Opposition Brief — Ottaviani v. State University of New York at New Paltz

Supreme Court, U.S. |

2k ee D

DEC 11 1989

No. 89-612

OD nlenigt\O\. JR.

CLERK

IN THE

Supreme Court of the United States

Octoser TERM, 1989

ROBERTA OTTAVIANI, CAROLEE SCHNEEMANN,

JOAN MARIE pe ra COVA, DOROTHY JESSUP.

Individually and on Behalf of all Other Persons Similarly Situated,

Petitioners.

— against —

STATE UNIVERSITY OF NEW YORK AT NEW PALTZ,

and CLIFTON R. WHARTON, JR..

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

ROBERT ABRAMS

Attorney General of the State

of New York

Attorney for Respondent

120 Broadway

New York. New York

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BEST AVAILABLE COPY

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TABLE OF CONTENTS

Page

ee ]

Statement of the Case...................., 2

ee 2

B. Proceedings Below .................. 4

Ba WMMMUE cs nos ccssibadvevcces 5

a. The Statistical Evidence...... 5

b. Anecdotal Evidence.......... 8

c. Individual Claims ........... 9

(i) Roberta Ottaviani ...... g

(ii) Joan dela Cova........ 1]

(iii) Dorothy Jessup......... 12

(iv) Carolee Schneemann.... 13

2. The Decisions Below ............ 13

Reasons For Denying The Writ............. 14

A. The Decision Of The Court Below Is

Not In Conflict With Price Waterhouse

We CS oa c's mae a bee cecedoin 14

Page

B. The Second Circuit’s Treatment Of The

Statistical Evidence Was In Accord With

The Decisions Of This Court And Was Not

In Conflict With Decisions Of Other

Circuits

The Second Circuit's Decision Is Not Ir

Conflict With Bazemore v. Friday 2

D The Iss c Ot W hic h Par Bear |

Burden Of Validating “rank” As A

| de endent V ariable | < M t c

Regression Analvsis Is Irrelevant In

Case yy

TABLE OF AUTHORITIES

Cases Page

Adickes v. Kress & Co., 398 U.S. 144 (1970)..... 19

Bazemore wv. Friday, 478 U.S. 385 (1986)........ passim

Castaneda wv. Partida, 430 U.S. 482 (1977)....... 18

Chang v. University of Rhode Island, 606 F.

SE Ge ee |. er 18

Coates v. Johnson & Johnson, 756 F.2d 524 (7th

eg Bip abs Waco KS 6 vw 0 o 9.3 22

Coser v. Moore, 587 F. Supp. 572 (E.D.N.Y.

1983), aff'd, 739 F.2d 746 (2d Cir. 1984)...... 18

Delta Air Lines, Inc. v. August, 450 U.S. 346

Ey oc 5p ¥ #S eo 0 0 0% 19

Dothard v. Rawlinson, 433 U.S. 32i (1977)...... - 18

Equal Employment Opportunity Commission v.

Sears, 839 F.2d 302 (7th Cir., 1988).......... 17, 18

Hazelwood School District v. United States, 433

Ee 18

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

Ns a 15

Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987) . 18

Penk v. Oregon State Board of Higher Education,

816 F.2d 458 (9th Cir.), cert. denied,

__U.S.___, 108 S. Ct. 158, reh. denied,

___U.S.___, 108 S. Ct. 473 (1987) . 18

iv

Price Waterhouse v. Hopkins, 490 U.S. , 109

S. Gt. 1775, 104 L. Ea. 3a Bae (508)... ....:..

Sobel v. Yeshiva University, 839 F.2d 18 (2d Cir.

1988), cert. denied, 490 U.S.___, 109 S. Ct.

3154, 104 L. Ed. 2d 1018 (1989).............

Teamsters v. United States, 431 U.S. 324 (1977)...

Texas Department of Community Affairs v.

Buraine, 450 U.S. 246 (1081) «. oe cies,

United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711] (1983) ...............

Vuyanich v. Republic Nat. Bank of Dallas, 521 F.

Supp. 656 (N.D. Tex. 1981), vacated on other

grounds, 723 F.2d 1195 (5th Cir.), reh. denied,

736 F.2d 160 (5th Cir.), cert. denied, 469 U.S.

1073 (1984) .......

Watson v. Fort Worth Bank and Trust, 487 U.S.

= ORS, Ce. S777; 101 LB. 3a boi

(1988)

STATUTE

Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq

18

17, 19

passim

No. 89-612

IN THE

Supreme Court of the United States

OcToBER TERM, 1989

ROBERTA OTTAVIANI, CAROLEE SCHNEEMANN,

JOAN MARIE pe ta COVA, DOROTHY JESSUP,

Individually and on Behalf of all Other Persons Similarly Situated,

Petitioners,

— against —

STATE UNIVERSITY OF NEW YORK AT NEW PALTZ,

and CLIFTON R. WHARTON, JR.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Introduction

Petitioners Roberta Ottaviani, Carolee Schneemann, Joan

Marie de la Cova and Dorothy Jessup individually and on behalf

of a class (hereinafter “petitioners”) seek review of the judgment

and decision of the United States Court of Appeals for the Sec-

ond Circuit, dated May 9, 1989, unanimously affirming the

decision of the United States District Court for the Southern

District of New York, dated January 11, 1988, which dismissed

all of petitioners’ claims of sex discrimination in employment

brought against the State University of New York (“SUNY”) at

New Paltz (“New Paltz”) and Clifton R. Wharton, Jr.

“respondents”) pursuant to 42 U.S.C. 2000(e) et seq. (“Title

VII"). (A2-A27) Specifically, the Court of Appeals affirmed the

District Court's determination that petitioners had failed to

show, either on a classwide or on an individual basis, that women

faculty in the Division of Liberal Arts and Sciences at New Paltz

(the “Division”) were treated differently on account of their sex

with regard to initial placement into rank, current rank and

salary. Based upon its review of the record, the Court found,

that the District Court’s rejection of petitioners’ statistical and

anecdotal evidence was not clearly erroneous. The Court also

held that, with regard to their classwide claims, “the burden

of persuasion was on the petitioners to prove by a preponderance

of the evidence that there was a pattern or practice of discrimina-

tion at SUNY, New Paltz, and they failed to meet that burden.”

(A.27) The Court’s finding in this regard applied not only to

the eleven year post-Act period in issue but also to the period

of time prior to the effective date of Title VII.

Because the holding of the Court below is narrowly confined

to the facts presented at trial and because the Court’s opinion

presents no conflict with decisions of this Court or with other

Circuits, this Court should deny the petition for writ of

certiorari.

STATEMENT OF THE CASE

A. Background

New Paltz, one of 29 SUNY campuses, was a campus in finan-

cial crisis during the entire class period. Indeed, by the late

1970's, there was concern that the college would be closed. (SA

418, 419) Student enrollment began to drop in 1971-72. From

1975-76 to 1985-86, enrollment declined 19% as compared with

a6% decline for the University as a whole. These declines had

a direct negative effect on New Paltz’s operating budget.

The Governor directed New Paltz administrators to achieve

fiscal saving by not filling faculty lines as they became open;

filling lines slowly; and filling lines at lower than usual salaries.

(SA 328, 344) In 1975, eleven lines were eliminated. In 1978,

six more were cut. (SA 422, 423) Between 1975 and 1985 New

Paltz lost 42 faculty lines. (SE 105)

In addition, New Paltz was forced to retrench faculty. (SE

426) In 1976, six males and two females were retrenched. (SA

421) In 1979, 21 faculty members, 19 of whom were male, were

retrenched due to further program cuts. (SE 426) No females

in the Division were retrenched. (SE 426)

The budget crisis also had a significant impact on faculty pro-

motions. Beginning in 1974, pressure was exerted on New Paltz

by the Governor and SUNY to limit the number of promotions

made. (SA 454; SE 62) From 1978-1980, the New York State Divi-

sion of the Budget continued that pressure by imposing a “faculty

rank adjustment” which deleted $200,000 from New Paltz’s

budget. (SA 329-32) Nevertheless, during that time, women at

New Paltz were promoted as quickly as the men. (E 493-94)

Moreover, between 1980-84, women were promoted to the rank

of associate professor at a higher rate than men (SA 745) and

several women were promoted to the rank of professor. (SA 750)

Notwithstanding the financial crisis, New Paltz was com-

mitted to equal employment opportunity (“EEO”) and pursued

its affirmative action goals throughout the class period. The Af-

firmative Action Officer (“AAO”), initially hired in 1971 (SA 301,

SE 108, 111), participated in all decisions regarding hiring,

tenure, renewal and promotion. (SA 427, 357, 361, 368, 398)

Under the direction of the AAO, EEO reports were maintained

and statistics were monitored. (SA 358-60) These reports showed

that, overall, women fared as well as men in the face of the

budget crisis. For example, a summary of renewal decisions made

between December 15, 1973 and June 15, 1979 showed that 87 %

of the women and 87 % of the men were renewed. (SE 407) From

1980-84, all women considered for contract renewal were re-

newed. (SE 139) Moreover, even in years when there were many

terminations, the numbers showed that the campus maintained

a favorable replacement pattern for women. (SA 254-55; SE 427)

The percentage of females at New Paltz increased slightly, from

21% in 1975 to 23% in 1979. (SE 53) Between 1980 and 1986

the number of female administrators increased from 13 to 31.

(SA 727-30; SE 1, 2) Between 1981-86, 42% of all full-time hires

were females. (SE 224)

In addition, between 1973-79, 75% of the women reviewed

for tenure were granted tenure, while only a slightly higher

percentage — 77 % — of the men were granted tenure. (SE 139,

405) Tenure was granted to two-thirds of the women faculty

who were considered between 1980-84, but to only 55% of the

men. (SA 744)

From 1973 through 1980, the AAO also conducted annual

salary reviews to identify salary inequities' (SE 51, 474, 478, 489,

495, 499, 554) and made adjustments where appropriate. (A 61)

In contrast to other campuses, New Paltz was singularly con-

cerned with pay equity. (SA 431)

B. Proceedings Below

On December 27, 1977 Roberta Ottaviani, who was a full-

time faculty member of the Division at New Paltz from 1967

to 1974, filed the complaint in this case. Petitioner Ottaviani

(“petitioner”) claimed that New Paltz had discriminated against

her on the basis of sex in regard to the terms and conditions of

her employment, including hiring, promotion, tenure and salary.

On April 27, 1979, a motion to intervene additional plaintiffs

was granted.

A class was certified on May 19, 1978. By stipulation, it wos

redefined as all full-time academic rank female faculty nembers

employed in the Division at New Paltz at any time during the

period starting in the Spring of academic year 1973-74 through

the Fall of academic year 1984-85. Class claims were limited

to placement into initial rank, current rank and salary. (SA 1-5)

'“Inequity” in the salary review context within SUNY does not refer to

“discrimination” on account of sex, but refers to all persons who receive une-

qual salaries. Salary differences may be based on legitimate factors such as

difference in rank, number of years of service, and highest degree attained,

as well as some less quantitative variables such as publications, community

service, professional service, teaching effectiveness and unique conditions

within particular departments. (SA 293-94)

l. The Trial

Trial commenced on June 10, 1986. The sole question

presented was whether New Paltz treated females differently

from their male counterparts. (A. 18, 19) On April 8, 1987, after

petitioners’ rebuttal case, the trial record was closed by the

District Court. (SA 771-72)

a. The Statistical Evidence

Petitioners presented a number of statistical studies in sup-

port of their salary claim. Their main salary studies consisted

of multiple regression analyses for all faculty employed from

1973 to 1984 which purported to show that females in the Divi-

sion at New Paltz received lower salaries than comparable males.

Respondents showed, however, that petitioners’ statistical

methods were deficient in important respects. Petitioners’ use

of a males-only regression not only resulted in an overestimate

of gender-based differences in salary (A 48), but also resulted

in inappropriate comparisons between women and men with

different characteristics. (SA 709) For example, in the natural

sciences, the average male is an associate or full professor, and

a males-only regression predicts a female instructor or assistant

professor’s salary on the basis of those in senior ranks. (SA 709-10)

Moreover, male counterparts were unavailable in some Depart-

ments, notably the highly paid all-female nursing faculty, who

were omitted from petitioners’ main studies. (SA 703, 711-12)

In addition, petitioners’ exhibits including a rank variable,

inappropriately aggregated instructors and assistant professors

into a single rank. (SA 266-72, 755-57) This had the effect of

predicting instructors’ salaries on the basis of the salaries of assis-

tant professors, and showing a spuriously large deficit from the

predicted salary in the case of women instructors. When peti-

tioners finally produced studies where rank was more ap-

propriately specified, salary disparities fell below 2.33 standard

deviations in eight out of eleven years. (SE 688, 701) Finally,

the set of variables considered by petitioners in all of their salary

regressions was shown to be incomplete and incorrect.

Respondents not only demonstrated why petitioners’ statistics

were deficient, but also introduced their own studies for faculty

employed in the Division between 1973 and 1984. (E 425, 501-02

and supporting appendices in Ex. S6-A) In contrast to petitioners’

studies, respondents’ studies show no year in which the disparity

between male and female salaries equals or exceeds two stan-

dard deviations. Respondents’ studies also demonstrate that the

differences between women’s observed and regression-predicted

salaries are randomly distributed. (SE 342)

Respondents’ expert also separately studied initial salaries and

salary increases during the class liability period. (E 495-500, 503)

These studies showed that the difference between male and

female starting salaries is not statistically significant and that,

females’ salaries increased faster than males’.

In addition respondents separately analyzed salaries for 1971

and 1972. The analysis of salaries of persons hired before 1972

showed no statistically significant differences between male and

female salaries in those years. (E 507) Although this Court

rendered its decision in Bazemore v. Friday, 478 U.S. 385, (1986)

before petitioners presented their case-in-chief, petitioners did

not separately study gender-based differences in salary for the

group of persons hired before 1972 when Title VII became ap-

plicable to SUNY.

The experts disagreed as to whether academic rank could be

used in this case as a legitimate independent variable account-

ing for male/female salary differences.’ Petitioners asserted that

rank is “tainted”, but did not introduce any statistically validated

evidence in support of this assumption. (SA 639-40, 644) Peti-

tioners’ exhibits purporting to show that rank is tainted (SE 639;

E 261, 285, 372, 397, 373, 423) are, essentially, either lists and

cross-tabulations of certain categories of faculty without valid

statistical tests (SA 764; E 435), or salary studies which do not

measure the statistical significance of gender differences in rank

distribution at all. (E 397, 423) For example, petitioners’ “proof”

that current rank is tainted consisted of nothing more than salary

studies showing only that male/female differences in salary are

? As the Second Circuit noted, although petitioners challenge respondents’ use

of the rank variable, their own expert explained that rank could be used as

a measure if it is not tainted. (A 23)

in large part attributable to the differences in male/female

distributions in rank. They do not show, however, that such dif-

ferences in rank distribution are statistically significant, or that

they are discriminatory. (SA 755-57, 770)

Petitioners’ only other exhibit in this regard concerned promo-

tion. (E 285) This exhibit similarly failed to incorporate relevant

information and, therefore, was non-probative as to rank. Thus,

it includes all faculty, whether hired pre- or post-1973, identifies

the number of faculty members promoted during the years 1973-

84 by gender and rank, and shows the average number of years

to promotion (of those promoted) by gender and rank. However,

the exhibit does not reflect the qualifications of those promoted

and not promoted, and provides no statistical analysis of dif-

ferences in male and female rates of promotion. (E 436)

In addition to showing the deficiencies in petitioners’ presen-

tation concerning rank, respondents’ expert presented indepen-

dent evidence that when male/female differences in qualifica-

tions are considered, gender is not a significant influence on

placement into rank or on promotion. (E 440-49, 488-94; SA

637-701)’ For example, respondents showed that male and female

faculty members possessed significantly different qualifications

at hire. (E 488) The average female hired during 1973-84 was

less likely to have a Ph.D. or a publication at time of hire; had

fewer years, on average, of prior college teaching, related

research and other related experience; and was less likely to have

held a prior academic teaching rank or one higher than an en-

try level rank than the average male hired during the same time

period. (SA 658-59) Given these differences in qualifications,

it is expected that, in the absence of any disparate treatment,

the initial rank of the average female hired would have been

lower than that of the average male hired. (SA 659)

There was no showing by petitioners that there were statis-

tically significant differences in the distribution of female/male

in current rank, much less a showing that such distribution is

attributable to discrimination at New Paltz. Nevertheless,

* For a large number of the 26 class members hired prior to 1973, defendants

also presented anecdotal evidence as to the appropriateness of their initial rank.

ia a i

respondents examined raak in three ways: (1) female/male dif-

ferences in assignment to initial rank (SE 342, Tables 1-7); (2)

female/male differences in probability of being promoted (SE

342, Table 10); and (3) female/male differences in waiting time

before promotion. (SE 342, Table 9) Respondents showed that a

woman’s likelihood of being promoted and average waiting time

to be promoted is not significantly different than a man’s. (E

493-94) By addressing initial rank, likelihood of promotion and

time to promotion, respondents’ presentation completely rebut-

ted petitioners’ allegations that rank is tainted and showed con-

vincingly that rank at New Paltz is gender neutral. (SA 673-74)

b. Anecdotal Evidence

Petitioners’ anecdotal evidence with regard to pre-1973 hires

consisted solely of a report prepared by the Committee on the

Status of Women (“CSW”) in 1974 at the request of the Presi-

dent,* and testimony from four members of the class, including

petitioner Ottaviani, two non-class faculty members, and one

librarian.’ The class witnesses represented only three of the more

than twenty departments in the Division, i.e, foreign languages,

sociology and speech. Petitioners produced no evidence to sup-

port their contention that women hired before 1972 were

assigned to rank in a discriminatory fashion.*

Respondents’ anecdotal evidence included summaries of more

than twenty personnel files which reveal that, in the 1960's,

women were treated the same as or more favorably than men.

* The CSW report was initiated by the President to investigate pay equity.

(SE 473) However, it was of poor quality and conceded, by its author, to be

unreliable. (SA 300)

* Petitioners offered and the Court accepted anecdotal evidence about

librarians, although librarians are not teaching faculty at SUNY. However,

complaints about librarians’ salaries focused on the comparison between

librarian and non-librarian salaries, and not upon any male/female com-

parisons. (SA 88-90, 91-92, 93, 94-96, 248, 249; SE 138)

* Petitioners state that “there were separate tenure tracks for men and women.”

Pet., page 5. However, there is no evidence of this in the record. The citation

to the transcript relied upon by petitioners reveals only that in 1969, a female

non-class member who is a teacher of dance, was not appointed as track and

field coach or as athletic director. (T. 300, 301)

For example, between 1966-70, a man with a Ph.D. and more

than ten years of full-time prior teaching experience was hired

in the English Department into the same rank as women without

their Ph.D., with only two years of experience and no publica-

tions. (SE 113) Moreover, while three women were hired in

English prior to 1972 with very recent Master’s (“M.A.”) degrees,

no teaching experience, and no publications, there were no men

hired in English with so few credentials. (SE 113) The evidence

further showed that both males and females, were quickly pro-

moted to the rank of assistant professor before completion of

their Ph.D., including petitioner Ottaviani and several other class

members hired before 1972.

Petitioners’ anecdotal evidence with regard to persons hired

in the post-1973 period similarly consisted of isolated and

sporadic instances of alleged discrimination. In addition to

named petitioners Dorothy Jessup, Joan de la Cova and Carolee

Schneeman (discussed infra at pp. 9-13), the only other testimony

petitioners presented in this regard was that of three other

women hired after 1973, two of whom were members of the

class. Respondents produced direct evidence which countered

petitioners’ allegations and showed that in each case the ad-

ministration had a legitimate reason for the challenged decisions.

Finally, petitioners sought to show that the administration

was indifferent to women’s issues, as evidenced by its alleged

failure to give proper treatment or recognition to women’s

studies. Respondents demonstrated, however, that the College's

administrators have consistently shown a high level of commit-

ment to the program. (SE 225) In fact, New Paltz is one of very

few institutions to offer an undergraduate major and minor in

Women’s Studies and to provide an opportunity for a graduate

degree with an emphasis in Women’s Studies. (SA 281-82) The

program at New Paltz was the first in the SUNY system to offer

a Bachelor’s Degree. (SA 280)

c. Individual Claims

(i) Roberta Ottaviani

Roberta Ottaviani was hired in September, 1967 as an in-

structor in the Speech Department at a salary of $8,000 per year.

10

This salary, which was based on Ottaviani’s M.A. degree and

prior non-college teaching experience, was, in fact, higher than

Ottaviani would have accepted. (E 149)’ In June 1968, she was

promoted to the rank of assistant professor.

In 1971, 1972 and 1973, Ms. Ottaviani was considered for and

denied promotion to the rank of associate professor. She was

not recommended by her Chair or by the Central Committee

for promotion (SA 305), and each review indicated that Ms. Ot-

taviani had demonstrated no progress towards the completion

of her Ph.D..*° (SE 257, 258, 259)

A March 23, 1972 memorandum from the Chair of the Speech

Department, to the Vice President for Academic Affairs, which

recommended that Ms. Ottaviani not be promoted (E 424),

states:

I understand from our department subcommittee that

Mrs. Ottaviani bases her case for promotion primarily

upon her work in the caucus on women’s rights which

she interprets as falling under the trustee’s criteria of

university service. I can attest to the fact that Mrs.

Ottaviani has worked hard and long in her support

for the movement for equal opportunities for women

and that her efforts in this direction have received

university-wide recognition. I am concerned that dur-

ing the more than 4 1/2 years Mrs. Ottaviani has been

a member of the faculty, we have no tangible evidence

of advanced academic study beyond the Master’s

degree ...

In 1973, Ms. Ottaviani was denied promotion again because

she had “failed to produce concrete evidence that her potential

’ There were no males hired in Speech in 1967. In 1966, a male who had com-

pleted an M.A. degree, and had taught for one year was hired into the same

rank as Ms. Ottaviani at a salary of approximately $7,600. (SA 602; SE 271)

* Ms. Ottaviani has never received a Ph.D.. (SA 25)

7” <: (ae

1]

would be fulfilled.” (SA 307; SE 532, 259, 257) She was also con-

sidered for and denied tenure in 1973 under the criteria set forth

in the SUNY Policies of the Board of Trustees. (SE 227) The Cen-

tral Committee recommended non-reappointment for Ms. Ot-

taviani because “her dossier indicated limited professional

growth and that the actual progress in the last six years on the

doctorate did not suggest any firm commitment to it”. (SA 308;

SE 529) The President’s determination was consistent with the

recommendation of the Central Committee and relied, inter alia,

on Ottaviani’s failure to make significant progress toward a Ph.D.

and her failure to even formally enroll in a program leading

to the degree. (SE 408)* The eight other females considered for

tenure at New Paltz in 1973 received it. (SE 139)

(ii) Joan de la Cova

Ms. de la Cova was employed in 1973 as an instructor in the

Spanish Department. (SA 136) In Spring 1978, she was inform-

ed that, for budgetary reasons, her contract would not be re-

newed. She filed an AAO grievance in which she compared

herself to a male in the Department who was retained, although

he had one less year of seniority. Her complaint was reviewed

by the AAO and a report was issued which concluded that the

non-renewal was not based upon sex. (SE 542)

* A male was tenured in 1970, although he had not completed the Ph.D..

However, he had offers from two other universities, had recently completed

a one year fellowship at New York University and had taken additional

graduate credits. By 1970, he had completed 57 credits towards his doctorate.

(SA 468-71; SE 55)

Another male was granted tenure in 1975, who had been pursuing his

doctorate at Penn State University for three years and was planning to

spend the following year in residence at Penn State to complete his degree

(SA 474-77; SE 3). His file showed that “since he received the masters he

had earned a total of 64 graduate credits, and has embarked on a formal doc-

toral program at Penn State. He recently completed a qualifying examina-

tion under supervision”. (SA 477; SE 3, 11) Both of his respective departments

gave him positive, strong recommendations for tenure citing his progress toward

his Ph.D..

12

Ms. de la Cova was not comparable to the male (SA 425, 540),

and she conceded as much in a letter she wrote to the Central

Committee on Tenure and Reappointment. (SE 401) There she

notes his special abilities and significant contribution to New

Paltz. In addition to coordination of the bilingual program, he

obtained several grants for New Paltz each year totalling near-

ly $500,000. (SA 222-23) Ms. de la Cova could not serve as a

substitute for him in the bilingual education program because

she had no experience in that area. (SA 245-47)

(iii) Dorothy Jessup

Dorothy Jessup was hired by New Paltz in 1973 as an assistant

professor in Sociology. (SA 27-28; Exh. 976) She had received

her Ph.D. and had two years of full-time college teaching ex-

perience, but no significant publications. (Exh. 976) At the time

she was interviewed, she was told that she would be expected

to publish. (SA 30)

By 1976, she had published only one book review. (SA 39, 40)

An article submitted to the American Journal of Sociology, was

rejected. (SA 47) On December 23, 1976, Dr. Jessup was advised

by the Journal of Sociology of Education that the same article

required a “major overhaul”. (SA 41, SE 300) As of May 4, 1977,

Dr. Jessup was advised that the article’s emphasis should be

changed by some “substantial reorganization”. (SA 42, SE 233)

When Dr. Jessup was considered for tenure in the Spring of 1977

(SA 33), there was no indication in her tenure file that this ar-

ticle would ever be accepted for publication. (SA 43)

Dr. Jessup was denied tenure on August 1, 1977. (SA 37)”

because of her meager scholarly activity during the preceding

” That same year, a male was denied tenure for the same reasons. Both he

and Jessup subsequently received tenure in 1979. (SE 527)

Although a male in Sociology was granted tenure in 1977, he had signifi-

cant publications and had received a grant. (SA 536, SA 44) Also, by Spring

1977, he had presented a third major article that had been accepted for

publication and had received a fellowship. (SA 44)

13

years and because reports on her teaching were mixed. (SE 466)

Moreover, a significant proportion of the Sociology Department

did not recommend her. (SA 38)

(iv) Carolee Schneemann

Carolee Schneemann, non-class member, taught an introduc-

tory course in filmmaking, part-time, for three semesters in the

Art Studio Department starting in the Spring of 1977. (SA

188-89) Each of her appointments was for one semester only.

(SA 190; SE 557) Her appointment letters, which she signed in

each case, clearly stated that, as a temporary employee, her posj-

tion could be terminated at any time under the Policies of the

Board of Trustees. (SA 205; SE 557) After the Spring semester

of 1978, she received no further appointment. (SE 553)

There was no evidence presented that her termination was

based upon gender. In fact, it was shown that during the next

seven years the course was taught by a woman. (SA 203)

2. The Decisions Below

On January 11, 1988, the District Court dismissed the com-

plaint as to all of the class and individual Title VII claims. The

District Court concluded that petitioners’ evidence, taken as a

whole, failed to prove sex discrimination in salary, rank and in-

itial placement into rank.

On May 9, 1989, the United States Court of Appeals for the

Second Circuit unanimously affirmed the decision of the District

Court in all respects (A2-27). The Court found that petitioners

had failed to show that there was a pattern and practice of dis-

crimination at New Paltz and that all of petitioners’ arguments

were without merit. Thus, in accordance with this Court’s deci-

sions, the Court below rejected petitioners’ contention that a

showing of two or three standard deviations should automatical-

ly be equated with a prima facie case. Moreover, the Court found

that, in this case, it is irrelevant whether petitioners’ statistics

alone established a prima facie case since they had an oppor-

tunity to fully litigate all of their claims on the merits.

ot

14

The Court further rejected petitioners’ claim that they had

shown that rank was discriminatory at New Paltz. The Court

held that “plaintiff failed to adduce any significant statistical

evidence of discrimination as to rank” and found that “the

respondents, on the other hand, offered persuasive objective

evidence to demonstrate that there was no discrimination in

either placement into initial rank or promotion at New Paltz

between 1973 and 1984.” (A.23)

The Court also concluded that petitioners’ attempt to establish

a claim under Bazemore v. Friday, 478 U.S. 385 (1985) was un-

founded in this case because they failed to introduce any

statistical evidence of substance to prove that New Paltz had

engaged in sex discrimination prior to the effective date of Title

VII. Finally, the Court concluded that this Court’s decision in

Price Waterhouse v. Hopkins, 490 U.S. ___., 104 S. Ct. 1775,

104 L. Ed. 2d 268 (1989), did not apply to any of petitioners’

claims. The Court, which was familiar with the record in this

case, found no evidence of “mixed motives” for any of their

claims.

Reasons For Denying The Writ

A. The Decision Of The Court Below Is Not In

Conflict With Price Waterhouse v. Hopkins.

Petitioners claim that this case should be remanded for con-

sideration of their claims under the standard set forth in Price

Waterhouse v. Hopkins, 490 U.S. 109 S. Ct. 1775, 104 L. Ed.2d

268 (1989) i.e., would the decisions in issue have been the same

if petitioners were male. Indeed, they seek to apply it to all of

their claims, including those of the class. However, as the Se-

cond Circuit expressly stated, “[t]he Supreme Court’s recent deci-

sion in Price Waterhouse v. Hopkins, [citation omitted], does

not affect our analysis of these petitioners’ claims.” (A-12, 13 n.5)

Thus, contrary to petitioners’ suggestion, this is not a case in

which the Court below ignored or failed to follow an opinion

of this Court. Moreover, petitioners’ argument betrays a

misunderstanding of the issue addressed in Price Waterhouse.

x WEN DI A Cs ne

15

In Price Waterhouse, a majority of this Court held that if an

employee shows that an adverse employment decision was the

result of “mixed motives” and that the discriminatory motive

was a substantial motivation for the employer’s action, then and

only then does the burden of persuasion shift to the employer

to prove by a preponderance of the evidence that the same deci-

sion would have been made in the absence of any discriminatory

motive. 490 U.S. at ___, 109 S. Ct. at 1788. The decision in

Price Waterhouse was not intended to overrule or modify the

existing legal standard, previously expressed in Texas Depart-

ment of Community Affairs v. Burdine, 450 U.S. 248 (1981) and

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 490

U.S. at ____., 109 S. Ct. at 1788, 1796. Instead, it was intended

to supplement the Title VII analysis in limited cases where a

disparate treatment plaintiff produces direct evidence that an

illegitimate criterion was a substantial factor in the decision.

(O’Connor, J., 490 U.S. ____, 109 S. Ct. at 1796). Moreover, con-

trary to petitioners’ assumption, it has no application to

classwide Title VII claims”

This Court carefully noted, as well, that “stray remarks” or

a mere isolated or ambiguous comment by a supervisor would

be insufficient to shift the burden of proof to the employer

(O’Connor, J., 490 U.S. at ___, 109 S. Ct. at 1804). Rather,

it is the plaintiff's burden to show in the first instance that the

employer actually relied on gender in making its decision. (Bren-

nan, J., plurality opinion; 490 U.S. at ____., 109 S. Ct. at 1804.)

Petitioners in this case have failed to show that they meet the

burden imposed by Price Waterhouse, and the Court below cor-

rectly so held. They did not produce any direct evidence that

there were “mixed motives” involved in any of the decisions af-

fecting the class or any individual at New Paltz, much less that

any classwide or individual employment action was substan-

tially motivated by gender. The proof offered in support of the

" If petitioners had established their class claims that sex discrimination was

pervasive at New Paltz, as they contend they did at p. 17 of the Petition, there

would have been no reason for the Court below to rely on Price Waterhouse

since petitioners would have prevailed under a Burdine analysis.

16

classwide claims consisted only of petitioners’ flawed statistical

presentation, found to be insufficient to establish a prima facie

case even under Burdine standards, and their anecdotal evidence.

Their anecdotal evidence consisted of nothing more than isolated

examples of alleged discriminatory employment decisions, most

of which did not even concern class members.

Significantly, petitioners cite only two isolated instances which

they claim are examples of “mixed motives” decisions. Neither

is supported by the record. Moreover, in contrast to the record

in Price Waterhouse, respondents demonstrated in this case that

the decision in both instances would have been the same if the

petitioners were male.

For example, petitioner Ottaviani’s reliance upon a “stray

remark” by a co-worker that she was “cute,” made at the time of

her hire in 1967, is too tenuous to rely upon as proof that gender

played a role in the decision to deny her tenure six years later.

Moreover, the record firmly supports the conclusion that res-

pondents would have denied her tenure even if she had not been

a female. The District Court found that in 1973 Ottaviani’s

record of scholarship, growth and mastery of subject matter was

weak, that she had only 8 credits towards a Ph.D., that she par-

ticipated in very few professional seminars, and that in 1973, a

male member of the Speech Department was also denied tenure

for failing to make sufficient progress towards his Ph.D.. (A. 94)

Similarly, petitioner Jessup’s reliance upon a single statement,

taken out of context, that “departmental balance would allow

for one such woman devoted to students, but not two” is equal-

ly tenuous. It does not prove that gender was a substantial

motivating factor in the decision to deny her tenure, especially

where it was undisputed that she lacked publications, and she

received mixed teaching reviews.” Moreover, since New Paltz also

“ In fact, the record reveals that the operative word was “devoted”, not

“woman”. It states “... a department could stand one person who may be

weak in terms of substance, but is very devoted to students, but if you have

a lot of members of the department that way, you are going to have a weak

department.” (T. 4893)

- es

17

denied tenure to a male that same year, for the same reasons,

the record shows that the decision would have been the same

even if she were a male.

No other evidence of this type was offered on behalf of any

of the other individual petitioners or class members. Consequent-

ly, the Second Circuit correctly concluded that the decision in

Price Waterhouse did not affect this case, and no further review

is warranted.

B. The Second Circuit's Treatment Of The Statistical

Evidence Was In Accord With The Decisions Of

This Court And Was Not In Conflict With Deci-

sions Of Other Circuits.

Petitioners accuse the Court below of misunderstanding the

statistical proof (p. 19), and belatedly attempt to come within

the rule of Watson v. Fort Worth Bank and Trust, 487 U.S. '

108 S. Ct. 2777, 101 L. Ed.2d 827 (1988). There is no merit to

either argument.

First, petitioners contend that the Second Circuit erroneous-

ly concluded that the issue of whether petitioners’ statistics alone

constituted a prima facie case became irrelevant once the District

Court required respondents to introduce their proof. In fact,

the Court’s conclusion in this regard is in accord with this Court's

decisions and not in conflict with decisions of other Circuits.

As this Court explained in Bazemore:

if the respondents ... have responded to the peti-

tioners’ proof by offering evidence of their own, the

factfinder then must decide whether the petitioners

have demonstrated a pattern or practice of discrimina-

tion by a preponderance of the evidence. This is

because the only issue to be decided at that point is

whether the petitioners have actually proved

discrimination.

478 U.S. at 398 (emphasis supplied, citations omitted); see also

EEOC v. Sears, 839 F.2d 302, 309 (7th Cir., 1988), (“the fact

18

that the plaintiff proved a prima face case is of no continuing

consequence” once a defendant responds to plaintiff's proof);

Penk v. Oregon State Board of Higher Education, 816 F.2d 458,

461 (9th Cir.), cert. denied, 108 S. Ct. 158, reh. denied, 108 S.

Ct. 473 (1987) (“.. the only relevant burden in a class action

disparate treatment case, assuming petitioners can avoid Rule

41 dismissal, is upon petitioners to prove the existence of

discriminatory intent.”); Vuyanich v. Republic Nat. Bank of

Dallas, 521 F. Supp. 656, 661 (N.D. Tex. 1981, vacated on other

grounds, 723 F.2d 1195 (5th Cir.), reh. denied, 736 F.2d 160 (5th

Cir.), cert. denied, 469 U.S. 1073 (1984) (“In a complex class

action, utilizing statistical proof and counterproof, the value

of the Burdine sequence — to highlight the issues in contest — is

about as relevant as a minuet is to a thermonuclear battle.”)

Second, petitioners criticize the Second Circuit’s affirmance

of the District Court’s finding that differences of “one to three

standard deviations” in this case did not establish a prima facie

case. Such criticism is unfounded, however, since the Court’s

conclusion is in accord with well established law. See Hazelwood

School District v. United States, 433 U.S. 299, 307-08 (1977)

(“[w]here gross statistical disparities can be shown, they alone

may in a proper case constitute prima facie proof of a pattern

or practice of discriminaticn.”); Dothard v. Rawlinson, 433 U.S.

321, 331 (1977); Teamsters t. United States, supra, 431 U.S. 324,

340 n.20; Coser v. Moore, 587 F. Supp. 572, 576-77 (E.D.N_Y.

1983), aff'd, 739 F.2d 746 (2d Cir. 1984); Castaneda v. Partida,

430 U.S. 482, 496 n.17 (1977). See also EEOC v. Sears, 839 F.2d

at 309 (7th Cir. 1988) (affirming a finding by the district court

that there was no discrimination even where there was a dif-

ference of more than three standard deviations); Chang v.

University of Rhode Island, 606 F. Supp. 1161. 1189 (D.R.I. 1985)

(“even a finding of two or more standard deviations does not

prove the existence of discrimination”); Palmer v. Shultz, 815

F.2d 84 (D.C. Cir. 1987).

Thus, the Court below, while notitig that, in appropriate

cases, statistics alone may be sufficient to prove a prima facie

case if they show gross disparities (A. 22), concluded after

19

careful consideration, that petitioners’ statistics failed to

meet this standard." Its conclusion is supported by this Court's

statement in Watson, “that there simply is no minimum threshold

level of statistical significance which mandates a finding that

Title VII petitioners have made out a prima facie case.” (A. 18)

Petitioners further argue that this Court should review this

case so that they can benefit from the recent decision in Wat-

son. Pet. page 29. Petitioners concede, however, that this “case

was tried and argued on the theory that it was a disparate treat-

ment case.” Pet. page 27. In fact, they chose to proceed on that

theory alone even though they were fully aware of the availability

of the disparate impact theory and even though this Court had

decided Watson well before this case was fully briefed and

argued before the Second Circuit. Having chosen to proceed on

a disparate treatment theory alone, petitioners should not now

be permitted to raise what amounts not only to a new legal argu-

ment, but a new theory of liability never raised by them in either

court below. See Adickes v. Kress & Co., 398 U.S. 144, 147 n.2

(1970); Delta Air Lines, Inc. v. August, 450 U.S. 346, 362 (1981).

Assuming arguendo that petitioners may belatedly assert a

disparate impact theory, the result would not be different. In

Watson, this Court stated that a defendant should not be held

liable for unintentional discrimination on the basis of less

® Similarly erroneous is petitioners’ contention that the Second Circuit “has

set up a new and novel standard for discrimination in class action cases” when

it noted that the number of standard deviations shown in plaintiffs’ expert's

“most persuasive” studies were “not significant in every year of the liability

period”. Pet. page 21. Just as the court did not adopt a hard and fast rule that

two or three standard deviations establish a prima facie case, the Second Cir-

cuit did not establish a rule that statistically significant disparities must be

shown in every year. Rather, the court's statement that such disparities were not

shown in every year was merely an observation of one more defect in a sta-

tistical presentation that was severely flawed in a number of other respects. Pe-

titioners’ reliance on Bazemore is inapposite. In that case, there was overwhelm-

ing evidence of pre-Act discrimination which gave credibility to the three years

of post-Act statistics showing statistically significant disparities. 478 U.S. at 401.

20

evidence than is required to prove intentional discrimination.

487 U.S. at ___, 108 S. Ct. at 2785. Therefore. the District

Court’s finding in this case that petitioners’ statistics alone are

not sufficient to establish a prima facie case under a disparate

treatment theory, a fortiori precludes a finding that the statistical

evidence was sufficient to establish a prima facie case under a

disparate impact theory.

Accordingly, the standards by which the Second Circuit

reviewed the statistical evidence were entirely consistent with

relevant precedent.

C. The Second Circuit’s Decision Is Not In Conflict

With Bazemore v. Friday

In Point III of their petition at page 22, petitioners maintain

that the courts below “disregarded the imperative ruling of

Bazemore.” This charge is unfounded.

Contrary to petitioner’s contention, the Second Circuit

devoted a separate section of its opinion to a careful and

thorough analysis of petitioners’ Bazemore allegations. (A. 25)

The Court correctly noted that Bazemore requires an employer

“to eradicate employment discrimination that began prior to

the effective date of Title VII (1972), if the discrimination con-

tinues into the post-1972 liability period”, (A. 25), and that,

under Bazemore. statistical evidence of pre-Act discrimination

can be probative of ongoing, post-Act discrimination. Id.

However, the Court found that, where, as here, no pre-1972

salary discrimination was or could be found in the record before

it, petitioners’ attempt to create a Bazemore-type violation must

be rejected. In particular, the Second Circuit found that, in

marked contrast to Bazemore, and its own decision in Sobel v.

Yeshiva University, 839 F.2d 18 (2d Cir. 1988), cert. denied, 490

US. ___, 109 S. Ct. 3154, 104 L. Ed. 2d 1018 (1989), where

the petitioners had offered direct, independent proof of pre-Act

discrimination, the petitioners here failed to produce such

evidence. Indeed, the Court noted that “even though the

Supreme Court handed down its decision in Bazemore the same

21

month that petitioners’ trial commenced, the petitioners did not

introduce any statistical evidence of substance to prove that there

was discrimination at New Paltz prior to the effective date of

Title VII.” (A. 26)

By contrast, respondent produced the only salary studies

relating to pre-Act decisions for the years 1971 and 1972. These

studies, accepted and relied upon by the Court below, showed

that there were no statistically significant differences in the

salaries of men and women in those years. (E 507) More is not

required to defeat a Bazemore claim.”

D. The Issue Of Which Party Bears The Burden Of

Validating “rank” As An Independent Variable In

a Multiple Regression Analysis Is Irrelevant In

This Case

This Court has conclusively held that in a Title VII class ac-

tion, it is the plaintiffs who bear the ultimate burden “to prove

discrimination by a preponderance of the evidence” with respect

to each of their claims, U.S Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983). In this case, petitioners claim that

New Paltz discriminated against women with regard to initial

rank and current rank, as well as salary. Although they have

the burden of persuasion with regard to proving their claims

of discrimination in rank and salary, they urge this Court to

adopt a rule requiring respondents to validate the use of rank

“ Insofar as petitioners challenge the exclusion of exhibit 990 as a failure to

comply with Bazemore, this charge, too, lacks merit and is unworthy of review

by this Court. The record shows that petitioners’ exhibit 990 purports to be

a tabulation of women and men with no Ph.D. and no prior college teaching

experience had the initial rank of instructor and how many held a higher rank.

The exhibit, however, does not distinguish between persons hired before or

after 1973 and does not show promotions which occurred before the effective

date of Title VII (SA 276). Moreover, it includes persons holding only part-

time positions in the Division and it omits full-time persons hired before 1973.

Furthermore, it controls only for the absence of two qualifications (i.e. no

Ph.D., no prior college teaching) and is cumulative of other evidence. Accord-

ingly, as the Court below specifically held, it is so unreliable and incomplete

as to be irrelevant. See Bazemore, 478 U.S. at 400, n.10.

22

with regard to their salary claim. Such a rule would effectively

relieve petitioners of their ultimate burden of proof in this case.

Assuming arguendo that petitioners had not alleged a separate

claim that rank at New Paltz was discriminatory, they should

still bear the burden of proving any alleged defects in

respondents’ statistical proof, just as respondents bear the burden

of proving defects in petitioners’ proof. The revelation of any

such defect, however, affects only the weight of the statistical

evidence. It does not alter petitioners’ burden of persuasion that

discrimination has occurred. See Coates v. Johnson & Johnson,

756 F.2d 524 (7th Cir. 1985). As this Court has repeatedly

recognized, statistical evidence may be presented in a Title VII

case in an infinite number of ways and the sufficiency of such

evidence is necessarily subject to challenge on a case-by-case

basis. See Teamsters, 431 U.S. at 340.

In any event, this is not the case in which to address the issue

petitioners seek to raise. As the Second Circuit aptly noted, “at

trial, [petitioners] failed to adduce any significant statistical

evidence of discrimination as to rank” (A. 23). In affirming the

decision of the District Court, the Court below recognized that

petitioners’ evidence as to rank, rank at hire and waiting time

for promotion were mere compilations of data, “which neither

accounted for important factors relevant to assignment of rank

and promotion, ‘nor demonstrated that observed differences

were statistically significant.’ ” (A-23) At the same time, as the

District Court found and the Second Circuit agreed, respondents

offered “persuasive objective evidence” validating their use of

the rank variable. Respondents demonstrated thit there was no

sex discrimination at New Paltz in either rank at hire or pro-

motion between 1973 and 1984. (SE 342, E494, SA 675-78,

673-74). Thus, even if respondents had the burden of validating

rank, that burden was met here in all respects.

eWeek ee Ce ee ek

23

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be denied.

Dated: New York, New York

December 11, 1989

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Respondents

O. PETER SHERWOOD

Solicitor General

JUDITH T. KRAMER

Assistant Attorney General

[Counsel of Record]