Petition — Board of Trustees of Keene State College v. Sweeney

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In the

Suprene Court of the United States

OctosEer TERM, 1979

No.

BOARD OF TRUSTEES OF

KEENE STATE COLLEGE, ET AL.,

PETITIONERS,

CHRISTINE M. SWEENEY,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JosEpH A, MILLIMET

Devine, Mruuimet, Stant & Branco

PROFESSIONAL ASSOCIATION

1850 Elm Street

Manchester, New Hampshire 03105

Attorneys for Petitioners

Blanchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

Page

Opmieus Below .....:........... ? ba: eee 1

te oe. ee 23S: t,., 2

Spmemenemes Peesemted............................... 2

Statutes Involved ......... me ey. + rs ue

Statement of the Case...................... ree

Reasons for Granting the Writ |... 7 ee. 14

Conelusion | oo LE ee ee 34

Appendices

A — Opinion of the United States Supreme Court. A-1

B — Order of the United States Court of Appeals

remanding case ..... B-1

(‘— Order of the United States Wistehat Const af.

firming original decision |. C-]

D — Order of the United States District C ourt pn

ing request for relief... re

Kk, — Opinion of the United States Court of Mehiaeain. K-1

F — pinion of the United States District Court

(original) | 7 = i “eee ot |

TABLE OF CITATIONS

Cases

Bilingual Bicultural Coalition, Ete. v. F.C.C., 595 F.2d

621 (D.C. Cir. 1978) . | rc ae

Castaneda v. Partida, 430 U. S. 482 (1977) . “ire S|

Causey v. Ford Meior Co., 516 F.2d 416 (5th Cir. 1975)

14, 16

Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979) 23, 27

Faro v, New York University, 502 F.2d 1229 (2nd Cir.

eee 23

Furnco Construction Co. v. Waters, 438 U.S. 567 (1978)

3, 14, 19, 21, 33

General Electric Co. v. Gilbert, 429 U.S. 125 ( 1976).. 10, 30

ii Table of Contents

Page

Hazelwood School Dist. v. United States, 433 U.S. 229

(1977) | | ia ee eee ——— S

Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th 7

Cir. 1972) erat, 3 aie SA ee

International Brotherhové of Teamsters Vv. United

States, 431 U.S. 32% (1977) fh gigtin ee 10, 22, 31, 32

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

5, 10, 13, 14, 29

Powell v. Syracuse University, 580 F.2d 1150 (2nd

Cir. 1978) Spy Ge tie 23, 27

Schultz v. American Can Company—Dixie Products.

424 F.2d 356 (Sth Cir. 1970) .....----------0-: | 18

Schultz v. Wheaton Glass Co., 421 F.2d 259 (8rd Cir.

1970), cert. denied, 398 U.S. 905 (1970) 18

Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.

1976), cert. denied, 429 U.S. 870 (Gears VES

Stewart v. General Motors Corp., 542 F.2d 445 (7t ;

Cir. 1976) ; cert. denied, 433 U.S. 919 (1077)... :< 14, 30

Village of Arlington Heights v. Metropolitan Housing

Dev. Corp., 429 U.S. 252 (1977) ....--. .. 82

Washington v. Davis, 426 U.S. 229 (1976) ...... 10, =

JU, oO

Constitutional Provisions

Fourteenth Amendment ......... Rae ety tee ee .. 30, 31

Statutes and Rules

Oh TEIN SONNE ara es a i ns os pet re 2

29 U.S.C. §206(d), Equal Pay Act of 1963, as amended 18

42, U.S.C. §2000e et seq., Title VII of the Civil Rights

Act of 1964, as amended ...........---->-) _... passim

Fed. Rules Civ. Proc., 28 U.S.C., .

MRR eee as eae NA eek eee eee yee

eS Paper en ten On es ca an 12

Other

5A Moore’s Federal Practice ......-------++-++000> 19

in the

Supreme Court of the United States

OctTosER TERM, 1979

No.

BOARD OF TRUSTEES OF KEENE STATE

COLLEGE, ET AL.,

PETITIONERS,

Vv.

CHRISTINE M. SWEENEY,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the First Circuit entered on August 21, 1979, subsequent

to a remand from this Court for reconsideration.

Opinions Below

The opinion of the Court of Appeals delivered on Au-

gust 21, 1979, is officially reported at 604 F.2d 106. This

Opinion also appears in Appendix E hereto. The earlier

———<

opinion of the Court of Appeals delivered on January 4,

1978, which was vacated by this Court on November 13,

1978, was officially reported at 569 F.2d 169 and appeared

in Appendix A to the Petition for a Writ of Certiorari

docketed with this Court on June 19, 1978, as No. 77-1792.

The original opinion of the District Court for the Dis-

trict of New Hampshire, now again affirmed, was not offi-

cially reported but was unoflicially reported at 14 FEP

Cases 1220. This opinion appeared in Appendix B, first

Pet. for Cert., and is reproduced here as Appendix F.

This Court’s majority per curiam opinion, with sep-

arate dissent, (No. 77-1792, November 13, 1978), which

granted certiorari, vacated the judgment of the Court of

Appeals, and remanded the case to it for reconsideration,

has been officially reported at —_ U.S. —, 58 L.Ed.2d 216,

99 S.Ct. __, and appears in Appendix A hereto. The sub-

sequent order of the Court of Appeals, on December 19,

1978 (not officially reported), remanding the case to the

District Court for further proceedings, appears in Appen-

dix B hereto. The ensuing orders of the District Court

issued on January 29 and February 20, 1979, which re-

affirmed that court’s original opinion and findings in all

respects, appear in Appendices C and D hereto (neither

officially reported).

Jurisdiction

The judgment of the Court of Appeals affirming the

District Court’s original judgment was entered on August

21, 1979. The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

Questions Presented

Pursuant to Title VII of the Civil Rights Act of 1964,

as amended:

a OE EE

1. Whether, in employment discrimination cases under

Title VII, an ultimate finding of sex discrimination is to

be reviewed on appeal within the constraints of the ‘‘clearly

erroneous’’ standard of Rule 52(a), Fed. Rules of Civ.

Proc., as in the First Cireuit, or under the ‘‘independent

determination’’ test followed in the Fifth and Seventh

Circuits.

2. Whether on remand from this Court, the Court of

Appeals should have given independent consideration to

the issue of discriminatory motive.

3. Whether, in reconsidering the issue of discriminatory

motive, the Court of Appeals has in fact reimposed on

the defendants a heavier burden than Furnco warrants.

(Furnco Construction Co. v. Waters, 438 U.S. 567 (1978) )

4. Whether the inference of societal bias drawn by the

courts below constitutes sufficient proof of discriminatory

motive to warrant the courts’ setting aside the judgment

of plaintiff’s peers that she was not qualified for promo-

tion to full professor in 1974-75.

Statutes Involved

The substantive federal statute involved here is Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.,

as amended by the Equal Employment Opportunity Act

of 1972, Pub. L. No. 92-261, 86 Stat. 103. The pertinent

provision is §703(a)(1), 42 U.S.C. §2000e-(2)(a) (1):

‘Sec. 703.(a) It shall be an unlawful employment

practice for an employer—

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

individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privi-

leges of employment, because of such indi-

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

origi... .”’

The procedural question presented here involves Fed.

Rules Civ. Proe., Rule 52(a), 28 U.S.C., in pertinent part

as follows:

52(a) Effect. In all actions tried upon the facts with-

out a jury or with an advisory jury, the court shall

find the facts specially and state separately its con-

clusions of law thereon, and judgment shall be en-

tered pursuant to Rule 58.... Requests for findings

are not necessary for purposes of review. Findings

of fact shall not be set aside unless clearly erroneous,

and due regard shall be given to the opportunity of

the trial court to judge of the credibility of the wit-

nesses. ... If an opinion or memorandum of decision

is filed, it will be sufficient if the findings of fact and

conclusions of law appear therein....’’

Statement of the Case’

The perplexing question of motivation—whose motiva-

vation and how it is to be demonstrated—has been the

pivotal proof issue in this individual, academic employ-

ment discrimination case from the beginning and through

successive stages of appeal. Indeed this Court granted

certiorari last term in order to emphasize that defendants

do not have to prove absence of discriminatory motive

under Title VII. While recognizing that proof of motive

1 Petitioners direct the Court also to the ‘‘Statement of the

Case’’ found in the first Pet. for Cert. Attention here is focused

on judicial treatment of the motivation question throughout, and

on proceedings subsequent to this Court’s remand on November

13, 1978.

by)

was critical in a disparate treatment case, the Court of

Appeals erroneously stated this was defendants’ burden.

(i2) In its per curiam decision, this Court stated that to

require defendants to do so

‘‘would place on the employer at the second stage the

burden of showing that the reason for rejection was

not a pretext, rather than requiring such proof from

the employee as a part of the third step.’’ (A2, n.1,

emphasis supplied)

The District Court originally announced its intention of

applying the McDonnell Douglas proof analysis. (McDon-

nell Douglas Corp. v. Green, 411 U.S. 792 (1973) ). (F2)

However, the District Court’s opinion, too, contained lan-

guage that defendants had failed to prove a ‘‘non-discrimi-

natory motive in failing to promote [plaintiff].’’ (F25,

Finding No. 8)

The plaintiff, who had twice been an unsuccessful candi-

date for promotion from associate to full professor before

succeeding on her third try, had alleged she was a victim

of sex discrimination. The defendants and petitioners

here—who were the college, its trustees, president and two

former deans—defended the negative actions on plaintiff’s

promotion on a number of grounds, but principally through

explanation and defense of the professional peer review

process itself.?, Evidence was introduced that absent extra-

ordinary circumstances the determinative promotion de-

cision was made by the annually elected Faculty Evaluation

Advisory Committee (FEAC). See, Cir. Op., at E4-E5 &

n.5; also 569 F.2d, at 172-73; and first Pet. for Cert., at 6-7.

be The plaintiff originally alleged other claims, too, but the Dis-

trict Court found only a partial violation under Title VII in the

denial of plaintiff’s second application for promotion. (F1-F2,

F25-F26). This petition deals only with sex discrimination in

promotion under Title VII (as did also the first Pet. for Cert.).

Petitioners introduced evidence indicating that the peer

committees evaluating plaintiff’s qualifications for promo-

tion treated female candidates no less favorably than male

candidates.* .

Despite this showing of FEAC’s actions and other evi-

dence, including evidence of plaintiff’s comparatively weak

qualifications for promotion,* the District Court made the

following so-called ‘‘Specific Findings’’ in its original deci-

sion, which has now been reaffirmed in all respects:

3In 1974-75, the year the trial court found discrimination,

FEAC voted unanimously against plaintiff’s promotion. However,

the committee gave favorable recommendations for promotion

(and/or tenure) to five of six women. Plaintiff was the only

unsuccessful female candidate in 1974-75. One woman, and only

one man, were promoted to full professor. In that year also,

FEAC recommended against promotion (and/or tenure) for thir-

teen of twenty-five men. In its recent opinion, the Court of a:

peals finally took notice of these evidentiary facts but discounte

ir significance, saying: erie

a This re at » A bears on the question of discrimi-

nation, but it does not render the district court ’s conclusion

clearly erroneous.’? (E13, emphasis supplied) _

There is no indication that the District Court ever considered these

facts. See, discussion of the application of the ‘‘clearly erroneous

review to this case, infra, at 17, 20-22. _

* Petitioners showed that the plaintiff was treated as well as,

and in some cases, more favorably than others (including men)

at the college. For example, she was hired at the associate profes-

sor rank. Although she had been promoted to this rank at the

college where she previously was employed, she had never served

in the rank, and at the time of her promotion she had been an

assistant professor for only two years. Keene State College’s own

requirement for service as assistant professor wae four years, and

male as well as female candidates were routinely turned down for

failure to satisfy this minimum requirement. Because of the col-

lege’s time-in-grade requirements, the minimum rate for promotion

from assistant to full professor was eight years. The plaintiff

attained full professor in nine and one-half years. Although some

faculty members served fewer years as associate professor (and

some served longer), only the very exceptional bettered her overall

rate. No one testified that the plaintiff was an exceptional or

outstanding faculty member. Her own record indicated that she

had not published since coming to Keene, and her campus-wide

committee activity was limited. (See, D.Op., F10; Cir.Op., E6).

‘7. I find that the reason the plaintiff was not pro-

moted in the academic year 1974-75 was because of

her sex.

‘*8, The defendants have not rebutted the plaintiff’s

evidence that they did not [sic] discriminate against

her by reason of her sex and have not proven that

they had a non-discriminatory motive in failing to

promote her in the academic year 1974-75.

‘9. I find that a double standard was applied for

males and females in the promotion process. The

evidence shows that there was and is a dispropor-

- tionately small number of women in the high ranks

of associate and full professors and particularly in

the rank of full professor. ...’’5 (F25).

The District Court failed, and has yet, to make any sub-

sidary findings of fact about the motivation of FEAC in

1974-75. The court merely summarized without comment

the committee chairman’s testimony that the plaintiff had

a weak case for promotion. (F12, F22) The court also

noted without comment the finding of FAC (Faculty Ap-

peals Committee) that it found no evidence to support the

° The District Court apparently concluded that the small num-

ber of women in the upper ranks established discrimination in

promotion. (F22-F23). Petitioners have repeatedly criticized this

inference and the value of the statistical showing on which it is

based. See, first Pet. for Cert., at 13-15 and Reply Brief for

Petitioners, at 8-10. In its recent opinion, the Court of Appeals

now concedes that:

“‘The absence of women in the upper ranks at Keene State was

not projected back in time and tied to ranks in the different

disciplines in earlier years. Moreover, the existence of a

statistical disparity, while often helpful in establishing a

prima facie case of discrimination, does not by itself meet

an individual’s burden of proving that the reasons given by

the employer were pretexts, Furnco, 438 U.S. at 579-80.°’

(E11, n.11). See, further discussion of methodology of statis-

tical inference, infra, at n.17.

plaintiff’s charge of sex discrimination when reviewing her

case on appeal.® (F12) +

The District Court did say in its original opinion regard-

ing the defendant Dean Davis:

“Tt is true that Dean Davis turned the plaintiff down

twice for promotion, but on both occasions he was

acting in accord with the unanimous recommendation

of FEAC. He had previously approved the unani-

mous recommendation of FEAC that she be granted

tenure. Whatever personal animus Dean Davis may

have had against the plaintiff, there is no evidence

that it was sex based.’’ (F13, emphasis supplied)

However, there is no comparable statement about the

motivation of the 1974-75 FEAC or its chairman, Dr. Quirk.

The court’s conclusory finding is a generalized one: a

double standard in promotion inferred from simple num-

bers. (F23; F25, Finding No. 9)

Both courts below have expressed great concern with

what the District Court called ‘‘societal bias’’. (F'16, F24)

In their first petition to this Court, petitioners pointed to

statements throughout the District Court’s opinion which

apparently set forth that court’s concept of proscribed

motivation. See, Reply Brief for Petitioners, at 10-13.

These statements about male societal bias include the

court’s restatement of general opinions voiced by an assist-

6 The District Court even quoted from the report made by the

FAC chairperson, Dr. Janet Grayson, which concluded :

‘Although we did not find evidence to support her charge of

discrimination because of sex, we are concerned that she had

to endure unprofessional treatment within her department

and by the administration.’’ (F12) t ala

FAC’s purpose was to look for arbitrary, capricious or prejudicial

actions, or for new evidence to warrant reversal of promotion

denial. Yet, the District Court did not indicate this internal

grievance proceeding was entitled to any weight.

ant professor of sociology at the college, which had no

direct relationship to the plaintiff’s case.”

In their first appeal from the District Court’s decision,

petitioners argued that unconscious societal bias, as de-

scribed by plaintiff’s witnesses, does not constitute per se

the purposeful discrimination which the individual plain-

tiff must demonstrate under Title VII. Petitioners argued

that there must also be a preponderance of evidence to

indicate that the challenged decision was sexually prem-

ised, and that plaintiff’s circumstantial evidence, particu-

larly the undifferentiated statistics, fell short of carrying

this burden. The Court of Appeals misconstrued this argu-

ment as an assertion that the plaintiff must furnish direct

evidence of discriminatory motive, and responded:

‘‘The Supreme Court has never said that an indi-

vidual plaintiff seeking to establish a claim of dis-

parate treatment in violation of Title VII must

present direct evidence of discriminatory intent.’’

569 F.2d, at 175.

7™The court noted that:

‘*Professor Vander Hagen was one of the key witnesses

for the plaintiff, although she explicitly stated that she

made no judgment as to the plaintiff’s case... . In her

opinion, the entire collegial process of promotion discrimi-

nates against women. The process, which she characterized

as being run like an ‘old boys club,’ works best for those who

get along with the power structure which, because of his-

torical factors, is dominated by men. In her opinion there

is no awareness by men that they discriminate against women.

* * *

**On eross-examination, Professor Vander Hagen admitted,

in effect, that Keene reflects the traditional societal bias

against women. She feels that women are disadvantaged

as a@ group because of social categories... . Professor Vander

Hagen did state that some men could be educated to under-

— the problems of women.’’ (F15-F16, emphasis sup-

plied)

The court did not note, but the witness did also testify that

women can be members of the ‘‘old boys elub’’; she conceded,

too, that some men are not members.

The Court of Appeals cited decisions by this Court in

International Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977); Washington v. Davis, 426 U.S. 229

(1976); and McDonnell Douglas Corp. v. Green, 411 US.

792 (1973) (distinguishing General Electric Co. v. Gilbert,

429 U.S. 125 (1976) ) to enunciate twin rules regarding

proof of discriminatory motive in disparate treatment

cases: (1) the plaintiff may rely upon inferential proof

of motive, and (2) the defendant must prove absence of

discriminatory motive. (569 F.2d, at 177) (This Court,

of course, has already rejected the latter statement of

the defendants’ burden. (A1-A2) )

Like the District Court, the Court of Appeals in its

first opinion attached great significance to general testi-

mony about societal sex bias:

‘This bias may often be unconscious and unexpressed,

but its potential for harm is greatest in reaching de-

cisions on the basis of criteria which simply cannot

be objectively measured or definitely stated.’’ 569

F.2d, at 179. (emphasis supplied)

Petitioners concluded from this that the lower courts had

accepted as a postulate that societal bias existed at the

college and then looked to defendants to disprove its

existence.

In a petition for rehearing, petitioners attempted to

focus the Court of Appeals’ attention away from general,

unconscious societal bias to the agents who made the chal-

lenged decision, the 1974-75 FEAC. Petitioners submitted

that although the plaintiff might rely upon inferential proof

of motive, the general inference about societal bias could

never establish an individual, ‘‘disparate treatment’’ vio-

lation of Title VII in the absence of evidence that those

who actually made the effective decision against plaintiff’s

Mh As ate

promotion were moved to action by such bias. (Compare

conclusion of District Court about motivation of Dean

Davis, at F13.)

The Court of Appeals denied the petition for rehearing,

and petitioners subsequently applied to this Court for a

writ of certiorari, which was granted without argument

on the merits. In the majority per curiam opinion, this

Court clarified the defendant’s burden of proof on the

motive issue and remanded the case to the Court of Appeals

for application of the proper test. (A2) Petitioners then

filed with the appellate court a motion for leave to file

additional briefs and make further oral argument in light

of this Court’s remand.

On December 19, 1978, the Court of Appeals entered an

order as follows:

‘‘Upon consideration of motion for leave to file

additional briefs and make further argument to this

Court, objection thereto, and response to objection,

‘*It is ordered that this cause is hereby remanded

to the District Court (attention of Judge Bownes,

sitting by designation)™ for further proceedings and

reconsideration in the light of Furnco Construction

Co. v. Waters, 438 U.S. — (1978).’’ (B1, emphasis

supplied)

On January 29, 1979, without notice to the parties, the

District Court issued an order in which it reaffirmed its

original opinion and findings in all respects. (C1-C2) The

District Court stated that it had ‘‘reconsidered and re-

examined’’ its original opinion in the light of Furnco,

supra, and also ‘‘reread Sweeney v. Board of Trustees of

Keene State College, 569 F.2d 169 (1978), and studied

® After hearing this case at the district level, Judge Bownes

was subsequently appointed to the First Circuit where he now

serves.

carefully the decision of the Supreme Court granting

certiorari [__ U.S. —, 58 L.Ed.2d 216] (November 13,

1978).’? (C1) But, the court apparently did not read the

petition for certiorari, or other briefs filed by the parties

with -his Court, nor did it read the briefs filed on appeal

from its original decision.

In the January 29, 1979 order, the District Court made

no subsidiary findings of fact to indicate what it con-

sidered relevant to proof of purposeful discrimination or

pretext. There is no indication that the court even looked

into the record to review any evidence. The court merely

stated, in recollecting its earlier decision:

Plaintiff then proved to my satisfaction that the basic

reason for the failure to promote her was because of

her sex, that the reasons advanced by the defendants

were pretextual, and that plaintiff would have been

promoted in the academic year 1974-75 but for the

fact that she was a woman.

‘‘My opinion and findings are in all respects reaffirmed.”’

(C1-C2)

Petitioners then filed a request for hearing (subsequently

amended to a request for relief under Rule 59(a), Fed.

Rules Civ. Proc.) protesting this perfunctory treatment

and submitting that they were, in effect, being deprived of

substantive due process when their reasons were sum-

marily branded pretextual without explanatory, subsidiary

findings of fact. On February 20, 1979, the District Court

denied these requests as untimely filed and stated that it

had complied fully with its remand from the Court of

Appeals for further proceedings and reconsideration. (D1)

Petitioners appealed directly from the District Court’s

orders to preclude the possibility that the Court of Appeals

might similarly interpret its mandate from this Court.

Petitioners submitted that—in view of (1) the nature of this

Court’s remand for application of the proper test; (2) the

District Court’s failure to make subsidiary findings of

fact specifically about FEAC’s motivation; and (3) the

District Court’s reaffirmance of its original decision con-

taining language which had been specifically rejected by

this Court (See, Findings Nos. 7-9, cited, supra, at 7.)

—they were entitled to judicial analysis by the Court of

Appeals of the factual underpinnings of the finding of

discrimination.

The Court of Appeals’ response was to (again) apply

the ‘‘clearly erroneous’’ test to the District Court’s de-

cision:

‘*We indicated that we followed the clearly erro-

neous standard of Fed. R. Civ. P. 52(a) in our first

Sweeney decision [supra]. Defendants now urge us

to abandon that standard in Title VII cases on the

ground that a ‘factual’ finding that a plaintiff was

denied a promotion because of her sex is equivalent

to a finding on the ultimate legal issue of discrimi-

nation. This argument has persuaded some circuits

that appellate courts should make an independent

determination of the question of discrimination. .. .

[citations omitted] We are not inclined to that ap-

proach.’’ (3, n.2)

Thus, although the Court of Appeals has now addressed

the question of pretext, the third stage in the McDonnell

Douglas analysis, it has done so in the admittedly biased

context of a ‘‘clearly erroneous”’’ review.® For the first

time in this case, a court has looked at the reasons given

®In its first review of this case, the Court of Appeals noted

that ‘‘several of the fact findings in this case favored Dr. Sweeney

and the ‘clearly erroneous’ standard works to her advantage’’.

569 F.2d, at 176, n.12.

for the plaintiff’s failure to be promoted in 1974-75, but

its examination has been for the express purpose of uphold-

ing the lower court’s decision, and has been cast in terms

of unconscious sex bias. (H12-E14)

This case is at a curious impasse. After lengthy appeal

proceedings and repeated arguments, and despite this

Court’s remand last term, it has yet to receive the kind

of analysis of purposeful discrimination ealled for by

McDonnell Douglas and Furnco, supra.

Reasons for Granting the Writ

I. Turis Court SHovutp Grant CERTIORARI To HARMONIZE

APPELLATE PRACTICE IN REVIEWING THE ULTIMATE FINpD-

ING oF DiscRIMINATION Unver Titte VII.

The Court of Appeals acknowledges in its recent de-

cision that other circuits treat the finding of discrimination

as an ultimate finding, subject to review free from the con-

straining limitation of the ‘‘clearly erroneous”’ test, Fed.

Rules Civ. Proc., Rule 52(a). The Fifth and Seventh Cir-

cuits, for example,

‘‘make an independent determination of the question

of discrimination and apply the clearly erroneous

staudard only to the district court’s findings of sub-

sidiary facts. E.g., Stewart v. General Motors Corp.,

542 F.2d 445, 449 (7th Cir. 1976), cert. denied, 433 U.S.

919 (1977); Causey v. Ford Motor Co., 516 F.2d 416,

420-21 (5th Cir. 1975).’’ (E3, n.2)

The Court of Appeals here explains its own practice

as follows:

‘‘This circuit has applied the clearly erroneous stand-

ard to conclusions involving mixed questions of law

and fact except where there is some indication that

the court misconceived the legal standards. [citations

omitted]. We see no reason to depart from this course

in discrimination cases; the opportunity for first-

hand observation may be especially important in one

such as this, where the issue is whether ‘personality’

reasons were sexually biased.’’"° (K3-E4, n.2)

In Stewart, supra, the Seventh Circuit states its stand-

ard of review in these terms:

‘In reviewing the district court’s decision, we are

bound under Fed. R. Civ. P. 52(a) to accept findings

of fact unless they are clearly erroneous. Prince v.

Packer Mfg. Co., 419 F.2d 34, 36 (7th Cir. 1969).

The statement that discrimination exists for the pur-

poses of establishing liability under Title VII, how-

ever, is as much a conclusion of law as a finding of

fact. A distinction must be drawn between subsidiary

facts to which the ‘clearly erroneous’ standard ap-

plies, and the ultimate fact of discrimination within

the meaning of Title VII, which is the decisive issue

to be determined in this litigation. East v. Romine,

Inc., 518 F.2d 332, 338-39 (5th Cir. 1975). Accord-

ingly, we will make an independent examination of

10 But see, discussion, infra, at 25-28. The District Court made

no findings specifically about FEAC’s motivation, despite requests

to do so. If the District Court had made these findings, such as

it did about Dean Davis (F13), then petitioners submit this would

be the type of finding protected by the ‘‘clearly erroneous’’ rule,

involving as it does matters of demeanor and eredibility particu-

larly within the trial court’s purview. However, the District Court

appears to base its finding that plaintiff should have been pro-

moted in 1974-75 solely on a generalized inference of societal bias

existing at the college. Since no bias is specifically attributed to

the members of FEAC, the appellate court here is in as good:a

position as the trial court to draw its own independent inferences

from the record,

whether defendant’s conduct constitutes a violation

of Title VII.’’ Ibid. (emphasis supplied)

Similarly, the Fifth Circuit in Causey, supra, states:

‘“‘There exists .. . a significant distinction for the

purpose of applying the clearly erroneous test between

findings of subsidiary fact and findings of ultimate

fact. See, Galena Oaks Corp. v. Scofield, 5th Cir, 1954,

918 F.2d 217. 219-20. Finding a subsidiary fact im-

volves the determination of an evidentiary or primary

fact; finding an ultimate fact, on the other hand, ‘may

involve the very basis on which the judgment of fal-

lible evidence is to be made.’ Bawmgartner v. United

States 1944, 322 U.S. 665, 671...

‘‘Although discrimination vel non is essentially a

question of fact it is, at the same time, the ultimate

issue for resolution in this case, being expressly pro-

scribed by 42 U.S.C.A. §2000e-2(a). As such, a finding

of discrimination or nondiscrimination is a finding of

ultimate fact. See, Hester v. Southern Railway Co.,

5th Cir., 1974, 497 F.2d 1374, 1381; United States v.

Jackson Terminal Co., 5th Cir., 1971, 451 F.2d 418,

423-24.’’ Ibid. (emphasis supplied)

Moreover,

‘‘TA]s in Humphrey v. Southwestern Portland Cement

Co., 5th Cir., 1974, 488 F.2d 691, 694, we must deter-

mine whether there are requisite subsidiary facts to

undergird the ultimate facts.’’ Ibid. (emphasis sup-

plied)

Thus, the Fifth Cireuit binds itself to ‘‘findings of sub-

sidiary facts which are themselves not clearly erroneous’’

(Ibid.), but makes an independent determination whether

these subsidiary facts adequately support the ultimate fact.

Its appellate analysis is essentially two-tiered.

Here by contrast, the Court of Appeals applies a one-

stage ‘‘clearly erroneous’’ analysis, proceeding directly

from the record to affirmance of the finding of discrimi-

nation. Although the court has said that ‘‘the clearly erro-

neous standard does not shield findings that are unsup-

ported’’ (H4, n.2), this principle, as applied by the court

here, means that the determination of whether the ultimate

finding of discrimination was reached through an adequate

analysis of relevant evidentiary findings is itself also lim-

ited by the ‘‘clearly erroneous’’ standard. Apparently,

the First Circuit’s practice is that, where the trial court

states the proper legal standard, the appellate court will

not make an independent analysis of how this standard

was actually applied by the lower court. There is every

indication that in evaluating the District Court’s judgment

in this case that the Court of Appeals in its recent review

never departed from the ‘‘clearly erroneous’’ standard,

despite the absence of critical findings of fact by the Dis-

trict Court. This is evident from the method of the Court’s

review and finally expressed in its statement that:

‘‘Defendants have persuaded us that this was a close

case, but not that the district court committed clear

error in concluding that Sweeney was denied a promo-

tion because of her sex.’’ (E14)

Petitioners submit that this is not the proper standard

of appellate review for Title VII discrimination cases.

Given the meandering course that Title VII litigation has

taken, parties and lower courts have both nroceeded in

the past on mistaken or misunderstood theories of what

constituted relevant proof on critical issues. The question

is often not simply one of whose burden of proof, but of

an opportunity for full consideration of the relevant facts.

By restricting its scope of review to a simple ‘‘clearly erro-

neous”’ test of the ultimate finding, the First Circuit Court

of Appeals has deferred to the trial court on matters of

evidentiary competence and sufficiency more properly with-

in its purview. oi

This practice is at odds with the policy of flexibility

demonstrated by this Court in examining the critical ques-

tion of intent in discrimination cases. In a separate, con-

curring opinion in Washington v. Davis, supra, Mr. Justice

Stevens has stated the issue thus:

“The extent of deference that one pays to the trial

court’s determination of the factual issue, and indeed,

the extent to which one characterizes the intent issue

as a question of fact or a question of law, will vary

in differing contexts.’’ 426 U.S., at 253.

Moreover, the Fifth and Seventh Circuits are not alone

in making an independent determination of ultimate find-

ings of fact. The Highth Circuit, in a case under the Equal

Pay Act (Fair Labor Standads Act of 1938, §6(d)(1), as

amended, 29 U.S.C.A. §206(d)(1), stated that it would not

be bound by the ‘‘clearly erroneous’’ rule in reviewing the

trial court’s finding that the work performed was not

equal. Schultz v. American Can Company—Diaie Products,

424 F.2d 356, 360 & n.6 (8th Cir. 1970). Accord, Third Cir-

cuit in Schultz v. Wheaton Glass Co., 421 F.2d 259, 267

(3rd Cir. 1970), cert. denied, 398 U.S. 905 (1970); and

Fourth Cireuit in Hodgson v. Fairmount Supply Co., 454

F.2d 490, 493 (4th Cir. 1972). Cf., Senter v. General Motors

Corp., 532 F.2d 511, 526 (6th Cir.), cert. denied 429 U.S.

870 (1976), where the Sixth Circuit indicated in a Title VII

class action that it was not bound by the ‘‘clearly erro-

neous’’ rule where the contention was that the district

court applied erroneous legal principles—cited also by the

First Cireuit here in n.2, at E3-E4.

Petitioners, however, did argue at length that erroneous

legal principles were still, in effect, being applied here,

and that a mere statement of the proper test by the Dis-

trict Court did not indicate that the proper test had been

applied, nor foreclose on their right to have illuminating

findings of subsidiary fact on the issues of motivation and

pretext. (See, eg., n.3, at E4.) Thus, the question of

whether proper legal principles had been properly applied

in the instant case was before the Court of Appeals.

Moreover, Rule 52(a), relied on here by the Court of

Appeals as the basis for its limited scope of review, is

directed to ‘‘findings of fact’’. Nothing in the language

of the rule itself indicates that it should also be applied to

the decision of the trial court, simply because the decision

under review may involve factual as well as legal consider-

ations. Much in the history of the rule," and in the weight

of case law in diverse areas” indicates that the rule does

not and should not bind the appellate court where the

ultimate decision is a derivative inference based on pri-

mary inferences drawn from the record and from testi-

mony, and where the derivative inference reflects certain

assumptions or presumptions about the current state of

the law. This Court has had occasion to examine the

meaning of ‘‘discrimination’’, as used in Title VII, in a

number of contexts. (See, e.g., cases noted in Furnco,

supra, 438 U.S., at 575-76 & n.7.) Nothing in these cases

1 See, 5A Moore’s Federal Practice, 952.01 [6]-[8]; 952.02;

152.03[1], at 2613-17.

12 See, 5A Moore’s Federal Practice, 952.03[1], at 2624-26;

152.04, at 2682-86; 152.05[1], at 2693-97. Where a finding is a

composite of fact and law, the clearly erroneous rule is not binding ;

where the factual finding is induced by an error of law or where,

although the factual finding is sound, the composite conclusion

is based on an error of law, the clearly erroneous rule is not

binding. Ibid., at 2696-97. Compare, patent litigation, 52.05/[2].

suggests that an appellate court should defer on strict

‘clearly erroneous”’ principles to the trial court when a

finding of discrimination under Title VII is involved. This

is particularly so in the difficult academic setting where

the employment decision is not within the employer’s arbi-

trary control, but is delegated to a peer review committee ;

and the trial court’s judgment may rest on inferences,

rather than facts.

The Court of Appeals here should not have abdicated

its appellate responsibility to make an independent assess-

ment of the basis for the trial court’s conclusion of dis-

crimination in academic promotion. This Court should

grant certiorari to bring consistency to principles of appel-

late review in employment discrimination cases.

II. Turis Courr SHoutp Grant CERTIORARI To DETERMINE

WHETHER THE TERMS oF Its REMAND Have BEEN

SATISFIED.

‘“The issue now before us is whether the district court’s

decision in favor of Sweeney is clearly erroneous.

[footnote omitted] Because of the procedural history

of this case and the parties’ disagreement over the

issues before us, [footnote omitted] we have reviewed

the record a second time in light of our current

understanding of the law. We conclude that the dis-

trict court’s decision was not clearly erroneous and

therefore affirm.’’ (E3-E4, emphasis supplied)

This is how the Court of Appeals has stated the issue

in its recent opinion. The procedural history to which the

court refers is set forth in the ‘‘Statement of the Case’’,

supra. The single most significant factor is this Court’s

remand last term. Petitioners submit that this remand for

reconsideration placed on the Court of Appeals a greater

obligation than its ordinary appellate responsibility to

review cases on appeal from district courts. The instant

case was rema...ed because of an erroneous statement of

defendants’ burden of proof with a direction to apply the

proper standard to defendants’ evidence in reviewing the

District Court’s decision. (Al-A2, n.1) If the ‘‘clearly

erroneous” test is a proper method for reviewing ultimate

findings of discrimination generally, it surely is incon-

gruous here in the context of this Court’s remand for

reconsideration in light of Furnco, supra.

Furthermore, as this Court noted specifically, the trial

court’s original opinion also contained the same erroneous

language rejected by this Court in the remand.“ The fact

that the Court of Appeals declined to grant or deny peti-

tioners’ motion to make further argument in light of this

remand, and instead deferred to the District Court for

further proceedings and reconsideration, and that subse-

quently the District Court, without further proceedings

summarily reaffirmed, should not have obscured the fun-

damental issue before the Court of Appeals on appeal.

This fundamental issue, the subject of this Court’s re-

mand, is not whether the original opinion of the District

Court is clearly erroneous; but it is, rather, the very nature

of the proof which constitutes the discriminatory intent,

or motive, proscribed by Title VII. Under the holding of

Furnco, supra, the touchstone case here, ‘‘the employer

must be allowed some latitude to introduce evidence which

bears on his motive’’. (438 U.S. at 580) This Court granted

certiorari and remanded because it recognized that ‘‘peti-

tioners clearly did produce evidence to support their...

explanation’’, which the Court of Appeals had apparently

disregarded (A2, n.2). Now, the Court of Appeals has

13‘«The defendants .. . have not proven that they had a non-

discriminatory motive in failing to promote [plaintiff] in the

academic year 1974-1975.’’ (F25, Finding No. 8) See AQ, n.2.

coupled the ‘‘clearly erroneous’’ rule with a theory of

unconscious societal bias, originally articulated by the

District Court, to nullify the evidentiary facts which this

Court asked the appellate court to reconsider.

This Court should grant certiorari again because the

fundamental issue of its remand, regarding proof of dis-

criminatory motive under Title VII, has been evaded by

the procedure below. Instead of reconsidering the issue of

defendants’ motive, the Court of Appeals has done nothing

more than review the District Court’s ultimate finding of

sex discrimination under the ‘‘clearly erroneous’’ rubric

of Rule 52(a). Since the District Court itself imposed

‘a heavier burden on the [defendants] than Furnco war-

rants’? (A2; n.13, supra), the Court of Appeals has in

reality given no independent consideration to the subject

issue of the remand.

III. Turs Court SHoutp Grant CERTIORARI BECAUSE THE

Court oF APPEALS, IN RECONSIDERING THE ISSUE OF

Discriminatory Motive, Has Reimposep a HEAVIER

BurDEN oN THE EMPLOYER THAN Furnco WarRANTS.

The Court of Appeals correctly stated in its first opinion,

citing Teamsters,“ supra, that:

‘‘TD]isparate treatment cases, such as this one, differ

from disparate impact cases, such as Griggs v. Duke

Power Co., 401 U.S. 424 (1971). [Footnote ref., Team-

sters, 431 U.S., at 335, n.15] We also recognize that

proof of discriminatory motive is critical in a dis-

parate treatment case.’’ 569 F.2d, at 174. (emphasis

supplied)

4 Teamsters was decided by this Court on May 31, 1977—after

the original District Court decision in the instant case on April

13, 1977. The trial court did not then have the delineation of case

types and proof requirements set forth by this Court in Teamsters.

atin

Although the rule is easily stated, its application by the

courts has been less than consistent and clear. The stand-

ard for proof of discriminatory motive under Title VII

remains nebulous.

Particularly, if this case signals a judicial intention to

subject academic employment decisions to new and stricter

standards of scrutiny, then the circumstances under which

the courts will intervene and set aside peer judgments

should be more explicitly defined. Compare, e.g., Powell

v. Syracuse University, 580 F.2d 1150 (2nd Cir. 1978), at

1153-54, and cases cited nn.8 & 9, 1157-58; and Faro v. New

York Umwversity, 502 F.2d 1229 (2nd Cir. 1974). College

and university employers are entitled to know the standard

8 See also, Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979),

where the court observes:

“‘Several courts reviewing allegedly discriminatory uni-

versity hiring practices or decisions have exhibited extra-

ordinary deference to the judgment of university decision-

makers by expressly refusing to subject the reasons given

for university employment decisions to more than the most

minimal judicial scrutiny. ... This judicial posture... can

lead to the immunization of higher education from the re-

quirements of Title VII. Congress did not intend such a

result. ... Congress must have recognized that . . . courts

would be forced to examine critically university employment

decisions.’’ (Id., at 731)

The Seventh Cireuit found its way out of the ‘‘academic’’ dilemma

in Davis by looking to the employer’s prior treatment of the

complainant employee, the employer’s general policy towards

minority employment, and the presence or absence of procedural

safeguards in the employer’s decisionmaking process. The court

noted that while the plaintiff offered statistical evidence to demon-

strate that the university’s employment practices had a discrimi-

natory impact on women employees, the small size of the relevant

sample and the university’s response to the evidence made the

statistical showing unpersuasive. (Zd., at 732) Contrast with

analysis by courts below in the instant case, where not only was

the sample small, but the District Court ignored the fact that the

number of women employed at Keene was not disproportionately

small when evaluated by the relevant labor pools of separate aca-

demic departments. See, e.g., E11-E12 & n.11; and n.17, infra.

of discriminatory motive against which peer employment

decisions will be judged.

The Court of Appeals’ recent opinion in this case em-

bodies, or at the least, prefigures, a standard of intent

which equates unconscious, unintentional societal bias with

the discriminatory motive which must be proved in Title

VII disparate treatment cases. Judicial application of

such a standard creates the rebuttable presumption that

decisions by men about women invariably constitute sex

discrimination proscribed by the statute. The burden then

falls inevitably under such a standard on defendants to

prove by a preponderance of the evidence that even uncon-

scious societal bias was not the motivating force in the

decisionmaking process. (N.B. This is precisely the stand-

ard applied by the District Court when it said ‘‘the de-

fendants ... have not proven that they had a non-discrimi-

natory motive in failing to promote [plaintiff]....’? (E25,

Finding No. 8) ) The problem is particularly acute, of

course, where the defendants cannot point to some easy

measurement by objective criteria to explain the employ-

ment decision. This Court may have squarely rejected the

requirement that defendants prove absence of discrimi-

natory motive (A1-A2), but the concept of unconscious

societal bias which has been described and applied by the

courts below nevertheless in reality imposes that burden

on defendants.

The reasons given for plaintiff’s nonpromotion in 1974-

75 were primarily related to her qualities for advancement

to full professor, rather than to her objective credentials

for the rank, but the reasons given originated from the

professional criteria set forth in the faculty manual.’®

16 The manual states that candidates for full professor ‘‘shall

have a background of successful teaching and research, marked

by the perspective of maturity and experience, or by some creative

attribute generally recognizable in the academic world as a special

asset to a faculty.’’

SUPER ON cee

After receiving FAC’s recommendation that the plaintiff

be given more specific reasons, President Redfern con-

ferred with Dean Davis and with FEAC, and then met

with the plaintiff. (E5) Contemporaneous notes indicate

the following reasons were explained to her:

‘‘Personalizes professional issues. People seem not to

feel at ease in working with her. Rigid and narrow on

perception of matters. Intolerant, for example, stu-

dents’ views, especially of differing attitudes. Maybe

that now more active in specialty, your colleagues may

perceive more strength. In supervision of student-

teaching attention seems to be on details. Old-

fashioned, for example, height of window shades. Re-

port writing, graduate faculty minutes not profes-

sional caliber.’

The Court of Appeals now criticizes the nature of these

reasons, labeling them either ‘‘insubstantial or fictitious’’.

(E11) The court has concluded:

‘‘’'T}he district court could have concluded that the

five male members of FEAC would not have fastened

upon such reasons had Sweeney been a man.’’ (E11)

The District Court’s opinion, however, contains no refer-

ence to President Redfern’s meeting with the plaintiff, nor

of the explanation conveyed to her, which is now disparaged

by the Court of Appeals. Except for the lower court’s

finding that Dean Davis’ motivation was not sex bias

(F13), its opinion contains no subsidiary findings about

the motivation of those making the adverse decision. The

District Court simply recounted conflicting testimony with-

out comment; its opinion does not indicate what the trial

court considered relevant to proof of pretext—other than

the ‘‘disproportionately small number of women in high

ranks’’. (F23, F25, Finding No. 9)”

The Court of Appeals now says:

‘““The defendants’ alleged reasons border on describing

Sweeney as, to quote plaintiff’s brief, a ‘school-

marm’.’’ (E10)

This characterization is the Court of Appeals’ own con-

clusion; it does not appear in the trial ecourt’s opimion,

nor in any of defendants’ explanations. The Court of

Appeals itself has reduced the reasons given to ‘“person-

alitv’’? and to a female stereotype suggested by the plain-

tiff. The appellate court appears to reject the subjective

and qualitative reasons per sé, at least when applied by

17 The Court of Appeals’ first opinion in this ease, 569 F.2d ee

at 175, has been cited at least once for the proposition -"

‘< statistics alone can fulfill burden of proof in individual gg 8

treatment case’’. Bilingual Bicultural Coalition, Ete. V. dy

595 F.2d 621 (D.C. Cir. 1978), at 643, 7.99 ; (emphasis supp es

Yet, the methodology of statistical! inference outlined oeteaa e

Bilingual case, and employed by this Court in Castaneda > ped : »

430 U.S. 482, 496-97, n.17 (1977) and Hazelwood Schoo : a ;

United States, 433 U.S. 229, 308-13. nn. 13, 14 (1977), invo sie a

statistical analysis of the disparity between the expected to

and the observed number. In such a framework, the ques sto

becomes what level of statistically-indicated disparity will a

a finding of intentional discrimination. This Court in Hazelwood,

supra, indicated that

at [a]s a general rule for such large samples, if the ennge oy i

is greater than two or three standard deviations, then ‘

hypothesis that ore were “or without regard to rac

would be suspect.”’ (Ibid., atm.14).

Such statistical area was notably lacking in the instant case,

as the Court of Appeals now concedes. (E11 & n.11) There 1s no

basis for the District Court’s conclusion that the — were

‘«disproportionately”’ small in the absence of any relev yh —

for comparison. The District Court did note pegerees ? “

student body was sixty percent female, and that there shou * :

more female professors to serve as role models (F15-F16), bu

this comparison was rejected as irrelevant in Hazelwood, supra.

men to a woman, (E11) This analysis of pretext, however,

is deficient :

(1) The conclusion that ‘‘personality’’ reasons were

applied only to women is not supported by the

record ;*®

(2) The personal dimension cannot be isolated from

the professional qualifications, particularly where

the stated criteria for promotion include teaching

and research ‘‘marked by the perspective of ma-

turity and experience, or some creative attribute

generally recognizable .. .’’ (E5) ;

(3) The courts have not heretofore held that decisions

which involve personal or subjective elements are

per se illegitimate—Davis, supra, 596 F.2d, at

731; Powell, supra, 580 F.2d, at 1158;

(4) Narrow-mindedness is not an exclusively femi-

nine trait, nor strictly a matter of personality ;

it is a legitimate aspect of professional maturity ;

(5) Objective examples of plaintiff’s relatively weak

qualifications were offered—e.g., she had not pub-

lished since coming to Keene (F10), and her

writing contained errors in grammar and diction

(H5); and

(6) The District Court never addressed itself to the

motivation of FEAC, despite requests to do so;

18 Insofar as the attributes identified as the reasons for plain-

tiff’s nonpromotion (E5-E7) are related to personality, such

attributes were also described in reference to male candidates.

One unsuccessful male candidate for full professor was reproved

by his department chairman for his meek and unassertive manner.

Another male who was unsuccessful in his first attempts to be

promoted to full professor was considered difficult to work with,

unpopular with some of his colleagues, and authoritarian. On the

other hand, one male candidate was described in positive terms as

having great sensitivity to both people and ideas.

there were no subsidiary findings of fact about

the reasons given which the Court of Appeals

could review under the ‘‘clearly erroneous”’ test.

See, discussion of ‘‘clearly erroneous’’ test,

supra, at 14-20.

Moreover, the record does contain evidence that plaintiff

was narrow-minded in some of her attitudes. Such evi-

dence was introduced bearing directly on the motivation

of Dr. Quirk, the FEAC chairman in the critical year,

1974-75. Quirk said he had served with the plaintiff on the

Admissions and Standards Committee in 1974-75 and that

he had disagreed with her over reviewing students’ appli-

eations to the Department of Education.

‘‘Quirk felt that Sweeney’s advocacy of a ‘subjective

interview’ as a requirement for admission, allegedly

without any criteria, and her statement, in response

to his question, that convicts had ‘no place in front

of the classroom’ were examples of her ‘lack of ma-

turity’.’’ (H6)

However, the District Court makes no mention of this, and

the Court of Appeals appears to discount it totally. (E6)

The Court of Appeals uses the hypothesis of unconscious

societal bias to uphold the lower court’s decision :

“(One familiar aspect of sex discrimination is the prac-

tice. whether conscious or unconscious, of subjecting

women to higher standards of evaluation . . .”’. (E13-

E14, emphasis supplied)

This hypothesis, unsupported by any showing of syste-

matie exclusion,” represents a new definition of purpose-

19 Within the rule of Hazelwood and Castenada, supra, n.17, in

addition to there being no statistically-indicated disparity between

ii csc jdheie ire Ds

ful discrimination in disparate treatment cases under Title

VII, which finds no support in this Court’s past decisions.

Although the standard of intent applicable under Title VII

in disparate treatment cases has not found entirely unani-

mous expression by this Court, nothing previously stated

indicates that unconscious societal bias rises to a statutory

violation.

McDonnell Douglas Corp. v. Green, supra, a unanimous

opinion setting forth the disparate treatment theory in

an individual case, contains the following language about

proof of motive:

‘‘TRjespondent must be given a full and fair oppor-

tunity to demonstrate by competent evidence that the

presumptively valid reasons for his rejection were in

fact a cover-up for a racially discriminatory decision.’’

411 U.S., at 805 (emphasis supplied)

The issue of conscious, intentional discrimination versus

unconscious, cultural bias never arose.

In Washington v. Davis, supra, the Court directly ad-

dressed the question of intent in a case raised on constita-

tional issues. In a majority opinion, the Court rejecied

application of a disparate impact standard in a constitu-

tional case, saying,

the number of males and females in the various ranks, the record

contains other evidence that women were not systematicelly ex-

cluded. For example,

‘‘President Redfern testified that the college is now promoting

women at the instruction level [sic] at a higher rate than

men, but after that, the promotion rate favors men. This

differential was explained on the grounds that, unti recently,

the faculty had a ratio of four or five males to ene female.

... [Four out of twelve department heads are vomen. ...

There are two female full professors, Dr. Grayson and the

plaintiff. The college has the only woman athetic director

of a coeducational college. . .’’. (F14)

‘‘fO]ur cases have not embraced the proposition that a

law or other official act, without regard to whether it

reflects a racially discriminatory purpose, is uncon-

stitutional solely because it has a racially dispropor-

tionate impact.’’ 426 U.S. at 239.

In a concurring, but separate opinion, Mr. Justice

Stevens, wrote:

‘‘Frequently the most probative evidence of intent

will be objective evidence of what actually happened

rather than evidence describing the subjective state

of mind of the actor. For normally the actor is pre-

sumed to have intended the natural consequences of

his deeds. ...

‘‘My point in making this observation is to suggest

that the line between discriminatory purpose and dis-

criminatory impact is not nearly as bright, and per-

haps not quite as critical, as the reader of the Court’s

opinion might assume. I agree, of course, that a con-

stitutional issue does not arise every time some dis-

parate impact is shown.’’ Id., at 253-54 (emphasis

supplied)

While Washington v. Davis, supra, ostensibly re-estab-

lished the requirement of intent in constitutional cases,

the coucept of intent under Title VII awaited further defi-

nition. This Court’s decision in General Electric Co, v.

Gilbert, supra, seems to indicate that discrimination under

Section 703(a)(1) of Title VII [42 U.S.C. §2000e-2(a) (1) ]

is the same as the concept of discrimination associated

with the Fourteenth Amendment for nearly a century.

‘‘When Congress makes it unlawful for an employer to

‘discrininate ... because of ... sex... ,’ without fur-

ther explanation of its meaning, we should not readily

infer that it meant something different from what the

concept of discrimination has traditionally meant...’’.

429 U.S., at 145.

These statements drew exceptions from other members

of this Court. Mr. Justice Brennan and Mr. Justice Mar-

shall found the majority’s implication that the Fourteenth

Amendment standard of discrimination was coterminous

with that applicable to Title VII wholly unacceptable. (Jd.,

at 153, n.6) Mr. Justice Stevens, in his dissenting opinion,

stated:

‘‘[T he plaintiffs’ burden of proving a prima facie vio-

lation of [the equal protection clause] is significantly

heavier than the burden of proving a prima facie

violation of a statutory prohibition against discrimi-

nation’’. Jd., at 160-61.

Similarly, the Court of Appeals in the instant ease said

in its first opinion:

‘We do not read General Electric Co. v. Gilbert . .. as

altering McDonnell Douglas. In Gilbert the court

found that the plaintiff had not shown a dispropor-

tionate impact on women.... The issue of disparate

treatment was not involved.’’ 569 F.2d at 177, n.15.

Subsequent decisions by this Court have not completely

clarified whether the statutory standard of intent is the

same as the constitutional standard, in those statutory

cases where proof of motive is critical. In Teamsters,

supra, the majority said:

‘‘Proof of discriminatory motive is critical, although it

can in some situations be inferred from the mere fact

of differences in treatment. See, e.g., Village of Ar-

lington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252, 265-266 [1977]....

‘Claims of disparate treatment may be distin-

guished from claims that stress ‘disparate impact’.

_.. Proof of discriminatory motive, we have held, is

not required under a disparate impact theory.’’ 431

U.S., at 335, n.15.

The citation of Village of Arlington Heights in Team-

sters, supra, ties the standard again to a constitutional

case. Arlington discusses proof of discriminatory purpose,

as follows:

‘‘Determining whether invidious discriminatory pur-

pose was a motivating factor demands a sensitive in-

quiry into such circumstantial and direct evidence of

intent as may be available. The impact of the official

action—whether it ‘bears more heavily on one race

than another’, Washington v. Davis, supra, at 242,...

—may provide an important starting point. Some-

times a clear pattern, unexplainable on grounds other

than race, emerges from the effect of the state action

even when the governing legislation appears neutral

on its face. Yick Wo v. Hopkins, 118 U.S. 356...

(1886); ... Gomillion v. Lightfoot, 364 U.S. 339....

The evidentiary inquiry is then relatively easy [foot-

note omitted] but such cases are rare. Absent a pat-

tern as stark as that in Gomillion or Yick Wo, wmpact

alone is not determinative, [footnote omitted] and the

Court must look to other evidence. [footnote omit-

ted]’’ 429 U.S., at 266. (emphasis supplied)

}

{

;

}

More recently, in Furnco, supra, this Court explained

discriminatory motive in common sense terms:

‘‘A McDonnell Douglas prima facie showing is not

the equivalent of a factual finding of discrimination,

however. Rather, it is simply proof of actions taken

by the employer from which we infer discriminatory

animus because experience has proved that in the

absence of any other explanation it is more likely than

not those actions were bottomed on impermissible

considerations. When the prima facie showing is

understood in this manner, the employer must be

allowed some latitude to introduce evidence which

bears on his motive.’’ 438 U.S., at 579-80.

Petitioners do not submit that societal bias is never

relevant to the issue of discriminatory motive required in

Title VII disparate treatment cases. Petitioners submit,

however, that this unconscious societal bias is too amor-

phous, and too subject to abuse in application, to be a

meaningful standard of intent. The courts have recognized

that the academic employment setting is a particularly

difficult one in which to detect discriminatory motive.

But, if Congress did not intend that higher education be

immunized from the requirements of Title VII, neither did

Congress intend that academic employment decisions be

tested by the rarified standard of unconscious, uninten-

tional motivation. Petitioners submit that the courts must

focus foremost on observable actions of the decisionmakers

themselves and avoid the pitfalls of speculation about the

subeonscious. At the very least, there must be evidence

linking the generalized inference of bias to the specific

decisionmakers in an individual ease.

This Court should grant certiorari to clarify the standard

of intent against which peer decisions will be judged. Just

as ‘‘a constitutional issue does not arise every time some

disparate impact is shown’’?®—neither does disparate

treatment under Title VII occur with every intimation of

societal bias. Furthermore, this Court should grant certio-

rari to reject the presumption, inherent in the societal bias

standard of intent, that decisions by men about women

constitute unlawful sex discrimination requiring rebuttal.

Conclusion

On one level, the issues presented here question simply

the substantive and procedural handling by the courts below

of evidence relating to proof of motive and pretext; but

on another level, the issues here speak to the reach of the

courts’ power to set aside the decisions of elected peer

representatives on the basis of such attentuated inference.

For all the foregoing reasons, petitioners ask this Court to

grant certiorari again and to examine the issues presented

here.

Respectfully submitted,

JosepH A. MILLIMET

Devine, Mituimet, Stan, & Brancu

PROFESSIONAL ASSOCIATION

1850 Elm Street

Manchester, New Hampshire 03105

Attorneys for Petitioners

20 Washington v. Davis, supra, 426 U.S., at 254, concurring

opinion of Mr. Justice Stevens.

ns . ‘ aes ee

Dos Dea Oa Sait = Vals Baha eit BED

A-1

APPENDIX A

In the

Supreme Court of the United States

BOARD OF TRUSTEES OF KEENE STATE COLLEGE

ET AL v. CHRISTINE M. SWEENEY

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 77-1792. Decided November 13, 1978

Per Curiam.

The petition for a writ of certiorari is granted. In Furnco

Construction Co. v. Waters, 488 U.S. __ (June 29, 1978),

we stated that ‘‘[t]o dispel the adverse inference from a

prima facie showing under McDonnell Douglas, the em-

ployer need only ‘articulate some legitimate, nondiscrimi-

natory reason for the employee’s rejection.’ ’’ Id. at

(slip op., at 10), quoting McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). We stated in McDonnell

Douglas, supra, that the plaintiff ‘‘must ... be afforded a

fair opportunity to show that [the employer’s] stated

reason for [the plaintiff’s] rejection was in fact pretext.’’

411 U.S. at 804. The Court of Appeals in the present case,

however, referring to McDonnell Douglas, supra, stated

that ‘‘in requiring the defendant to prove absence of dis-

criminatory motive, the Supreme Court placed the burden

squarely on the party with the greater access to such evi-

dence.’’ Sweeney v. Board of Trustees of Keene State

College, 569 F. 2d 169, 177 (CA1 1978) (emphasis added).'

1} While the Court of Appeals did make the statement that the

dissent quotes, post, at 2, it also made the statement quoted in the

A-2

While such words as ‘‘articulate,’’ ‘‘show,’’ and

‘*prove,’’ may have more or less similar meanings depend-

ing upon the context in which they are used, we think that

there is a significant distinction between merely ‘‘articu-

lat{ing] some legitimate, nondiscriminatory reason’’ and

‘*prov[ing] absence of discriminatory motive. By reaffirm-

ing and emphasizing the McDonnell Douglas analysis in

Furnco Construction Co. v. Waters, supra, we made it clear

that the former will suffice to meet the employer’s prima

facie case of discrimination. Because the Court of Appeals

appears to have imposed a heavier burden on the employer

than Furnco warrants, its judgment is vacated and the

case is remanded for reconsideration in the light of Furnco,

supra, at _— (slip. op., at 10).?

text above. These statements simply contradict one another. The

statement quoted in the text above would make entirely superfluous

the third step in the Furnco—McDonnell Douglas analysis, since

it would place on the employer at the second stage the burden

of showing that the reason for rejection was not a pretext, rather

than requiring such proof from the employee as a part of the third

step. We think our remand is warranted both because we are

unable to determine which of the two conflicting standards the

Court of Appeals applied in reviewing the decision of the District

Court in this case, and because of the implication in its opinion

that there is no difference between the two standards. We of

course intimate no view as to the correct result if the proper test

is applied in this ease.

2 We quite agree with the dissent that under Furnco and McDon-

nell Douglas the employer’s burden is satisfied if he simply ‘‘ex-

plains what he has done’’ or ‘‘produc[es] evidence of legitimate

nondiscriminatory reasons.’’ Post, at 4. But petitioners clearly

did produce evidence to support their legitimate nondisecriminatory

explanation for refusing to promote respondent during the years

in question. See 569 F'. 2d 172-173, 178; Pet. for Cert. B-2 to B-24.

Nonetheless, the Court of Appeals heid that petitioners had not

met their burden because the proffered legitimate explanation did

not ‘‘rebut’’ or ‘‘disprove’’ respondent’s prima facie case or

‘*prove absence of nondiscriminatory motive.’’ 569 F. 2d, at 177-

179; see Pet. for Cert. B-25. This holding by the Court of Appeals

is further support for our belief that the court appears to have

imposed a heavier burden on the employer than Furneo, and the

dissent here, requires.

A-3

In the

Supreme Court of the United States

BOARD OF TRUSTEES OF KEENE STATE COLLEGE

ET AL v. CHRISTINE M. SWEENEY

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 77-1792. Decided November 13, 1978

Mr. Justice SteveENs, with whom Mr. Justice BRENNAN,

Mr. Justice Srewart, and Mr. Justice MarsHALu join,

dissenting.

Whenever this Court grants certiorari and vacates a

Court of Appeals judgment in order to allow that court

to reconsider its decision in the light of an intervening

decision of this Court, the Court is acting on the merits.

Such action always imposes an additiona] burden on Cir-

cuit Judges who—more than any other segment of the

Federal Judiciary—are struggling desperately to keep

afloat in the flood of federal litigation. For that reason,

such action should not be taken unless the intervening

decision has shed new light on the law which, if it had been

available at the time of the Court of Appeals’ decision,

might have led to a different result.

In this case, the Court’s action implies that the recent

opinion in F'urnco Construction Corp. v. Waters, 438 U.S.

—, (June 29, 1978), made some change in the law as ex-

plained in McDonnell Douglas Corp. v. Greene, 411 U.S.

792. When I joined the Furxco opinion, I detected no such

change and I am still unable to discern one. In both eases,

the Court clearly stated chat when the complainant in a

Title VII trial establishes a prima facie case of discrimi-

A-4

nation, ‘‘the burden which shifts to the employer is merely

that of proving that he based his employment decision on

a legitimate consideration, and not an illegitimate one such

as race.’’*

The Court of Appeals’ statement of the parties’ respec-

tive burdens in this case is wholly faithful to this Court’s

teachings in McDonnell Douglas. The Court of Appeals

here stated:

‘‘As we understand those cases [McDonnell Douglas

and International Brotherhood of Teamsters, 431 U.S.

324], a plaintiff bears the initial burden of presenting

evidence sufficient to establish a prima facie case of

discrimination. The burden then shifts to the defend-

1This language is quoted from the following paragraph in

Furnco:

‘‘When the prima facie case is understood in the light of

the opinion in McDonnell Douglas, it is apparent that the

burden which shifts to the employer is merely that of proving

that he based his employment decision on a legitimate con-

sideration, and not an illegitimate one such as race. To prove

that, he need not prove that he pursued the course which

would both enable him to achieve his own business goal and

allow him to consider the most employment applications.

Title VII forbids him from having as a goal a work force

selected by any proscribed discriminatory practice, but it

does not impose a duty to adopt a hiring procedure that

maximizes hiring of minority employees. To dispel the ad-

verse inference from a prima facie showing under McDonnell

Douglas, the employer need only ‘articulate some legitimate

nondiscriminatory reason for the employee’s rejection.’ ’’ 438

U.S. at —_ (emphasis in original).

The comparable passage in UcDonnell Douglas reads as follows :

‘T).. burden then must shift to the employer to articulate

some legitimate, nondiscriminatory reason for the employee’s

rejection. We need not attempt in the instant case to detail

every matter which fairly could be recognized as a reasonable

basis for a refusal to hire. Here petitioner has assigned re-

spondent’s participation in unlawful conduct against it as

the cause for his rejection. We think that this suffices to

discharge petitioner’s burden of proof at this stage and to

meet respondent’s prima facie case of discrimination.’’ 411

U.S. at 802-803.

A-5

ant to rebut the prima facie case by showing that a

legitimate, nondiscriminatory reason accounted for its

actions. If the rebuttal is successful, the plaintiff must

show that the stated reason was a mere pretext for

discrimination. The ultimate burden of persuasion on

the issue of discrimination remains with the plaintiff

who must convince the court by a preponderance of

the evidence that he or she has been the victim of dis-

crimination.’’ Sweeney v. Board of Trustees of Keene

State College, 569 F.2d 169, 177 (CA1, 1978) (empha-

sis added).

This statement by the Court of Appeals virtually parrots

this Court’s statements in McDonnell Douglas and Furnco.

Nonetheless, this Court vacates the judgment on the ground

that ‘‘the Court of Appeals appears to have imposed a

heavier burden on the employer than Furnco warrants.”’

Post, at 2. As its sole basis for this conclusion, this Court

relies on a distinction drawn for the first time in this ease

‘‘between merely ‘articulat[ing] some legitimate, nondis-

criminatory reason’ and ‘prov[ing] absence of discrimina-

tory motive.’ ’’ Post, at 2.2 This novel distinction has

two parts, both of which are illusory and unequivocally

rejected in Furnco itself.

First is a purported difference between ‘‘articulating’’

2 The Court also suggests that ‘‘further support’’ for its decision

is derived from the Court of Appeals’ ‘‘holding’’ that ‘‘respondent

had not met its burden because the proffered legitimate explana-

tion did not ‘rebut’ or ‘disprove’ petitioner’s prima facie case...

569 F. 2d, at 177-179.’’ Post, at 2 n. 2. The actual ‘‘holding’’ of

the Court of Appeals was that ‘‘the trial court’s finding that sex

discrimination impeded the plaintiff’s second promotion was not

clearly erroneous.’’ 569 F. 2d, at 179. The Court of Appeals

reached this conclusion by considering all of the evidence pre-

sented by both parties to determine whether the evidence of dis-

crimination offered by the plaintiff was ‘‘sufficient to sustain

the district court’s finding’’ in light of the counter evidence

offered by the employer. Jbid. Such factual determinations by

two federal courts are entitled to a strong presumption of validity.

A-6

and ‘‘proving’’ a legitimate motivation. Second is the dif-

ference between affirming a nondiscriminatory motive and

negating a discriminatory motive.

With respect to the first point, it must be noted that it

was this Court in Furnco, not the Court of Appeals in this

ease, that stated that the employer’s burden was to

‘“nrov[e| that he based his employment decision on a

legitimate consideration.’”* Indeed, in the paragraph of

this Court’s opinion in Furnco cited earlier, the words

‘‘prove’’? and ‘‘articulate’’ were used interchangeably,’

and properly so. For they were descriptive of the de-

fendant’s burden in a trial context. In litigation the only

way a defendant can ‘‘articulate’’ the reason for his action

is by adducing evidence that explains what he has done;

when an executive takes the witness stand to ‘‘articulate”’

his reason, the litigant for whom he speaks is thereby prov-

ing those reasons. If the Court intends to authorize a

method of articulating a factual defense without proof,

surely the Court should explain what it is,

The second part of the Court’s imaginative distinction

is also rejected by F'urnco, When an employer shows that

a legitimate nondiscriminatory reason accounts for his

action, he is simultaneously demonstrating that the action

was not motivated by an illegitimate factor such as race.

Furnco explicitly recognized this equivalence when it de-

fined the burden on the employer as ‘‘that of proving that

he based his employment decision on a legitimate consider-

ation, and not an illegitimate one such as race.’*> Whether

the issue is phrased in the affirmative or in the negative,

3438 U.S.. at __ (emphasis added). Quoted in n. 1, supra.

It should also be noted that the Court of Appeals did not state

that the petitioner’s burden here was to ‘‘prove’’ anything; rather,

the burden which shifted to the defendants was to ‘‘show’’ a legiti-

mate reason for its action.

See n. 1, supra.

5438 U.S., at _—.

A-7

the ultimate question involves an identification of the real

reason for the employment decision. On that question—as

all of these cases make perfectly clear—it is only the bur-

den of producing evidence of legitimate nondiscriminatory

reasons which shifts to the employer; the burden of persua-

sion, as the Court of Appeals properly recognized, remains

with the plaintiff.

In short, there is no legitimate basis for concluding that

the Court of Appeals erred in this case—either with or

without the benefit of Furnco. The Court’s action today

therefore needlessly imposes additional work on Circuit

Judges who have already considered and correctly applied

the rule the Court directs them to reconsider and reapply.

B-1

APPENDIX B

United States Court of Appeals

For the First Circuit

No. 77-1243.

CurIsTINE M. SwEENeEy,

PLAINTIFF, APPELLEE,

Boarp oF TRUSTEES OF KEENE State Couuecer, Er At.,

DEFENDANTS, APPELLANTS.

| No. 77-1244.

| CHRISTINE M. SwWEENEY,

| PLAINTIFF, APPELLANT,

Boarp or Trustees oF Keene State Couxece, Er At.,

| DEFENDANTS, APPELLEES.

Before Corrin, Chief Judge,

Tuttie,* Circuit Judge

and CAMPBELL, Circuit Judge.

ORDER OF COURT

Entered: December 19, 1978

Upon consideration of motion for leave to file additional

briefs and make further argument to this Court, objection

thereto, and response to objection,

It is ordered that this cause is hereby remanded to the

District Court (attention of Judge Bownes, sitting by des-

ignation) for further proceedings and reconsideration in

the light of Furnco Construction Co. v. Waters, 438 U.S. —

(1978).

By the Court:

Dana H. Gauuvp, Clerk.

[ec: Messrs. Millimet and Middleton]

* Of the Fifth Circuit, sitting by designation.

OO ———

C-1

APPENDIX C

Unitep States Districr Court FoR THE

District or New HAMPSHIRE

Civil Action No. 75-182

CHRISTINE M. SWEENEY

Boarp oF TRUSTEES oF KEENE STATE COLLEGE, ET AL.

ORDER

Pursuant to the order of the First Cireuit Court of

Appeals of December 19, 1978, I have reconsidered and

reexamined my opinion in the light of Furnco Construction

Co. v. Waters, 438 U.S. —, 46 U.S.L.W. 4966 (June 29,

1978). I have also, of course, reread Sweeney v. Board of

Trustees of Keene State College, 569 F.2d 169 (1978),

and studied carefully the decision of the Supreme Court

granting certiorari, 47 U.S.L.W. 3330 (Nov. 13, 1978).

While my original opinion was perhaps not as detailed

as to the McDonnell Douglas test as it could have been,

I did not, of course, have the benefi) of Furnco at the time

it was written. While the reasoning of Furnco cannot be

applied retroactively, I can make clear the reasoning I

used in Sweeney.

The plaintiff, Christine M. Sweeney, established a prima

face case under the McDonnell Douglas standard: she was

a member of the protected class, she had the qualifications

to be promoted to full professor during the academic year

1974-75, and males with no greater qualifications had been

promoted to full professors. Defendants did adduce evi-

dence of legitimate nondiscriminatory reasons for not pro-

moting plaintiff. Plaintiff then proved to my satisfaction

that the basic reason for the failure to promote her was

because of her sex, that the reasons advanced by the de-

U-2

fendants were pretextual, and that plaintiff would have

been promoted in the academic year 1974-75 but for the

fact that she was a woman.

My opinion and findings are in all respects reaffirmed.

So ORDERED.

(s) Hvuen H. Bowxes

United States Circuit Judge

Sitting by Designation

January 29, 1979

ee. Jack B. Middleton, Esq.

Joseph A. Millimet, Esq.

D-1.

APPENDIX D

Unirep Srares District Court FoR THE

District or New HAmpsHIRE

Civil Action No. 75-182

CHRISTINE M. SwEENEY

v. =

Boarp or Trustees or KEENr State CoLuEGE? ET AL.

ORDER

Defendants’ request for hearing and motion for amend-

ment of ‘‘Request For Relief’’ are both denied.

The First Cireuit Court of Appeals, with notice to both

parties, on December 19, 1978, remanded this case to me

sitting by designation.

I took no action on this case between the time it was

remanded and the date of my order of January 29, 1979.

During the long interval between the time the case was

remanded to me and January 29, neither party requested a

hearing nor was any motion filed. It appears to me that

a six week period of time is ample for counsel to decide

whether or not to file motions and/or requests.

Defendants’ request for a hearing and its motion to

amend its request for relief are too late.

It is my opinion that I have complied fully with the

remand order of the First Cireuit Court of Appeals and

that there is nothing further pending before me in this ease.

So ORDERED.

(s) Huen H. Bownsgs

United States Circuit Judge

Sitting by Designation

February 20, 1979

ec. Jack B. Middleton, Esq.

Joseph A. Millimet, Esq.

——_

E-1

APPENDIX E

United States Court of Appeals

For the First Circuit

No. 79-1112

CHRISTINE M. SWEENEY,

PLAINTIFF, APPELLEE,

BOARD OF TRUSTEES OF

KEENE STATE COLLEGE, ET AL.,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Hucn H. Bownes,* U.S. Circuit Judge]

Before Corrin, Chief Judge,

CAMPBELL, Circuit Judge,

and SKINNER, ** District Judge.

Joseph A. Millimet, with whom Devine, Millimet, Stahl &

Branch, Professional Association, was on brief, for appellants.

Jack B. Middleton, with whom Robert A. Wells, and McLane,

Graf, Greene, Raulerson & Middleton, Professional Association,

were on brief, for appellee.

August 21, 1979

CAMPBELL, Circuit Judge. This case is before us for the

second time. Our affirmance of the district court’s decision

that Sweeney’s promotion to Professor of Education at Keene

State College was delayed because of her sex, Sweeney v.

Board of Trustees of Keene State College, 569 F.2d 169 (1978),

was vacated and remanded by the Supreme Court “for recon-

sideration in the light of Furnco [Construction Corp. v.

Waters, 438 U.S. 567 (1978)}.” 47 U.S.L.W. 3330, 3331 (Nov.

13, 1978). We in turn remanded to the district court, which

* Of the First Circuit, sitting by designation.

** Of the District of Massachusetts, sitting by designation.

E-2

again found in Sweeney's favor. No. 75-182 (D.N.H. Jan. 29,

1979). Keene State College once again appeals.

From the beginning, Sweeney has sought to prove her claim

of sex discrimination by the methodology in McDonnell

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

case, an individual Title VII plaintiff may proceed by first

establishing a “prima facie case” of discrimination; this then

requires the defendant to “articulate” a legitimate, non-

discriminatory reason for its adverse action regarding the

plaintiff. To prevail, the plaintiff ultimately must prove that

the reason given is a pretext for discrimination. See 411 U.S. at

802-05. Since the Supreme Court vacated our first Sweeney

decision, we have taken pains to point out that, under McDon-

nell Douglas, the defendant’s burden is merely a burden of

production, and that the burden of persuasion remains at all

times with the plaintiff. Loeb v. Textron, No. 78-1340, slip

op. at 10-12 (June 21, 1979).

The error that prompted the Supreme Court to vacate our

original decision occurred in our discussion of defendants’

obligation to “articulate” a legitimate reason for Sweeney's

non-promotion once plaintiff had established a prima facie

case. We stated erroneously that defendants were required “to

prove absence of discriminatory motive.” 569 F.2d at 177. In

remanding the case to us, the Supreme Court reemphasized

the actual language and rule of McDonnell Douglas, 411 U.S.

at 802, and Furnco, 438 U.S. at 578, that a Title VII defen-

dant need only “articulate” a valid reason, and indicated that

defendants surely had done so. See 47 U.S.L.W. at 1330-31 &

n. 2. The Court was concerned that we had “imposed a

heavier burden on the employer than Furnco warrants.” 47

U.S.L.W. at 1331.

On further remand from us, the district court manifested its

understanding that defendants had met their limited burden of

articulating facially valid reasons for not promoting Sweeney,

and concentrated upon the ultimate question: whether

Sweeney had proven by a preponderance that the reasons

E-3

stated were pretexts for discrimination. The court concluded

that Sweeney had met her burden in this regard:

“[Sweeney] proved to my satisfaction that the basic

reason for the failure to promote her was because of her

sex, that the reasons advanced by the defendants were

pretextual, and that plaintiff would have been promoted

in the academic year 1974-75 but for the fact that she was

a woman.”

See Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979) (Title

VII plaintiff must meet “but for” standard of proof); cf. Loeb,

slip op. at 25-26 (same rule in ADEA cases).!

The issue now before us is whether the district court’s deci-

sion in favor of Sweeney is clearly erroneous.” Because of the

'! Although the district court acted before our decision in Loeb v.

Textron, No. 78-1340 (June 21, 1979), was released, nothing in its

opinion suggests that it applied a legal standard inconsistent with

Loeb or, more importantly, with Furnco Construction Corp. v.

Waters, 438 U.S. 567 (1978).

2 We indicated that we followed the clearly erroneous standard of

Fed. R. Civ. P. 52(a) in our first Sweeney decision, Sweeney v.

Board of Trustees of Keene State College, 569 F.2d 169 (1978).

Defendants now urge us to abandon that standard in Title VII cases

on the ground that a “factual” finding that a plaintiff was denied a

promotion because of her sex is equivalent to a finding on the ulti-

mate legal issue of discrimination. This argument has persuaded

some circuits that appellate courts should make an independent de-

termination of the question of discrimination and apply the clearly

erroneous standard only to the district court’s findings of subsidiary

facts. E.g., Stewart v. General Motors Corp., 542 F.2d 445, 449

(7th Cir. 1976), cert. denied, 433 U.S. 919 (1977); Causey v. Ford

Motor Co., 516 F.2d 416, 420-21 (5th Cir. 1975). We are not in-

clined to that approach. This circuit has applied the clearly er-

roneous standard to conclusions involving mixed questions of law

and fact except where there is some indication that the court miscon-

ceived the legal standards. E.g., Burgess v. M/V Tamano, 564 F.2d

964, 976-77 (Ist Cir. 1977), cert. denied, 435 U.S. 941 (1978) (ad-

miralty negligence); Raymond v. Eli Lilly & Co., 556 F.2d 628,

629-30 (1st Cir. 1977) (finding of reasonable diligence) (per curiam);

Forbro Design Corp. v. Raytheon Co., 532 F.2d 758, 763 (1st Cir.

1976) (finding of “obviousness”); cf. Senter v. General Motors Corp.,

532 F.2d 511, 526 (6th Cir.), cert. denied, 429 U.S. 870 (1976)

E-4

procedural history of this case and the parties’ disagreement

over the issues before us,? we have reviewed the record a

second time in light of our current understanding of the law.

We conclude that the district court’s decision was not clearly

erroneous and therefore affirm.

Sweeney inititated the promotion procedure in the fall of

1974; in November Dr. St. John, then Chair of the Education

Department, wrote to Dean Davis that Sweeney wished to be

considered for full professor and had the support of the depart-

ment’s Advisory Committee on Promotions, although he per-

sonally had mixed feelings about her case.* In any event, she

was considered by the 1974-75 Faculty Evaluations Advisory

(court not bound by “clearly erroneous” principle where party con-

tends wrong legal principle applied). We see no reason to depart

from this course in discrimination cases; the opportunity for first-

hand observation may be especially important in one such as this,

where the issue is whether “personality” reasons were sexually

biased. We shall look carefully, however, to detect infection from

legal error, and of course the clearly erroneous standard does not

shield findings that are unsupported or arbitrary. See generally

United States v. United States Gypsum Co., 333 U.S. 364, 394-95

(1948); 9 C. Wright & A. Miller, Federal Practice & Procedure

§§ 2589-2591 (1971).

3 Defendants ask us to reconsider the entire case and phrase the

issue before us expansively. They ask what evidence is necessary to

sustain a finding of discrimination when employment decisions are

made through a system of peer group review, and to what extent

evidence used to establish a prima facie case or general inference of

discrimination can be relied upon to conclude that a defendant's ac-

tion as to an individual plaintiff was discriminatory. Sweeney would

have us construe the Supreme Court’s remand order as no more than

a request for clarification of the standard used in our first decision,

and not for complete reconsideration of the case. She argues that the

opinions below demonstrate that the district court and this court in

its original opinion applied the proper legal standards, despite our

misstatement as to the defendants’ burden, and that we therefore

need not review the evidence again. Alternatively, she argues that

the evidence demonstrates “unequivocally” that the reasons for non-

promotion were pretexts.

4 See note 12, infra.

— ———

a a a ns a es

E-5

Committee (FEAC), which recommended against her promo-

tion.» Dean Davis then wrote to Sweeney that she would not

be promoted and gave her the “pro forma” explanation that

she had,

“not fulfilled the qualifications as stated in the Faculty

Manual; namely, that your teaching and research has not

been ‘marked by the perspective of maturity and ex-

perience, or by some creative attribute generally

recognizable in the academic world as a special asset to a

faculty.” ”

In November 1975, however, after the Faculty Appeals Com-

mittee (FAC) had urged that Sweeney be given more specific

reasons for the adverse decision, see 569 F.2d at 173, President

Redfern conferred with Dean Davis and with former FEAC

members and then met with Sweeney. The evidence shows

that he told Sweeney that the reasons were largely personal

ones: that the FEAC members thought that she “personalized

professional matters,” was rigid, narrow-minded, and inflexi-

ble, intolerant of students’ views and “old fashioned” in her

supervision of student teaching. Her alleged concern with the

height of window shades was cited as an example. Redfern

also said that her minutes of the graduate faculty meetings

were thought not to be of professional caliber, and that she did

not show a “give and take” spirit on committees. These reasons

were brought out at trial, where they were supplemented by

the testimony of Dr. Quirk, who was Chairman of the 1974-75

FEAC.

Dr. Quirk testified that Sweeney's case for promotion was

“weak” and “mediocre...at best.” The 1974-75 FEAC, which

5 Keene State follows a promotion procedure under which candi-

dates apply through their departments to the Faculty Evaluations

Advisory Committee (FEAC). The departmental chairman for-

wards the application to FEAC, which makes a recommendation to

the Dean. The Dean usually adopts FEAC’s recommendation and, if

it is positive, forwards it to the Trustees for final approval. See 569

F.2d at 172-73.

E-6

consisted of five men, considered five candidates for promo-

tion to full professorships—three men and two women. Only

two were recommended: one man, James Smart (vote 3-2),

and one woman, Janet Grayson (vote 5-0). The vote against

Sweeney was five to zero. According to Quirk, the reasons for

the vote were “varied.”

“There were quite a few reasons. But it was probably just

an extremely weak case. I think one has to look at the

criteria involved in promotion, and when [sic] one has to

keep in mind the fact that that is promotion to the top

rank of the college, that is, to full professor, and when

you view it that way, the case has to be a positive, a

strong positive case for recommendation for promotion to

this top rank. If you look at the categories involved, there

are basically three categories in which we make a judg-

ment. One of the categories is teaching effectiveness. The

other is contribution to the college. And the third is

scholarly qualifications.”

Defense counsel on direct examination brought out that

Sweeney had served on no campus-wide committees except the

College Senate, to which she was elected by her department

rather than on a campus-wide basis. Quirk also testified that

he had served with Sweeney on the Admissions and Standards

Committee in 1974-75 and that their relationship had been

marked by “some disagreements” over reviewing students’ ap-

plications to the Education Department for professional

education. Quirk felt that Sweeney’s advocacy of a “subjective

interview” as a requirement for admission, allegedly without

any criteria, and her statement, in response to his question,

that convicts had “no place in front of the classroom” were ex-

amples of her “lack of maturity.”°

® On cross-examination it was brought out that Quirk had had

other differences with Sweeney because he had signed course regis-

tration cards for his wife, an education student who officially was

Sweeney's advisee.

E-7

The reasons given for the 1974-75 denial of Sweeney’s pro-

motion thus were, in essence, that Sweeney had a tendency to

be narrow-minded and rigid, to personalize professional mat-

ters, and to be difficult to work with. Defendants did not state

that Sweeney was lacking in scholarly qualifications, but sug-

gested that she had made an insufficient contribution to the

college, for example, to its committees, and that her person-

ality interfered with her teaching and colleagueship.’

Sweeney applied for promoticn again to the 1975-76 FEAC

and was successful. In the interim she had filed charges of sex

discrimination, and at trial she expressed the view that the

1975-76 promotion was in response to that action, as

“{e]verything else remained constant.” Defendants emphasize,

however, that in September 1975 Sweeney was made Director

of the Education Department’s reading program and that, in

her November 1975 meeting with Redfern concerning the

1974-75 denial, Redfern said that her performance in that pro-

gram might lead to her promotion. Defendants’ position is that

Sweeney had much stronger departmental support in 1975-76

than in 1974-75, in part because of her work in the reading

program.

Defendants now contend, in essence, that Sweeney did not

introduce evidence sufficient to prove that these

reasons—which on their face are legitimate and non-

discriminatory—were pretexts for discrimination. Reminding

us of the Supreme Court’s admonition in Furnco, that proof of

a prima facie case is not equivalent to a factual finding of

discrimination, 438 U.S. at 576, 579, defendants argue that

Sweeney did no more than present a “generalized inference of

7 The reasons were summarized well by President Redfern. Called

by Sweeney, he agreed during direct examination that the reasons

were “subjective” and “judgmental,” that they had no relationship

to whether she had a terminal degree or to her scholarly research,

that “in terms of the Faculty Manual criteria these might be more

related to the process of maturity” and that they essentially dealt

with Sweeney’s personality “as reflected in the specified types of

professional activities, such as committee work.”

E-8

discrimination,” through statistics showing an imbalance of

male faculty and the like, and that she failed to disprove

specifically the reasons given for her non-promotion during

1974-75. While the case is close, we disagree: the record con-

tains evidence sufficient to support a finding that the reasons

advanced were not the real reasons for Sweeney's non-

promotion in the year in question.

Contrary to the reasons that allegedly prompted the 1974-75

FEAC not to recommend her, Sweeney introduced significant

evidence that she had worked well with a variety of people in a

variety of roles and contexts, and that her personality did not

impede her effectiveness as a teacher or as a member of the

faculty. The College itself had granted her tenure in 1972, in-

dicating that whatever attitudinal problems Sweeney had*

were not an obstacle to her becoming a permanent member of

the faculty.* In addition, several witnesses who were qualified

to judge testified as to Sweeney’s flexibility and skills. At least

four persons who knew her well and had had occasion to work

closely with her in group endeavors testified that she was open

to-new ideas, that she was not rigid, inflexible or intolerant,

and that she did not personalize professional matters.

Although her only college-wide committee membership was as

departmental representative to the College Senate, it was

brought out that by 1974 she had served on the Senate’s Ad-

missions and Standards Subcommittee, as secretary to her own

department, as a member of her department's curriculum

committee, and as faculty advisor to two organizations. She

had been active in supervising student teaching and had been

8 Dr. Blacketor, Chair of the Education Department in 1972, in

recommending Sweeney for tenure did acknowledge some problems

in “her personal and professional attitude” when she first joined the

faculty, but stated that she had shown significant improvement in

1970-71 and 1971-72.

® Keene State considers the tenure decision the most important in

the careers of its faculty members, because it effectively confers

lifetime employment.

—

Jin in a

E-9

on the New Hampshire Board of Education’s Professional

Standards Board, for which she had served as chair of the Sub-

committee on Appeals and as a member of the Subcommittee

on Provisional Certification. A number of the witnesses who

testified on her behalf had worked successfully with her on one

or the other of these committees.

There also was testimony that Sweeney was at least as

qualified as others who had been promoted to full professor-

ship, and testimony as to a general perception of sex bias at

Keene State. Various witnesses compared Sweeney’s qualifica-

tions to those of other members of the faculty, both male and

female, and indicated that, although she was not one of Keene

State’s “superstars,” she did rank among the better members of

the faculty.

The documentary evidence shows that when, in the next

year, the 1975-76 FEAC recommended Sweeney for promo-

tion, it did not, as defendants would have it, give special

weight to her contributions to the reading program. Both

Alfred Thomas, Chair of the Education Department that

year, and FEAC mentioned this contribution as only one of

many reasons for promotion; her personal attributes and

qualifications in 1975-76 seem little different from those in

1974-75.'° The Dean, moreover, made no reference at all to

10 In its memorandum recommending Sweeney’s promotion to the

Dean, FEAC said,

“The committee has reviewed the promotion material

presented in [sic] behalf of Miss Sweeney and was impress-d

[sic] with her ability as a member of the instruction staff, in-

dicated by her teaching index of 3.99 [out of 5]. Her promotion

carries the full endorsement of the Education Department

F.E.A.C. She has been a member of the College Senate, has

served on several college committees and has, in addition, been

a member of the Professional Standards Board for the State of

New Hampshire, serving as Chairman of the Professional Stan-

dards Appeal Board for four terms.

“Miss Sweeney has published and is a willing contributor to

faculty and students interested in research. Her professional

E-10

the reading program, but rather spoke generally of Sweeney’s

good teaching evaluations and of her “good record of service to

her department and to the College,” and noted that she had

served on the New Hampshire Professional Standards

Board—a position that she had held since 1970. See 569 F.2d

at 178 n.18.

Defendants argue that Sweeney did no more than show that

differences of opinion existed between members of the faculty

at Keene and that she did not show that the 1974-75 FEAC

acted out of sex bias. We fully agree that the issue is not

whether Sweeney was qualified for promotion or should have

been promoted in 1974-75 by some objective measure, but

whether she was denied a promotion because of her sex. Loeb,

slip op. at 16. The recommendation of the 1974-75 FEAC is

entitled to stand even if it appears to have been misguided,

unless it was sex biased. Loeb, slip op. at 11 n.6, 16.

While Keene State’s faculty members were entitled to hold

different opinions as to Sweeney’s qualifications, the evidence

and testimony just reviewed suggests that more than just dif-

ferences of opinion were involved. The defendants’ alleged

reasons border on describing Sweeney as, to quote plaintiff's

brief, a “schoolmarm.” The focus on her alleged attention to

the height of window shades in particular seems a trivial com-

ment. In light of the evidence that Sweeney’s personality was

activities include membership in several national and regional

associations with participation in convention programs. She

has also contributed to the College by successfully submitting a

grant for the Right to Read Program. She has also been

recognized for her professional competency by being selected

as a member on accreditation teams at the state, regional and

national levels.”

Aside from the reference to the Right to Read grant, substantially

the same statement could have been made of Sweeney in 1974-75.

tee ee eee

E-11

not as described by Redfern and did not interfere with her

ability to work on committees or with people, the district court

could have concluded that the five male members of FEAC

would not have fastened upon such reasons had Sweeney been

a man.

The nature of the reasons given, and the evidence intro-

duced to show that they were either insubstantial or fictitious,

stood with more general evidence suggesting that women at

Keene State were evaluated by a stricter standard than their

male colleagues, and that the institution generally was

unresponsive to the concerns of its female faculty. Much of this

evidence—such as the statistical composition of the faculty"!

and the attitude of the affirmative action officer—is recounted

in our original opinion, 569 F.2d at 178-79. While by itself it

does not prove that Sweeney in particular was a victim of

discrimination, it does add “color” to the decision-making pro-

cess at Keene State and to the reasons given for Sweeney’s non-

promotion. Proof of a general atmosphere of discrimination is

not the equivalent of proof of discrimination against an in-

dividual, but evidence of such an atmosphere may be con-

sidered along with any other evidence bearing on motive in

deciding whether a Title VII plaintiff has met her burden of

'! The statistical evidence was relevant, although it could not be

conclusive of discrimination against Sweeney. The absence of

women in the upper ranks at Keene State was not projected back in

time and tied to their availabilty for appointment to the lower ranks

in the different disciplines in earlier years. Moreover, the existence

of a statistical disparity, while often helpful in establishing a prima

facie case of discrimination, does not by itself meet an individual's

burden of proving that the reasons given by the employer were

pretexts, Furnco 438 U.S. at 579-80. Nevertheless, the statistics here

were striking encugh and covered a sufficiently long period of time

(i.e., the usual time in rank for the various ranks) as to constitute

some evidence of bias. See McDonnell Douglas, 411 U.S. at 805

(statistics . . . may be helpful to a determination of whether peti-

tioner’s refusal to rehire respondent . . . conformed to a general

pattern of discrimination against blacks”); Furnco, 438 U.S. at 580

(composition of workforce “is not wholly irrelevant on the issue of

intent’).

E-12

showing that the defendants’reasons are pretexts. See Furnco,

438 U.S. at 580; Loeb, slip op. at 17 n.14. We think that it was

open to the court to conclude from the totality of the evidence

that the reasons given for Sweeney's nonpromotion in 1974-75

were implicitly influenced by the fact that Sweeney was a

woman.

Defendants emphasize that the promotion system at Keene

relies on peer group support, and that Sweeney lacked the sup-

port of Dr. St. John, the Education Department Chairman,"

as well as of FEAC in 1974-75. They argue that there was no

evidence that Sweeney did not have their support because she

was a woman. We disagree. Although there was no direct

evidence, we think that the district court could have inferred

‘2 When Dr. St. John wrote to Dean Davis stating that Sweeney

had asked to be promoted to full professor and that the Education

Department Advisory Committee on Promotion had recommended

her, he also stated that he had “completely ambivalent feelings”

about Sweeney's application, listed six “pros” and six “cons”,”

declined to recommend personally for or against, noted that the Ad-

visory Committee had been unable to obtain Sweeney's personnel

file from the Dean, and stated that she was “entitled to a fair and

impartial judgment.”

Defendants state repeatedly in their brief that the Education

Department “did not consider” Sweeney in 1974-75, that Sweeney

“did not have the positive support in 1974-75 of her department,”

and that in 1975-76, when she finally had the support of her depart-

ment, department chairman and FEAC, she was promoted. We find

this line of argument misleading. The record shows that applicants

for promotion were considered by their department evaluation com-

mittees, which in turn made recommendations to the department

chairmen, who forwarded the applications to FEAC. In both

1974-75, by Dr. St. John’s own admission, and in 1975-76, Sweeney

had the support of her department's evaluation committee. The

significant difference was that the 1974-75 department chairman

did not endorse the committee's recommendation, whereas the

1975-76 chairman did. The district court could have concluded that

St. John undermined the committee's recommendation and, on the

basis of the evidence reviewed herein, that his criticism of Sweeney

was determined by a subtle, if unexpressed, bias against women

faculty.

E-13

that FEAC and Dr. St. John were sex biased in light of the

nature and weakness of the reasons given for her non-

promotion coupled with the evidence of the statistical com-

position and general character of the institution and of the in-

sensitivity of many—including St. John—to the concerns of

the female faculty.'®

Defendants make much of the fact that the 1974-75 FEAC

recommended one man and one woman for full professorship

and did not recommend two men in addition to Sweeney

They also call attention to the fact that the 1974-75 FEAC om

sidered the applications of twenty-five men and six women for

tenure and/or promotion, and acted favorably toward all

women except Sweeney, but toward only twelve of the

twenty-five men. This information obviously bears on the

question of discrimination, but it does not render the district

court’s conclusion clearly erroneous. Of the five women pro-

moted by the 1974-75 FEAC, only one, Janet Grayson, was

promoted to full professor; a defendant's willingness to ap-

point women to lower ranks does not preclude a finding that a

woman who sought promotion to a higher rank was

discriminated against. Nor does the promotion of one woman

of admittedly outstanding credentials to full professor and the

denial of such a promotion to two men preclude a finding that

another woman was denied the same position because of sex.

One familiar aspect of sex discrimination is the practice,

'S For example, Eleanor Vanderhagen testified that

was involved in the publication of ; Midian by An ae

Department that carried an announcement about an all-male honor

education fraternity. When Vanderhagen wrote to him “pointing

out its role in professional advancement for careers for men and

women and tried to meet with him to discuss her feeling that this

was “inappropriate for a college publication,” St John replied that

he was “unavailable” and left a message that he “considered the

whole thing trivial.” There was also evidence, which the court

below was entitled to credit, that St. John was condescending

toward women and had been discourteous to Sweeney from the first

time they met.

E-14

whether conscious or unconscious, of subjecting women to

higher standards of evaluation than are applied to their male

counterparts. The district court could have concluded con-

sistently that Grayson merited promotion by any standard,

that Sweeney was better qualified than the two men who were

denied promotion, and that Sweeney would have been pro-

moted had she been evaluated against the standard that was

lied generally to men.

dees os persuaded us that this was a close case, but

not that the district court committed clear error in concluding

that Sweeney was denied a promotion because of her sex.

The judgment of the district court is affirmed.

F-]

APPENDIX F

Unitep States District Court FoR THE

District or New HAMPSHIRE

Civil Action No. 75-182

CHRISTINE M. SWEENEY

BOARD OF TRUSTEES OF KEENE STATE COLLEGE, ET AL

OPINION

This is a sex discrimination case in which the plaintiff

alleges that the defendants refused to promote her and

have underpaid her because she is a woman.

The action was originally brought pursuant to:

a. Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq., (hereinafter ‘‘Title VII’’) pro-

viding for injunctive and other relief against discrimina-

tion in employment on the basis of race, religion, sex and

national origin.

b. Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681 et seq., (hereinafter ‘‘Title IX’’) prohibit-

ing sex discriminaiion in certain federally funded edu-

cation programs.

ce. Fair Labor Standards Act of 1938, 29 U.S.C. § 201

et seq., as amended by the Equal Pay Act of 1963, 29 U.S.C.

§ 206(d), providing for equal pay for men and women.

The pleadings were subsequently amended to add a

count under 42 U.S.C. § 1983 and the Fourteenth Amend-

ment to the United States Constitution.

I rule as a matter of law that neither Title IX of the

Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq.,

nor the Fair Labor Standards Act of 1938, 29 U.S.C. § 201

et seq., as amended by the Equal Pay Act of 1963, 29

U.S.C. § 206(d), are applicable to this action.

F-2

I find that there was no violation of the plaintiff’s rights

under 42 U.S.C. § 1983.

Although I can find no specific amendment to the plead-

ings, the plaintiff has suggested that there is a violation

of 42 U.S.C. § 1985. I find and rule that there was no vio-

lation of 42 U.S.C. § 1985 and it is not applicable in this case.

Jurisdiction is pursuant to 42 U.S.C. § 2000e-5(f) (1) (A)

(Title VII). I find that the plaintiff has complied with

all of the procedural requirements of Title VII.

In order to prevail, the plaintiff must establish a prima

facie case of discrimination. Once that it done, the burden

shifts to the defendants to show a non-discriminatory mo-

tive. The burden then shifts back to the plaintiff to show

that the rebuttal is pretextual. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 804 (1973).

I now examine the testimony and the exhibits in the

light of this test.

THE FACTS

The Parties

Plaintiff is a woman who has been employed by the de-

fendants at Keene State College in the Department of

Education as an associate professor from January 1, 1969,

through July 1, 1976, and as a full professor from July 1,

1976, to date. The defendant Board of Trustees of the

University of New Hampshire is the body which admini-

sters Keene State College and the University system of

the State of New Hampshire. The defendant Keene State

College is designated as a division of the University of

New Hampshire. The defendant Leo F. Redfern is Presi-

dent of Keene State College. The defendant Clarence Davis

was the Dean of Keene State College until April 23, 1975,

when he resigned and resumed teaching. The defendant

Richard A. Gustafson was the Acting Dean of the College

as of April 23, 1975.

F.3

The plaintiff received a Bachelor of Education degree

from Keene State College in 1943, a Master of Arts from

Catholic University in 1956, and a Doctorate in Philosophy

(Ph.D.) from Catholic University in 1962. All degrees were

in the field of education. Between 1943 and 1956, she taught

at the primary and secondary school levels. She taught

graduate and undergraduate level courses from 1961 to

1965 at Catholic University and undergraduate courses at

Emmanuel College, Boston, Massachusetts, from 1965 to

1968. She was promoted to the position of Associate Pro-

fessor at Emmanuel College, effective July 1, 1968.

Plaintiff left Catholic University in 1965 to take a posi-

tion at Emmanuel College. The reason for the change was

that she had a home in Keene, New Hampshire, where she

was raised and she wanted to get back to her native New

England. While at Emmanuel, she taught and was Direc-

tor of Student Teaching and was elected to Kappa Gamma,

an honor society for women. She also was on a committee

which worked with representatives of Wheelock and Sim-

mons Colleges to establish a curriculum laboratory.

Plaintiff held no teaching position in the fall of 1968.

She started at Keene State College in January of 1969 as

an associate professor at a salary of $5,000 for the spring

semester. The reason she left Emmanuel for Keene was

to live again in her home town. She also received about one

thousand dollars more a year in salary at Keene than she

would have at Emmanuel.

When plaintiff started at Keene, she had an understand-

ing with Dr. Paul Blacketor, Chairman of the Department

of Education, that during the spring term her area of

responsibility would be as Supervisor of Student Teach-

ing and that, after that, she could select her own courses

and concentrate on teaching.

From January of 1969 through the summer of 1971, the

plaintiff performed her duties at the College competently

F-4

and without any untoward difficulties. She carried the

same teaching load as males at her level and she was in-

volved in at least the normal amount of committee work on

the campus and extracurricular activities expected of an

associate professor. She was well thought of by the Chair-

man and her colleagues in the Education department.

The English Trip

The first real snag in the plaintiff’s career occurred

in August of 1971 when the Dean of College advised Dr.

‘Blacketor, plaintiff’s department head, that he would

not approve the plaintiff accompanying students on a for-

eign exchange visit to England. Since the ‘‘English Trip”’

matter looms large in this case, it is necessary to go into it

in some detail.

An exchange student teachers’ program had been in-

stituted in 1970 between Keene and several English schools.

Students from Keene went to England for a semester

accompanied by a faculty advisor, and English students

came to Keene. The program was a college credit course

which had been developed by the Education Department.

It was first limited to student teachers, but later expanded

to other departments of the College. The coordinator of the

program was Nancy Stuart, an assistant or associate pro-

fessor in the English Department. A selection committee

within the Department of Education selected faculty ad-

visors for the trips from those who submitted applications.

Two trips were taken in the spring of 1971, both under

the aegis of male faculty advisors.

Plaintiff had been Chairperson of the Foreign Studies

Committee the year before the exchange program was put

into effect and was unanimously nominated in the spring

of 1971 as faculty advisor for the first of two trips sched-

uled for that fall. Dr. Rousseau, a male, was recommended

as an advisor for the second trip and a Mrs. Nelson was

F-5

named as an alternative in case either the plaintiff or Dr.

Rousseau were unable to make the trip or in the event

that a third trip could be scheduled. Anticipating that she

would be spending the fall semester in England, the plain-

tiff taught during the summer session of 1971. She also

made plans to go to England for a personal visit to relatives

at the end of the summer session. On the last day of the

summer term, Dr. Blacketor called her and informed her

that the Dean of the College had not approved her nomina-

tion as Faculty Advisor for the fall trip to England, but

had appointed Mrs. Nelson to go in her stead. He told her

that no reasons had been given by Dean Davis for this ac-

tion. Dean Davis adamantly refused to give his reasons

to the plaintiff or any other faculty members who inquired

of him except that he did state the reasons for his refusal

to the President of the College at a much later date. There

is no doubt that the Dean of the College had veto and final

appointive power as to trip faculty advisors.

-While this stubborn and unexplained refusal on the

part of the Dean to articulate the reasons for refusing to

allow the plaintiff to accompany student teachers to Eng-

land does not rise to the level of a constitutional due process

violation, it strongly suggests that his reasons were petty

and personal. Vetoing the trip on which the plaintiff had

planned at the very last minute was bad enough, but to

refuse to explain such action was bound to cause resent-

ment and anger on her part. The plaintiff, not unnaturally,

felt that she was the victim of discrimination.

After learning of the Dean’s action, the plaintiff made

an appointment to see the President of the College, but

he cancelled the appointment after he learned the purpose

for it. The President felt that the plaintiff’s problem was

a matter to be resolved between her and the Dean of the

College and that he, as President, should not get involved.

When the plaintiff resumed her teaching duties in the

F-6

fall of 1971, she sensed a different atmosphere in the Edu-

cation Department. She was excluded from foreign stu-

dent affairs and from the English exchange program.

She feels that the English Trip veto had an adverse effect

on her educational career and was the prime reason for

her failure to get promoted. The plaintiff was the only

member of the faculty who was vetoed by the Dean after a

unanimous nomination by faculty colleagues.

Tenure

Dr. Blacketor, Chairman of plaintiff’s department, rec-

ommended that she be given tenure and a salary increase

effective July 1, 1972. Blacketor’s letters of recommenda-

tion, Exhibits 42 and 43, can hardly be characterized as

enthusiastic. He testified, in effect, that they were inten-

tionally deprecatory because he felt that a strong recom-

mendation would evoke opposition from Dean Davis. In any

event, the plaintiff was unanimously recommended for

tenure by the 1971-72 Faculty Evaluation Advisory Com-

mittee (FEAC). Dean Davis concurred and she was granted

tenure as of July 1, 1972. I take judicial notice of the fact

that obtaining tenure is one of the most important steps

in a teaching career because, for all practical purposes, it

is a guarantee of employment at the institution where

tenure has been granted.

Promotion

Before detailing the facts relative to plaintiff’s attempts

to attain the status of full professor, it is necessary to

outline the collegial system of promotion in effect at Keene.

The first step is a recommendation from the department

chairman which is forwarded to the Dean of the College.

He, in turn, sends it to the FEAC. This committee, which

is independently elected, makes a study and evaluation of

the record and qualifications of the applicant and then rec-

LOE Te SONNE ee ee ee

—

PPAR 2

F-7

ommends to the Dean either for or against promotion.

The Dean, in turn, makes his recommendation to the Board

of Trustees whose decision is final.

An appeal from an unfavorable decision starts with the

chairman of the department, then goes to the Dean, and

then to the Faculty Appeals Committee (FAC) (formerly

Personnel Welfare Committee). The jurisdiction of this

committee, whose members, like FEAC, are elected by the

faculty, is limited to determining whether or not due

process has been observed and whether or not new, rele-

vant and significant evidence has emerged that would

substantially effect the case. After FAC has made its de-

termination, the case is then sent to the President of the

College and, if called for, to the Board of Trustees.

The plaintiff was recommended for promotion to full

Professor by the Department of Education and its Chair-

man, Dr. Blacketor, during the 1972-73 school year. Dr.

Blacketor’s memo supporting her promotion application

was much more supportive than the ones given when she

applied for tenure, but cannot be characterized as enthu-

siastic, Exhibit 4. FEAC, which was composed entirely of

males, recommended 5 to 0 against promotion. No reasons

were given to the plaintiff or to Dr. Blacketor for this

decision. On March 26, 1973, Dean Davis advised the plain-

tiff that he concurred with FEAC’s recommendation and

offered to discuss the matter with her. Exhibit 5, The

plaintiff met with the Dean on or about April 3, 1973. Dean

Davis did not specifically recall the meeting, but did not

deny that it took place. At the meeting, the Dean told the

plaintiff that he did not know the reasons FEAC had rec-

ommended against promotion, but advised her that, if she

wished to appeal, she should get letters of recommenda-

tion, which she did. Exhibit 7. At this meeting, the plain-

tiff took the opportunity to ask Dean Davis for the rea-

sons he had refused her permission to go on the English

F-8

Trip. The only reply she got was that he did not have to

give her the reasons.

On July 28, 1973, plaintiff appealed to FAC (then called

Personnel Welfare Committee). No decision was rendered

by FAC until March 19, 1974, at which time the committee

issued a three and one-half page summary of what it had

done and its recommendation. Exhibit 12. The salient

points made by FAC are as follows. It met with two mem-

bers of FEAC who had evaluated the plaintiff, but could

get no reasons for the negative recommendation. It met

with the plaintiff to get her side of the case and then met

with Dean Davis. The question of the English Trip came

up and the Dean made it clear to FAC that he reserved

the right not to disclose the reasons for his veto either

to FAC or the plaintiff. The English Trip was also dis-

cussed by FAC with Dr. Blacketor. By this time, there was a

new Chairman of the Education Department, Dr. Walter

St. John, and certain aspects of the plaintiff’s case were

discussed with him. Because of her pending appeal, the

plaintiff had decided not to request promotion for the

academic year 1973-74. FAC made the following recom-

mendation.

After due consideration of the various factors and

information that has been brought to the attention of

the Faculty Appeals Committee it is the recommenda-

tion of the Committee that the appellant be given con-

sideration by this yeas » FEAC committee for pos-

sible promotion from i\* ciate to Full Professor. The

Committee feels that it was a mistake on the part of

the appellant not to request consideration for promo-

tion during the current academic year and that this

mistake be remedied as it appears to have been made

on the false premise that an appeal of a past decision

by FEAC could not take place at the same time that

a faculty member might be under current consideration

F-9

by a FEAC committee. The appellant’s case is not at

all clear cut. However, it is evident that the conflicting

testimony in the ‘‘England matter’’ as well as the

unwillingness of the Dean of the College to share either

with the Committee or with the appellant the reasons

she was not approved as a Faculty advisor to students

going to England gives some modest substantiation

to the appellant’s claim that she was unfairly treated

at least to the extent that it was unclear to the Com-

mittee why the appellant was dealt with in the way

she was in this matter. Again, the Committee has no

way of knowing to what extent such events may or

may not have figured in last year’s FEAC decision on

her candidacy for promotion, as the Committee was not

able to crack the secrecy barrier surrounding FEAC’s

decision and the basis upon which it was made. The

Committee is inclined to give the appellant the bene-

fit of the doubt to the extent that, although the Com-

mittee does not recommend that last year’s FEAC

decision be overturned, the Committee does strongly

recommend that her candidacy for promotion be con-

sidered by this year’s FEAC committee even if this

means that she present herself for promotion to avoid

going through the extensive visitation procedure re-

quired by her present Depart — [sic] Chairman. If

the time limitation for promotional consideration can

be waived on the basis of extenuating circumstances,

and thereby allow for the visitation stipulations of the

present Education Department chairman be met, the

Committee would recommend that the appellant be

given consideration as « candidate for promotion by

this year’s FEAC committee sometime later during

the current Spring Semester. Whether the appellant

would be willing to go ahead with a promotion candi-

- dacy under either of these provisions is unknown to

F-10

the Committee as the Committee has not discussed its

recommendations with the appellant. Exhibit 12.

President Redfern, in a letter dated April 16, 1974, de-

nied the request of FAC that the plaintiff be considered

for a promotion in 1974. His reason was that FAC had

exceeded its jurisdiction in making the recommendation

since its only authority was to determine whether the de-

cision of FEAC and the Dean was arbitrary and capricious.

At the trial, Dr. Smart, Chairman of the FEAC, who

evaluated the plaintiff for promotion, testified that one

of the reasons that she was turned down was the poor

quality of her application. He stated that it was the worst

one he had ever seen because it contained six grammatical

errors and at least one dozen ‘‘typo’’ mistakes. He testified

further that her record revealed ‘‘a total absence of any-

thing positive for promotion, that there was a total lack

of meritorious peformance and that her committee work

was small and not campus wide.’’ He also noted that she

had not published.

In contrast, Sherman Lovering, an associate professor

and director of the Testing Center and a member of FEAC

in 1971-72, the year before plaintiff’s promotion came up,

testified that the plaintiff had all of the qualifications for

promotion to full professor. He stated custom dictated

that, if you had a Ph.D. and the requisite time in rank,

promotion to a full professorship was automatic. He agreed

with the FAC report and said that it was of great concern

to him that plaintiff was not told of the reasons by FEAC

for its negative recommendation and no explanation was

given her for the Dean’s refusal to allow her to go to

England.

On April 29, 1974, plaintiff filed charges of discrimina-

tion with the New Hampshire Commission for Human

Rights. Exhibits 51 and 52. It must be noted here that the

plaintiff had not complained to anyone or any committee

Ny ae

F-11

on the campus that she felt that sex discrimination was

the reason for the refusal to promote her. It was not until

July 22, 1975, that she made a formal accusation of sex

discrimination directly to the College. Exhibit 31. On May

21, 1974, however, she met with James Hobart, Director of

Administration for the College, relative to a fourteen page

questionnaire sent to him by the New Hampshire Commis-

sion for Human Rights. Exhibit 72. Her charges were,

therefore, known to the administration in May of 1974.

On June 11, 1974, Professor Felton, Chairman of FAC,

sent a memo to Hobart suggesting that the committee meet

again to reconsider the appeal of the plaintiff because

President Redfern’s response to its report ‘‘brought out

some additional conflicting testimony that the Committee

was not aware of during its investigation of the case and,

therefore, not included in the report of the Committee on

the Sweeney case.’’ Exhibit 15. Professor Felton sent this

memo after he had ‘‘circularized the committee’’ advising

them of plaintiff’s complaint to the Human Rights Com-

mission. Hobart did not reply to this memo.

Plaintiff was again considered for promotion during the

1974-75 academic year. A new FEAC committee, com-

posed entirely of males, voted 5 to 0 against promotion.

Dean Davis again concurred with the recommendation but,

this time, stated the reasons.

I have now reviewed your promotion situation and

have consulted with FEAC after receiving their rec-

ommendation against the promotion.

I am concurring with their advice. This decision is

based upon the evaluation of FEAC which indicates

that you have not fulfilled the qualifications as stated

in the Faculty Manual; namely, that your teaching and

research has not been ‘‘marked by the perspective of

maturity and experience, or by some creative attribute

generally recognizable in the academic world as a spe-

cial asset to a faculty.’’ Exhibit 19.

F-12

Plaintiff asked FEAC to reconsider, but it voted 5 to 0

against reconsideration.

In his testimony, Dr. Quirk, Chairman of this FEAC,

stated that the plaintiff had an extremely weak case for

promotion and that the committee found her deficient in

teaching effectiveness, scholarly qualification, and contri-

butions to the College.

Plaintiff appealed to FAC and supplied it with addi-

tional information and charged that she had been denied

due process of law and was discriminated against because

of her sex. Exhibits 30 and 31. FAC, which was chaired by

Janet Grayson, sent a lengthy letter to Dr. Redfern stating

that it was sympathetic to the plaintiff, that she had been

subjected to unreasonable provocation because she was

never given the reasons for the English Trip decision, and

that the Dean was negligent for his failure to give plain-

tiff adequate reasons for the decisions against promotion.

The letter further stated: ‘‘We are united in the view

that the dean must give Dr. Sweeney reasons for denying

her promotion.’’ The letter concluded: ‘‘Although we

did not find evidence to support her charge of discrimina-

tion because of sex, we are concerned that she had to endure

unprofessional treatment within her department and by

the administration.’’ Exhibit 32.

The plaintiff was recommended for promotion again

during the academic year 1975-76. This time, FEAC voted

5 to 0 in favor of promotion, effective July 1, 1976. The

Chairman of this FEAC was Dr. Blacketor and one of the

members was a woman. Professor Whybrew, who had re-

placed Professor Davis as Acting Dean of the College,

approved the recommendation as did the Board of Trustees,

and the plaintiff became a full professor on July 1, 1976.

F-13

Testimony of Dean Davis

While Dean Davis’ refusal to give plaintiff the reasons

for his veto of the English Trip was, in my opinion, a mis-

take and may be evidence of discrimination against the

plaintiff for personal reasons, it is not evidence of sex

discrimination. Not only was the replacement for the plain-

tiff a woman, but Dean Davis’ unrebutted testimony was

that, in making this decision, he relied on the advice of

the coordinator of the program, Nancy Stuart, who was of

the opinion that Mrs. Nelson had superior capabilities for

establishing rapport and prestige with the English schools.

A decision to replace one woman with another woman based

on the advice of a third woman is hardly an indicia of dis-

crimination against females. It is true that Dean Davis

turned the plaintiff down twice for promotion, but on

both occasions he was acting in accord with the unanimous

recommendation of FEAC. He had previously approved the

unanimous recommendation of FEAC that she be granted

tenure. Whatever personal animus Dean Davis may have

had against the plaintiff, there is no evidence that it was

sex based.

The only evidence of sex bias on the part of Davis is his

passive role in Keene’s affirmative action program. He

was not aware that, as Dean, he was the affirmative action

officer for the faculty and he made no special effort to

see to it that women took part in the promotion process.

Testimony of President Redfern

According to his testimony, President Redfern’s role

in the promotion process as President of the College is to

serve passively in an appellate function. He determines

whether or not the recommendation of FEAC and the

Dean was made in conformance with good academic stan-

dards and whether or not the applicant was afforded due

process.

F-14

In his memo of April 16, 1974, in reply to FAC’s report,

he noted that: ‘‘ Actually, five years at the rank of associ-

ate professor is not deemed excessive by normal academic

standards.’’ Exhibit 14.

As President of the College, Redfern has the duty to

see to it that the affirmative action plan is implemented.

He plays a leadership role on the campus, preaches and

cajoles in an effort to see to it that there is no discrimina-

tion. There was no evidence that Redfern made any spe-

cific efforts to upgrade or advance the status of women on

campus in any way.

It was Redfern’s opinion that the scattergram of salaries,

Exhibit P, did not show any discrepancies between women

and men. This opinion is contrary to Exhibits 67, 68 and

69 which show that males received higher average salaries

than females in all the grades for the years, 1971-72, 72-73,

73-74, 74-75 and 75-76. The only exception was for asso-

ciate professors in 1975-76, in which year the average salary

of females was $15,864 and that of males, $15,419. In the

years 1969-70 and 1970-71, the average salary of female

professors was higher than that of males, but this was

due to the fact that in those years there was only one female

professor who had a great deal of longevity and whom

everybody agrees was a superb teacher.

President Redfern testified that the College is now

promoting women at the instruction level at a higher rate

than men, but after that, the promotion rate favors men.

This differential was explained on the grounds that, until

recently, the faculty had a ratio of four or five males to

one female. At the present time, four out of twelve de-

partment heads are women: foreign languages, home eco-

nomics, physical education and music. There are two female

full professors, Dr. Grayson and the plaintiff. The College

has the only woman athletic director of a coeducational

college, Dr. Sherry Bovinet. The evidence also shows that

Dr. Bovinet had difficulty in obtaining a promotion to

Associate Professor. Exhibit R.

F-15

Testimony of Norma Walker

Ms. Walker is an assistant professor at the College. She

came to Keene in the summer of 1972 and teaches early

childhood and reading courses. She has shared an office

with the plaintiff since 1975 when the plaintiff took over

as Director of the Reading Program. Her testimony was

laudatory of the plaintiff as a professional colleague and

as a person. She rebutted the charges that the plaintiff

was rigid and had narrow views. Exhibit 48. The only

part of her testimony bearing on sex discrimination was

that the plaintiff carries a heavier teaching load than the

male who also works in the reading department.

Testimony of Eleanor Vander Hagen

Professor Vander Hagen was one of the key witnesses

for the plaintiff, although she explicitly stated that she

made no judgment as to the plaintiff’s case. Ms. Vander

Hagen came to Keene in 1972. She is Assistant Professor

in Sociology, Assistant to the President and Director of

the Grant Program. In her opinion, the entire collegial

process of promotion discriminates against women. The

process, which she characterized as being run like an ‘‘old

boys club,’’ works best for those who get along with the

power structure which, because of historical factors, is

dominated by men. In her opinion, there is no awareness

by men that they discriminate against women. As an ex-

ample of different standards being applied, she said that

Dr. Janet Grayson had far above average qualifications

and it took her years to be promoted while, at the same time,

men with inferior qualifications were being promoted per-

functorily. It was Professor Vander Hagen’s opinion that

the personal life of a woman is a factor in tenure and pro-

motion while it is not for men. Vander Hagen pointed out

that the student body at the College is 60% women and,

for this reason, there should be more women full professors

F-1€

since they perform an important function as ‘‘role models’’

for the female students.

Professor Vander Hagen testified that there are no

channels at Keene for concern about sex discrimination

and that the administration treats the affirmative action

program as a burden. In her opinion, the administration

fails to recognize that sex discrimination against female

faculty members does exist at Keene.

On cross-examination, Professor Vander Hagen admit-

ted, in effect, that Keene reflects the traditional societal

bias against women. She feels that women are disadvan-

taged as a group because of social categories. She agreed

that all colleges, except proprietary ones, use the collegial

system for tenure and promotion. Professor Vander Hagen

did state that some men could be educated to understand

the problems of women.

Testimony of James Hobart

Mr. Hobart has been Director of Administration at the

College since 1972, and Coordinator of the Affirmative

Action Program since 1973. His duty as Coordinator of the

Affirmative Action Program was to develop a plan for

affirmative action. The College, however, never adopted

a plan directed specifically to itself as a separate entity.

In 1976, an action plan was adopted by the Trustees as

part of a statewide university system plan. Exhibit 70, The

main objective of this plan is to achieve faculty hiring goals

for women and members of minority groups by 1981. The

plan, however, has no specific provisions for promotion

of women and minority groups. Nor does it have any spe-

cific provisions for equalization of salary vis-a-vis women

and minority groups.

Hobart sees his role in the affirmative action program

as that of providing information, monitoring complaints

and arranging meetings. It was his opinion that he ought

F-17

not to make judgments as to whether or not there are actual

instances of discrimination and that he should not actively

support an individual who might have been discriminated

against. The plaintiff was the only person to whom he

supplied information relative to sex discrimination. After

the plaintiff had filed her complaint with the New Hamp-

shire Commission on Human Rights, Hobart made no effort

to determine if the claim was valid.

At the present time, a study is being conducted to de-

termine whether or not there are salary inequities due to

sex. The salaries of the faculty are studied and analyzed

according to rank and every year a report is sent to the

American Association of University Professors which

studies and analyzes the information on a sex basis.

In March of 1975, he read the reply of the President of

Smith College to a finding by the Massachusetts Commis-

sion Against Discrimination that Smith discriminated

against females. President Mendenhall’s reply was an

open letter sent to all alumni. Hobart, who had known the

President personally, wrote to him. An excerpt from Ho-

bart’s letter is revealing.

One of your alumnae, Mrs. Andrea Scranton, has

forwarded to me your Smith College Letter called

‘*Smith College’s Reply to the Decision of the Mas-

sachusetts Commission Against Discrimination.’ It

was excellent and almost completely descriptive of a

situation we are involved in with the New Hampshire

Commission on Human Rights, in which a female as-

sociate professor, denied promotion to full professor

(twice), is appealing to higher authority on the basis

of sexual discrimination. While we felt that we were

or strong ground, both on data and from a collegial

standpoint, the actions of the Massachusetts Commis-

sion leave me gaping and concerned that that form

of anarchy may creep north into our virgin territory.

F-18

I would appreciate it very much if, when your lawyer

prepares his presentation to the full Commission and/

or to the Superior Court of Hampshire County, a

copy of that presentation could be forwarded to my

office for possible nixgiarism in our presentation in

response to what we expect may well be an adverse

decision by our own Human Rights Commission. Ex-

hibit 64.

Instead of determining whether or not there was sex dis-

crimination at Keene, Hobart was more interested in fram-

ing a response to an expected adverse decision by the New

Hamphire Human Rights Commission.

Hobart was of the opinion that the salaries of men and

women are roughly equivalent considering that longevity

plays an important role in the salary scale. Under the

system in effect since 1966, an individual seeking an in-

crease in salary makes his/her request to the faculty com-

mittee which, in turn, makes its recommendation to the

Dean.

Testimony of Richard Gustafson

Professor Gustafson is Dean of the College now and

was Acting Dean in the spring of 1975. After he received

plaintiff’s application for a review of the negative FEAC

decision, he held a meeting with its Chairman, Professor

Quirk, and asked if the plaintiff had furnished any addi-

tional materials. Since sue had not, he decided to let

FEAC’s recommendation stand.

Testimony of Harvey Harkness

Harvey Harkness has been Director of Teacher Educa-

tion and Professional Standards for the State of New

Hampshire since 1968. He has known the plaintiff since

1970 when she became a member of the Professional Stan-

dards Board. This Board is advisory on all matters relative

F-19

to the preparation and continuing education of all students.

Harkness found the plaintiff extremely competent, faith-

ful and diligent and testified that she carried out all her

assignments successfully. She was not, in his opinion, rigid,

inflexible or intolerant of the ideas of others, the reasons

Dr. Redfern had noted were the major factors in denying

plaintiff a promotion in 1975. Exhibit 48.

Testimony of Professor Felton

William §S. Felton, Jr., is Professor of Sociology at

Keene, and was Chairman of FAC for the academic year

1973-74. The action that the committee took has already

been detailed. It was his opinion that the plaintiff possessed

credentials that would place her in the top third of the

full professors on the faculty at that time. He agreed that

judgment factors, as well as credentials, are involved in

the promotion process.

Testimony of Sherman Lovering

“Mr. Lovering’s testimony has already been outlined.

He emphatically denied that the Redfern Memo, Exhibit

48, was an accurate characterization of the plaintiff.

Testimony of Professor Blacketor

As Chairman of the Education Department, Professor

Blacketor recommended the plaintiff for promotion to full

professor. It was his opinion that, on a scale of one to ten,

the plaintiff would rate as eight. Dr. Blacketor testified

that there is sex discrimination in hiring practices at Keene.

He based this on an analysis of certain programs in which

there are no women at all. He also felt that there is sex

_ discrimination as to salaries. It was his opinion that there

was some discrimination relative to promotion and that

this was due to the employment pattern. He testified also

that there was no discrimination at all as far as working

conditions were concerned.

F-20

Testimony of Professor Lyman

Professor Kathleen Dunn Lyman of Simmons College

was the Plaintiff’s expert witness. Based on her resume,

Exhibit 80, and her testimony, I found that she was quali-

fied to testify as an expert witness as to sex discrimina-

tion on college faculties. Dr. Lyman had access to all of

the pertinent exhibits prior to testifying.

She was of the opinion, based on an analysis of the

plaintiff’s personnel file and those of others who were

promoted, that the plaintiff was qualified to be promoted

to full professor in 1973. She testified in detail about the

plaintiff in comparison with other faculty members, to wit:

Lyle, Lovering, Hastings, Layman, Laurie, Mosley, Jones,

Felton, Davis and Havill. In her opinion, the plaintiff rated

‘‘very good’’ in the area of scholarly activities, and others

who were promoted had no better record in this regard, e.g.,

Felton, Mosley and Havill.

It was Dr. Lyman’s opinion that plaintiff’s work on

campus and outside committees was fully comparable to

those men promoted ahead of her. She pointed out that

Professor Lohman, who, in Dr. Lyman’s opinion, had

comparable qualifications to the plaintiff, was promoted

ahead of her, although he did not obtain the rank of as-

sociate professor until after the plaintiff.

Dr. Lyman further testified as to the application of the

standards of promotion relative to men and women. She

noted that, despite the fact that Professor Janet Grayson

was an academic superstar, it took her a year longer to

get promoted than less qualified men. She pointed out that

Professor Ernest Lohman went from assistant professor

to full professor in four years, half the time it took Pro-

fessor Grayson. Dr. Lyman discussed the case of Professor

Dorothy MacMillan and stated that seven men with less

tenure and who were not as well qualified were promoted

ahead of her.

F-2]

It was Dr. Lyman’s opinion that there was a patte-n of

sex discrimination in hiring, the pri notion process, and

salary scale. She pointed out that the decision making

process at Keene was all male and that this resulted in

men being favored in the majority of cases.

According to Professor Lyman, the 1976 affirmative

action plan was inadequate. One of its faults is the failure

to focus on promotion within the ranks.

On cross-examination, it was brought out that it is not

unusual in any college to be rejected on the first try for

promotion. It was also adduced that Professor Anne Peters

had been the highest paid full professor at Keene for

several years. Exhibit 69. Dr. Lyman was confronted on

cross-examination with the names of several males who

had the same or better qualifications as the plaintiff and

whose promotion took as long or longer than the plaintiff,

i.e., Mosley, Smart, Cunningham and Hilderbrand. It was

also pointed out that Professor Havill did not attain the

rank of full professor until after Grayson, but got his

Ph.D. sooner than she did and had more tenure than

Grayson.

Testimony of James D. Smart

In addition to his testimony, supra, on the reason why

the FEAC, of which he was Chairman, recommended

against promotion of the plaintiff, Professor Smart testi-

fied that he taught a course in women’s rights and that

he was aware of women’s issues. He further stated that

tenure and promotion are not treated alike. They are two

distinct processes with different criteria and, in his opinion,

the promotion decision is easier to make than the one de-

termining tenure. It must also be noted that the History

Department, which he chairs, has seven men and no women.

F-22

Testimony of Professor Quirk

Professor Quirk was the last witness and his testimony

has been largely covered since he was Chairman of FEAC

in 1974-75. In addition to stating the reasons why he did not

think the plaintiff was qualified to be promoted, he testi-

fied that, usually, the minimum time in rank for an asso-

ciate professor before being eligible for promotion to full

professorship is four years.

Specific Exhibits

Exhibit 58 is answers to plaintiff’s interrogatories giving

the numbers, sex and salary of the faculty of the defendant

College from 1965 through 1966. My analysis of the figures,

which does not include the Wheelock laboratory, the school

library, student services auxilary enterprises or the ad-

ministration, reveals the following.

In the academic year 1965-66, there were nine male full

professors and one female, ten male associate professors

and one female, four male assistant professors Bad five

females, four male instructors and no females, and One

female lecturer.

In 1966-67, there were eight male full professors and two

females, nine male associate professors and one female,

eleven male assistants and six females, three male instruc-

tors and three females, one male lecturer and two fe-

males.

The exhibit contained only blank sheets for the years

1967-68 and 1968-69.

In 1969-76, there were ten male full professors and one

female, seventeen male associates and three females,

twenty-eight male assistants and six females, seven male

instructors and two females.

In 1970-71, there were fourteen male full professors and

one female, twenty-three male associates and four females,

thirty-eight male assistants and twelve females, five male

instructors and three females.

F-23

In 1971-72, there were sixteen male full professors and

two females, twenty-five male associates and two females,

thirty-seven male assistants and eleven females, fourteen

male instructors and four females.

In 1972-73, there were eighteen male full professors and

one female, twenty-five male associates and three females,

thirty-six male associates and ten females, ten male in-

structors and three females.

In 1973-74, there were twenty male full professors and

one female, twenty-eight male associates and six females,

thirty-eight male assistants and eight females, eleven male

instructors and seven females.

In 1974-75, there were twenty-three male full professors

and one female, thirty-two male associates and seven fe-

males, thirty-eight male assistants and five females, five

male instructors and four females.

In 1975-76, there were twenty-three male full profes-

sors and two females, thirty-five male associates and six

females, thirty-eight male assistants and seven females,

three male instructors and three females.

I .realize that these figures differ slightly from the

figures given in defendant’s answers to another set of

interrogatories, Exhibit 59, but the difference is not

significant. I may have miscounted the total number in one

or two places. Both Exhibits 58 and 59 show a very marked

disparity between the number of males and females in

every rank except that of instructor. This certainly is

evidence of sex discrimination in hiring and promotion.

An analysis of Exhibits 58, 59, 67, 68 and 69 shows that

over the years, salaries have been weighted in favor of

males over females. Professor Anne Peters is the sole

exception to this. Part of this is undoubtedly due to the

longevity factor which, in turn, is due to the fact that the

tiumber of males hired over the years has greatly exceeded

that of females. Another factor that skews the salary

F-24

scale in favor of males is the fact that the defendant col-

lege has no objective salary standard and schedule. Under

the system in effect, longevity and judgmental factors,

which cannot be objectively determined, weigh heavily in

determining the salary of individual members of the faculty.

The salary of an individual faculty member, as well as his/

her promotion, depends on the discretion and judgment of

his/her superiors. While this is necessary in the promotion

process, it should not play a large role in determining an

individual’s salary. Broad discretion inevitably leads to

discrimination. See particularly Exhibit 77 relative to

Ms. Goder in which the Personnel Welfare Committee

stated:

All the evidence available to the Committee sup-

ports the appeal of Ms. Goder and the statement of

her chairman considering her past and present salary

a ‘‘gross inequity.’’ Ms. Goder appears to be the most

qualified member of her department in terms of

education, experience, and ability. She is in fact the

only member of the department qualified to teach es-

sential upper-division courses required of the new

Music major. Her present salary is shockingly low.

Since, under the present system in effect at Keene,

the ultimate decision on salary is largely determined by

males, there is bound to be discrimination against females,

especially if we give credence to the belief of Professors

Vander Hagen and Lyman that most males have a built-in

societal bias against females. Tie salary of an individual

should depend as far as possible on longevity, rank and

other objective criteria.

SPECIFIC FINDINGS

1. Dean Davis did not discriminate against the plain-

tiff by reason of her sex in refusing to approve her as a

faculty advisor on the trip to England.

F-25

2. The evidence establishes a pattern of sex discrimina-

tion at Keene State College with regard to hiring, promo-

tion and salary.

3. Those in charge of the affirmative action program

have failed to act affirmatively on behalf of women with

regard to hiring, promotion and salary.

4. Based on her qualificatio.us, the length of time she

had spent at the defendant College and her rapport with

her colleagues, I find that the plaintiff would not have

been promoted even if she were a male in the academic

year 1972-73.

5. I find that, if she had been a male, plaintiff would

have been promoted on her next attempt.

6. Ifind that it was not the fault of anyone in the admin-

istration or any department having to do with promotion

that the plaintiff failed to apply for promotion in the

academic year 1973-74.

7. I find that the reason the plaintiff was not promoted

in the academic year 1974-75 was because of her sex.

8. The defendants have not rebutted the plaintiff’s

evidence that they did not discriminate against her by

reason of her sex and have not proven that they had a

non-discriminatory motive in failing to promote her in

the academic year 1974-75.

9. I find that a double standard was applied for males

and females in the promotion process. The evidence shows

_ that there was and is a disproportionately small number

of women in the high ranks of associate and full professors

and particularly in the rank of full professor. This double

standard also prevails in regard to hiring and salaries.

10. The defendants have not rebutted the plaintiff’s

evidence that they have discriminated against women gen-

erally in hiring, promotion and salary.

11. The affirmative action plan is inadequate, particu-

larly in regard to promotion and salary.

F-26

12. The plaintiff has not proven that her salary as a

full professor is less than that of other male professors

with the same or similar qualifications and responsibilities.

13. The plaintiff has not proven that her salary as an

associate professor was less than that of other male as-

sociate professors with the same qualifications and re-

sponsibilities.

WHEREFORE IT IS ORDERED that the plaintiff is entitled to

a back dating of her promotion to July 1, 1975, with back

pay as full Professor to that year at the salary scale that

she would have started at in 1975 and reasonable attorney’s

fees and costs.

Plaintiff’s counsel will submit within ten days a specifi-

cation of reasonable attorney’s fees and a bill of costs.

s/ Huecx H. Bownes

United States District Judge

April 13, 1977

ec: Jack B. Mippterton, Esa.

JosepH A. Miuumet, Esq.

a Or

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