Petition — Powell v. Syracuse University

| ‘iz Supreme Court, U. &»7

FILED’

) OCT 4 1979

ES —————————

In THE

Supreme Court of the United States

Ocroper Term, 1978

No MBB © 566

GERALDINE PoWELL,

Petitioner,

v,

Syracuse University, Doctor Metvin Eooers, Chancellor

of Syracuse University, Scnoon or Ancurrecturs, a sub-

unit of Syracuse University, Junto San Jose, Acting

Dean of the School of Architecture, Syracuse University,

Respondents.

——

—_--—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_————_—-

——

Naruantet R, Jones, Esq.

James I, Meyerson, Esq.

1790 Broadway—10th Floor

New York, New York 10019

(212) 245-2100

Attorneys for Petitioner

September 29, 1978

"a

a ae

—s ee »

INDEX

EES ES EE

EE SE

SD

Statutory Provision Involved 2... een

LS EE

Reasons for Granting the Writ —.........-..0

1,

This Court has never enunciated the degree to

which an employer must sustain his burden in

rebuttal onee an adversely affected employee

has established a Title VII prima facie case

of individually oriented racial discrimination

which includes, among other things, evidential

documentation that the sole factors considered

at the time of the adverse decision were race

cg

This Court has never determined whether the

mere articulation of race neutral criteria, with-

out more, meets the employers burden once it

has shifted from the employee to the employer

and where the Black professional’s Title VII

prima facie ease of individually oriented racial

diserimination establishes that the only eviden-

tially documented factors discussed at the time

of the adverse employment decision were race

SE

PAGE

8 This Court has never determined whether

invalid race oriented considerations are can-

celled out by the subsequent assertion of os-

tensibly race neutral criteria, without more .... 15

OT I ao irccesig ss Disa vesncecapcae eink ntnatinta able 19

wren OE TCG anche elie 20

Appendix A—

Opinion of the United States District Court for

the Northern District of New York ........................ la

Appendix B—

Opinion of the United States Court of Appeals for

Se CE CI anasto cliches ctecoeneinne 24a

Appendix C—

Statutory Provision Involved ......2..02.....20..........-.00+ 43a

Appendix D—

Plaintiff’s Exhibit #14 in Record .......00000000000000..... 44a

Appendix E—

Plaintiff’s Exhibit #’s 17, 19, 20 in Record ........ 54a

Appendix F—

Table of Contents in Appellant’s Brief to the

EG I oogenesis taiedie ted cet talem ie. 59a

ili

CITATIONS

PAGE

Armstead v. Starkville Municipal Separate School Dis-

trict, 325 F. Supp. 560 (N.D. Miss. 1971) 000... 9

Baker v. Columbus Municipal Separate School District,

329 F. Supp. 706 (N.D. Miss. 1971) ...0.0220.000....e...00. 9

Bishop v. Pecsok, 431 F. Supp. 34 (N.D. Ohio 1976) ..... 17

Brown v. Rollins, Inc., 397 F. Supp. 571 (W.D.N.C.

ae aR RC EN Stee RI g ary COC Re RO OO 17,18

Cedeck v. Hamiltonian Federal Saving and Loan As-

sociation, 414 F. Supp. 495 (E.D. Mo. 1976), Affirmed

ee, ee Re ee CAE, te i 18

Chambers v. Hendersonville City Board of Education,

Goa Fae 300 €6tm Civ. 2008) nn nace... 9

Day v. Mathews, 530 F.2d 1083 (Ct. of Appeals, D.C.

PO SARL au ad da tai satica hdiiscectesciinibgde abentiawenbcon: 10n, 14, 15

Drain v. Friedman, 422 F. Supp. 366 (N.D. Ohio 1976) 17

East v. Romine, Inc., 518 F.2d 332 (Sth Cir. 1975) ...... 15

Equal Employment Opportunity Commission vy. Kallir,

Philips, Ross, Inc., 401 F. Supp. 66 (S.D.N.Y. 1975) 18

Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th

Cir. 1977)

Gillin v. Federal Paper Board Co., Inc., 479 F.2d 97

Se Ee Ree en RET ee ee. RE) 18

Hardy v. Porter, 443 F. Supp. 1164 (N.D. Miss. 1977) 11

Harris v. Jones, 296 F. Supp. 1082 (D.C. Mass. 1969) 12

Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct.

2686, 37 L.Eid.2d 548 (1973) un... .n.cccececseeccecceeneeceeee 10

iv

PAGE

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973) ................ 6, 7,9, 11, 15

Moore v. Board of Education of Chidester School Dis-

trict No. 59, 448 F.2d 709 (8th Cir. 1971) .................... 9

Moore \v. Townsend, 525 F.2d 428 (7th Cir. 1975) ...... 17

North Carolina Teachers Association v. Asheboro City

Board of Education, 393 F.2d 736 (4th Cir. 1968) ....9, 12

Reynolds vy. Abbeville City School District No. 60, 554

F.2d 638 (4th Cir. 1977) <2. cee 10

Saracini v. Missouri Pacific Rail Co., 431 F. Supp. 389

(E.D. Me. 1977) we eee 12

Sek v. Bethlehem Steel Corp., 421 F. Supp. 983 (E.D.

Pa. 1976), Affirmed 565 F.2d 153 (3rd Cir. 1977) .... 18

Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th

Cir. 1974) ee 12,17

Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir.

1971), Cert. denied 404 U.S. 991, 92 S.Ct. 536, 30

L.Fa.3d 543 (3972) 22 18

Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th

Chr, BOTT) no cansecias--.csiscesnsespcceene ee 8

United States v. New York, N.H. & H.R. Co., 355 U.S.

293, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957) ...................... 15

Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48

L.Ed.3a GT (19%) ee 10

Williams v. Kimbrough, 295 F. Supp. 578 (W.D.

Loulsiona 1909) Wee 9

Willtamson v. Hampton Management Company, 339

F. Supp. 1146 (N.D. Ill. 1972)

Zuch v. Husey, 394 F. Supp. 1028 (E.D. Mich. 1975) .... 17

IN THE

Supreme Court of the United States

Octosper Term, 1978

GERALDINE PoweELL,

Petitioner,

v.

Syracuse University, Docror Metvin Eccers, Chancellor

of Syracuse University, ScHoon or ARCHITECTURE, a sub-

unit of Syracuse University, Junio San Jose, Acting

Dean of the School of Architecture, Syracuse University,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Petitioner, Geraldine Powell, respectfully prays that

a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Second Circuit entered in this proceeding on July 13, 1978.

Opinions Below

The opinion of the United States District Court for the

Northern District of New York, the Honorable Edmund

Port presiding, is not reported. It was entered on August

5, 1977 and is set forth herein, infra, as Appendix A.

The opinion of the United States Court of Appeals for

the Second Circiut is not yet reported. It was ontered on

July 13, 1978 and is set forth herein, infra, as Appendix B.

ee Se RE a om ae - —— — —

to

Jurisdiction

The judgment of the United States Court of Appeals

for the Second Circuit was entered on July 13, 1978.

Jurisdiction of this Court is invoked, within ninety (90)

days of the foregoing entry, pursuant to 28 U.S.C. Section

1254 (1).

Question Presented

Where a Black professional’s Title VII prima facie case

of individually oriented racial discrimination establishes

that the only evidentially documented factors discussed at

the time of the adverse employment decision were race

oriented, whether a university employer can rebut said

case by mere articulation of race neutral reasons, without

more, at the post evidential hearing two years later.

Statutory Provision Involved

This case involves subdivision (a) of Section 703 of Title

VII of the Civil Rights Act of 1964, 78 Stat. 255, as

amended by Section 8 of Public Law 92-261, March 24,

1972, 86 Stat. 109, 42 U.S.C. Section 2000e-2(a). This sub-

division is set forth herein, infra, as Appendix C.

Statement of the Case

The following statement of facts is by and large ex-

cerpted from the opinion of the Cireuit Court below and

based upon findings made by the District Court.

Ms. Powell, the Petitioner herein, has an extensive aca-

demic background. She received a Registered Nurse’s de-

gree from New York University in 1959. In 1971, she

received a Bachelor of Fine Arts degree from Syracuse

3

University and, in January, 1973, was awarded the Master

of Fine Arts degree in Environmental Design. Her mas-

ter’s thesis concerned the relationship of low income hous-

ing to a black perspective. The Petitioner was hired for the

1972-73 academic year at the rank of lecturer (part-time)

on the faculty in the Syracuse University School of

Architecture.

During the fall semester, 1972, Petitioner taught one

section of the basic design course, an art discipline and

oriented course also taught by white, tenured non architec-

tural degreed males on the faculty. Prior to 1975, a detailed

student manual for this course did not exist and each sec-

tion teacher was free to fashion his ov-n course curriculum

after reading the course description in the School of Archi-

tecture’s annual bulletin and consulting with the dean and

other faculty members teaching the course. The Petitioner

did not receive any criticism from other faculty members

during her first year on the faculty.

The Petitioner was a part-time visiting assistant pro-

fessor on the faculty during the 1973-74 school year. She

taught architectural rendering, served as advisor to mi-

nority students, and delivered five guest lectures on non-

western architecture. No formal description of the render-

ing course was developed until September, 1974. The

school’s faculty disagreed as to whether rendering was

best taught by an architect or an artist.

In November, 1973, Petitioner was advised by the dean

that her employment status was to be reviewed by the Com-

mittee on Hiring, Promotion, and Tenure. Shortly before

the Thanksgiving vacation, Petitioner was asked to pro-

vide the Committee with a summary of her Master’s thesis

and samples of her student’s work. The Petitioner was

under the impression that she had only a couple of days

during which to organize her submission, although the dean

4

testified that he told her that the material was not required

until December 1, an approximately ten-day period. Peti-

tioner submitted those student projects which had been

left in the studio during the vacation period, believing that

they did not represent the best of her student’s work and

advising the dean of the same. She also submitted a

handwritten summary of her thesis. She did not, however,

request a postponement of the Committee meeting as she

was not aware that she could do so (since she was never

advised of the same and since there were no written pro-

cedures relative to evaluation).

The Tenure Committee met on December 1, 1973 to econ-

sider the Petitioner’s continued employment during the

1974-75 school year. The dean, six faculty members, and

two students attended the meeting (out of a total of 15

members). The minutes of this meeting indicate that the

only discussion of the Petitioner revolved around race

oriented considerations, including her approach to a “black

aesthetic”. The minutes also reflect that a white, female

faculty member was permitted to delay committee con-

sideration of her case.

There were no oral or written description of the Peti-

tioner’s duties while on the faculty nor any criteria or

procedures for assessing her performance or, for that

matter, any individual’s performance, leaving the legit-

imacy and rationality of a specific employment evaluation

to the context of that particular time and place rather than

to a uniform and defined scheme.

The Committee voted to terminate the Petitioner. The

dean transmitted the results of the Committee vote to the

Petitioner indicating that he believed that the Committee

thought the Petitioner unduly “nationalistic.” The Peti-

tioner refused to submit a letter of resignation, appealing

to the University Senate’s Sub-committee on Academie

H)

Freedom. The Sub-committee found that there had been

procedural irregularities in the disposition of the case.

It recommended the reinstatement of the Petitioner or,

alternatively, the payment of compensation, but these sug-

gestions were rejected by the Respondents. The Petitioner

received a letter of termination in May, 1974. The School

of Architecture later hired a white male with a master’s

degree in architecture to teach rendering and a white

female with a Master of Fine Arts degree to teach basic

design. It also hired a white female with a Master’s and

Doctoral degree in history to teach architectural history.

Petitioner filed a claim of discrimination based on race,

eolor or sex with the New York State Division of Human

Rights. After hearings before an agency examiner, the

Division of Human Rights dismissed the Petitioner’s com-

plaint. While the state complaint was pending, Petitioner

filed a similar complaint with the Equal Employment Op-

portunity Commission (“EEOC”), receiving a right-to-sue

letter on September 10, 1975. She subsequently commenced

the action herein within the 90-day period required by the

statute, invoking the jurisdiction of the federal Court un-

der both Title VII of the Civil Rights Act of 1964 (42

U.S.C. Section 2000(e) et seq.) and the Civil Rights Act of

1866 (42 U.S.C. Section 1981). The case was submitted to

the district court upon the transcript of hearings before

the New York State Division of Human Rights, stipulated

facts and exhibits, and the parties’ briefs.

Of those who voted against the Petitioner and testified

before the New York State Division of Human Rights,

most asserted that their votes were based on an evaluation

of student work and on the Petitioner’s non architectural

degreed background. They testified further that their at-

titudes had not been influenced by the Petitioner’s race or

sex,

6

Two of the Respondents own witnesses testified that

their respective votes were not based on the evaluation of

the students work (since in their professional opinions such

a criteria was invalid). See: Testimony of Professors

Kermit Lee and Wolfgang Schueller at pages 1165, et seq.

in Record below. That position was supported by others,

as well, who testified in the Petitioner’s case in main. See:

Testimony of Professor Siegfried Synder at pages 500-524

in Record below; Testimony of former Professor David

Richards at pages 537-552.

Ultimately, the United States District Court for the

Northern District of New York, the Honorable Edmund

Port presiding, dismissed the case finding that the Peti-

tioner had failed to make out a prima facie case but holding

that, even assuming that she had done so, the Respondents

had satisfactorily rebutted the same by and through their

articulation that they did not discriminate because of race

or sex.

The Petitioner appealed the decision of the District

Court to the United States Court of Appeals for the Second

Circuit. The majority of Circuit panel held that, contrary

to the decision of District Judge Port, the Petitioner did

make out a prima facie case of individual racial discrimina-

tion under Title VII of the Civil Rights Act of 1964: but

that the District Judge was not clearly erroneous in find-

ing that the Respondents had rebutted said prima facie

ease. Accordingly, the Circuit below affirmed the trial

court’s ultimate conclusion (or parts thereof).

Believing that the Court below was clearly erroneous in

its application of Title VIT principles, particularly those

enunciated by this Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973), the Petitioner seeks review of the judgment herein.

7

The ultimate consequence of the decision below is to

insulate largely white University communities from the

scrutiny of a federal court, in the context of civil rights

and constitutional litigation, by permitting a University

employer, through mere articulation of race neutral eri-

teria without more, to rebut evidentially documented and

established racial criteria and inferences which flow there-

from, at the time of the adverse employment decision.

Such a decision forbodes that those largely white institu-

tions will remain largely white and will be insulated from

scrutiny of the institutional practices which have ad-

versely affected minorities, fostered racially stratified

environments such as that in which the Petitioner was

evaluated herein, and resulted in wrongful and racially

discriminatory actions such as that challenged herein.

REASONS FOR GRANTING THE WRIT

1. This Court has never enunciated the degree to which an

employer must sustain his burden in rebuttal once an

adversely affected employee has established a Title VII

prima facie case of individually oriented racial discrim-

ination which includes, among other things, evidential

documentation that the sole factors considered at the time

of the adverse decision were race oriented factors.

While this Court has enunciated an elaborate three

prong burden of proof requirement in an individually ori-

ented Title VII racial discrimination matter, See: McDon-

nell Douglas Corp. v. Green, supra, it has never enun-

ciated the digree to which an employer must sustain

his burden of proof once an adversely affected employee

has established a prima facie case, which includes, among

other things, evidential documentation that the sole factors

considered at the time of the adverse decision were race

oriented factors and “personality” factors, thereby shifting

the burden to the employer to rebut the inference of racial

EI SOE ENS eee OOO ee OEY ee ee

discrimination attendant to the prima facie case. See:

Turner v. Texas Instruments, Inc., 558 F.2d 1251, 1256

(5th Cir, 1977).

The Court below did not specifically make a determina-

tion on this issue notwithstanding that the Petitioner re-

quested the Court to do so (See: Table of Contents in

Appellant’s Brief to the Court below, setting forth the

argument in this regard, as Appendix F herein, infra) and

notwithstanding the Petitioner’s belief that, unless such

was done, the Court would find the articulated reasons

given by the Respondents herein (at the post termination

hearing before the State Division of Human Rights) to be

sufficient to rebut the Petitioner’s cause of action precisely

because this Court has enunciated the principle that all

that is necessary to rebut a Title VII prima facie case of

individually oriented racial discrimination is mere articu-

lation of race neutral reasons and nothing more. However,

it is submitted that something more than articulation is

required.

It is submitted that, where a Black professional’s Title

VII prima facie case of individually oriented racial dis-

crimination establishes that the only evidentially docu-

mented factors discussed at the time of the adverse em-

ployment decision were race oriented, a University em-

ployer must establish by clear and convincing evidence that

the otherwise articulated race neutral reasons, asserted for

the first time at the evidential hearing two years after the

adverse decision, are, in fact, the reasons for said termina-

tion (or put another way, the employer must establish in a

clear and convincing manner, that, even absent the dis-

crimination, the employee would not have been retained).

Notwithstanding the lack of case law discussion focusing

on the degree to which a Title VII employer must carry

his/her burden once the employee has established a prima

1)

facie case of discrimination, including therein documented

evidence that the only considerations recorded at the time

of the decision were racially oriented (thus satisfying the

first prong of the McDonnell Douglas three-prong alloca-

tion of proof requirement and shifting the burden, accord-

ingly), there is discussion in other civil rights oriented

matters which, by analogy, support the proposition that,

under the circumstances described, the employer must re-

but the prima facie case in a clear and convincing manner

or otherwise fail to expunge the clearly established racial

considerations.

Of particular value and significance in discussing this

proposition are those civil rights actions brought pursuant

to the Civil Rights Act of 1871 (42 U.S.C. Section 1983)

and the Fourteenth Amendment to the United States Con-

stitution where a Black teacher, alleging that her termina-

tion from employment with a school district was racially

motivated, established a prima facie case, under the cri-

teria established by the Courts, with the burden shifting

to the defendant school district to rebut such. See: Baker

v. Columbus Municipal Separate School District, 329 F.

Supp. 706, 720 (N.D. Miss. 1971) which adopts the “clear

and convincing” standard. In accord: Armstead v. Stark-

ville Municipal Separate School District, 325 F.Supp. 560,

570 (N.D. Miss. 1971) ; Williams v. Kimbrough, 295 F.Supp.

578, 585 (W.D. Louisiana 1969). See also: Chambers v.

Hendersonville City Board of Education, 364 F.2d 189, 192

(4th Cir. 1966); North Carolina Teachers Association v.

Asheboro City Board of Education, 393 F.2d 736, 743, f.n.

11 (4th Cir. 1968); and Moore v. Board of Education of

Chidester School District No. 59, 448 F.2d 709 (8th Cir.

1971).

By analogy, this Court has recognized that, once the

Plaintiff has established a prima facie case of segregation

10

in the context of school desegregation matters (whether

classical or otherwise), a school board must rebut the in-

ference of iliegality through clear and convincing evidence.

See: Keyes v. School District No. 1, 413 U.S. 189, 209, 93

S.Ct. 2686, 37 L.Eid.2d 548, 564 (1973), citing certain of

the foregoing authority in support of said proposition. See

also: Reynolds v. Abbeville City School District No. 60

004 F.2d 638, 642 (4th Cir. 1977), where the Court, difag

Keyes, supra and Washington vy. Davis, 426 U.S. 229, 241

96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (dictum), writes: f

“It is also well established that, in a school system with

a history of segregation, terminating a disproportion-

ate number of black faculty raises an inference of

discrimination, The school authorities must rebut the

prima facie case by showing through clear and con-

vineing evidence that permissible, racial neutral selec-

tion criteria governed their conduct. Keyes v. School

District No. 1, 413 U.S. 189, 209, 93 S.Ct. 2686. 37

L.Ed.2d 548 (1973); Chambers v. Hendersonville City

Board of Education, 364 F.2d 189, 192 (4th Cir. 1966) ;

see Washington v. Davis, 426 U.S. 229, 241, 96 S Ct.

2040, 48 L.Ed.2d 597 (1976) (dictum.’’)* . ra

See als . if «4 « e — e 6 .. of

“They establish unequivocally that a pri i

discrimination shifts the burden to rE pine Prema oe

the employee (or applicant) would not have gotten the post

In uny event, even absent discrimination. See EEOC v Detr it

Edison Co., supra, 515 F.2d at 259-260: Johnson v. Goodvear

Tire & Rubber Co., 491 F.2d 1364, 1374-1375, 1380 (5th Cir

1974), . Ct McDonnell Douglas Corp. v. Green, 411 17.8. 799

802, 93 S.Ct. 1817, 36 L.Ed.2d 568 (1973). And those courts

pr roid ue ‘huis ta ce pagans ae to the burden

unless the employer proves its et Rags, ways ; ane

yee Baxter v. Savannah Sugar Refining Soup, eee

37, 444-445 (5th Cir.), cert. denied, 419 U.S, 1033. 95 S.Ct

11

While there are distinguishing facts between the cases

just cited and the instant case, such are not significant

enough to cancel out the common applicability of the legal

principle to all civil rights actions wherein there has been

alleged deprivation of rights because of racial considera-

tions and those racial considerations have been clearly and

convincingly documented in the prima facie case. See:

Hardy v. Porter, 443 F.Supp. 1164, 1171 (N.D. Miss 1977),

citing Keyes notwithstanding the factual dissimilarities.

Petitioner submits that, in light of the difficulty in estab-

lishing a deprivation of rights based on race, once she

established a “prima facie” case of discrimination pursuant

to the requirements enunciated in McDonnell Douglas Corp.

v. Green, supra, including therein uncontradicted document-

ed evidence that the only reported considerations at the

time of the adverse employment decision were racial, not

only does she have the right to demand and to be shown

that race was not a criterion in refusing to retain her but

she also has the right to demand and to be shown such in

a “clear and convincing manner.” It is precisely because

of the difficulty in proving racial discrimination that this

Court has seen fit to shift the burden from the employee

to the employer once the employee has established a “prima

facie” case of discrimination; and it is precisely because

of these factors that this Court must assure that the

515, 42 L.Ed.2d 308 (1974) ; Pettway v. American Cast Iron

Pipe Co., supra, 494 F.2d at 259-260; Johnson v. Goodyear

Tire & Rubber Co., supra, 491 F.2d at 1374-1380; Cooper v.

Allen, 467 F.2d 836, 840 (5th Cir 1972).

The reason for this is straightforward. ‘Unquestionably, it is

now impossible for an individual discriminatee to recreate the

past with exactitude.’ Johnson v. Goodyear Tire & Rubber

Co., supra, 491 F.2d at 1379. Such a showing is impossible

precisely because of the employer’s unlawful action; it is only

equitable that any resulting uncertainty be resolved against

the party whose action gave rise to the problem.” (Footnotes

omitted.)

12

employer does satisfy his burden in a “clear and convinc-

ing’ manner once it is convincingly established in the

prima facie case that the only reported considerations at

the time of the adverse employment decision were race

oriented in nature.

It goes without saying that few, if any, persons would

admit that race was a factor in their consideration of the

employment of a person let alone the sole consideration

in that regard. Petitioner submits, however, that some-

thing more than silence in this regard (as in Harris v.

Jones, 296 F.Supp. 1082 (D.C. Mass. 1969)—a housing

discrimination matter) or a mere pronouncement that race

was not a consideration or the sole consideration (as in

Smith v. Adler Realty Co., 436 F.2d 344 (7th Cir. 1970)—

another housing discrimination matter) must be established

in order for the Respondents to meet their burden satis-

factorily. Addressing himself to this point, Judge Sobeloff

stated in North Carolina Teachers Association v. Asheboro

City Board of Education, supra at page 750:

“ .. [I]t must be insisted that bland assertions by the

School board that its decisions were free of racial

considerations do not suffice to discharge its burden

. .” (Emphasis added).

Petitioner submits that the Court below was in error

when it found that the Respondents had satisfied their

burden, once it shifted, in a clear and convincing manner,

as they were required to do. The evidence in the Petition-

er’s case in chief, when contrasted against the bland asser-

tions of non discrimination by the Respondents in their

ease along with their equally bland assertion that she was

terminated because her teaching performance was less than

adequate, without explaining reasonably, let alone convinc-

ingly, the nature of the ostensibly race-neutral criteria and

13

procedures utilized to evaluate the Petitioner’s perform-

ance, without explaining the reason that a white person

was accorded different evaluatory treatment, at least in

the procedures applied, and without adequately explain-

ing the reason that no reference is made of her unsatisfac-

tory work or alleged incompetence in the summary of the

minutes of the evaluation meeting, can only lead reason-

able people to conclude that, as a matter of law, the Re-

spondents failed to satisfy their burden, notwithstanding

their articulation of race neutral criteria as the reasons

for their decision and action (two years after the decision

and action).

2. This Court has never determined whether the mere artic-

ulation of race neutral criteria, without more, meets the

employers burden once it has shifted from the employee

to the employer and where the Black professional’s Title

VII prima facie case of individually oriented racial dis-

crimination establishes that the only evidentially doc-

umented factors discussed at the time of the adverse em-

ployment decision were race oriented.

Where a Black professional’s Title VII prima facie case

of individually oriented racial discrimination establishes

that the only evidentially documented factors discussed at

the time of the adverse employment decision were race

oriented, the mere articulation of race neutral criteria,

without more, does not meet the University employer's

burden, once it has shifted from the employee to the em-

ployer when, as here, there is no evidential validation of

the criteria and, in fact, there is evidence by the Respon-

dents own witnesses, in addition to that of Petitioner’s own

witnesses, that the subjective evaluation of a student’s

work, one of the two race neutral criteria articulated, was

not a valid criteria upon which to measure the competence

of a teacher; when there is no evidentially established

philosophical or other criteria upon which the Petitioner

14

was required to pursue her course study and when, in

fact, those who had seen her teach and otherwise discussed

her efforts with her found her teaching to be satisfactory.*

Certainly, where, at best, there is contradictory evidence

within the employer’s own case as to the validity of the

evaluating crieria (as there is herein), the inference of

racial discrimination attendant to the Petitioner’s Title

VII prima facie case of individually oriented discrimina-

tion cannot be rebutted by said race neutral criteria, par-

ticularly when, as here, the evidence does not establish a

comparative use of that criteria in other instances and

when the evidence establishes that a white individual, be-

ing evaluated contemporaneously with the Petitioner, was

afforded different procedural amenities and the University

Senate Subcommittee on Academie Freedom made a find-

ing of the same, with recommendations for relief which

were ignored by the Respondents (without reason there-

for).

In light of the established principle that “it is only

equitable that any resulting uncertainty be resolved against

the party whose action gave rise to the problem”, See:

Day v. Mathews, supra at page 1086, in light of the princi-

ple “that comparative data lies at the heart of a rebuttal

of prima facie case of employment discrimination”, See:

*The only other race neutral criteria enunciated by the Re-

spondents, as an unreported/post decisional justification for their

decision and action, was that the School of Architecture was

changing its philosophy and proposing to hire only architectural

degreed individuals. However, the uncontradicted evidence shows

that, subsequent to the Petitioner’s termination, a white, non

architectural degreed individual was, in fact, hired, possessed the

very same academic credentials which the Petitioner possessed, and

taught the very same course which the Petitioner initially taught.

Moreover, the uncontradicted evidence shows that white males

with non architectural degrees are presently on the faculty in the

School of Architecture and, in some cases, have tenure.

a

1 shale het 40 0h

15

East v. Romine, Inc., 518 F.2d 332, 339 (Sth Cir. 1975);

See also: Flowers v. Crouch-Walker Corp., 552 F.2d 1277,

1284 (7th Cir. 1977), and in light of “the principle placing

upon a party the burden of proving facts peculiarly within

its own knowledge”, See: Day v. Mathews, supra at page

1086, note five (5) citing United States v. New York, N.H.

&€ H.R. Co., 355 U.S. 253, 256, n.5, 78 S.Ct. 212, 2 L.Ed.2d

247 (1957), this case represents a question of tremendous

public importance since it otherwise leaves a University

employer free to merely articulate post decision race neu-

tral criteria, without more, notwithstanding that the doc-

umented evidential record (including evidence that the only

reported considerations at the time of the adverse decision

were racial), requires that a prima facie case be found

under the principles enunciated by this Court in McDon-

nell Douglas Corp. v. Green, supra.

3. This Court has never determined whether invalid race

oriented considerations are cancelled out by the subsequent

assertion of ostensibly race neutral criteria, without more.

The majority of Circuit panel below held that, notwith-

standing the District Court’s conclusion otherwise, the

Petitioner did establish a prima facie case of individually

based racial discrimination, under Title VII of the Civil

Rights Act, in accordance with the requirements enunciated

by this Court in McDonnell Douglas Corp. v. Green, supra.

In substance she established that she is a Black person;

that she was hired because, among other reasons, she ‘s

Black and pursuant to an Affirmative Action effort by the

Dean of the School of Architecture; that she was clearly

competent, by background, to teach the courses which she

was assigned to teach; that she was involved in the Sckool

of Architecture; that she did perform competently, as a

teacher, generally; that the only recorded discussion about

her retention on the faculty, at the time she was being

16

reviewed and until the testimony given at the State Divi-

sion of Human Rights, focused around race oriented

matters and her personality (with attendant racial over-

tones); that a white, non tenured woman was accorded

greater opportunity in the evaluation process by the fac-

ulty; that the University Senate Committee found that the

evaluation process accorded to the Petitioner was improper

and communicated the same to the Respondents with the

recommendation that the Petitioner be retained in her

position; and that the Respondents refused to even re-

spond to the Senate finding and recommendation let alone

implement it (See: Exhibit #’s 17, 19, 20 in the Record

below, set forth herein, infra, as Appendix E).

It goes without saying that, if at the evidentiary hear-

ing before the New York State Division of Human Rights

(upon which the case herein was submitted to the trial

court below) there had been no race neutral reasons articu-

lated by the Respondents as a basis for their decision to

terminate the Petitioner, the Court below, having found

that the Petitioner made out a prima facie case, would

have been required to find, as a matter of law, that the

reason for her termination was racially based and oriented

(See: Exhibit # 14 in the Record below, set forth herein,

infra, as Appendix D, which is the minutes of the student-

faculty committee meeting whereat the Petitioner’s em-

ployment status was discussed and wherein the only refer-

ences to the Petitioner focus on race and _ personality

oriented factors). See: Flowers v. Crouch-Walker Corp.,

supra, footnote for (4) at page 1283. None of the subse-

quent race neutral reasons given by the Respondents at

the evidentiary hearing two years after the termination

are referred to in the minutes of said meeting.

Merely because the Respondents articulated race neutral

reasons for their decision (two years after the decision)

Anta Vette tld 6

17

does not cause the race oriented reasons to disappear.

They are unrebutted; and they are part and parcel of the

evidentially documented reasons for the Petitioner’s ter-

mination. Accordingly, her termination is racially infected

and the racial infection cannot be expunged even by incor-

poration therein of otherwise valid reasons (the Petitioner

not conceding that, in fact, the ostensibly race neutral rea-

sons articulated by the Respondents, subsequent to the

termination, are valid but rather asserting that they were

pierced by and through additional testimony).

As in the area of housing discrimination under 42 U.S.C.

Section 1982 (the Civil Rights Act of 1866), so too in the

area of employment discrimination, under both 42 U.S.C.

Section 1981 and Title VII of the Civil Rights Act of 1964

as amended (42 U.S.C. Section 2000(e) et seq.), race can

be neither the sole consideration nor even a partial con-

sideration in refusing employment or otherwise terminat-

ing one from a job. See: Brown vy. Rollins, Inc., 397 F.

Supp. 571 (W.D.N.C. 1974) (employment). Smith v. Sol

D. Adler Realty Co., supra at pages 349-350 (housing) ;

Moore v. Townsend, 525 F.2d 482, 485 (7th Cir. 1975)

(housing); Zuch v. Husey, 394 F.Supp. 1028, 1047 (E.D.

Mich. 1975) (housing); Williamson v. Hampton Manage-

ment Company, 339 F.Supp. 1146, 1147 (N.D. Ill 1972)

(housing) ; Drain v. Friedman, 422 F.Supp. 366, 370 (N.D.

Ohio 1976) (housing); Bishop v. Pecsok, 431 F. Supp. 34,

37 (N.D. Ohio 1976) housing.

Once the burden of going forth with the evidence has

shifted from the plaintiff to the defendant, the defendant

must come forward with evidence to establish that race

was neither the sole reason nor even a partial considera-

tion in refusing to rent an apartment to a Black person.

In applying the same principles herein, Petitioner submits

that the Court below could have come to no other conclu-

18

sion but that the Petitioner was discriminated against by

the Respondents because of her race in violation of her

federally asserted rights since the evidence reflects that,

if race and race-oriented criteria were not the sole reasons

for terminating the Petitioner from her position, they

were at the very least a significant part of the reason

for terminating her (See: Minutes of December 1, 1973

meeting/Exhibit 14); and, thus, her termination was ille-

gal. See: Brown v. Rollins, supra, a case concerning it-

self with discriminatory employment practices and, like

the instant case, prosecuted under both the Civil Rights

Act of 1866 (42 U.S.C. §1981) and the Civil Rights Act

of 1964 as amended (42 U.S.C. Section 2000(e) ef seq.).

See also: Cedeck v. Hamiltonian Federal Savings and

Loan Association, 414 F.Supp. 495, 498 (i4.D. Mo. 1976),

Affirmed 551 F.2d 1136 (8th Cir. 1977); Sek v. Bethlehem

Steel Corp., 421 F.Supp. 983, 993 (E.D. Pa. 1976), Affirmed

565 F.2d 153 (38rd Cir. 1977); Gillin v. Federal Paper

Board Co., Inc., 479 F.2d 97, 102 (2nd Cir. 1973) cited in

Saracini v. Missouri Pacific Rail Co., 431 F. Supp. 389,

395 (E.D. Mo. 1977), in the context of a sex diserimina-

tion claim. See also: Sprogis v. United Airlines, 444 F.2d

1194, 1198 (7th Cir. 1971), Cert. denied 404 U.S. 991, 92

S.Ct. 536, 30 L.Ed.2d 543 (1971); Equal Employment

Opportunity Commission vy, Kallir, Phillips, Ross, Inc.,

401 F.Supp. 66, 72, footnote 17 (S.D.N.Y. 1975).

Consistency would require that, if as a matter of law

racial factors are impermissible considerations in a hous-

ing discrimination case brought under 42 U.S.C. Section

1982 (notwithstanding the existence of otherwise permis-

sible considerations), so too, in an employment discrimina-

tion case brought under 42 U.S.C. Section 1981 and 42

U.S.C. Section 2000(e) et seq., racial considerations are

impermissible even if they were not the sole considera-

Ope eer

4

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19

tions; and, therefore, an adverse decision against an

employee or potential employee would be terminally in-

fected and legally impermissible where, as in the instant

case, race was a factor (in a negative vein) even if not

the sole factor behind the challenged action.

In light of the fact that, at the time the decision herein

was made the only evidentially documented references are

to racial criteria (and personality characteristics with

racial overtones), it is submitted that the ultimate termi-

nation is necessarily racially infected notwithstanding the

subsequent articulation of race neutral criteria.

CONCLUSION

For the foregoing reasons, the Petition should be

granted.

Respectfully submitted,

NATHANIEL R. Jones, Esa.

James I. Meyerson, Esa.

1790 Broadway—10th Floor

New York, New York 10019

(212) 245-2100

Attorneys for Petitioner

BE sashcatcdebemateieaseapetoenccoinceooieen

September 29, 1978

a

20

Certificate of Service

James I. Meyerson, Esq., one of the attorneys for the

Petitioner herein, certifies that on the 29th day of Sep-

tember, 1978, I did serve three copies of the foregoing

Petition upon the attorneys for the Respondents by mail-

ing the same, postage prepaid, first class, as follows:

William Fitzpatrick, Esq.

Bond Schoeneck & King

One Lincoln Center

Syracuse, New York 13202

Respectfully submitted,

James I. Meyerson, Esq.

1790 Broadway—10th Floor

New York, New York 10019

(212) 245-2100

Attorney for Petitioner

Appendices

Appendix A

Opinion of the United States District Court

for the Northern District of New York

UNITED STATES DISTRICT COURT

NORTHERN District or New YorxK

77-CV-588

GERALDINE PowELL,

Plaintiff,

Vv.

Syracuse Unrversity, an educational corporate entity,

Doctor Mervin Eacers, Chancellor of Syracuse Uni-

versity, ScHoot oF ARCHITECTURE, a sub-unit of Syra-

cuse University, Jutio San Joss, Acting Dean of the

School of Architecture, Syracuse University,

Defendants.

APPEARANCES:

NATHANIEL R. Jones, Esq.

Attorney for Plaintiff

N.A.A.C.P.—1790 Broadway

New York, New York 10009

Bonn, ScHorNneck & Kine

Attorneys for Defendants

One Lincoln Center

Syracuse, N. Y. 13202

James I. Mevexson, Esq.

Of Counsel

Wiiuram F, Firzpatrack, Esq.

Of Counsel

Epmvunp Port, Judge

la

2a

Appendix A

MEMORANDUM-DECISION AND ORDER

I. NATURE OF THE PROCEEDING

Geraldine Powell, a black woman, is suing Syracuse

University (SU), charging unlawful job discrimination on

the basis of race and sex.’ Plaintiff was hired for one year

to teach in the SU School of Architecture part-time. Her

contract was renewed for a second year, but at the end

of that year she was not rehired. She alleges that the

termination of her employment was racially and sexually

motivated, in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.

Defendants are Syracuse University, the SU School of

Architecture, Melvin Eggers, Chancellor of the Univer-

sity, and Julio San Jose, Acting Dean of the School of

Architecture.

II. Bacxcrounp

The faculty of the SU School of Architecture voted not

to renew plaintiff’s contract in December of 1973. Her

contract expired and her teaching obligations ended after

the 1974 spring semester. On May 31, 1974, she filed a

claim of discrimination based on race, color and sex with

the New York State Division of Human Rights. After six

days of hearings, the Division of Human Rights rendered

a decision in defendants’ favor on November 25, 1975. In

the meantime, as is required by Title VII, 42 U.S.C.

§ 2000e-5(f) (1), plaintiff filed a complaint with the Equal

? The complaint at all times mentions discrimination on the basis

of both race and sex. At the hearing which became tine bulk of the

record before this court, plaintiff seemed to argue racial diserimina-

tion only. Similarly, plaintiff's brief deals only with racial dis-

crimination. This decision, however, will treat plaintiff’s claim as

alleging both racial and sexual discrimination.

3a

Appendix A

Employment Opportunity Commission (EEOC). In Sep-

tember of 1975, plaintiff received her right to sue letter

from the EEOC. Thus, all possible administrative rem-

edies have been exhausted.

Plaintiffs complaint was filed on December 15, 1975.

Initially, she based her job discrimination claim on Title

VII only. Defendants answered and raised the 90 day

statute of limitations of Title VII as a defense. Plaintiff

then moved to amend her complaint to state a claim under

42 U.S.C. §1981 also. The motion was granted by the

Honorable Henry F. Werker, United States District Judge

for the Southern District of ‘New York, who was sitting

in this district by designation.

Following discovery, the parties entered into a stipula-

tion submitting the case upon the transcript of plaintiff’s

administrative hearings before the New York State Divi-

sion of Human Rights, stipulated facts and exhibits, and

the parties’ briefs.

III. Facts

Plaintiff has a varied education and employment back-

ground. She was an art major in high school but studied

nursing at New York University, graduating with a Reg-

istered Nurse’s degree in 1959. Several years later she

returned to college and received a Bachelor’s of Fine Arts

from SU in 1971. Her schooling at SU continued and she

ultimately received a Master’s of Fine Arts in Environ-

mental Design early in 1973. (Transcript of March 6,

1975, hearing (3/6 Tr.) at 23-24; Exh. 1). Her Master’s

thesis concerned the relationship of low income housing

to biack studies in Syracuse. (3/6 Tr. 24).

While still working toward her Master’s, plaintiff heard

that John Fisher, Dean of the SU School of Architecture,

4a

Appendix A

was trying to recruit black women for the faculty of that

school. (3/6 Tr. 31). Dean Fisher explained that he was

attempting to implement an affirmative action program in

the School of Architecture. (Transcript of January 7, 1975

hearing (1/7 Tr.) at 8). As a result of this program,

minority student enrollment in the School of Architecture

increased dramatically during Fisher’s tenure as Dean.?

In April of 1972 Fisher interviewed plaintiff for a posi-

tion on the Architecture faculty. (3/6 Tr. 32-36). Plaintiff

testified that Fisher was favorably impressed with her

artistic portfolio. (Id.). Fisher thought that plaintiff would

have her Master’s degree by the fall of 1972.3 (1/7 Tr. 55).

Despite plaintiff’s lack of any architecture background and

despite the fact that she had never before taught in a

university (Jd.), Fisher hired plaintiff to teach basic de-

sign for the academic year 1972-73. She was given the

position of part-time lecturer at an annual salary of

$3,000. (Exh. 5).

In the fall of 1972 plaintiff began teaching basic de-

sign. She taught one class of 17 students which met twice

a week for three hours. (3/6 Tr. 40; Exh. 43). Basie de-

sign is described in the School of Architecture’s catalog

as an introduction to design—an~attempt to teach both

the perception and depiction of perspective, proportion,

color and geometry. (See Exh. 24). In the curriculum, basic

* When Fisher came to SU in 1971, there were only two bl

; k

students in the School of Architecture. He testified that the pon

rollment of blacks grew to 34, and the total minority enrollment

to 63, by the 1974-75 school year. Transcript of March 20, 1975

erg 3 —o i re stipulated facts indicate that the

ack student enrollment for the year 1974-75 was 2

Stipulated Facts 7. ce ee ee

3 Plaintiff received her Master's hf eS

1/7 Tr. 54. ers early in 1973. Exhibit 1; see

5a

Appendix A

design serves as the first of many design courses which

the student takes throughout his or her study of architec-

ture. (1/7 Tr. 22, 44-45; Exh. 24).

During her first semester, plaintiff received no criticism

from other faculty members about her teaching. She testi-

fied that she had no major problems with her new duties.

(3/6 Tr. 42-43).

In the fall of 1972, before he ever saw any of her stu-

dents’ work, Dean Fisher was pleased with plaintiff and

her attitudes towards teaching. (Transcript of June 19,

1975 hearing (6/19 Tr. 651). He met with her in December

to discuss her future in the School of Architecture. (3/6

Tr. 45). Fisher was interested in promoting plaintiff to

a full-time position. (Transcript of March 20, 1975 hear-

ing (3/20 Tr. 88). The Dean foresaw plaintiff teaching

half-time and working in a community development pro-

gram for the other half. (Id. at 91). This promotion was

contingent both on budgetary increases and on a Yale

professor coming to SU to run the community develop-

ment program. (Id. 90. 93). Plaintiff, however, construed

the Dean’s suggestions as an offer (3/6 Tr. 45), which

she requested to be put in writing. (Id. at 47).

The plaintiff did not receive the promotion mentioned

by the Dean. First, the Yale professor chose not to come

to SU (3/20 Tr. 95-96). Secondly, and more importantly,

the School of Architecture’s Committee on Appointments,

Tenure and Promotion (Tenure Committee) met during

the Spring of 1973 and voted not to expand plaintiff’s

teaching responsibilities. (Jd. at 99; 1/7 Tr. 68). At that

time the Tenure Committee met to review the work of all

the basic design instructors. (3/6 Tr. 8). Plaintiff made

a short presentation to the Tenure Committee. (1/7 Tr.

36). The committee, after evaluating plaintiff's teaching

6a

Appendix A

performance (see Jd. at 105-11), voted to continue plain-

tiff on the same level but with the condition that she not

teach basic design. (Jd. at 68). Fisher informed plaintiff

that her position would not be expanded to full-time (3/6

Tr. 50) and that she would no longer teach basic design.

(1/7 Tr. 69). Since fewer freshmen would be entering

the school the next fall, fewer sections of basic design

would be taught. (See Exh. 43). The Dean told plaintiff

she would not be teaching basic design because of this

decrease in enrollment (1/7 Tr. 69); he did not tell her

that the Tenure Committee had voted not to continue her

for basic design. (6/19 Tr. 633).

Despite the Tenure Committee’s action, Fisher unilater-

ally promoted plaintiff to part-time visiting assistant pro-

fessor. This promotion was accompanied by a raise in

salary to $5,500.00 (3/20 Tr. 108-109), the same salary

paid to all other part-time assistant professors. (Id. at

116). Thereafter, confusion developed about plaintiff’s

teaching responsibilities for the following year. After

a discussion of the possibility of her teaching the history

of non-western architecture, plaintiff began preparation

for this course. The Dean then decided she would not

teach this course but could serve instead as a guest lec-

turer. (3/6 Tr. 54-55; 3/20 Tr. 112). Finally, the terms

for plaintiff’s position the following year were ironed out.

She would teach architectural rendering, deliver five guest

lectures in non-western architecture,‘ and serve as minor-

ity student counsellor. (1/7 Tr. 70; 3/20 Tr. 112-114).

Plaintiff's rendering course was only a two-credit course,

as compared to three credits for basic design, so Fisher

* Although scheduled to give five lectures in non-Western archi-

—— plaintiff only delivered one and one-half lectures. 3/20

r. ;

|

|

;

Ta

Appendix A

felt that the guest lectures made up for the decrease in

hours taught. (Id.)

Rendering is a method of architectural drawing which

attempts to represent a building in perspective as it will

appear when constructed (3/20 Tr. 141). Rendering is

not technical drawing for the building but, rather, a pic-

torial presentation of the building to a client. One fac-

ulty member testified that a rendering can attempt to

portray the building photographically or, on the other

hand, can try to convey something of the ideas or concepts

embodied in the building’s architecture. (Transcript of

May 15, 1975 hearing (5/15 Tr.) 345-46). Professor Ker-

mit Lee testified that rendering is a technically oriented

architecture discipline (transcript of July 7, 1975 deposi-

tions (7/7 Tr.) 18), and Dean Fisher felt that it should

only be taught by architects. (1/7 Tr. 43). Plaintiff and

other faculty members disagreed though; they felt an

artist could teach rendering. (See 3/6 Tr. 56-57; 3/20 Tr.

41).

In November of 1973, Dean Fisher told plaintiff that the

Tenure Committee was again planning to review her work.

(1/7 Tr. 72; 3/20 Tr. 123). Fisher wanted plaintiff to

advance to full-time employment. (1/7 Tr. 73). On the

Wednesday prior to Thanksgiving, he told her to submit

a summary of her thesis and examples of the best work

of her students to him. (7/7 Tr. 97). Although the Dean

testified that he told plaintiff she had until December 1

to submit this material, (Jd.), plaintiff was under the

impression that she had only a couple days in which to

complete her submission. (7/7 Tr. 100; 3/6 Tr. 76). She

hand-wrote a summary of her thesis (/d.), and presented

a random sampling of her students’ work (7/7 Tr. 67).

Plaintiff testified that she was unable to compile adequate

8a

Appendix A

examples of her students’ work because they were on

Thanksgiving recess. (Jd. at 66). She further testified

that her students usually kept their good work but left

their poorer work with her. (Id.). Despite these problems,

plaintiff did not request a postponement of the meeting.

(Id. at 98).

The Tenure Committee met to consider plaintiff’s future

on December 1, 1973. Nine members were present, Dean

Fisher, six faculty members and two students. (Exh. 14).

Fisher wanted to consider expanding plaintiff’s position

to full-time but the committee chose only to vote on con-

tinuation or termination of present positions. (1/7 Tr.

131-34). Professor VanKeuren, Chairman of the Tenure

Committee, read the summary of plaintiff’s thesis aloud.

(1/7 Tr. 134; 3/20 Tr. 140). Discussion ensued about the

subject of plaintiff's statement and about plaintiff gener-

ally. Examples of plaintiff’s students’ work were exam-

ined by all the committee members and a vote was taken

by secret ballot. The vote was eight to one against con-

tinuing plaintiff in the School of Architecture. (Exh. 14).

Dean Fisher cast the lone vote in plaintiff’s favor. (3/20

Tr. 125).

All the eight committee members who voted against the

plaintiff testified as to the reasons for their votes. Pro-

fessor VanKeuren voted no, mainly on the quality of

plaintiff’s students’ work, which he described as “extremely

poor” (3/20 Tr. 145) and on cross-examination as “ex-

traordinarily poor.” (Id. at 176). Professor Skoler like-

wise voted no on the basis of the student work which he

felt was unsatisfactory (Id. at 234), and not “of sufficient

quality or standards as to support reappointment.” (Id.

at 213). Professor San Jose (now Associate Dean of the

9a

Appendix A

School of Architecture) voted no for the same reason, the

inadequacy of her students’ work product, along with his

impressions from the general discussion of plaintiff. (5/15

Tr. 343). Darrel Rippeteau, who was then a student in

his final year at the School of Architecture, voted no on

the basis of the “low level” of the students’ work and his

belief that the school should have a more qualified person

teaching. (Jd. at 271). Professor Gabriel voted no on the

basis of plaintiff’s background and her students’ work.

(6/19 Tr. at 461). Gabriel felt that, although faculty

members need not be architects in order to teach, they

should have some expertise in the area of their instruction.

(Id. at 495-96). John Livengood, who was a fourth year

architecture student at the time, voted no because of plain-

tiff’s lack of qualifications to teach rendering. (Jd. at 553).

Professor Lee, the only black member of the Tenure Com-

mittee, voted against continuing plaintiff on the basis of

her students’ work, which he felt was not sufficiently de-

veloped to permit them to continue their architecture edu-

eation, (7/7 Tr. 11, 22), and on the basis of his observa-

tions of plaintiff’s studio. (Id. at 26). Finally, Professor

Schueller voted no mainly on the inadequacy of plaintiff’s

background. He felt she was unable to strengthen the

school’s curriculum (Id. at 95), and also lacked the quali-

fications necessary to translate her design ideas into ar-

chitectural design. (Id. at 91).

Each of the members of the Tenure Committee testified

that his vote was not influenced by racial or sexual dis-

crimination. This testimony is credited along with the

reasons articulated by the committee members for their

negative vote. Cross-examination was unable to reveal any

suggestion of discriminatory motive on the part of any

committee member. This finding accords with the Dean’s

10a

Appendix A

statement that the committee did not consider plaintiff in

terms of her color. (1/7 Tr. 159-160). The criteria used

to evaluate plaintiff were relevant to the decision before

the committee and were not applied differently to plaintiff

than to other faculty members.

Plaintiff infers discrimination from the result of the

vote. (3/6 Tr. 102-04). She contends that the committee

discussion questioned the existence of “black architecture”

(See Exh. 14) and thus considered her in a racial setting.

This discussion, however, was in response to plaintiff’s

submitted statement which postulated the existence of a

“hlack aesthetic’ and called for recognition of a black

perspective for understanding the needs of the black com-

munity and black students. Any committee discussion

which then made reference to race followed naturally from

the reading of the statement. After plaintiff injected the

question of black values into the committee’s consideration

of her, she should not expect them to ignore the ideas she

presented.

Plaintiff also infers discrimination from different treat-

ment which was afforded other faculty members. Consid-

eration of Ursula Lesnikowski, another part-time faculty

member, was deferred to another meeting, (See Exh. 14);

however, her vote was deferred because of insufficient

material on which to judge her. (5/15 Tr. 302). In con-

trast, plaintiff had submitted sufficient material; unfor-

tunately the committee judged it to be inadequate. Fur-

thermore, plaintiff was not the only faculty member ter-

minated at this meeting. David Allor, a white male (See

Exh. C), was also terminated. (Exh. 14).

Plaintiff also challenged the committee’s decision by

introducing testimony of other faculty members who felt

‘ahs linda Ss it eh: ai ER Pel

lla

Appendix A

that plaintiff should not have been terminated. Such tes-

timony only raises a difference of opinion with the com-

mittee’s conclusion, however, and does not provide any

evidence or even suggestion of discrimination. Professor

Snyder judged plaintiff’s performance teaching basic de-

sign as average (3/20 Tr. 17) or adequate (Id. at 34).

Professor Richards felt that she was a capable artist and

that the work of her students was adequate. (Jd. at 41).

Also, Dean Fisher testified that plaintiff’s work was satis-

factory, minimally acceptable. (3/19 Tr. 620). These

opinions might have been relevant to the Tenure Com-

mittee’s evaluation, but they are not relevant to the issues

in this suit. Certainely, this praise of plaintiff, if it can

be called that, is not so unqualified as to raise an inference

of improper motive when the Tenure Committee voted

against her.®

Finally, it should be pointed out that, on the few occa-

sions when plaintiff received special treatment, whether or

not related to her race and sex, she was always treated

favorably. Dean Fisher obtained remitted tuition for her

although, as a part-time faculty member, she was not en-

titled to this benefit. (6/19 Tr. 605; Exh. 6), The Dean

also testified that, in his opinion, had plaintiff not been a

black woman, she would not have been rehired for a second

year. (1/7 Tr. 173-74; 6/19 Tr. 621-22).

’ Fisher had been very encouraging to plaintiff during her first

semester at the School of Architecture, but when he eventually saw

the work of her basic design students, he admitted that he was

disappointed. 6/19 Tr. 651.

6 Favorable references of plaintiff written by Dean Fisher, see

Exhs. 8, 12, do not support plaintiff’s case. They were irrelevant

to the Tenure Committee’s consideration of plaintiff, 1/7 Tr. 79,

and were only natural in view of the Dean’s efforts to help plain-

tiff’s career.

12a

Appendix A

After the December 1 meeting of the Tenure Comittee,

Fisher called the plaintiff and relayed the bad news.’

(3/6 Tr. 77). He told her that he thought the committee

thought her too “nationalistic.” (1/7 Tr. 148). Fisher

testified, however, that he was upset over the vote and

was guessing why the committee had rejected her. (Jd. at

149). Although this offhand remark appears to have pro-

vided the seed for much of the case argued by plaintiff’s

attorneys, it is unsubstantiated by the other evidence and

is discounted in view of the Dean’s advocacy in plaintiff’s

favor before the Tenure Committee.

Fisher asked plaintiff for a letter of resignation, which

she refused to tender. (3/6 Tr. 77). She appealed the

Tenure Committee’s decision to the Subcommittee on Ac-

ademiec Freedom which found no suggestion of discrimina-

tion but did feel that the review of plaintiff's position

may have been improper. (See Exh. 16, 17). It suggested

offering plaintiff another position. Dean Fisher did not

agree with the conclusions of the Subcommittee on Ac-

ademice Freedom and refused to adopt its recommendation.

(Exh. 22). In May of 1974, plaintiff received a letter of

termination. (Exh, 21).

Plaintiff filed timely complaints with the New York

State Division of Human Rights and the EEOC. After

receiving her right to sue letter, she commenced this action.

The complaint demands declaratory judgment of the viola-

tion of plaintiff’s rights, injunctive relief against future

discrimination, reinstatement, back pay, $200,000.00 actual

and punitive damages, and costs and attorneys’ fees,

*Some time in December, at a meeting of the Student Faculty

Board, Fisher moved that the Tenture Committee’s recommenda-

tion to terminate plaintiff not be adopted. His motion was de-

feated. 6/19 Tr. 618.

oinkzd

nln Lea a Ae al

BOR aie add | hi Se lS ie RII tate SS tt

13a

Appendia A

IV. ContTENTIONS

Plaintiff contends that she was fired because of her race

and sex. She argues that she was qualified for the faculty

positions she held, that SU later hired white persons with

similar qualifications for the same positions and that the

reasons expressed by the Tenure Committee in voting to

terminate her are not legally sufficient to uphold her ter-

mination,

Defendants answer that plaintiff has presented no ey-

idence of discriminatory motive behind her firing. They

argue that the reasons expressed by the members of the

Tenure Committee in voting against retaining plaintiff are

valid and related to their legitimate concerns for the qual-

ity of the faculty. Moreover, defendants argue that the

courts must be especially cautious about second-guessing

university decisions which relate to faculty hiring and

firing.

V. Trrzte VII Jvurispictrion

One of the defenses in the defendants’ answer is that the

action is barred by reason of plaintiff’s failure to com-

mence it within 90 days of the receipt of her right to sue

letter. However, the defendants do not argue the point

in their brief. Nevertheless, because a question of jurisdic-

tion is involved, see DeMatteis v. Eastman Kodak Co., 511

F.2d 306 (2d Cir.), aff’d as modified, 520 F.2d 409 (2d Cir.

1975), it is incumbent upon me to consider this question,

sua sponte.’

§ Plaintiff has amended her complaint to allege a claim under

42 U.S.C. § 1981. The complaint was filed and amended well within

the three year statute of limitations for § 1981 claims. (oss v.

Revlon, Inc., 548 F.2d 405 (2d Cir. 1976). Nevertheless, because

Title VII and § 1981 are independent remedies, see Johnson v.

Railway Express Agency, 421 U.S. 454 (1975), and because the

l4a

Appendix A

The question of jurisdiction arises against this factual

background. The EEOC sent a form right to sue letter

to the plaintiff by registered mail. Plaintiff received the

letter on September 10, 1975, thereby requiring her to

commence her action within 90 days of that date. 42 U.S.C.

§ 2000e-5(f)(1). On December 4, 1975, well within the 90

day period, the Clerk of the Court at Utica, New York

received from the plaintiff’s attorney the original and

copy of the complaint in this action, together with a pro-

posed summons and $15.00 filing fee. Instead of filing the

complaint by affixing his filing stamp, he returned the

summons, complaint and filing fee to plaintiff’s attorney

with a form letter requesting plaintiff to complete Form

44a, Civil Cover Sheet, and a USMS Form 285 for each

defendant, Marshal’s Service of Process forms, pursuant

to Rule 9(h) of the General Rules for the United States

District Court, Northern District of New York (local

rules). He also advised counsel that the local rules re-

quire designation of counsel within the district for service

of papers.

In order to meet the requirements imposed by the Clerk,

counsel filed the papers jointly pro se with the plaintiff

and designated her address within the district for the

service of papers. Healso completed and returned the

other summons submitted to him, together with the forms

and the filing fee. As a result of the time consumed by

these maneuvers, the complaint appears to have been

filed formally on December 15, 1975, outside the 90 day

period.

necessary proof for a § 1981 claim differs from that for a Title

VII claim, see Washington v. Davis, 426 U.S. 229 (1976). con-

sideration of this jurisdictional question is appropriate.

15a

Appendix A

Without faulting the Clerk for strictly adhering to Rule

9 of the local rules, I regard the omission to supply the

additional information requested by the Clerk as an ir-

regularity and not a matter of substance affecting the time

of filing.

Under the circumstances disclosed herein, I find that

the complaint was filed when it was received by the Clerk

with the filing fee on December 4. “The lodging of a peti-

tion with the Clerk to be ‘filed’ by him is a ‘filing’.”” United

States v. Missco Homestead Ass’n., Inc., 185 F.2d 283, 285

(Sth Cir. 1950); see also Freeman vy. Giacomo Costa Fu

Andrea, 282 F. Supp. 525 (E.D. Pa. 1968). The require-

ment that a complaint be filed within 90 days has been

liberally construed in order to effect the general purposes

of Title VII. See Houston v. General Motors Corp., 477

F.2d 1003 (8th Cir. 1973) (permitting a complaint to be

filed outside the statute when the right to sue letter had

been filed within). See also Moshos v. District Council of

New York, 386 F. Supp. 21 (S.D.N.Y. 1974). The princi-

ple was succinctly stated in Weiss v. Syracuse University,

522 F.2d 397 (2d Cir. 1975):

[A]lthough compliance with these requirements is a

jurisdictional prerequisite to maintenance of a civil

action, ... the rigid insistence on meticulous observ-

ance of technicalities unrelated to any substantive

purpose is inappropriate.

Id. at 412. (citations omitted). The defense of lack of

jurisdiction is therefore without support.

VI. No Tirtz VII Viouation

The starting point for analysis for any job discrimina-

tion claim under Title VII is McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).

16a

Appendix A

The complainant in a Title VII trial must carry the

initial burden under the statute of establishing a prima

facie case of racial discrimination. This may be done

by showing (i) that he belongs to a racial minority;

(ii) that he applied and was qualified for a job for

which the employer was seeking applicants; (ili) that,

despite his qualifications, he was rejected; and (iv)

that, after his rejection, the position remained open

and the employer continued to seek applicants from

persons of complainant’s qualifications, .. .

The burden then must shift to the employer to

articulate some legitimate, nondiscriminatory reason

for the employee’s rejection.

Id. at 802. If defendants succeed in establishing a legiti-

mate ground for their action, the burden returns to the

plaintiff, this time “to show that [defendants’] stated rea-

son for [plaintiff’s] rejection was in fact pretext.” Id. at

804.

When job discrimination is alleged by an unsatisfied

university faculty member, Faro v, New York University,

502 F.2d 1229 (2d Cir. 1974) teaches that:

Of all fields, which the federal courts should hesitate

to invade and take over, education and faculty appoint-

ments at a University level are probably the least

suited for federal court supervision. Dr. Faro would

remove any subjective judgments by her faculty col-

leagues in the decision-making process by having the

courts examine “the university’s recruitment, compen-

sation, promotion and termination and by analyzing

the way these procedures are applied to the claimant

personally” (Applt’s Br. p. 26).... Such a procedure,

17a

Appendix A

in effect, would require a faculty committee charged

with recommending or withholding advancements or

tenure appointments to subject itself to a court in-

quiry at the behest of unsuccessful and disgruntled

candidates as to why the unsuccessful was not as well

qualified as the successful.

Id, at 1231-32.

Application of Faro indicates the plaintiff has failed to

establish a prima facie case under Title VII. Two elements

of her case are unquestionably established. Plaintiff is a

member of a racial minority and she has been rejected,°

in this case, terminated from her position. Yet plaintiff

must also show that she was qualified for the faculty posi-

tion which she held and that, after her termination, her

position was filled by another teacher of equivalent qualifi-

cations. McDonnell Douglas, supra, 411 U.S. at 802.

Dean Fisher testified that, generally, a degree in archi-

tecture is a prerequisite to teaching in the School of Archi-

tecture. (1/7 Tr, 40-41). Exceptions are made, however,

for persons teaching history of architecture, computer ap-

plications to architecture, and community development.

(Id.) The record also reveals that some of the basic de-

sign teachers had no architecture degree. (Jd. at 42; Exh.

B). Despite these facts I would ordinarily hesitate to

® The plaintiff in McDonnell Douglas had been laid off in a gen-

eral reduction of defendant’s work foree. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 794 (1973). Following a series of

civil rights demonstrations, plaintiff sought to be rehired, when

defendant advertised of job openings. Defendant refused to re-

hire him and he sued. Jd. at 796. The language of the McDonnell

Douglas test is, therefore, couched in terms of application for

employment and rejection. The same test applies, though, to

situations of illegal firing, and the language of the test is adapted

herein to that situation. See Id. at 802 n. 13; 42 U.S.C. § 2000e-2

(a) (1).

18a

Appendix A

evaluate plaintiff’s qualifications to teach on the architec-

ture faculty. The question of qualifications itself is per-

haps best left to the university under Faro. See Labat

v. Board of Higher Education of the City of New York,

401 F. Supp. 753, 756 (S.D.N.Y. 1975). Nevertheless,

plaintiff was hired by Dean Fisher and was rehired once

after appearing in front of the Tenure Committee in

the spring of 1973. Under these circumstances, I will

assume arguendo, plaintiff has established, for purposes

of her prima facie case, that she was qualified for the job."

The same conclusion cannot be reached, however, when

plaintiff attempts to prove that she was replaced by teach-

ers of the same qualifications. After plaintiff was termi-

nated, SU hired Professor Gray to teach architectural

rendering. His two degrees, including a Master’s, were

both in architecture, contrasted with plaintiff's degrees in

fine arts. He also had teaching experience. (3/6 Tr. 20).

Gray’s background in architecture precludes any finding

of equivalent qualifications. Plaintiff also points to two

white women who were hired subsequent to her termina-

tion, and claims that these women replaced her on the

architecture faculty. MaryAnn Smith was hired in the fall

of 1974 to teach History of Architecture. (Stipulated Facts

Exh. B). Plaintiff had never taught History of Achitec-

ture, however." The other woman, Martha Dwyer, was

hired in the fall of 1975 to teach Basie Design. (Id.). Since

Dwyer was hired to teach Basic Design over two years

° This conclusion may seem anomalous in view of her subsequent

firing, which did not violate either Title VII or § 1981. Plaintiff.

however, could appear to be qualified on the basis of her back-

ground yet be deficient when tested by actual performance.

‘Furthermore, Smith had a Doctorate in Architectural Historv

precluding a finding of equivalent qualifications with plaintiff.

(Stipulated Facts Exh. B).

"Toc

19a

Appendix A

after the plaintiff ceased teaching that course, no finding

that Dwyer was replacing plaintiff on the faculty is justi-

fied.

Plaintiff is unable to show that after she was fired, she

was replaced by someone of equivalent qualifications. She

therefore has failed to prove her prima facie case.

However, assuming arguendo, the establishment of a

prima facie case, the burden would shift to defendants “to

articulate some legitimate, nondiscriminatory reason for

[plaintiff's termination].” McDonnell Douglas, supra, 411

U.S. at 802. Defendants have met this burden.

A contract for the academic year 1974-75 was not offered

to her for one reason only. The Tenure Committee honestly

reached the conclusion that plaintiff’s performance fell

short of teaching requirements, after affording her a fair

opportunity to demonstrate her teaching ability. This de-

termination was devoid of any racist or sexist base. The

plaintiff has not demonstrated the assigned reason to be a

pretext for prohibited discriminatory conduct. All of the

eight members of the Tenure Committee who voted against

plaintiff testified that they voted to terminate plaintiff

essentially because of the poor work product of her render-

ing students, and her inadequate architectural background.

These are matters of obvious concern to the architecture

faculty and, therefore, are unquestionably legitimate rea-

sons for the vote.

Plaintiff raises a number of attacks on the validity of

the Tenure Committee’s vote. The main one concerns the

alleged lack of valid objective criteria by which the Tenure

Committee could evaluate plaintiff. The stipulated facts

disclosed that prior to 1975, no written guidelines existed

for the regulation of tenure and promotion decisions within

the School of Architecture. (Stipulated Facts 9] 37-44).

20a

Appendix A

Likewise, prior to the fall of 1974 no document existed

which set forth “the philosophy and basie approach of

School of Architecture” concerning the teaching of render-

ing or basie design. (Jd. §§ 52-58). Absent such objective

written guidelines, plaintiff contends that the committee

was left with only its subjective judgment and was, there-

fore, unable to reach a valid decision. Plaintiff next con-

tends that the committee failed to consider that her render-

ing students were poor students and that, consequently,

their poor work was no reflection on her adequacy as a

teacher. She further argues that no consideration was

given to any improvement of the work of the students

which had occurred under her guidance. Also, the qualifi-

cations of some of the committee members to judge her

work are challenged.

The simple answer to all these arguments is that they

are beyond this court’s purview. The issue in this case is

whether or not the defendants acted discriminatorily. The

institution of a law suit dees not transform the court into

the Tenure Committee. These challenges should be ad-

dressed to the academicians.'? Respect for academic free-

dom and concern for the integrity and quality of higher

education have created great reluetance in the courts about

interfering with these university decisions. See Faro v.

New York University, 502 F.2d 1229 (2d Cir. 1974); State

Division of Human Rights v. Columbia University, 39 N.Y.

* Plaintiff's argument that the Tenure Committee was per se

unable objectively to evaluate plaintiff without written standards

is specious on its face. Historically, it is absurd to suggest that, for

over 100 years, the School of Architecture was unequipped to

choose its faculty properly. Conversely, any suggestion that mere

written criteria enhance either the objectivity or propriety of a

tenure decision gives undue respect to the formality of putting

words on paper.

21a

Appendix A

2d 612, 385 N.Y.S.2d 19 (1976), cert. denied, 45 U.S.L.W.

3571 (February 22, 1977). A court should be extremely

reluctant to evaluate any faculty’s ability to promote and

tenure its own members, especially when it lacks any ex-

pertise concerning either the specialty of that faculty, here

architecture, or the field of educational administration

generally.

Plaintiff next argues that her firing was racially dis-

criminatory because she was hired, in part, on account of

her race, yet was not thereafter properly trained for the

job; never told of any criticism of her work; nor given

proper help. Relying on the district court opinion in Long

v. Ford Motor Co., 352 F. Supp. 135 (B.D. Mich. 1972),

rev'd, 496 F.2d 500 (6th Cir. 1974),'* plaintiff contends the

failure to train her adequately, under these circumstances,

is a violation of Title VII. Long, however, held failure to

train was actionable only if plaintiff could show treatment

dissimilar from that given white persons or similar on its

face yet dissimilar in effect. In the case at bar no such

showing has been made. Plaintiff has failed to demonstrate

that any new faculty members were treated differently or

given any more guidance or supervision. Implicit in plain-

tiffs argument is the suggestion that the School of Archi-

13 The district court held that merely hiring a black person for

a given job does not provide equal employment opportunity. As-

suming inadequacies in their education and background, black

people need adequate job training. “If these people are not given

adequate job training and are, as a result, terminated, then un-

equal employment opportunity still results.” Long v. Ford Motor

Co., 352 F. Supp. 135, 140 (E.D. Mich. 1972). It is highly doubtful

that any such principle would be applicable to the case at bar.

The position of a university professor is very different from those

positions for which Long was hired, production foreman and wage

analyst.

22a

Appendix A

tecture is obligated to train its faculty members. This

suggestion is untenable."*

Plaintiff lastly argues that, to the extent her termination

was based on her inadequate architectural background, de-

fendants effectively are foreclosing black women from

teaching on architecture faculties, Statistics indicate that

there are presently very few black women who are practic-

ing architects within the United States. (See Exh. 42).

Therefore, if an architecture background is a prerequisite

to teaching, most black women are kept off the faculties

of architecture schools. This argument misstates the facts

of the case. Plaintiff was given the opportunity to teach

on the SU architecture faculty, despite the absence of any

architecture background. Other faculty members without

an architecture background have managed to teach suc-

cesstully and obtain tenure. When plaintiff was ultimately

terminated, the major criticism voiced by the members of

the Tenure Committee was the unsatisfactory work of her

students. Having been provided with the opportunity to

teach, plaintiff did not meet the standards of the architec-

ture faculty. The law does not guarantee plaintiff a posi-

tion on the faculty. It only entitles her to nondiscrimina-

tory treatment. See Logan v, St. Luke’s Hospital Center,

428 F. Supp. 127, 130 (S.D.N.Y. 1977). Here, where the

School of Architecture provided plaintiff with the oppor-

tunity to teach, it certainly cannot be charged with fore-

closing black women from serving on the faculty.

* There is no disagreement with the notion that all faculty mem-

bers must be treated equally. If some are trained for their job by

the School of Architecture, all must be trained without regard for

race or sex. See Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.

1974). Rather, objection is raised with plaintiff's argument that

the school is obligated to train its faculty in skills they already

should possess. ;

23a

Appendix A

In conclusion, I find that defendants’ reasons for termi-

nating plaintiff were legitimate, nondiscriminatory, and not

a pretext for discrimination based on either race or sex.

McDonneil Douglas Corp. v. Green, 411 U.S. 792 (1973);

see Peters v. Middlebury College, 409 F. Supp. 857 (D. Vt.

1976). No violation of Title VII has been established.

VII. No § 1981 Vionatrion

42 U.S.C. 41981 “affords a federal remedy against dis-

crimination in private employment on the basis of race.”

Johnson v. Railway Express Agency, 421 U.S. 454, 460

(1975). In order to prove a violation of 4 1981, plaintiff

must meet a heavier burden than is required by Title VII.

She must prove a racially discriminatory motive on the

part of the defendants. Washington v. Davis, 426 U.S. 229

(1976). In this case, plaintiff has entirely failed to demon-

strate racially discriminatory motive and, therefore, has

failed to establish a violation of § 1981.

This Memorandum-Decision and Order shall constitute

the court’s findings of fact and conclusions of law. Fed.R.

Civ.P. 52(a).

The court having jurisdiction of the subject matter and

the parties hereto, for the reasons herein, it is

OrpvERED, that the plaintiff's complaint herein be and it

hereby is dismissed; and it is further

OrpEnED, that a judgment dismissing plaintiff's complaint

be entered by the Clerk of the Court.

Dated: August 5, 1977

Auburn, New York

/s/ Epmunp Port

Senior U.S. District Judge

24a

Appendix B

Opinion of the United States Court of Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

For tHE Seconp Circuit

No. 528—September Term, 1977.

(Argued January 18, 1978 Decided July 13, 1978.)

Docket No. 77-7490

GERALDINE PowWELL,

Plaintiff-A ppellant,

v.

Syracuse University, et al.,

Defendants-Appellees.

Before:

Moors, SmitH and MansFIELp,

Circuit Judges.

Appeal from dismissal of Title VII civil rights action

by minority teacher in the United States District Court

for the Northern District of New York, Edmund Port,

Judge.

Affirmed.

James I. Meyerson (N.A.A.C.P., New York,

N.Y.), for Appellant.

. eee

25a

Appendix B

Davin N. Sexton (Bond, Schoeneck & King,

Syracuse, N.Y., William F. Fitzpatrick, of

counsel), for Appellees.

Smiru, Circuit Judge:

Geraldine Powell, formerly a visiting assistant professor

at the Syracuse University School of Architecture, appeals

from a judgment of dismissal entered in the United States

District Court for the Northern District of New York,

Edmund Port, Judge. Judge Port found that, contrary to

the appellant’s contentions, the university had legitimate,

nondiscriminatory reasons for terminating Ms. Powell’s

employment, and was accordingly not in violation of either

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. §2000e et seq. or 42 U.S.C. §1981. We find no error

in the result reached by the court, and affirm the judgment.

i.

In December, 1973, Ms. Powell was informed by the dean

of the Architecture School that her contract would not be

renewed for the 1974-75 academic year. She subsequently

filed a claim of discrimination based on race, color, and

sex with the New York State Division of Human Rights.

After hearings before an agency examiner, the Division

of Human Rights dismissed the appellant’s complaint for

failure to prove that she was terminated from her em-

ployment, or denied equal terms, conditions, or privileges

of employment, because of her race, color, or sex.’ While

1 The Division of Human Rights also found that appellant failed to

prove that the university retaliated against her upon learning that she

had filed a claim of discrimination.

26a

Appendi« B

the state complaint was pending, appellant filed a similar

complaint with the Equal Employment Opportunity Com-

mission (“EEOC”), receiving a right-to-sue letter on Sep-

tember 10, 1975.2 She subsequently commenced this action

within the 90-day period required by statute.» The case

was submitted to the district court upon the transcript of

hearings before the New York State Division of Human

Rights, stipulated facts and exhibits, and the parties’

briefs.‘

II.

The findings of basic fact made by the district court are

well supported by the record. Accordingly, we accept them

for purposes of this appeal, and summarize them below.

Ms. Powell has an extensive academic background. She

studied art in high school, but later changed fields, receiv-

ing a Registered Nurse’s degree from New York Univer-

sity in 1959. In 1971, she received a Bachelor of Fine Arts

degree from Syracuse University, and later was awarded

the Master of Fine Arts degree in Environmental Design.

Her master’s thesis concerned the relationship of low in-

come housing to black studies in Syracuse.

In April, 1972, appellant was interviewed for a teaching

position by the Dean of the Syracuse University School of

Architecture. Despite the fact that appellant had not yet

to

This letter was dated August 28, 1975.

3 The Office of the Clerk of the United States District Court received

appellant’s complaint on December 4, 1975. Because of bookkeeping

technicalities, the complaint was not formally filed until December 15,

1975. The complaint was treated by the district court as timely filed.

See Appendix at 12-14.

4 The complaint was subsequently amended to include a charge brought

pursuant to 42 U.S.C. §1981.

ew ee Se

Pom en

27a

Appendiaz B

earned her Master’s degree, did not have any formal train-

ing in architecture, and had no teaching experience, she

was hired for the academic year 1972-73 at the rank of

lecturer (part-time), receiving an annual salary of $3,000.

During the fall semester, 1972, appellant taught one sec-

tion of the basic design course. Prior to 1975, a detailed

student manual for this course did not exist, and each

section teacher was free to fashion his own course curric-

ulum after reading the course description in the School of

Architecture’s annual bulletin, and consulting with the

dean and other faculty members teaching the course. Ms.

Powell did not receive any criticism from other faculty

members during her first semester on the faculty.

In December, 1972, appellant again met with the dean,

who expressed an interest in promoting her to a full-time

position. The following spring, however, the school’s Com-

mittee on Appointments, Tenure, and Promotion voted not

to promote the appellant, but to permit her to continue

teaching part time on the condition that she not teach basic

design. Appellant was told that she would not be teaching

the design course because of a decrease in enrollment; she

was not told about the committee’s vote.

The dean, on his own initiative, promoted Ms. Powell to

the rank of part-time visiting assistant professor and

raised her salary to $5,500 per year. The parties did not

enter into a written agreement concerning the 1973-74

school year at that time, and there was subsequently con-

siderable misunderstanding as to appellant’s teaching re-

sponsibilities. It was finally determined that she would

teach architectural rendering,’ serve as advisor to minority

5 No formal description of the rendering course was developed until

September, 1974. (App. at 129) The school’s faculty disagreed as to

whether rendering was best taught by an architect or an artist.

28a

Appendia B

students, and deliver five guest lectures on non-western

architecture.

In November, 1973, appellant was advised by the dean

that her employment status was to be reviewed by the

Tenure Committee. Shortly before the Thanksgiving vaca-

tion, she was asked to provide the committee with a sum-

mary of her Master’s thesis, and samples of her students’

work, The appellant was under the impression that she

had only a couple of days during which to organize her

submission, although the dean testified that he told her that

the material was not required until December 1, an approx-

imately ten-day period. Appellant submitted those student

projects which had been left in the studio during the vaca-

tion period, believing that they did not represent the best

of her students’ work; she also submitted a hand-written

summary of her thesis. She did not, however, request a

postponement of the committee meeting.

The Tenure Committee met on December 1, 1973 to con-

sider the appellant’s continued employment during the

1974-75 school year. The dean, six faculty members, and

two students attended the meeting, which focused, in rele-

vant part, on Ms. Powell’s written statement, and on an

evaluation of her s'udents’ projects. The minutes of this

meeting indicate that there was some discussion of the

appellant’s approach to a “black aesthetic,” and that a

white, female faculty member was permitted to delay com-

mittee consideration of her case. In a secret ballot taken

at the meeting, eight individuals voted in opposition to,

and one voted in favor of, continuing appellant on the

architecture faculty.

Those who voted against the appellant testified before

the New York State Division of Human Rights that their

A

— -_—

29a

Appendix B

votes were based on an evaluation of the student work,

and on the appellant’s background and relative inexperi-

ence. They testified further that their attitudes had not

been influenced by the appellant’s race or sex.

The dean transmitted the results of the committee vote

to the appellant, indicating that he believed that the com-

mittee thought the appellant unduly “nationalistic.” *® The

appellant refused to submit a letter of resignation, appeal-

ing the committee’s decision to the university’s Subcom-

mittee on Academic Freedom. The subcommittee did not

find any evidence of discrimination, but did believe that

there had been procedural irregularities in the disposition

of the case. It recommended the reinstatement of the ap-

pellant, or alternatively, the payment of compensation, but

these suggestions were rejected by the dean.

Ms. Powell received a letter of termination in May, 1974.

The architecture school later hired a white male with a

master’s degree in architecture to teach rendering, and «

white female with a Master of Fine Arts degree, to teach

basic design. It also hired a white female with a Master’s

and Doctoral degree in history to teach architectural his-

tory.’

III.

On this appeal, Ms. Powell asserts that her dismissal

was the product of racial and sexual bias, and hence un-

lawful. She contends that similarly qualified teachers who

6 This testimony was discounted by the trial court in view of the dean’s

favorable attitude toward the appellant.

7 At the time that the architecture school refused to renew Ms. Powell’s

contract, three male and one female facuity members resigned from the

faculty. Subsequently, two men resigned, and the contracts of one man

and one woman were not rezewed. None of these individuals taught

basic design or rendering.

30a

Appendia B

were white or male received preferred treatment, and that

the justification for her dismissal offered by the Tenure

Committee was merely pretextual.

By contrast, the appellees argue that Ms. Powell failed

to prove that her dismissal was motivated by unlawful

bias. They assert that the Tenure Committee made a valid

qualitative judgment which should, in the absence of a

clear showing of discrimination, be respected by reviewing

courts.

Both the appellees and the trial court place great em-

phasis on our opinion in Faro v. New York University,

502 F.2d 1229 (2d Cir. 1974), where we wrote:

Of all fields, which the federal courts should hes-

itate to invade and take over, education and faculty

appointments at a University level are probably the

least suited for federal court supervision. Dr. Faro

would remove any subjective judgments by her faculty

colleagues in the decision-making process by having

the courts examine “the university’s recruitment, com-

pensation, promotion and termination and by analyz-

ing the way these procedures are applied to the claim-

ant personally” (Applt’s Br. p. 26)... . Such a pro-

cedure, in effect, would require a faculty committee

charged with recommending or withholding advance-

ments or tenure appointments to subject itself to a

court inquiry at the behest of unsuccessful and dis-

gruntled candidates as to why the unsuccessful was

not as well qualified as the successful. [502 F.2d at

1231-32]

In recent years, many courts have cited the Faro opinion

for the broad proposition that courts should exercise min-

imal scrutiny of college and university employment prac-

«6 baie

Cand. eed te Ba RB

3la

Appendix B

tices.* Other courts, while not citing Faro, have concurred

in its sentiments.°

This anti-interventionist policy has rendered colleges

and universities virtually immune to charges of employ-

ment bias, at least when that bias is not expressed overtly.

We fear, however, that the common-sense position we took

in Faro, namely that courts must be ever-mindful of rela-

tive institutional competences, has been pressed beyond

all reasonable limits, and may be employed to undercut

the explicit legislative intent of the Civil Rights Act of

1964. In affirming here, we do not rely on any such policy

of self-abnegation where colleges are concerned.

As originally passed, Title VII of the Civil Rights Act

exempted all educational institutions with respect to faculty

employment practices. 42 U.S.C. §2000e-1 (1970), as

amended. This exemption had not been part of the orig-

inal Senate bill, but was proposed in a substitute bill sub-

mitted by Senators Dirksen and Mansfield, and adopted

first by the Senate and later by the House. There is vir-

8 See, e.g., Huang v. College of the Holy Cross, 436 F. Supp. 639, 653

(D. Mass. 1977); Johnson v. University of Pittsburgh, 435 F. Supp.

1328, 1353-54 (W.D. Pa. 1977); Cussler v. University of Maryland, 430

F. Supp. 602, 605-06 (D. Md. 1977); Peters v. Middlebury College, 409

F. Supp. 857, 868 (D. Vt. 1976); Labat v. Board of Education, 401

F. Supp. 753, 757 (S.D.N.Y. 1975); Moore v. Kibbee, 381 F. Supp. 834,

839 (E.D.N.Y. 1974).

9 See, ¢.g., Megill v. Board of Regents of the State of Florida, 541

F.2d 1073 (5th Cir. 1976); Stebbins v. Weaver, 537 F.2d 939, 943

(7th Cir. 1976), cert. denied, 429 U.S. 1041 (1977); Duke v. North

Texas State University, 469 F.2d 829, 838 (5th Cir. 1972), cert. denied,

412 U.S. 932 (1973); EEOC v. Tufts Institution of Learning, 421

F. Supp. 152, 158 (D. Mass. 1975); Keddie v. Pennsylvania State Uni-

versity, 412 F. Supp. 1264, 1270 (M.D. Pa. 1976); Green v. Board of

Regents of Texas Tech University, 335 F. Supp. 249, 251 (N.D. Texas

1971), aff'd 474 F.2d 594 (5th Cir. 1973); Lewis v. Chicago State

College, 299 F. Supp. 1357, 1360 (N.D. Ill. 1969).

32a

Appendia B

tually no legislative history, however, which indicates the

rationale for the exemption of educational institutions.

The Equal Employment Opportunity Act of 1972, 86

Stat. 103, see. 3 (1972), amended Title VII to bring edu-

cational institutions within the purview of the Act. In

the words of the House Report:

There is nothing in the legislative background of Title

VII, nor does any national policy suggest itself to

support the exemption of these educational institution

employees—primarily teachers—from Title VII cover-

age, Discrimination against minorities and women in

the field of education is as pervasive as discrimina-

tion in any other area of employment. [H.R. Rep.No.

238, 92d Cong., 2d Sess. (1971), reprinted im [1972]

U.S. Code Cong. & Ad. News 2137, 2155]

The pervasive nature of discriminatory university em-

ployment practices has been well documented in the litera-

ture,!? and was characterized in the Congressional debates

preceding the passage of the 1972 amendments as “truly

appalling,” “gross” and “blatant.” ™

It is clear beyond cavil, then, that the Congress has evi-

denced particular concern for the problem of employment

10 H. Astin, The Woman Doctorate in America (1969); L. Lewis, Scaling

the Ivory Tower: Merit and its Limits in Academic Careers (1975);

A. Rossi, Academic Women on the Move (1973); E. Wasserman, et al.,

Women in Academia: Evolving Policies Toward Equal Opportunities

(1975); Divine, Women in the Academy: Sex Discrimination in Uni-

versity Faculty Hiring and Promotion, 5 Journal of Law and Education

429 (1976); Hearings on Federal Higher Education Programs Institu-

tional Eligibility Before the Special Subcommittee on Education of the

House Committee on Education and Labor, 93d Cong., 2d Sess., pt. 2B

(1975).

11 See 118 Cong. Ree. 117 (1972) (remarks of Senator Bayh) and 118

Cong. Rec. 1992 (1972) (remarks of Senator Williams).

‘

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33a

Appendia B

bias in an academic setting. Indeed it might be said that

far from taking an anti-interventionist position with re-

spect to the academy, the Congress has instructed us to

be particularly sensitive to evidence of academic bias.

Accordingly, while we remain mindful of the undesir-

ability of judicial attempts to second-guess the professional

judgments of faculty peers, we agree with the First Cir-

cuit when it “caution[ed] against permitting judicial def-

erence to result in judicial abdication of a responsibility

entrusted to the courts by Congress. That responsibility

is simply to provide a forum for the litigation of com-

plaints of . . . discrimination in institutions of higher

learning as readily as for other Title V'I suits.” Sweeney

v. Board of Trustees of Keene State College, Nos. 77-1243-

44, slip op. at 13-14 (1st Cir., Jan. 4, 1978). See also

Egelston v. State University College at Geneseo, 535 F.2d

752 (2d Cir. 1976).

It is our task, then, to steer a careful course between

excessive intervention in the affairs of the university and

the unwarranted tolerance of unlawful behavior. Faro does

not, and was never intended to, indicate that academic free-

dom embraces the freedom to discriminate.

IV.

The district court correctly observed that the appro-

priate starting point for the evaluation of a personal claim

of job discrimination brought under Title VII is Me-

Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973). There

the Court indicated that:

The complainant in a Title VII trial must carry the

initial burden under the statute of establishing a

prima facie case of racial discrimination. This may be

34a

Appendix B

done by showing (i) that he belongs to a racial mipor-

ity; (ii) that he applied and was qualified for a job

for which the employer was seeking applicants; (iii)

that, despite his qualifications, he was rejected; and

(iv) that, after his rejection, the position remained

open and the employer continued to seek applicants

from persons of complainant’s qualifications. . . . The

burden then must shift to the employer to articulate

some legitimate, nondiscriminatory reason for the em-

ployee’s rejection. [411 U.S. at 802]

If the employer is able to sustain this burden, the burden

shifts again to the plaintiff, who must “show that [defen-

dant’s] stated reason for [plaintiff’s] rejection was in fact

pretext.” 411 U.S. at 804.

A.

The trial court proceeded to indicate that Ms. Powell

failed to make out a prima facie case of discrimination for

two reasons. First, the court felt that Powell failed to

prove that she was “qualified” to teach on the architecture

faculty, given the negative faculty evaluations of her work.

Second, the court indicated that Powell failed to demon-

strate that other individuals possessing similar qualifica-

tions were hired after Powell was fired. We believe that

the trial court applied an erroneous legal standard in

reaching these conclusions, and that Ms. Powell has made

out a prima facie showing of discriminatory treatment.

With respect to the first of the court’s findings, we be-

lieve that the court’s approach unnecessarily collapses the

steps suggested by McDonnell Douglas by shifting consid-

erations which are more appropriate to the employer’s

rebuttal phase to the earlier requirement that the employee

“k§

vr eRe Kk

35a

Appendix B

demonstrate competence to perform the specified work.

This is not merely of formal consequence, for it has the

practical effect of requiring the employee to prove not

merely that he possesses the basic skills necessary for the

job, but rather that he is the best-qualified candidate for

the job, under the criteria suggested by the employer. As

can be seen in the present case, this burden is extremely

difficult to meet if the employer’s claim that the employee

did not meet some unstated level of performance is suffi-

cient to negate the employee’s offer of proof. In this re-

spect, we agree with the Seventh Circuit’s view that under

McDonnell Douglas

[t]he plaintiff need not show perfect performance or

even average performance to satisfy this element. He

need only show that his performance was of sufficient

quality to merit continued employment, thereby rais-

ing an inference that some other factor was involved

in the decision to discharge him.

Satisfactory performance is an ordinary prerequisite

of continued employment, just as job qualification is

an ordinary prerequisite to hiring. [Citation omitted. ]

However, the plaintiff need not, and indeed cannot,

disprove as a cause of his discharge a source of dis-

satisfaction of which he is unaware. Accordingly, the

employer’s acceptance of his work without express

reservation is sufficient to show that the plaintiff was

performing satisfactorily for the purpose of shifting

the burden of proof.

[Flowers v. Crouch-Walker Corp., 552 F.2d 1277 at

1283 (7th Cir. 1977)].

36a

Appendix B

Ms. Powell was hired by the School of Architecture after

a careful review of her qualifications, training, and past

performance. In addition, she was reappointed after her

first year of teaching. While some members of the faculty

may have expressed dissatisfaction with some aspects of

her work, this dissatisfaction was never communicated to

Ms. Powell, who was, accordingly, in no position to dis-

prove these alleged inadequacies.

We agree with the Seventh Circuit that proof of com-

petence sufficient to make out a prima facie case of dis-

crimination was never intended to encompass proof of

superiority or flawless performance. If an employer is

dissatisfied with the performance of an employee, he can

properly raise the issue in rebuttal of the plaintiff’s show-

ing. In the context of this case, Ms. Powell has demon-

strated that she possesses the basic skills necessary for the

performance of her job, and has thereby made out a prima

facie showing of competence.

With respect to the second factor, the School of Archi-

tecture’s hiring of a white female with a M.F.A. degree

to teach basic design is sufficient to satisfy the McDonnell

Douglas requirement that the position remain open and

the employer seek applicants from persons of the complain-

ant’s qualifications. The trial court believed that a time

gap of over two years between the appellant’s discharge

and the other individual’s employment precludes the possi-

bility that the other individual “replaced” appellant. And

the trial court may well be correct in the more common

ease in which hiring is ongoing and employees largely

fungible.

In the context of university employment, however, a de-

partment or school may hire only a small number of indi-

viduals each year, and the fact that a position may go un-

37a

Appendix B

filled for a time does not indicate that the position has been

terminated. It only indicates that the school has not yet

located the candidate of its choice.

Thus Ms. Powell has, as a matter of law, been able to

demonstrate both her competence and the architecture

school’s ongoing hiring efforts. This, coupled with undis-

puted proof of minority status and the termination of

her employment contract, is sufficient, under McDonnell

Douglas, to make out a prima facie case of discriminatory

treatment.

B.

The more difficult issue before us is whether, on the pres-

ent state of the record, the School of Architecture can be

said to have successfully rebutted Ms. Powell’s showing by

articulating a “legitimate, nondiscriminatory reason for

the employee’s rejection.”

In this regard the trial court found that:

[A] contract for the academic year 1974-75 was not

offered to [the appellant] for one reason only. The

Tenure Committee honestly reached the conclusion

that plaintiff’s performance fell short of teaching re-

quirements, after affording her a fair opportunity to

demonstrate her teaching ability. This determination

was devoid of any racist or sexist base. The plaintiff

has not demonstrated the assigned reason to be a pre-

text for prohibited discriminatory conduct. All of the

eight members of the Tenure Committee who voted

against plaintiff testified that they voted to terminate

plaintiff essentially because of the poor work product

of her rendering students, and her inadequate archi-

tectural background. These are matters of obvious

38a

Appendiz B

concern to the architecture faculty and, therefore, are

unquestionably legitimate reasons for the vote.

[App. at 17-18.]

Rule 52(a) of the Federal Rules of Civil Procedure re-

quires that findings of fact made by a trial court shall not

be set aside unless clearly erroneous. Where, as here, a

ease is heard on the basis of a record developed before

another judge, a trial judge is necessarily unable to make

first-hand assessments of credibility, and the broad defer-

ence normally due a trier of fact under the federal rules

may be somewhat attenuated. See 5A Moore’s Federal

Practice 52.04 and the cases cited therein.

Nevertheless, after a careful review of the record, we

cannot say that the trial court’s finding in the instant case

is clearly erroneous, The court considered testimony by

all eight members of the Tenure Committee, and was un-

able to discern either overt or covert discrimination on

the part of those officials. And our own independent review

of the record confirms these findings, which are supported

by substantial evidence, and which do not leave us “with

the definite and firm conviction that a mistake has been

committed.” United States v. United States Gypsum Co.,

333 U.S. 364, 394-95 (1948).

It would, of course, have been preferable if the School

of Architecture had presented the court with a more fully

developed description of the appellant’s duties, and the

criteria used in assessing her performance. In that way

the legitimacy and rationality of the school’s hiring prac-

tices would have been more immediately evident. But the

law does not require, in the first instance, that employ-

ment be rational, wise, or well-considered—only that it be

nondiscriminatory. And the record here simply does not

39a

Appendix B

support the appellant’s contention that her termination

was the result, in whole or in part, of racial or sexual

animus.

Accordingly, we affirm the judgment of the district court.

Moore, Circuit Judge (Concurring):

In the dicta comprising Part ITI, the majority opinion

purports to strike a blow for justice by encouraging the

courts to intervene into the affairs of our colleges and

universities. Any reluctance of the federal courts to inter-

fere with the decision-making process of universities does

not come from an interest in promoting discrimination.

Rather, such reluctance reflects the inability of the courts

to perform “a discriminating analysis of the qualifications

of each candidate for hiring or advancement, taking into

consideration his or her educational experience, the spec-

ifications of the particular position open and, of great

importance, the personality of the candidate.” Faro v.

New York University, 502 F.2d 1229, 1232 (2d Cir. 1974).

The courts in cases cited by the majority, in my opinion,

have not abdicated their responsibility to uphold the Equal

Employment Opportunity Act of 1972. Instead, they have

indicated the difficulty faced by courts in attempting to

evaluate the ability of a faculty member.

“A professor’s value depends upon his creativity,

his rapport with students and colleagues, his teaching

ability, and numerous other intangible qualities which

cannot be measured by objective standards.” Lewts

v. Chicago State College, 299 F. Supp. 1357 (N.D. Ml.

1969).

40a

Appendiz B

This difficulty has done no more than create a justified

reluctance among the courts to override the “rational and

well-considered judgment of those possessing expertise in

the field”. Green v. Board of Regents of Texas Tech Uni-

versity, 335 F. Supp. 249, 250 (N.D. Tex. 1971), aff’d, 474

F.2d 594 (5th Cir. 1973). See Huang v. College of the

Holy Cross, 436 F. Supp. 639, 653 (D. Mass. 1977); Peters

v. Middlebury College, 409 F.Supp. 857, 868 (D. Vt. 1976).

If we took a “common sense position” in Faro (and there

is no good reason here presented to abandon this ap-

proach), we appear to have the support of many other

courts.

As to the merits of this case, I agree that Syracuse Uni-

versity successfully rebutted the contention that Powell’s

termination was the result of racial or sex animus. In

addition, I believe that Powell did not even establish a

prima facie case of discrimination. The Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

articulated a standard that the complainant must meet in

order to establish a prima facie case. The complainant

must show:

(i) that he belongs to a racial minority; (ii) that he

applied and was qualified for a job for which the

employer was seeking applicants; (iii) that, despite

his qualifications, he was rejected; and (iv) that, after

his rejection, the position remained open and the em-

ployer continued to seek applicants from persons of

complainant’s qualifications.’

13. Tie facts necessarily will vary in Title VII cases, and the spec-

ification shove of the prima facie proof required from respondent

is not necessarily applicable in every respect to differing factual

situations.” Id. at 802.

4la

Appendix B

In McDonnell Douglas the company did not “dispute

[claimant’s] qualifications and acknowledge[d] that his

past work performance in [McDonnells Douglas’] employ

was satisfactory.” Jd. The particular qualifications of a

job must of necessity vary with the occupation and the

type of employer. Qualifications for a job to work as a

mechanic for a manufacturer (as in McDonnell Douglas)

are more easily measured and quantified than qualifications

to hold a faeulty position at a university. Here Powell did

not prove that she was qualified for the job for which

Syracuse University was seeking applicants and that Syra-

cuse University continued to seek applicants with Powell’s

qualifications.

While generally an architecture degree is a prerequisite

for teaching in the School of Architecture at Syracuse

University, exceptions are made for certain courses such

as history of architecture and basic design. Powell, with

a degree in fine arts, had no teaching experience at the

time she was hired as a part-time lecturer in 1972. Even

assuming that she met the minimum educational require-

ments to be employed initially in a teaching positior. the

mere attainment of a degree does not qualify an individual

to teach in a university. Powell never demonstrated that

she was qualified to continue her post at Syracuse Uni-

versity. To the contrary the members of the Tenure and

Promotion Committee based their conclusion not to rehire

Powell on the grounds that her academic background was

inadequate and her students’ work was inadequate. Also,

there was some question whether her personality was ap-

propriate for teaching and counseling students. These are

factors which may properly be taken into account in de-

termining whether a faculty member possesses the “qual-

ifications” for continued employment.

42a

Appendix B

In addition, Powell was not replaced by someone of com-

parable qualifications. After Powell was terminated in

May 1974, Christopher Gray was hired in the fall of 1974

to teach the rendering course. He possessed different

qualifications, having degrees in architecture and prior

teaching experience. Subsequently, two white women with-

out architectural degrees were hired. One, with a Ph.D.

degree in art history, was hired to teach history of archi-

tecture, a course which Powell never taught. The other,

with a degree in fine arts. was hired in the fall of 1975

to teach basic design. This was two years after Powell

had ceased teaching that course, and she could not be con-

sidered to have “replaced” Powell.

Thus, I would conclude that Powell failed even to make

a prima facie case of discrimination. This does not, as the

majority opinion suggests, force the plaintiff to prove she

is the best qualified for the job. Rather, it only forces the

plaintiff to prove that she does meet at least the minimal

level of competence required of a university faculty mem-

ber, which she did not prove.

43a

Appendix C

Statutory Provision Involved

§ 2000e-2. Unlawful employment practices—Employer

practices

(a) It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any indi-

vidual, or otherwise to discriminate against any indi-

vidual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.

44a

Appendix D

Plaintiff’s Exhibit #14 in Record

Sunday December 1, 1973

Appointments, Promotion, and Tenure Committee Minutes

Present: Van Keuren, San Jose, Fisher, Gabriel, Skoler,

Livengood, Schueller, Rippeteau, Lee

1. Announcements made by John Fisher

a. Charles Croom’s appointment extension will not be

considered by Central Administration (Fisher to in-

form Croom)

b. Schedule lists two (2) faculty members teaching

courses not yet approved by Committee:

1. Searbrough to teach in Spring

2. 30-40 want 211 (structures) to be taught in

Spring (taught last year by C. Croom) could be

taught by Prof. Eng. Soda who wants to teach.

He is a structural engineer.

3. Virgus Streets to teach in Community Design

Center when Administration approves.

Q. Are there funds for Scarbrough? Might be special

funds, use of Dozier funds

Point: Lesnikowski

Reaward of contract

Curriculum Vitae read by Van Keuren

A/C system in office made subject of activity—Re-

search in Housing, Urban Planning

45a

Appendix D

Q. Any indication that she would teach another course?

(Father died) wants to teach full-time.

Comments can be forthcoming after Tuesday Jury

(L. Skoler)

Student’s feedback good (last year)

Reiterated Jury experience from 1972; Fact that in-

dustrialization was dropped as well as the notion of

social architecture.

Shouldn’t we take into consideration more facts (be-

ing here, already teaching, etc?) rather than making

a gap in curriculum.

Remark to contrary that

Length of time in project (full semester) is problem

Rippeteau would disqualify self

Question that sufficient information does not exist in case

of Lesnikowski so that vote would be delayed until more

information made available.

2.

Oglesby Continuance

a. Does it overlap in any other course?

b. Questions stemming from fact that Service Course to

University rather than in-house?

e. Large percentage of teaching is done in-house.

d. School now making +300,00 for S.U.

e. Would budget be decreased if Oglesby taught in Arts &

Sciences? (yes)

46a

Appendix D

f. Generally speaking, if service courses are taught,

shouldn’t they be taught in the educational context that

they are formed?

g. Discussion of service courses

Relation of course to Virgus Streets

(Redundant—psych city)

Workshop, Community Service—Powell—Streets

Powell

description of Master’s Thesis

minority interests

minority goals in power

community separation

Third World Study

Comments on Thesis

Counsel to Black students

Drawing for Freshmen

(abrasive) Quickness in assigning values, question ability

to counsel. Wants to see architectural experience and ed-

ucation in translating values to community values

Experience, personality required.

Linkage in community

Experience in actual service in Community?

Ability to correlate to other Blacks?

What community does school serve?

What is level of minority substantiation?

Icon model? What model is she talking about and why?

Comments are questionable? Are students in a real posi-

tion to answer question?

Bias

47a

Appendix D

Advising in Black

She will refer them to someone else.

Advising needs a broad role

What type of artist is she?

Black Architecture, does it exist?

Dozier spoke of Black Architects?

3.

What do Black students want? His won experience in

teaching and speaking does not seem to hold true—want

a complete Architecture education

Black should go to black schools if they want to become

Black Architects. If one goes to an integrated school then

he must submit to an area of complete integration

Agree with Lee in statement about school within School.

Points of view on “minority” definitions meaning black

only (see also students) “genetic architecture”

Disenss on credentials basis to see if permanent employ-

ment.

Minority scholarships are also Hispanic-American. Spe-

cial programs for minority students are necessary to main-

tain minority scholarships—this means counciling tutor-

ing, courses, ete——which allude to maintaining Black pro-

grams.

Judgements :

A. Counseling minorities—own statement seems to only

include Blacks.

b. Seems to have an idea of knowledge/genetics

48a

Appendix D

Programs in Schools (special)—how far does it go

Special standards?

Special grading standards?

There might be a distinet conceptual difference in “track-

ing” a minority student rather than an architectural dis-

tinction.

Voting should be done on credentials in Architecture/Art

especially when students are exposed to her after experi-

ence gained.

Does position required administrative role? Is Virgus

Streets better Teaching, Administrative, ete.

We should talk about position.

Is there a need?

Is there sufficient money?

Appears she is demanding a full-time position.

Positions—competence

Affirmation Action

Assessment of Affirmative Action by V. Chancellor

Reading 1 page of recruiting problems and activity in

minority recruitment

Raises points of characteristics of Art superseded by

characteristics of artist

Watts

Negative comments. Business techniques—thinks Watts

knows material, particularly in economic-business terms;

Can find ways in whick Architecture as a profession may

be successful—(as inferential information) in reversing

position. . .

Student interest is low based on incompetence

49a

Appendix D

Agreed that “both Faculty and Student are Incompetent”,

but must realize significance of statement

Does Course = Doug Watts?

If Watts leaves, does course leave?

Does Watts want to communicate efficient business matters

and methods?

Does Watts want to make good architects or good business

men?

Thinks student input is poor. Watts is good in lecture/

seminar

Voting

Watts (to continue)

1 no

8 yes

Powell (to continue)

1 yes

8 no

Oglesby (redundancy in Streets)

Motion to postpone voting made by J.L. seconded by

L.S. sustained

Lesnikowski

abstain. 5

no 2 result of vote demands postponement based on

inadequate

yes 2 qualitative data

Steinfeld

Wants to teach Research course and “Environment

and Aging”—and not Desicn

50a

Appendix D

Discussion on course contents and needs to make a

specialty of it from a design standpoint

What is Steinfeld going to teach next year?

14, Time based on part-time (Gerentology-Architecture

Design)

Behavioral Science

Research Component

Q. If we are to take Steinfeld over Full-time (and Ger-

entology dropped will we have him teach design for

6 c.h.

Gerentology will be part-time appointment. What will

role in Research be next semester? “Correspondence

Schoo] activity in Architecture” “Barrier-Free Archi-

tecture”

Research with Graduate Students only

Abruptness

5.

Agree

Vote: Maintenance at % position precluding activity in

Design Studio (Motion to effect that position con-

tinues in Gerentology & Research only)

6 yes

2 no

1 abstain

VonScheven

8 yes

1 no

dla

Appendix D

Allor

reappointment at same 12 time, continuance of same-

course at undergraduate level

brings up point of who should teach peripheral service

courses: behavioral ete. and labelling it by inference

as dynamic in the discipline as dominant and not only

applicable as a way of thinking out reflecting, rather

than as an end

There is so much complexity in the world, there should

be a team approach. The problems of the world should

be “team approached”

How does one establish the knowledges which we are

short of? What are trade offs? What is Allor’s posi-

tion in our curriculum?

1 abstain

3 yes

5 no

Not taken as a personality role in case of Allor rather

than place in curriculum?

Virgus Streets: Part-time appointment (Assistant Prof.)

Point of disclosure of salaries for new faculty should

be made because of budget and needs of School of

Architecture

Concepts of Community (for Planning in the Inner

City) Community Development

Oglesby teaching Psych-City

—Comments on budget relationship to program needs

—What is school doing in a planner?

—What is Streets doing in physical planning?

52a

Appendix D

—Street lecture, honest about his experiences, especially

when he made strong point of failure based on lack of

experience

—Vagueness in status and role

Watts

Motion made to table action on Virgus Streets pending re-

search into availability of personality vs. program; over a

longer period of time, hopefully in time for Spring and if

not then, Fall 1974

Move to postpone action on Virgus Streets as Dir. of Com-

munity Design, and make extensive search for candidates

with Arch. education and experience by December 14, 1973

6.

until December 14, 1973

Motion made and passed

9. Oglesby covers Comm. Dev. until next year

6 yes

2 no

1 abstain

Scarbrough

Hired for one semester. Did not want appointment for

one year.

Felt responsibility for students, wants to continue to

section.

Positively wants to return to practice since something

happened.

7 yes

1 no

1 abstain

o3a

Appendiz D

Sodja

Motion made to table vote on Sodja

Search: CDC

Historian

Structures

Technology

54a

Appendix E

Plaintiff's Exhibit #’s 17, 19, 20 in Record

SYRACUSE UNIVERSITY

ScHoot or MANAGEMENT

116 CoLLEceE Puacr, Syracuse, New York 13210

Exuisit 17

March 14, 1974

Dean John Fisher

School of Architecture

417 Slocum Hall

Dear Dean Fisher:

As you know, Ms. Geraldine Powell has complained to the

Senate Sub-Committee on Academic Freedom, Tenure and

Professional Ethics concerning the circumstances sur-

rounding the termination of her employment in the School

of Architecture. Our committee has inquired into this

matter and has concluded that there is no evidence of Ms.

Powell’s academic freedom being violated. On the other

hand we are of the opinion that she had legitimate reasons

to complain about the procedures which were followed in

her case. The following facts, as we see them, have led us

to our conclusion,

1. Ms. Powell was employed for the 1972-73 academic

year as a part time instructor, with a terminal appoint-

ment.

2. Prior to the 1973-74 academic year she was proposed

by the Dean for a full time position. The relevant

committee of the College disagreed with the Dean and

recommended that she be employed in 1973-74 as a

qo

50a

Appendix E

part time, 1/3, instructor. This would be a new con-

tract although it effectively duplicated the one for

1972-73.

Despite this recommendation of the committee, the

Dean appointed her to a part time, visiting assistant

professorship, with a one year terminal appointment

ending May 11, 1974. The extent to which Ms. Powell

was made aware of the disagreement between the Dean

and the committee is not clear.

In the Fall of 1973 the Dean discussed with Ms. Powell

the possibilities of full time employment for 1974-75.

Shortly after the discussion just referred to the faculty

committee reviewed the employment status of Ms.

Powell and decided that she should not hold a faculty

position after the end of the academic year. This re-

view apparently was undertaken as though she were

on a probationary appointment despite the fact that

she was on a terminal appointment. Nevertheless, it

was somewhat perfunctory in the sense that Ms. Powell

was not notified that her case was being reviewed, nor

was she given a specific opportunity to present facts

relevant to her case. (In view of the fact that Ms.

Powell was on a terminal appointment the faculty com-

mittee was under no obligation to conduct any sort of

review, or, if it decided to conduct a review, to carry

it on in any matter other than it chose.)

A critical issue arose at the next step. The Dean

notified Ms. Powell that her services would not be

required beyond the end of the academic year and in-

formed her that she had the right of appeal to the

Senate Sub-Committee on Academic Freedom, Tenure

and Professional Ethics.

56a

Appendix E

The Senate Sub-Committee on Academic Freedom, Tenure

and Professional Ethics does not contest the right of the

faculty committee to make a judgement about the academic

qualifications of Ms. Powell. However, the Senate Sub-

Committee on Academic Freedom, Tenure and Professional

Ethics is of the opinion that the faculty committee’s treat-

ment of the case procedurally as though it were a proba-

tionary renewal case, as attested by the notice sent her,

as well as the apparent failure of the Dean to make clear

the respective roles that he and the faculty committee

played in authorizing her employment, when taken to-

gether, gave rise to such expectations on her part that she

now has a right to expect some sort of administrative

relief on her behalf.

Sincerely yours,

/s/ Eric W. Lawson, Chairman

Eric W. Lawson, Chairman

Senate Sub-Committee on Academic Freedom,

Tenure and Professional Ethics

EWL/mgf

ec: Ms. Geraldine Powell

Vice Chancellor Prucha

57a

Appendix E

SYRACUSE UNIVERSITY

ScHoo, or MANAGEMENT

116 CotitecE Puiacre, Syracuse, New York 13210

Exuisir 19

April 8, 1974

Dean John Fisher

School of Architecture

Syracuse University

Dear Dean Fisher:

On March 14, on behalf of the Senate Sub-Committee on

Academic Freedom, Tenure and Professional Ethics, I

wrote you with respect to the issues involved in the com-

plaint of Ms. Geraldine Powell and I set forth the con-

clusion of our committee. To date I have received no

response.

Ms. Powell has informed the committee that you have not

spoken to her about the matter. The committee has directed

me to inquire of you what steps you intend to take and

when you propose to do so. We call to your attention the

fact that the semester is rapidly drawing to a close and

that the problem requires immediate attention.

Sincerely yours,

/s/ Eric W. Lawson, Chairman

Eric W. Lawson, Chairman

Senate Sub-Committee on Academic Freedom,

Tenure and Professional Ethics

EWL/mef

ec: Vice Chancellor Prucha

Ms. Geraldine Powell

58a

Appendix E

SYRACUSE UNIVERSITY

ScHoot or MANAGEMENT

116 CoLtuEce Puacre, Syracuse, New York 13210

Exursir 20

April 9, 1974

Dean John Fisher

School of Architecture

Syracuse University

Dear Dean Fisher:

Your letter of April 3 reached me after I had written my

last note of inquiry to you.

The Senate Sub-Committee on Academic Freedom, Tenure

and Professional Ethics is not prepared to prescribe

exactly what the nature of our recommended administra-

tive relief should be. We are not aware of all of the

possibilities which are available to you. The committee has

not expressed itself on this matter other than to indicate

that Ms. Powell is entitled to more than a gesture. I would

suggest that the committee would be satisfied to see some

type of employment or some type of compensation made

available to Ms. Powell.

Sincerely yours,

/s/ Ertc W. Lawson, Chairman

Eric W. Lawson, Chairman

Senate Sub-Committee on Academic Freedom,

Tenure and Professional Ethics

EWL/mef

59a

Appendix F

TABLE OF CONTENTS

PAGE

EN 1

II. Argument Si ecekstpeececinsercs 6

A. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973) Is

Cee nc aeenee

1. Introduction ......

Se ee et ees

2. McDonnell Douglas Corp. v. Green—Its Re-

quirements and Its Applicability Herein ....

B. The Evidence ...... nn.

1. The Appellent Did Establish a Prima Facie

Case of Discrimination as She Was Re-

quired Under the Principles Enunciated in

McDonnell Douglas Corp. v. Green, supra

2. The Error of the Court Below in Its Analy-

sis of the Appellant’s Case in Main ...........

3. Having Established a Prima Facie Case of

Discrimination, the Burden Shifted to the

Appellees to Come Forward With Valid

Non Racial Reasons for the Appellant’s

Termination: They Failed —...........0......

i. The Ostensibly Valid Non Racial Rea-

| Es

17

17

39

53

60a

Appendia F

PAGE

ii. 'The Appellees Were Required to Carry

Their Burden and Establish a Valid

Non Racial Justification for Their Con-

duct in a Clear and Convincing Manner 55

iii. The Legal and Factual Relevance of

the Absence of Objective Evaluation

I sccrucctischesscnhictet teraietintartbieidieg etn entcaas 62