., and that I could not recommend that additional exceptions be made for promotion or for tenure. While it is true that there are male members of the Physical Education Department who have been tenured, holding only the bachelor’s degree, those decisions were made prior to my assuming office in 1969. It has been my policy to recommend persons for tenure only if they are fully qualified academically.

There is only one interpretation that can be given to these evidentiary materials: Dean Secor made an original recommendation to President Morey that Kunda be denied tenure for financial considerations, but President Morey based his negative recommendation on Kunda’s lack of a master’s degree. This simply cannot support a finding that Kunda would have been granted tenure if she had the degree. A decision to deny tenure predicated on the absence of a degree is a far cry from a decision that tenure would be granted if the candidate had the degree. As the majority opinion admits, tenure decisions are based on a variety of considerations, including teaching ability, scholarship, possession of academic credentials, percentage of tenured faculty in the department, financial considerations of the department, and financial considerations of the college and university as a whole, to name only the most obvious factors. The decision of an official to deny tenure based on one of these considerations, as President Morey did here with respect to the lack of a master’s degree, simply cannot be read as a decision that all other factors support an award of tenure and that, but for the single consideration cited, tenure would have been granted. Additional evidence is required to support such a conclusion. Yet no such additional evidence is cited by the district court, the parties or the majority. Thus, I conclude that the district court’s “finding” (if such a “finding” indeed was made), that Kunda would have been granted tenure if she possessed her master’s degree, is without evidentiary support and, therefore, must be deemed clearly erroneous.

III.

In light of the absence of a defensible finding that Kunda would have been granted tenure if she had her degree, I do not understand how it can be maintained that the conditional tenure awarded by the district court places Kunda in the position she would have been, but for the defendants’ unlawful discrimination. In this posture, I believe the only appropriate course is to *555 give Kunda time to obtain her degree, and then permit Muhlenberg to make its decision on tenure. In making this decision, the College would be prohibited from denying tenure on the basis of any factors not present at the time of the original tenure decision. If Kunda were again denied tenure, I would require the College to bear the burden of proving that its decision was not based on sexual animus, was not based on factors not present at the time of the original tenure decision, and was not in retaliation for Kunda’s successful suit against the College. Requiring the College to carry this burden amply protects Kunda’s interests and meets the concerns alluded to in the majority opinion. 2

Such an approach was adopted recently by this court in Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977). In Richerson , the district court awarded retroactive promotion to a naval engineer determined to be the victim of racial discrimination. The Court of Appeals vacated this relief and remanded to give the defendant United States an opportunity to prove that Richerson would not have been promoted even without the unlawful discrimination. The United States was required to bear the burden of persuasion on this issue. The court held:

[Title VII] authorizes courts to order “such affirmative action as may be necessary” to remedy unlawful employment practices. However, that provision also states:

No order of the court shall require . promotion of an individual as an employee ... if such individual was refused . . . advancement . . . for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title. (Emphasis added.)

Consequently, the district court in this case could order retroactive promotion of Richerson to GS-12 only if it found that Richerson would have attained that position but for the defendant’s unlawful employment practices.

In sum, since we are unable to determine the basis upon which the district court awarded Richerson retroactive promotion to GS-12, that portion of the district court’s order must be reversed and the case must be remanded so that the district court may make specific findings of fact (on this record or as it may require supplementation) with respect to the classification which Richerson would have achieved but for the defendant’s discriminatory acts. On remand, the government will bear the burden of proving by a preponderance of the evidence that even absent discrimination Richerson’s qualifications were such that he would not have been selected for the GS-12 position.

551 F.2d at 923-25 (footnotes and citations omitted).

In Kunda’s case, where the defendants have been found to have discriminated not in denying tenure, but merely in not adequately counselling her on the need for a master's degree, an analogous approach is clearly indicated. Thus, I believe that the most we as a court can and should do, is to restore to Kunda her lost opportunity, i. e., to be considered for tenure after she has had time to obtain her advanced degree. The make-whole relief required by Title VII mandates no more.

*556 I must, therefore, respectfully dissent from so much of the majority opinion approving court awarded tenure.

. The majority repeatedly emphasizes that the district “court did not award Kunda tenure.” (At 549; emphasis in original). While it is true that Kunda must first obtain her master’s degree, nevertheless, once having done so, tenure automatically attaches under the district court’s order as affirmed by the majority. Thus, it is the court that is granting tenure, not the College.

. The majority is evidently concerned that, if we required the Board to make the tenure determination after allowing Kunda time to obtain her degree, the Board may find it impossible to ignore “changes such as the financial situation, student enrollment, and faculty hiring which may have occurred in the intervening five year period.” (At 549; footnote omitted). The majority also apparently fears “the intangible effect upon [the Board’s] decision because the candidate being considered was the successful party to a Title VII suit.” (id.).

These concerns apparently have led the majority to its conclusion that the court should grant Kunda tenure outright, subject only to her completion of her master’s degree. I, on the other hand, feel that such fears are unfounded and unsupported in the record. Thus, they do not provide any principled basis requiring us to deviate from the precepts of appropriate relief under Title VII and from the dictates of judicial deference.