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

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(LED

Yel 20 1979

Ot a all

In the

Supreme Court of the United States

Octoser Term, 1979

No. 79-778

BOARD OF TRUSTEES OF

KEENE STATE COLLEGE, ET AL.,

PETITIONERS,

v.

CHRISTINE M. SWEENEY,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Jack B. MippLETon

Rosert A. WELLS

Wayne C. Bryer

McLane, Grar, GREENE, RautErson &

MIDDLETON, PROFESSIONAL ASSOCIATION

40 Stark Street, Box 326

Manchester, New Hampshire 03105

Attorneys for Respondent

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

TABLE OF CONTENTS

Page

Re ees ee ee 1

SN. 0 et eee, Ae eo ee Lo Oe I i 2

a a 3

es I rh Oo ot eal pale 7 oe 3

pensetieet af te Came .6.6 ie eee a 4

Ea As nee Le DS See OE 12

SR ict ee REE ey NN eins Mee 25

TABLE OF AUTHORITIES

Cases

Alexander v. Aero Lodge No. 735, Intern. Assoc. of Ma-

chinists and Aerospace Workers, AFL-CIO, 565 F.2d

1364 (6th Cir. 1977), cert. denied, 436 U.S. 946, 56

L.Ed. 787, 98 S. Ct. 2849 (1978) ................... 14

Anderson v. Methodist Evangelical Hospital, Inc., 464

Pie Gee Ce Ge, Be) ee oe Se 14

Armour v. City of Anniston, 597 F.2d 46 (5th Cir. 1979) 15

Barnes v. Jones County School Dist., 575 F.2d 490 (5th

Se tet ee eS rs jee & 15

Bolton v. Murray Envelope Corp., 493 F.2d 191 (5th

Rp nncioare eas Soe acta, hee Cope he ed 15

Causey v. Ford Motor Company, 516 F.2d 416 (5th Cir.

Se eer ere ee ch er 14

Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977)... 14

Cupples v. Transport Insurance Company, 498 F.2d

1001, 1003 (Sth Cir, 1974) ... 02. een. 15

Davis v. Califano, 21 FEP Cases 273 (D.C. Cir.1979) .. 20

Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979) ..... 18, 19

Duckett v. Silberman, 568 F.2d 1020 (2nd Cir. 1978) .. 14

il Table of Contents

Page

Faro v. New York University, 502 F.2d 1299 (2nd Cir.

I oh ches er a cr ener ictas aes a ole oh 13, 19

Furnco Construction Corp. v. Waters, 4388 U.S. 567,

57 L.Ed.2d 957, 98 S.Ct. 2943 (1978) ............ passim

Green v. Bd. of Regents of Texas Tech. University, 474

F.2d 594 (5th Cir. 1973) (suit under §1983) ........ 13

Green v. McDonnell Douglas Corporation, 463 F.2d 337

I EEE on DA Sk en ir vgn cig ea ine 13

Griggs v. Duke Power Co., 401 U.S. 424, 28 L.Ed.2d

Bey Oe CREED as cos ie el ae 16, 23

Harmon v. May Broadcasting Co., 583 F.2d 410 (8th

Re US A Ie hes es 6 Sires 14

Haythe v. Decker Realty Co., 468 F.2d 336 (7th Cir.

ese og 1 Cie ele chs Ne BER bree 8 od 9 8 16

Hull v. Nettleton, 455 F.Supp. 514 (1978) ...... 24, 25

James v. Stockham Valves & Fittings Co., 559 F.2d 310

(5th Cir. 1977) cert. denied, 434 U.S. 1034, 54 L.Ed.2d

Telly We OE CRE ok wa he ee ed 15

Johnson v. University of Pittsburgh, 359 F.Supp. 1002

Se tr NE oe Se ohare ek Po aS 20

Jones v. Pitt County Bd. of Ed., 528 F.2d 414 (4th Cir.

| RN Ne mitgen eau de Rina ae AE AAD BOL oe ae 14

Jones v. Trailways Corp., 20 FEP Cases 1541 (D.D.C.

kod hele tres MOT tae eee 22

Kirkland v. New York State Dept. of Correctional Ser-

vices, 520 F.2d 420 (2nd Cir. 1975), cert. denied, 429

U.S. 823, 50 L.Ed.2d 84, 97 S.Ct. 73 (1976) ......... 14

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36

L.Ed. 668, 93 S.Ct. 1817 (1973) ................ passim

Megill v. Board of Regents of the State of Florida, 541

We meee: Coen Gee: Pee ee 19

Middleton v. Remington Arms Co., 594 F.2d 1210 (8th

SO NEE | ot ranieuis GR meearel Eats eee eal eee 14

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

Table of Contents iil

Page

Olson v. Philco-Ford, 531 F.2d 474 (10th Cir. 1976) ... 14

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

RE os ee PO Cree rr rea see's 14

Silberhorn v. General Iron Work Co., 584 F.2d 970

EB Tae Ae Bak Ghee Pes Alva cy er Rei Ae 14

Simmons v. Schlesinger, 564 F.2d —— (4th Cir. 1975) .. 14

Smallwood v. National Car Co., 583 F.2d 419 (9th Cir.

Ge tre nT avek: ctyetp iis sas 14

Smith v. Fletcher, 559 F.2d 1014 (5th Cir. 1977) ..... 15

Stebbins v. Weaver, 537 F.2d 939 (7th Cir. 1976), cert.

denied, 429 U.S. 1041, 50 L.Ed.2d 753, 97 S.Ct. 741

i et a ee Rt ye gh SY as 19

Stewart v. General Motors Corporation, 542 F.2d 445

(7th Cir. 1976), cert. denied, 433 U.S. 919, 53 L.Ed.2d

LeGG, OF BAL. BOG (9076)... . ee ee. 14, 15

Teamsters v. Umited States, 431 U.S. 324, 335 n. 15, 52

L.Ed.2d 396, 97 S.Ct. 1843 (1977) ................. 20

United States v. Jacksonville Terminal Co., 451 F.2d

418, 423-24 (5th Cir. 1971), cert. denied, 406 U.S. 906,

31 L.Ed.2d 815, 92 S.Ct. 1607 (1972) .............. 15

Verzosa v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 589 F.2d 974 (Sth Cir. 1978) .................. 14

Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597, 96

ts Se I ete Se Sr es co

Waters v. Furnco Construction Co., 551 F.2d 1085 (7th

SE. ite ea iin ea ke te) a 13

Statutes and Rules

ee Ee a ee as es 2

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

Act of 1964,as amended...................... passim

Wee. Bt. ee a) SC.#i(wi(‘(‘“ iwi“ “ke passim

In the

Supreme Court of the United States

Ocroser Trrm, 1979

No. 79-778

BOARD OF TRUSTEES OF

KEENE STATE COLLEGE, ET AL.,

PETITIONERS,

v.

CHRISTINE M. SWEENEY,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Opinions Below

The August 21, 1979 decision of the Court of Appeals

is officially reported at 604 F.2d 106 and appears as Appen-

dix E of the Petition for a Writ of Certiorari (hereinafter

Pet. for Cert.). A prior decision of the Court of Appeals,

2

officially reported at 569 F.2d 169 (Appendix A of the first

Pet. for Cert.), was vacated by the Supreme Court on Nov-

ember 13, 1978 (No. 77-1792). The Supreme Oourt’s Order

appears as Appendix A of the second Pet. for Cert.

The first decision of the District Court for the District

of New Hampshire was not officially reported, but was un-

officially reported at 14 FEP Cases 1220 (1977). Affirmed

twice now by the Court of Appeals, the decision appeared

as Appendix B of the first Pet. for Cert. It now appears

as Appendix F of the second Pet. for Cert.

This Court granted certiorari, vacated the judgment of

the Court of Appeals, and remanded the case for reconsider-

ation by the Court of Appeals in a majority per curiam

opinion in which four members of the court dissented. The

opinion is officially reported at 439 U.S. 24, 58 L.Ed.2d 216,

99 S.Ct. 295 (1978) and appears as Appendix A of the

Pet. for Cert.

By an order dated December 19, 1978, appearing as

Appendix B of the Pet. for Cert., the Court of Appeals

remanded the case to the District Court for further pro-

ceedings.

By orders dated January 29 and February 20, 1979,

appearing as Appendix C and Appendix D of the Pet. for

Cert., the District Court reaffirmed its original opinion and

findings in all respects. None of those orders is officially

reported.

Jurisdiction

The judgment of the Court of Appeals affirming the Dis-

trict Court’s original judgment was entered on August 21,

1979. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

3

Questions Presented

1. Does the methodology for proving an individual Title

VII discrimination claim established by McDonnell Douglas

v. Green and Furnco Construction Corp. v. Waters* require

abandoning the customary ‘‘clearly erroneous’’ standard

in favor of de novo review of a District Court’s finding of

discrimination.

2. Can the defendants be heard to complain that the

Dis.rict Court upon remand made no additional findings

when in fact defendants asked for none?

3. Does a McDonnell Douglas v. Green — Furnco analysis

require direct evidence of discriminatory intent in an aca-

demic promotion case even though such a burden is not

placed upon a plaintiff in any other employment discrimi-

nation context under Title VII?

Statute 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 applicable pro-

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

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

tice 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-

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed. 668,

93 S.Ct. 1817 (1973); Furnco Construction Corp. v. Waters, 438

U.S, 567, 57 L.Ed. 957, 98 S.Ct. 2943 (1978).

+

leges of employment, because of such indi-

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

origin. ...’’

Statement of the Case

Respondent, Christine M. Sweeney (hereinafter plain-

tiff), has now twice succeeded before both the District

Court and the Court of Appeals in demonstrating that she

was denied promotion to full professor of education at

Keene State College for the 1974-75 academic year because

of her sex.? Both the District Court and the Court of

Appeals announced in their original decisions that the

controlling legal test was to be found in McDonnell Douglas

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

(1973).° (F-2;* 569 F.2d at 177) The Court of Appeals

? Prior to instituting action in the District Court, the plaintiff

had filed discrimination charges with the New Hampshire Com-

mission for Human. Rights and the EEOC (Equal Employment

Opportunity Commission). After a lengthy investigation by the

Commission, it found probable cause on May 2, 1975, as did the

EEOC on October 19, 1976. (App. IV 121-22, Exs. 53, 54; see n. 4,

infra). Although the original complaint asserted additional claims,

these have been resolved. The remaining action focuses on Dr.

Sweeney’s promotion claim under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal

Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.

3Under McDonnell Douglas, an individual Title VII plaintiff

may proceed by first establishing a ‘‘prima facie case’’ of discrimi-

nation; this then requires the defendant to ‘‘articulate’’ a legiti-

mate, 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. Furnco Construction Co. v. Waters, 438 U.S. 567, 57 L.Ed.

2d 957,, 98 S.Ct. 2943 (1978), affirming the McDonnell Douglas

methodology, had not yet been decided by this court.

* The appendices of the present Pet. for Cert. are cited as ‘‘A’’,

‘*B’’, ““C”’, ete. The appendix prepared for the second appeal to

the Court of Appeals is cited as ‘‘App.’’ Appendices prepared for

the first appeal, constituting Vol. I-IV, are referenced as ‘‘ App.

I-IV’’, ete.

5

affirmed the District Court’s lengthy (26 pages in Appen-

dix F, including 13 Specific Findings) decision in favor of

the plaintiff in a detailed decision of its own.

What caused the Supreme Court to vacate the Court of

Appeals’ original decision was language accompanying the

discussion of defendants’ obligation to ‘‘articulate’’ a legi-

timate reason for Dr. Sweeney’s non-promotion once plain-

tiff had established a prima facie case. The Court of

Appeals stated that defendants were required ‘‘to prove

absence of discriminatory motive’’ at the second phase of

the test. 569 F.2d at 177. In remanding the case to the

Court of Appeals, the Supreme Court reemphasized the

language and rule of McDonnell Douglas, 411 U.S. at 802,

and Furnco Construction Corp. v. Waters, 488 U.S. 567,

57 L.Ed.2d 957, 98 S.Ct. 2943 (1978), that a Title VII

defendant need only ‘‘articulate’’ a valid reason, and indi-

eated that defendants had done so. (A-1) The Court was

concerned that the Court of Appeals had ‘‘imposed a

heavier burden on the employer than F'urnco warrants.’’®

(A-2) |

The Court of Appeals remanded the case to the District

Court on December 19, 1978 (with First Cireuit Court of

Appeals Judge Hugh Bownes, who had heard the case as

District Judge, sitting by designation) ‘‘for further pro-

ceedings and reconsideration in the light of Purnco... .”’

(App. 4) Although the Petitioners (hereinafter defend-

ants) now strenuously complain that Judge Bownes made

no additional ‘‘subsidiary’’ findings, they made no such

request during the more than six weeks that the case was

again before the District Court; in fact, from December 19,

—

5 The four dissenting Justices (Justices Stevens, Brennan, Stuart

and Marshall) took the position that there was no real distinction

between ‘‘articulat{ing] a nondiscriminatory reason’’ and ‘‘prov-

[ing] absence of a nondiscriminatory motive,’’ since, irrespective

of the shifting burden of adducing evidence by submitting proof,

the ultimate burden of persuasion rested with the plaintiff. (A-3-7)

6

1978 to February 7, 1979 (a date subsequent to Judge

Bownes’ second opinion), the defendants made no request

for a hearing or other proceeding before the District Court.

(D-1) However, Judge Bownes did reconsider the ease in

the light of Furnco, and issued an order, saying in part:

Defendants did adduce evidence of legitimate nondis-

criminatory reasons for not promoting plaintiff. Plain-

tiff 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 pro-

moted in the academic year 1974-75 but for the fact

that she was a woman.

My opinion an findings are in all respects reaffirmed.

(C-1-2)

On February 26, the defendants filed a Notice of Appeal

(App. 26), bringing the matter before the Court of Appeals

for the second time.

The Court of Appeals said it would not, however, con-

sider the evidence de novo, but would follow the standard

appellate practice of not overturning the findings of the

trial court unless ‘‘clearly erroneous.’’ The reason given

by the Court was that the trial judge was in a better

position to judge credibility of witnesses ‘‘where the issue

is whether ‘personality’ reasons were sexually biased.’’

(E-3-4, & n. 2) However, the Court also said that it would

look closely for infection in the Court’s findings from legal

error. (H-4, n. 2)

The Court of Appeals focused on the second and third

stages of proof under the McDonnell Douglas — Furnco

approach, namely whether the alleged reasons for Dr.

Sweeney’s non-promotion were a pretext for sex discrimi-

nation. Although Dr. Sweeney had the full support of her

7

peers in the Education Department, importantly she did

not have the support of Department Chairman Walter St.

John, when she applied for promotion for the 1974-75

academic year.® The Court of Appeals from its close review

of the record found possible sex bias in Department Chair-

man St. John’s perception of women faculty members:

In both 1974-75, by Dr. St. John’s own admission,

and in 1975-76, Sweeney had the support of her de-

partment’s evaluation committee. The significant dif-

ference 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 commit-

tee’s recommendation and, on the basis of the evidence

reviewed herein, that his criticism of Sweeney was de-

termined by a subtle, if unexpressed, bias against

women faculty.

Eleanor Vanderhagen testified that Dr. St. John was

involved in the publication of a newsletter by the Edu-

cation Department that carried an announcement about

an all-male honor education fraternity. When Vander-

hagen wrote to him ‘‘pointing out its role in profes-

sional advancement for careers for men and women”’

and tried to meet with him to diseuss 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-12-13, n. 12 & n. 13)

® Dr. Sweeney had sought promotion for the 1972-73 academic

year. Denial for that year is no longer an issue in this ease.

On her third try, for the 1975-76 academic year, she was successful.

8

At her next promotional hurdle, Dr. Sweeney encountered

the all-male, senior faculty, FEAC (Faculty Evaluations

Advisory Committee). They turned her down, saying only

that she did not qualify. (E-5) Not until the FAC (Faculty

Appeals Committee) insisted that she be given reasons for

the adverse decision was the following ‘‘explanation’’ de-

veloped by President Redfern and Dean Davis, the ultimate

decision-makers in the promotion process and among the

defendants herein:

The evidence shows that [President Redfern] told

Sweeney that the reasons were largely personal ones:

that the FEAC members thought that she ‘‘personal-

ized professional matters,’’ was rigid, narrow-minded,

and inflexible, 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.

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

promotion thus were, in essence, that Sweeney had a

tendency to be narrow-minded and rigid, to personalize

professional matters, and to be difficult to work with.

(E-5-6)

The Court of Appeals then considered the question of

credibility: were the reasons advanced by administration

members for non-promotion the ‘‘real reasons’’ or were

they mere pretexts? (K-7) Relevant to the court’s conclu-

sion that they were ‘‘pretexts’’ was Dr. Sweeney’s testi-

mony that her later promotion for the 1975-76 year was in

response to her complaint of sex discrimination; testimony

of faculty members that she was not rigid, old fashioned,

or narrow-minded and did not personalize professional

9

matters; testimony that the College had already granted

her tenure, indicating that the alleged ‘‘personality’’ prob-

lems had not impeded her from becoming a permanent

faculty member; testimony that she was as well qualified

for promotion by objective criteria (such as teaching

ability, publications, and committee work) as men who were

in fact promoted to the senior ranks; and testimony that

her credentials were essentially unchanged from the year

of her denial to the year of her promotion. (H-7-10)

The Court of Appeals observed:

Defendants argue that Sweeney did no more than

show that differences of opinion existed between mem-

bers 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 quali-

fied 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

[v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979)], 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 qualifica-

tions, the evidence and testimony just reviewed sug-

gests that more than just differences 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 triv-

ial comment. In light of the evidence that Sweeney’s

personality was not as described by Redfern and did

10

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.

(E-10-11)

The Court then focused on more general, administration-

wide discrimination, which it said added ‘‘color’’ to the

plaintiff’s claim of discrimination:

The nature of the reasons given, and the evidence

introduced to show that they were either insubstantial

or fictitious, stood with more general evidence suggest-

ing that women at Keene State were evaluated by a

stricter standard than their male colleagues, and that

the institution generally was unresponsive to the con-

cerns 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 re-

counted 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 process 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 individual, but evidence of such an atmosphere may

be considered along with any other evidence bearing

on motive in deciding whether a Title VII plaintiff

has met her burden of 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 evi-

dence that the reasons given for Sweeney’s nonpromo-

11

tion in 1974-75 were implicitly influenced by the fact

that Sweeney was a woman.” (E-11-12)

The Court discounted the defendants’ claim regarding

lack of discriminatory animus on the part of the decision

makers, saying:

Although there was no direct evidence, we think that

the district court could have inferred that FEAC and

Dr. St. John were sex biased in light of the nature

and weakness of the reasons given for her non-promo-

tion coupled with the evidence of the statistical com-

position and general character of the institution and

of the insensitivity of many—including St. John—to

the concerns of the female faculty. (E-12-13)

In short, the Court of Appeals concluded that sex bias

formed a built-in headwind, impeding Dr. Sweeney’s pro-

motion, and found that ‘‘Sweeney would have been pro-

moted had she been evaluated against the standard that

was applied generally to men.’’ (K-14)

7 The first decision of the Court of Appeals contained additional

language not repeated in the second opinion. It made the following

statement based on McDonnell Douglas concerning the plaintiff’s

burden of showing pretext:

In suggesting the kinds of evidence which would be relevant

in proving that the employer’s refusal to rehire was a pretext,

the Court listed an employer’s general policy and practice

with respect to minority employment, prior treatment of the

plaintiff, and statistics. 411 U.S. at 804-05.

The Court of Appeals then evaluated plaintiff’s statistical evidence

showing that a double standard existed at the college, excluding

women from the upper faculty ranks; took note of the inactivity

of the so-called Affirmative Action Program at the college and the

program coordinator’s lack of concern for Dr. Sweeney’s com-

plaints; and reviewed testimony of expert and lay witnesses re-

garding sex bias and treatment of women on campus.

12

Argument

I. Crertiorart SHovtp Be Denrep Because Tus Case Has

Now Breen REcoNsIDERED IN THE Licut oF Furnco Con-

struction Corp. v. Waters ann No New SIGNIFICANT

LecaL Issuers Have Been Ralisep By THE Opinions BELow.

a. The ‘‘Clearly Erroneous’’ Test For Reviewing A

District Court’s Findings Was Impliedly Approved

By McDonnell Douglas v. Green and Furnco Con-

struction Corp. v. Waters, It Is Used Consistently

By The Circuits In Evaluating The Evidence In

Individual Title VII Claims And Petitioners Pre-

sent No Compelling Argument For Abandonment

Of This Standard Of Review In Favor Of De Novo

Review.

The defendants continue to be dissatisfied with the find-

ing in this case that the plaintiff would have been promoted

but for her sex and now have proposed that the widely-

adopted ‘‘clearly erroneous’’® standard of appellate re-

view should not be applied to Title VII claims. Defend-

ants’ position is without merit. The ‘‘clearly erroneous”’

rule was employed in McDonnell Douglas and Furnco, was

followed throughout the history of the instant ease, and has

been almost universally observed by the Circuits, including

the Fifth and Seventh, in evaluating the claims of indi-

vidual plaintiffs in Title VII actions. The defendants pre-

sent no persuasive reasons for this Court’s imposition of

a less appropriate standard of de novo review.

Both McDonnell Douglas and Furnco reached the Su-

preme Court on the ‘‘clearly erroneous”’ standard of re-

8 FED. R. CIV. P. 52(a) provides in part:

Findings of fact shall not be set aside unless clearly erro-

neous, and due regard shall be given to the opportunity of the

trial court to judge of the credibility of che witnesses,

13

view. See Green v. McDonnell Douglas Corporation, 463

F.2d 337 (8th Cir. 1972); Waters v. Furnco Construction

Co., 551 F.2d 1085 (7th Cir. 1977). This Court announced

rules concerning the order and allocation of proof for

individual Title VII claims in the McDonnell Douglas and

Furnco cases, but significantly did not suggest anything

but that the ‘‘clearly erroneous’’ standard of review was

appropriate once the correct rules of law were applied to

the facts as found. The defendants in this ease did not

question the standard of review until the second appeal of

the District Court’s decision. (Reply Brief for Defendants-

Appellants, at 8-11) Although this Court directed the Court

of Appeals to reconsider the facts in this case in the ‘‘light

of Furnco’’ (A-2) it specifically expressed ‘‘no view’? re-

garding the outcome of the case once the correct rule of

law had been applied to the facts (A-2, n.1) and impliedly

approved the ‘‘clearly erroneous”’ standard of review em-

ployed by the First Circuit in its first decision. 569 F.2d at

176, n. 12.°

Additionally, the ‘‘clearly erroneous’’ standard of review

has been explicitly or implicitly followed in academic tenure

or promotion decision cases similar to the one at hand.

See, e.g., Faro v. New York University, 502 F.2d 1229 (2nd

Cir. 1974); Green v. Bd. of Regents of Texas Tech Univer-

® When this case was before the Court of Appeals for a second

time, upon remand by this Court, it was in a posture identical to

that of McDonnell Douglas upon remand, when the Court of

Appeals said:

In effect the Supreme Court, in view of the employer’s

statement as to its reason for discharge, stated that the em-

ployer had satisfactorily offered rebuttal evidence to the prima

facie case and that the remaining issue . . . was whether the

employee could demonstrate that petitioner’s assigned reason

was pretextual or discriminatory in its application. The issue

on remand was factual and quite narrow. We are bound by

the ‘‘elearly erroneous’’ standard found in Fed. R. Civ. P.

52(a). Green v. McDonnell Douglas, 528 F.2d 1102, 1104

(8th Cir. 1975).

14

sity, 474 F.2d 594 (Sth Cir. 1973) (suit under § 1983) ;

cf. Powell v. Syracuse University, 580 F.2d 1150, 1156 (2nd

Cir. 1978). Other plaintiffs claiming discrimination, in-

cluding those bringing actions under Title VII, have seen

their fortunes rise or fall under the ‘‘clearly erroneous’’

standard of re iew. See, e.g., Duckett v. Silberman, 568

F.2d 1020 (2nd Cir. 1978); Kirkland v. New York State

Dept. of Correctional Services, 520 F.2d 420 (2nd Cir.

1975), cert. denied, 429 U.S. 823, 50 L.Ed.2d 84, 97 S.Ct. 73

(1976); Stmmons v. Schlesinger, 546 F.2d 1100 (4th Cir.

1976) (withdrawn from reporter at request of court) ;

Jones v. Pitt County Bd. of Ed., 528 F.2d 414 (4th Cir.

1975) ; Alexander v. Aero Lodge No. 735, Intern, Assoc. of

Machinists and Aerospace Workers, AFL-CIO, 565 F.2d

1364 (6th Cir. 1977), cert. denied, 436 U.S. 946, 56 L.Ed.

787, 98 S.Ct. 2849 (1978) ; Anderson v. Methodist Evangeli-

cal Hospital, Inc., 464 F.2d 723 (6th Cir. 1972); Middleton

v. Remington Arms Co., 594 F.2d 1210 (8th Cir. 1979);

Harmon v. May Broadcasting Co., 583 F.2d 410 (8th Cir.

1978) ; Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977) ; Small-

wood v. National Car Co., 583 F.2d 419 (9th Cir. 1978) ;

Verzosa v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

589 F.2d 974 (9th Cir. 1978); Silberhorn v. General Iron

Works Co., 584 F.2d 970 (10th Cir. 1978); Olson v. Philco-

Ford, 531 F.2d 474 (10th Cir. 1976).

The defendants cite Causey v. Ford Motor Company, 516

F.2d 416 (5th Cir. 1975) and Stewart v. General Motors

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

U.S. 919, 53 L.Ed.2d 1105, 97 S.Ct. 2995 (1976), in an at-

tempt to show ‘‘disharmony’’ in the circuits. That is not

a correct statement as to individual, disparate treatment

claims under Title VII.

In the Fifth Cireuit, where (as in the present case) there

is a conflict in testimony involving an individual litigant,

the District Court’s findings of discrimination or non-dis-

15

crimination will be considered essentially as fact questions

protected under the Rule 52(a) rationale, while conclusions

regarding a class of litigants may be considered as con-

clusions of law not subject to the ‘‘clearly erroneous’? rule.

See United States v. Jacksonville Terminal Co., 451 F.2d

418, 423-24 (5th Cir. 1971), cert. denied, 406 U.S. 906, 31

L.Ed.2d 815, 92 S.Ct. 1607 (1972); Bolton v. Murray Enve-

lope Corp., 493 F.2d 191, 194 (5th Cir. 1974); Cupples v.

Transport Insurance Company, 498 F.2d 1091, 1093 (5th

Cir. 1974). (‘‘In suits alleging discrimination in employ-

ment practices as to identified individuals, findings of fact

by district courts may be set aside only if unsupported by

substantial evidence’’); Smith v. Fletcher, 559 F.2d 1014

(5th Cir. 1977); Barnes v. Jones County School Dist., 575

F.2d 490 (5th Cir. 1978); Armour v. City of Anniston, 597

F.2d 46, 48 (5th Cir. 1979); cf. James v. Stockham Valves

& Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. denied,

434 U.S. 1034, 54 L.Ed.2d 781, 98 S.Ct. 767 (1978). The

earlier (1975) Causey case relied upon so heavily by the

defendants is not really outside this rule. In the context

of the case itself, the purported distinction between ‘‘sub-

sidiary’’ findings and the ‘‘ultimate’’ finding of discrimi-

nation is misleading, since, to the extent the Court of Ap-

peals overturned the District Court, the decision turned on

a legal question: whether the defendant’s evidence ade-

quately rebutted the plaintiff’s prima facie case of discrimi-

nation under McDonnell Douglas. The Causey case is

consequently of little precedential value.

Stewart v. General Motors Corporation, supra, also is

not illustrative of conflicts in the circuits that would have

bearing on the outcome of an individual disparate treatment

ease. Stewart was a class action involving the allegedly

discriminatory impact of the defendant corporation’s hir-

ing and promotional practices. The Court of Appeals re-

viewed the essentially uncontradicted statistical evidence

16

to determine its conformity with applicable legal principles

drawn from Griggs v. Duke Power Co., 401 U.S. 424, 28

L.Ed.2d 158, 91 S.Ct. 849 (1971). In that light, and in that

light alone, the determination of discrimination against a

class may be ‘‘as much a conclusion of law’’ subject to

‘‘independent examination.’’’ 542 F.2d at 449. However,

the Seventh Cireuit has joined other circuits in observing

the ‘‘clearly erroneous’’ standard of review in connection

with identified individuals making civil rights claims. Moore

v. Townsend, 525 F.2d 482 (7th Cir. 1975) ; Haythe v. Decker

Realty Co., 468 F.2d 336 (7th Cir. 1972).

Even if, contrary to the plaintiff’s position, there is dis-

unity in the cireuits, the ‘‘clearly erroneous”’ rule of Rule

52(a) is the correct test for resolution of what is in essence

a credibility issue: whether the personality reasons ad-

vanced by the defendants were the real reason for her non-

promotion. There is no longer a question of the legal rule

to be applied to the District Court’s findings and the

defendants have succeeded in directing the Court’s close

attention to the conflicting testimony between the defend-

ants’ witnesses from the administration and the plaintiff’s

witnesses regarding personality factors. What remains,

then, is basically an issue of fact. As the Court of Appeals

said:

[The District Court’s] opportunity for first hand ob-

servation may be especially important [in a diserimi-

nation case] such as this, where the issue of whether

‘‘personality’’ reasons were sexually biased. (K-4,

n. 2)

The ‘‘clearly erroneous’’ test is therefore appropriate to

the consideration of this case and no cases cited by the

defendants change that result.

10 The Court’s procedure is the equivalent of that of the Court

of Appeals in this case, where the Court, reviewing the record for

the second time, said it would look closely for ‘‘infection’’ from

application of wrong legal principles. (E-4, n.2)

17

b. The Defendants Cannot Be Heard To Complaint That

The District Court Made No Additional Findings.

The defendants’ next argument is in essence that the

terms of this Court’s remand for reconsideration of the

ease in the ‘‘light of Furnco’’ have been evaded. The de-

fendauts are principally disturbed that the District Court

made no additional findings upon remand by the Court of

Appeals. The fact of the matter is that the defendants

made no request for a hearing or other proceedings, sub-

mitted no request for findings or rulings and had no mean-

ingful communication with the District Court for the entire

time the case was before it the second time. Defendants’

requests for relief (App. 8; App. 19) were properly denied

by the District Court as too late. (D-1) The District Court’s

second opinion, correcting the error made in the first con-

cerning the second and third stages of proof, satisfied the

obligation imposed by the Court of Appeals’ remand.

Upon a second appeal to the Court of Appeals, that Court

subjected the entire record to a McDonnell Douglas—Furnco

analysis. The correct methodology for reviewing the quan-

tum and nature of proof has now been applied, the defend-

ants have been pointed to evidence meeting the third phase,

‘pretext’? requirement and the terms of this Court’s re-

mand have been completely satisfied.

ce. The Quantum And Nature Of Proof Applicable To An

Academic Non-Promotion Claim Are Established In

McDonnell Douglas v. Green And Furneco Construction

Corp. v. Waters, And Have Now Been Appropriately

Applied In This Case; Defendants Present No Com-

pelling Reasons For Departing From That Standard

In This Case And Requiring Direct Evidence Of

Discriminatory Intent.

Defendants’ last argument is really an attempt to create

confusion regarding the quantum and nature of proof in a

18

Title VII context where actually none exists. Additionally,

it is to set up an evidentiary ‘‘Catch 22’ in Title VII

academic promotion cases that foredooms potential liti-

gants to defeat. Although the defendants have concluded

that plaintiffs need not (and indeed in most instances can-

not) prove discrimination through direct evidence (Brief

for Defendants-Appellants, at 25-26), the final argument in

their brief appears to take the position that anything but

direct evidence is mere ‘‘societal bias,’’ which, no matter

how closely linked to the decision in a plaintiff’s case, can

never rise to the level required to show the decision at

issue was sexually premised. (See Pet. for Cert., at 22-34)

The obvious effect of defendants’ argument would be

to reduce the 1972 amendments to Title VII to a toothless

tiger, in contravention of congressional intent. As the Court

observed in Davis v. Weidner, 596 F.2d 726, 731 (7th Cir.

1979) :

Congress did not intend [higher education to be immu-

nized from the requirements of Title VII]. In fact,

in 1972 Congress deleted an exemption for institutions

of higher education which was contained in the original

equal employment opportunity legislation. Compare

Pub. L. 88-352 § 702 (1964) with Pub. L. 92-261 ¢ 3,

42 U.S.C. § 2000e-1. And the legislative history under-

lying this amendment reflects Congress’ concern with

the problem of discrimination against women in aca-

demia. See, e.g., H. Rep. 92-238, 92d Cong., 2d Sess.,

reprinted in [1972] U.S. Code Cong. & Admin. News

at 2137, 2155. See also Sweeney v. Board of Trustees

of Keene State College, 569 F.2d 169, 175 nn. 10, 11

(ist Cir. 1978). Congress must have recognized that

in order to achieve its legislative goals, courts would

be forced to examine critically university employment

decisions. See also, Powell v. Syracuse University,

580 F.2d 1150, 1154 (2nd Cir. 1978).

19

Defendants cite this Court to a series of decisions which

purport to show greater deference to university decisions

about faculty members than either the Davis or the Powell

cases prescribe. Faro v. New York University, 502 F.2d

1229 (2nd Cir. 1974), is highlighted by the defendants as

support for a supposed lack of clarity and consistency in

the degree to which college review committees will receive

judicial scrutiny. However, the Powell court specifically

questioned other courts’ interpretations of its earlier Faro

decision, saying courts should take an activist role in Title

VII cases. 580 F.2d 1153. Nor is it appropriate to this

inquiry for the defendants to direct this Court to non-Title

VII cases cited in the Powell decision, which raised con-

stitutional or other statutory claims in tenure and dismissal

settings. See, e.g., Stebbins v. Weaver, 537 F.2d 939 (7th

Cir. 1976), cert. denied, 429 U.S. 1041, 50 L.Ed.2d 753, 97

S.Ct. 741 (1977); Megill v. Board of Regents of the State

of Florida, 541 F.2d 1073 (5th Cir. 1976). If those cases

show a naive faith in the motivation of college adminis-

trators, they are not an apt model for review of campus

sex bias, which has been termed ‘‘ ‘truly appalling,’ ‘gross’

and ‘blatant.’ ’’ 580 F.2d at 1154. Particularly is that so

where the subjective nature of the decisions invites subtle

(though not necessarily ‘‘unconscious’’) forms of preju-

dice, calling consequently for greater, not lesser judicial

probing. See Davis v. Weidner, supra, 596 F.2d at 731.

The defendants say they are ‘‘entitled to know the stand-

ard of discriminatory motive against which peer employ-

ment decisions will be judged.’’ (Pet. for Cert. at 23-24)

The answer of course lies in a disparate treatment analysis

under McDonnell Douglas and Furnco; a violation of

Title VII occurs when impermissible disparate treatment

is found. As the Court said in Furnco:

20

The central focus of the inquiry in a case such as this

is always whether the employer is treating ‘‘some

people less favorably than others because of their race,

religion, sex or national origin.’’ 488 U.S. at 577,

quoting Teamsters v. United States, 431 U.S. 324, 335

n. 15, 52 L.Ed.2d 396, 97 S.Ct. 1843 (1977).

To prevail in a disparate treatment case, a plaintiff must

do more than show that impact of allegedly non-diserimi-

nating practices fall more harshly on her class, Teamsters

v. United States, supra, 431 U.S. at 335, n. 15; she must

demonstrate that the discrimination was based upon illegiti-

mate, rather than legitimate reasons and that the reasons,

if any, given by the employer, are mere ‘‘pretexts’’ for a

sexually premised decision. The three-step McDonnell

Douglas—Furnco methodology is well-suited to this in-

quiry. On the other hand, direct evidence of discriminatory

animus is not required, see Johnson v. University of Pitts-

burg, 359 F.Supp. 1002, 1007 (W.D. Pa. 1973); motivation

can be determined from inferential evidence, such as statis-

tics, the employer’s general policies regarding the em-

ployees in the plaintiff’s protected class, treatment before

and after the plaintiff’s complaint of discrimination, and

an evaluation of the credibility of defendants’ ‘‘reasons”’

for the decision. See McDonnell Douglas v. Green, supra,

411 U.S. at 804-05; see also Furnco v. Waters, supra, 438

U.S. at 579-80: Teamsters v. United States, supra, 431 U.S.

at 335, n. 15. This is a clear mandate to meet plaintiff’s ulti-

mate burden through inferential and circumstantial proof.

The above-cited principles from McDonnell Douglas and

Furnco have been used to prove an employment discrimina-

tion case under Title VII as recently as last month, where

the District of Columbia Cireuit Court of Appeals sug-

gested in Davis v. Califano, 21 FEP Cases 273 (D.C. Cir.

21

1979) that statistical analysis was relevant to a showing of

intent to discriminate and that close judicial scrutiny was

indicated where subjective promotional criteria could easily

mask an ‘‘unlawful bias’’:

Appellant’s statistical data included in category

number two also constitutes probative evidence from

which discriminatory intent might be inferred. Absent

discriminatory promotion practices, similar promotion

rates for male and female employees in the higher job

classifications and grade levels who possess the mini-

mum objective qualifications necessary for those posi-

tions would be expected. Dr. Davis’ statistical evidence

indicated that male GS employees in the higher grades

in NIH and NHLBI were promoted at a substantially

higher rate than similarly situated female employees.

Appellant’s statistical prima facie case is bolstered

by the subjective and ad hoe nature of Appellee’s pro-

motion decisions. ... This Court agrees with the Eighth

Cireuit Court of Appeals in Rogers v. International

Paper Co., 510 F.2d 1340, 10 FEP cases 404 (8th Cir.

1975), vacated on other grounds, 423 U.S. 809, 11 FEP

Cases 576 (1975), reinstated with modification on other

grounds, 526 F.2d 722, 11 FEP Cases 1000 (8th Cir.,

1975), which stated:

Greater possibilities for abuse ... are inherent

in subjective definitions of employment selection

and promotion criteria. ... [I]t is especially im-

portant for courts to be sensitive to possible bias

in the hiring and promotion process arising from

such subjective definition of employment criteria.

22

Appellee’s promotion procedures are highly suspect

and must be closely scrutinized because of their ca-

pacity for masking unlawful bias.”

These principles cut a clear path of proof through the

thicket that defendants try to create by reference to Wash-

ington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597, 96 S.Ct. 2040

(1976). (Pet. for Cert. at 29-31) The Washington case was

a class action brought by black police officers challenging

the validity of a written personnel test. Plaintiffs alleged

that the test discriminated against them by excluding dis-

proportionately large numbers of their group. The case

was brought under constitutional and Title VII theories.

The Court’s discussion, quoted out-of-context in defend-

ant’s brief, is simply to the effect that intent must be shown

11 See also Jones v. Trailways Corp., 20 FEP Cases 1541, 1544

(D.D.C. 1979) :

When faced with an employer’s reasons for its allegedly dis-

criminatory treatment, plaintiff in a Title VII action ordi-

narily must rely on circumstantial rather than direct evidence

from which to infer racial motivation. Sweeney v. Board of

Trustees of Keene State College, 569 F.2d 169, 16 FEP Cases

378 (1st Cir. 1978), vacated on other grounds, 439 U.S. 24,

47 LW 3330, 18 FEP Cases 520 (Nov. 13, 1978); Marquez

v. Omaha District Sales Office, 440 F.2d 1157, 1162, 3 FEP

Cases 275 (10th Cir. 1971) ; Sawyer v. Russo, 19 EPD { 8996,

19 FEP Cases 44 (D.D.C. 1979). Such racially discriminatory

purpose must play some part in the challenged actions, but

plaintiff need not prove it played the only part or even the

controlling one. SeeMcDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273, 285, 12 FEP Cases 1577 (1976) ; Berio v. EEOC,

18 EPD { 8847, 19 FEP Cases 168 (D.D.C. 1979). See also

Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252, 265-66 (1977); Miller v. Poretsky, 595 F.2d 780, 788

(D.C. Cir. 1978). A court may conclude that discriminatory

intent was present if plaintiff has shown a pattern or series of

actions not explainable on other grounds, see Arlington

Heights, supra at 266; or if comparably situated white em-

ployees were treated differently from plaintiff, McDonnell

Douglas, supra at 804, or even from the circumstances of

plaintiff’s treatment combined with more general evidence on

defendant’s relevant minority employment practices. Id. at

804-05.

23

(although it may sometimes be inferred from disparate

impact) under the constitutional basis for the claim but not

under the Title VII, disparate impact theory under Griggs

v. Duke Power Co., supra, 401 U.S. 424. All of the state-

ments can be harmonized with the view that intent must

be shown, but may be shown inferentially—among other

ways through unexplained differences in impact—in dis-

parate treatment claims under Title VII. The confusion

noted by the defendants’ brief, is artificially created.

The fact is that there is no longer a legitimate legal argu-

ment in this case. Defendants are simply left with their

unsupportable contention that the plaintiff did no more than

demonstrate ‘‘unconscious societal bias.’’ (H.g., Pet. for

Cert. at 33) Her evidence that the non-promotion decision

was sexually premised fully met the rigorous McDonnell

Douglas —- Furnco criteria. In summarizing only a part of

this evidence:

1. Dr. Sweeney presented evidence that the New

Hampshire Commission for Human Rights and the

Equal Employment Opportunity Commission both

found probable cause for her complaint of discrimi-

nation. (App. IV 121, Exs. 53, 54)

2. She presented impressive statistical evidence of

sex discrimination in hiring, promotion and salaries in

the highest academic ranks. (Exs. 58 and 59; F-23)

3. She presented evidence of the ineffectiveness of

the affirmative action program, see Johnsow v. Uni-

versity of Pittsburg, 359 F.Supp. 1002 (W.D. Pa. 1973),

and the lack of assistance and concern on the part of

the program coordinator in pursuing her claim; in fact,

the program coordinator sought to intimidate the

plaintiff with answering interrogatories from the New

Hampshire Commission for Human Rights, regarded

the contention of discrimination as frivolous, and

24

sought assistance from a colleague in repressing the

‘‘form of anarchy’’ represented by Dr. Sweeney’s

claims of discrimination. (F-17, 19)

4. An expert testified as to the pattern of discrimi-

nation at the university and that it had an impact on

promotional decisions of females in general and the

plaintiff in particular. (App. III 249; F-21)

5. Other witnesses testified that Dr. Sweeney was

among the top third of full professors at Keene and

qualified for promotion by objective measurement of

teaching ability, publications, and committee work;

they testified that she was not rigid and old-fashioned

or had trouble working with people as portrayed in the

defendants’ ‘‘explanation.’’ (F-19)

6. The ‘‘personality’’ reasons given for non-pro-

motions are not those stated in the Faculty Maual.

(App. II 113; App. III 117; App. TIT 143; App. III

213; App. IIT 99)

7. The Court of Appeals’ examination of the record

elicited additional facts that support an inference of

bias on the part of the plaintiff’s department chairman.

(H-12-13, n. 12 and n. 13)

8. Additionally there was evidence of animosity,

which inferentially could have been sexually premised,

on the part of specific individuals, including Dean

Davis (F-4-5), and Dr. Quirk, head of the FEAC.

(App. ITT 372-73)

9. The ‘‘versonality’’ reasons eventually developed

by the administration, since untrue, support an infer-

ence that the 5-man FEAC and administration saw her

as a sexual stereotype, and that sex bias, not person-

ality was the premise of the decision.”

12 See Hill v. Nettleton, 455 F.Supp. 514 (1978) :

Those in authority saw Mary Alice Hil! more as a symbol of

her sex than as a member of the faculty and she suffered

25

10. The finding by the FAC that Dr. Sweeney had

been unprofessionally treated by the administration by

refusing to explain her non-promotion adds weight to

her claim of discrimination. (F-12)

11. The record as summarized by the District Court

shows a sequence of events indicative of an intent to

discriminate and a fertile factual setting for the view

that the ‘‘reasons’’ were what McDonnell Douglas

terms ‘‘a coverup for a [sexually] discriminatory de-

cision,’’ 411 U.S. at 805; no meaningful explanation

for the non-promotion decision, followed by a com-

plaint of discrimination, followed by development of

an ‘‘explanation’’ by the Dean, head of the FEAC and

President of the College for the previously unexplained

action, followed by promotion with unchanged creden-

tials or personality. (F.g., F-10, Ex. 32, F-16, E-9)

Cf. McDonnell Douglas Corp. v. Green, supra, 411 U.S.

at 804.

The cumulative effect of this evidence and other evidence

in the record properly was that Dr. Sweeney was denied a

promotion because of her sex, the critical determination in

this case.

Conclusion

The legal issues in this case were resolved with the

Court’s remand, the terms of which have been satisfied by

the District Court and met by the Court of Appeals in its

complete review of the record.

The defendants raise only a factual dispute regarding

the outcome of this case. The Rule 52(a) ‘‘clearly erro-

from that perception. It resulted in her being treated less

favorably because of her sex and that is a violation of the law.

Furnco Construction Corporation v. Waters, 455 F.Supp.

at 519. ©

26

neous’’ standard of review is well-settled for Title VII

disparate treatment claims, as is the rule that a plaintiff

may meet her ultimate burden through inferential forms of

evidence.

The respondent requests that the Petition for Certiorari

be denied.

Respectfully submitted,

Jack B,. MippLeton

Rosert A. WELLS

Wayne C. Breyer

McLane, Grar, GREENE, Rauterson &

MIpDLETON, PROFESSIONAL ASSOCIATION

40 Stark Street, Box 326

Manchester, New Hampshire 03105

Attorneys for Respondent