Appendix — Jiminez v. Mary Washington College

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N53 96 SEP 7 1995

on Cherri OF THE CLERK

Supreme Court Of The United States

OCTOBER TERM, 1995

ANTHONY E. JIMINEZ,

Petitioner,

MARY WASHINGTON COLLEGE;

PHILIP HALL,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Sa’ad Ei-Amin, Esquire

E1-AMIN & CRAWFORD, P.C.

4221 Chamberlayne Avenue

Richmond, Virginia 23227

(804) 264-237

Counsel for Petitioner

App. 1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY E. JIMINEZ,

Plaintiff-Appellee,

Vv. Record No. 94-1776

MARY WASHINGTON COLLEGE; PHILIP

HALL,

Defendants-Appellants.

ANTHONY E. JIMINEZ,

Plaintiff-Appellant,

. Record No. 94-1802

MARY WASHINGTON COLLEGE; PHILIP

HALL,

Defendants-Appellees.

Appeals from the United States District

Courtfor the Eastern District of

Virginia, at Richmond.Richard L.

Williams, Senior District Judge.

(CA-93-459)

Argued: March 8, 1995

Decided: June 9, 1995

App. 2

Before WELKINS and HAMELTON, Circuit

Judges, and PHILLIPS, Senior Circuit

Judge.

Reversed by published opinion. Judge

Hamilton wrote the opinion, in which

Judge Wilkins and Senior Judge Phillips

joined.

JIMINEZ V. MARY WASHINGTON COLLEGE

COUNSEL

ARGUED: Guy Winston Horsley, Jr., Senior

Assistant Attorney General, OFFICE OF THE

AT7ORNEY GENERAL, Richmond, Virginia, for

Appellants. Sa’ad El-Amin, EL-AMIN

& ‘CRAWFORD, P.C., Richmond, Virginia, for

Appellee. ON BREEF: James S. Gilmore,

lll, Attorney General of Virginia, OFFICE

OF THE ATTORNEY GENERAL, Richmond,.

Virginia, for Appellants.

OPINION

HAMILTON, Circuit Judge:

Anthony Jiminez (Jiminez), a black

professor from Trinidad, West Indies,

instituted suit pursuant to Title VH of

the Civil Rights Act of 1964, see 42

U.S.C.A. §§ 2000e-2000e-17 (West 1994),

and 42 U.S.C.A. §§ 1981, 1983 (West

1994), against Mary Washington College

a eat tail sac aaie

App. 3

and Philip Hall (Hall), Vice President of

Mary Washington College - (collectively

MWC), for alleged employment

discrimination based on race and national

origin. According to Jiminez, he was

impermissibly given a terminal contract

instead of remaining in a tenure-track

teaching position. Following a bench

trial, the district court rendered

judgment in favor of Jiminez, ruling that

he had established a prinw facie case of

race and national origin discrimination,

and he had demonstrated MWC’s proffered

reason for the adverse action was

pretextual and unworthy of credence. MWC

appeals, contending that the district

court effed in sxuling in favor of

Jiminez, and Jiminez cross-appeals,

asserting that the damages are

inadequate. Concluding that the factual

App. 4

findings of the district court are

clearly erroneous, we reverse. Given our

disposition, Jiminez’ cross-appeal is

moot.

Jiminez applied for an assistant

professorship in the Department of

Economics at MWC on March 4, 1989. In

connection with his appli-

cation, Jiminez represented that he would

receive his doctorate degree (Ph.D.) in

economics in June of 1989 from the

University of New Mexico. A divided

Economics Department extended Jiminez an

offer, even though he was not the most

qualified applicant; he only met MWC’s

minimal standards. The department was-

split in its decision to offer Jiminez a

position since he garnered inauspicious

evaluations at the University of New

ist AEE, CANALES

App. 5

Mexico. Despite this knowledge, MWC

offered Jiminez the position because the

college was seeking to increase the

number of blacks on its faculty. To a

degree, therefore, Jiminez was hired

because he was black. By letter dated

August FP 1989, William Anderson

(Anderson), President of MWC, notified

Jimninez of MWC's offer, expressly

explaining that Jiminez’ appointment was

“contingent upon [his] being granted [his

Ph.D.] by August 16, 1989." (J.-A. at

496). This contingency reflected MWC’s

policy applicable to Jiminez that

professors seeking tenure have terminal

degrees, as rxeflected in the faculty

handbook, which provided that for

consideration for promotion to assistant

professor “(plossession of the

appropriate earned terminal degree, in

App. 6

most cases, the Doctorate in one’s

discipline (in unusual circumstances,

equivalent professional achievement)" was

necessary. id. at §1 1.° fms, co

extension of the offer, Jiminez was aware

Ce ee

that obtaining his Ph.D. was necessary

for promotion. In this respect, Jiminez’

offer differed from that of his colleague

in the Economics Department, Professor

Steve Greenlaw (Greenlaw), because

according to the 1982 faculty handbook in

effect when Greenlaw was hired, attaining

a terminal degree was not a prerequisite

for advancement. Thus, Greenlaw was

given tenure even though he did not

obtain a terminal degree until 1986.

As a nontenured professor seeking

tenure, Jiminez was subject to a six-year

probationary period after which he could

be awarded tenure. Consistent with MWC’s

App. 7

procedures, Jiminez initially was awarded

a one-year contract as a newly-hirxred,

tenure-track faculty member. Subsequent

to his initial year, 4 tenure-track

faculty member can be awarded a two-year

contract, followed by 4 three-year con-

tract, provided, of course, his

performance satisfied MWC’S standards.

Following successful completion of the

three-year contract, 4 faculty member

could be considered for tenure. If a

tenure-track professor is not considered

for further advancement because of

unsatisfactory performance, however, MWC

grants him a one-year terminal contract,

which expires at the texmination of the

academic year.

Tenure is based largely on teacher

evaluations. The faculty at MWC is

evaluated annually according to three

App. 8

criteria: (1) teaching effectiveness; (2)

service to MWC; and (3) scholarship or

professional activity. Of these

criteria, teaching effectiveness is

paramount and is based largely on

evaluations from students, the department

chairman, and other faculty within the

department. Scholarship or professional

activity includes publication or

presentation of scholarly works.

After his first semester of

teaching, MWC evaluated Jiminez’ per-

formance on February 22, 1990. This

evaluation was a compendium of faculty

observations, student course ratings, and

the annual Faculty Activities Report.

The gist of this initial evaluation was

that Jiminez’ skills as a professor were

lacking, but his personal fortitude was

commendable. Specifically with respect

POT ed

Leche ements aah tata aae

App. 9

to the tenure criteria, this evaluation

concluded: (1) Concerning teaching

effectiveness, "“{sltudents were critical

of the clarity and loudness of his voice,

his speaking to the chalk board instead

of the class, poorly worded tests, and

covering material too fast." These

negative conclusions were countered by

the generic observation that they were

"shortcomings any new teacher is bound to

have, and are things easily corrected by

experience." Additionally, Jiminez was

“praised ... for caring about his

students, holding review sessions,

encouraging questions, and taking the

time to make sure students understood the

material." Id. at 512. (2) Regarding

service to MWC, Jiminez was rated highly

for his participation in college

organizations. (3) Respecting

App. 10

scholarship, the evaluation admonished

that Jiminez’ “major focus for the

immediate future must be completion of

his dissertation." Id. (emphasis added).

Significantly, Jtiminez neither protested

nor contradicted the initial evaluation’s

conclusions.

On April . 2, 1991, MWC again

evaluated Jiminez’ performance, this

evaluation again being an amalgam of the

faculty - observations, student course

ratings, and the annual Faculty

Activities Report Focusing on the three

primary criteria for tenure, this second

MWC evaluation concluded: (1) With

respect to teaching effectiveness, the

evaluation reported that while Jiminez

was dedicated, his “student evaluation

scores [were] below average for both the

[Economics] Department and College-wide

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App. ll

faculty," but expressing the hope that

time would cure this failure. Id. at

514. (2) With respect to service-,

Jiminez again rated highly; and (3) With

respect to scholarship, the evaluation

observed that Jiminez had attended

various meetings. As with the initial

MWC evaluation’, Jiminez conspicuously

took no exception to the conclusions, nor

did he request consideration for a merit

award.

Despite a recurrent history of poor

evaluations, Jiminez managed to muster

some support at MWC: various students

wrote letters and met with Hall on

Jiminez’ behall The crux of these letters

was that Jiminez was 4 caring man and a

good professor. According to Jiminez,

and as found by the district court, some

App. 12

of these letters suggested that Jiminez

was the victim of a concerted effort of

racial discrimination by some MWC

students to have him terminated via poor

teacher evaluations. For example, a

letter from former student Laura Kasley

(Kasley) xecited:

It is my understanding that several

students have either given Mr. Jiminez

poor evaluations, or have written nega-

tive letters of complaint concerning his

teaching Last semester (Fall 91), 1

witnessed, on evaluation day, a col-

laborative effort on the part of the

majority of the students to give Mr.

Jiminez a poor evaluation It is my

opinion that the students in this class,

who gave Mr. Jiminez poor evaluations,

did not take the time required by the

course to fully understand the material.

App. 13

Since the first day of classes, Mr.

Jiminez forewarned us to ask him to

repeat himself if we couldn’t understand

his accent.... I have acclimated to his

accent and find no trouble understanding

him. Id. at 471-72. At trial, Kasley

testified as to the allegedly collusive

conduct of some students:

Well, it was basically that they were

laughing and saying, Yeah, xight, this

is, you know, one way, and things like

this, to give him the lowest possible

score, and I didn’t say anything .--- 1

am not sure why many of the students in

economics class gave Mr. Jiminez

poor evaluations, and I question if

they knew what they were setting in

motion by doing so; 1 don‘t think that

these evaluations should be taken in

App. 14

{sic]) consideration. (ae a FF

Kasley testified further that her

opinion of Jiminez was grounded in the

fact that he helped her personally a

great deal with her work and was

accommodating of her schedule.

Critically, Kasley testified that

students expressed their displeasure

with Jiminez’ teach-ing abilities prior

to their evaluations, which was not an

uncommon occurrence.

A letter from Rachel Holland

(Holland) xeported that “Part of the

problem lies with a small group of

bigotted [sic] individuals that were in

the ... class that I took last semester

Comments like, ‘Let’s give him

{poor ] reviews’ echoed around’ the

Classroom, in a situation that was not

supposed to be a collective effort." Id.

OD beg te FD Few TEX .

Paes Beets

Lad dyer able ile Attar Sie ace tas

App. 15

at 479. Holland’s testimony is equivocal

hat she stated that "all" students

in t

collaborated on giving Jiminez

evaluations, but later amended her

testimony to reflect that the number of

students was approximately ten, nox is

there an ascription to the term

"bigoted. " Condemning these students for

asking “irritating questions," Holland

opined that these students “decided to

thrash Professor Jiminez down" on

realizing "that they might not be

receiving that ‘ysual A.“’ Id. Comporting

with Kasley’s testimony, Holland

testified that she understood Jiminez was

slated for a one-year terminal contract

prior to the allegedly collusive student

evaluations.

Former student Cassendra Thomas

“{a) few negative

(Thomas ) wrote that

App. 16

letters state ‘Hire a professor who

speaks english.’ This is discrimination

in its truest form." Id. at 481. Nicole

Dixon, a student of Jiminez’, on being

asked at trial if she considered that his

student evaluations were racially

motivated, responded that they were:

Because comments were made about the way

that Professor Jiminez looked. I had

other econ classes with the same stu-

dents. It’s a small department, so we

all kind of take the same classes. And

the level of respect for any professor, I

don’t care who it is, it just was not

there for him. He come [sic] into class,

and they [sic] would be utter chaos. He

would give lectures, and they wouid try

to knock Suen down. And you go to another

professor’s class, you didn’t have to

deal with stuff like that.

Lae esbetiiss vee eae

“ipche is: a, ta ag

App. 17

Id. at 68. Student Kristina Bielak

stated that while Jiminez had “an odd

sense of humor,"’ she could "not help but

wonder if the problems certain people

ha(d) with [Jiminez]) might be prejudice

to some degree for I found him to be a

rather competent instructor." Id. at 482.

Professor Carole Corcoran on March 30,

1992, wrote to Hall stating that "subtle

racism" should be taken into account in

evaluating Jiminez’ faculty and student

evaluations. While the instructors in

the Economics Department did not attend

Jiminez’ classes, a professor from

another department attended some of

Jiminez’ classes and gave a positive

critique.

In addition to writing letters, six

students (Six Students) went to see Hall

on April 28, 1992, regarding the alleged

App. 18

"conspiracy" against Jiminez. In his

notes on the meeting with these students,

Hall wrote "Race. Accent. Mannerisms.

Students here are not tolerant," id. at

49-2, and he testified that students

“wanted to remind me that there was a

possibility that the students had done

this because of his race and his national

origin, although there wasn’t anything in

the behavior itself that was racial," id

at 335. Given that there was no evidence

of racial animus and student evaluations

are anonymous, Hall did not conduct an

investigation into the allegation that

some students had decided to target

Jiminez for a terminal contract based on

an invidious motive.

Cc.

On February 26, 1992, MWC completed

Jiminez’ third evaluation. Consistent

he tea ante Calin, Bot tone

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App. 19

with the two prior evaluations, this

evaluation recognized that Jiminez was

an ineffective professor whose teaching

ability failed to improve, was decidedly

‘substandard, which was, of course,

consonant with the unsatisfactory

evaluations he receiveu from students at

MWC. Particularly addressing the three

primary criteria for tenure, this

evaluation revealed: (1) Pertaining to

teaching effectiveness, “( Jiminez’j

teaching has been somewhat problematic

since his first semester at [MWC)."

while recognizing that Jitninez was

“conscientious " and "very hard working,

ultimately the evaluation concluded that

his teaching effectiveness was

negligible: students complained that

Jiminez was “disorganized, has

difficulty explaining concepts, gets

App. 20

confused .. . does not answer questions

well, does not cover much material in a

semester, has mystifying grading

standards, and ultimately, loses

‘control’ of the class. These

criticisms are also reflected in the

numerical scores on [{Jiminez’l course

evaluations, which are perennially low."

Id. at 517. This evaluation also noted

that Jiminez’ scores failed to meet the

department and college averages.

Despite his positive qualities, the

evaluation concluded, with respect to

his teaching effectiveness, that

Jiminez’ “performance has not met the

standard we expect for [MWC) faculty."

Id. (2) Concerning service, the

evaluation noted that again Jiminez was

an active participant in MWC life. (3)

Regarding scholarship, the evaluation

Pee oe iaeiliclinsAc Rie the idan ia AS en

_—"

App. 21

reported that while Jiminez had attended

two conventions, he failed to obtain his

Ph.D., despite the fact that fulfilling

this obligation was 4 prerequisite for

tenure and his employment was contingent

on this degree being awarded.

Consonant with this third

evaluation and Jiminez’ student evalua-

tions in general, the three tenured

members of the Economics Department,

Robert Rycroft (Rycroft), Greenlaw, and

Steve Stageberg, unanimously recommended

that Jiminez be given a one-year

terminal contract rather than considered

for tenure, specifically memorializing

the bases for their recommendation: (1)

For five semesters, students had

consistently given Jiminez poor

evaluations; (2) Jiminez failed to

receive his Ph.D.; (3) A self-conducted

App. 22

survey of the Economics Department

revealed that the primary weakness in

the department was the teaching quality

of specific instructors’, and of the

twenty responses, seventeen related

specifically to Jiminez’ shortcomings

and a negative comment revealed by the

survey concerned a course taught by

Jiminez that one faculty member

described as very weak and suggested

that students no longer take it; (4)

Jiminez had no faculty support; and (5)

Jiminez experienced difficulty

completing material.

(Five Students) protested to

Rycroft in April of 1991 when Jiminez

was substituted to teach a required

economics class that Greenlaw had taught

in the past. These students complained

that Jiminez was a wretched instructor,

errs

App. 23

predicting that the Economics Department

would suffer if Jiminez taught this

course. Confixming this opinion, for

five semesters, Jiminez’ student

evaluations were the lowest of the

approximately forty tenure-track faculty

members, and the one semester he was not

ranked the lowest, Jiminez ranked

thirty-seventh. In light of these

concerns, this evaluation recommended

that Jiminez be given a one-year

terminal contract rather than considered

for tenure.

Despite three consistently

unfavorable college evaluations and five

semesters of unflattering student

evaluations, by the spring of 1992,

Jiminez’ student evaluations had

substantially improved, and this trend

App. 24

continued into the Fall of 1992 and the

spring of 1993. Thus, for the sixth,

seventh, and eighth semesters, Jiminez’

student evaluations improved. Jiminez

and the district court attributed this

improvement to the fact that the

students understood that no more

discriminatory collaboration would be

tolerated. MWC attributed this

unprecedented emendation to Jiminez’

students’ grades correspondingly,

dramatically improving and his class

enrollment being exceptionally small--

eleven students in 1992 and nine in

1993-as compared with the department

average of twenty-six students per

Class. Regardless of its source, this

progress, coupled with the letters and

visit by the Six Students to Hall,

prompted MWC to modify its

App. 25

recommendation of a terminal one-year

contract; accordingly, on May 22, 1993,

Hall offered Jiminez a terminal

contract, but invited him to reapply for

his position provided he satisfied four

conditions: (1) substantial improvement

in student evaluations; (2) favorable

, @valuations by colleagues in the

Economics Department as a result of

unannounced visits to his classes; (3)

defense of his doctorate dissertation;

and (4) presentation of a paper at an

economics conference. Despite the fact

that Jiminez was granted the opportunity

to reapply, Hall also explained the

reasons that Jiminez failed to remain on

the tenuretrack: (1) five semesters of

decidedly inferior student evaluations,

with a significant number of students

expressing their unhappiness with

App. 26

Jiminez; (2) failure to defend his

dissertation; Id (3) failure to produce

scholarly work.

Jiminez declined to reapply, opting

instead to institute suit against MWC,

alleging that he was discriminated

against because of his race and national

origin. At the close of his case-in-

chief, MWC and Hall moved unsuccessfully

for judgment as a matter of law. The

district court concluded that Jiminez

had established a prima facie case of

race and national origin discrimination,

that MWC had rebutted it, but Jiminez

had demonstrated that MWC’s reasons for

not renewing his contract were both

pretextual and unworthy of credence.

The basis for the district court’s

conclusion that Jiminez rebutted MWC’s

App. 27

proffered reasons for issuing him a

terminal contract was the fact that

Greenlaw was oiven tenure even though he

did not receive his doctorate degree

until his fourth year at MWC, student

evaluations were "tainted by collusion

and racial and national Origin animus,"

and thus MWC should have ignored them

because of this taint, as well as

conducted an “in-depth investigation to

determine the extent of the taint." Id.

at 552. Rather than ignore the tainted

evaluations or conduct an investigation,

the district court found that MWC merely

solicited the opinion of the Five

Students that had complained to Rycroft

that Jiminez was incompetent. According

to the district court, therefore, MWC

knowingly relied on tainted information

in issuing Jiminez a terminal contract.

App. 28

Finding that Jiminez ultimately carried

his burden of proving that he was the

victim of invidious discrimination

“because he ha[d] proven both that

[MWC’s) ‘proffered explanation is

unworthy of credence,’ and that the

reasons given for the adverse action

were merely a pretext for

discrimination," the district court

entered judgment in his favor. Id. at

552. After making this finding, the

district court concluded that once MWC

offered Jiminez the position, even

though he was not the most qualified

candidate, MWC “made a committment to

protect [him] from racial and national

Origin animus." Id. at 549.

On appeal, MWC contends that

Jiminez was not the victim of invidious

discrimination, but was issued a

App. 29

terminal contract because he was an

incompetent professor, citing three

reasons: (1) he consistently received

poor student evaluations; (2) he

produced no scholarly work; and (3) he

failed to obtain his Ph.D. In advancing

this contention, MWC maintains that the

district court’s factual findings are

clearly erroneous, and, given this

erroneous predicate, the legal con-

clusions on which the facts are premised

are reversibly flawed.

Jiminez cross-appeals, asserting that

the $15,000 in compensatory

damages was inadequate.

ii.

We commence with the premise that

while Title VH is available to aggrieved

professors, we review professorial

App. 30

employment decisions with great

trepidation. See Fields vy. Clark Univ.,

966 F.2d 49, 54 (2-8 Cis, 1992), cert.

denied, 113 S. Ct. 976 (1993); Brousard-

Norcross v. Augustana College Ass'n, 935

F.2d 974, 975-76 (8th Cir. 1991);

Zahorik v. Cornel) Univ., 729 F.2d 85,

92-93 (2d Cir. 1984); Kunda v.

Muhlenberg College, 621 F.2d 532, 548

(3d Cir. 1980). we must be ever

vigilant in observing that we do not

"Sit as a ‘super personnel council’ to

review tenure decisions," Brousard-

Norcross, 935 F.2d at 976, always

cognizant of the fact that professorial

appointments necessarily involve

“subjective and scholarly judgments, "

with which we have been reluctant to

interfere, Smith v. University of North

Carolina, 632 F.2d 316, 345-47 (4th Cir.

App. 31

1980). Aptly articulating this rubric,

the Third Circuit cogently cautioned:

[Cjourts must be vigilant not to intrude

into [tenure] determination[s], and

should not substitute their judgment for

that of the college with respect to the

qualifications of faculty members for

promotion and tenure. Determinations

about such matters as teaching ability,

research.scholarship, and professional

stature are subjective, and unless they

can be shown to have been used as the

mechanism to obscure discrimination,

they must be left for evaluation by the

professional, particularly since they

often involve inquiry into aspects of

arcane scholarship beyond the competence

of individual judges.

Kunda, 621 F.2d at 548. The federal

courts have adhered consistently to the

App. 32

principle that they operate with

reticence and restraint regarding

tenure-type decisions. See, e.qg., Bina

v. Providence College, 39 F.3d 21, 26

(ist Cir. 1994), cert. denied, 115 S.

Ct. 1406 (1995); Lieberman v. Gant, 630

F.2d 60, 67 (2d Cir. 1980). Our review

is narrow, being limited to determining

“whether the appointment or pro-

motion was denied because of a

discriminatory reason." Smith, 632 F.2d

at 346. In other employment contexts,

we have explained that Title VII is not

a vehicle for substituting the judgment

of a court for that of the employer.

See EEOC v. Clay Printing Co., 955 F.2d

936, 946 (4th Cir. 1992) (noting that

the federal courts should “not.....

direct the business practices of any

company"). Title VU, therefore, is not

App. 33

a medium through which the judiciary may

impose professorial employment decisions

on academic institutions.

1. Launched from this precept, we

now examine the procedural posture of

this case and our standard of review.

The district court concluded that

Jiminez established a prima facie case

of race and national origin

discrimination and thus proceeded to the

ultimate issue of whether an unlawful

animus or the proffered

nondiscriminatory reason for Jiminez’

failure to receive tenure constituted

the genuine reason for the adverse

action. See McDonnell Douglas Corp. v.

Green, 411 U.S. 7921) 802 (1973).

Although we express grave doubts with

respect to whether Jiminez established a

PUBLISHER'S NOTE:

THE FOLLOWING PAGES WERE UNAVAILABLE FOR FILMING:

App. 38

Mary’s, the fact-finder’s rejection of

the legitimate, nondiscriminatory reason

proffered by the defendant, coupled with

the elements of the prima facie case,

may permit the fact-finder to infer the

ultimate fact of invidious

discrimination with no additional proof

_of discrimination; however, the

plaintiff is not automatically entitled

to judgment because the fact-finder may

determine that the defendant’s

challenged conduct is pretextual, but

does not constitute invidious

discrimination. Accordingly, rejection

of the defendant’s proffered reason-

standing alone--Aoes not compel the

ultimate conclusion that the defendant

unlawfully discriminated against the

plaintiff, thus creating liability under

Title VH, but rather this factor may

App. 39

enter the calculus for determining this

conclusion. With respect to proving

whether the plaintiff has been the

victim of invidious discrimination under

the McDonnell Douglas paradigm, we

have opined that if-the employee was

hired and fired by the same person

within a relatively short time span .

. this fact creates a strong inference

that the employer’s stated reason for

acting against the employee is not

pretextual.... In short, employers who

knowingly hire workers within a

protected group seldom will be credibie

targets for charges of pretextual

firing. Proud v,. Stone, 945 F.2d 796,

798 (4th Cir. 1991). Here, the district

court misapplied St. Mary‘’s because it

held that Jiminez proved his ultimate

burden of demonstrating that he was the

App. 40

victim of invidious discrimination

because he Proved that MWC’s proffered

reason for issuing the terminal contract

was unworthy of credence and a pretext

for discrimination. Although the

district court misapplied the proper

legal Standard, our examination of the

record compels us to conclude that

Jiminez failed to Satisfy his ultimate

burden of proving he was the victim of

invidious discrimination.

ai MWC challenges the district

Courts conclusion that it issued a ter-.-

minal contract ‘to Jiminez because of

invidious discrimination based on race

and national origin, a conclusion

grounded in facts. Resolution of this

challenge entails an examination of the

manner in which facts were adduced by

the district court. According to MWC,

App. 41

the district court’s factual findings

are Clearly erroneous. In reviewing

factual findings, our scope of review is

particularly circumscribed, being

limited to determining whether the facts

as found by the district court are

clearly erroneous. See Anderson v. City

of Bessemer City, N.C, 470 U.S. 564, 573

(1985); Fed. R. Civ. P. 52(a).

Admonishing appellate courts that a

purpose of an appeal is not to exercise

plenary review of factual findings or

substitute their version of the facts

for that of the district court, see

Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 123

(1969), the Court has explained that

11[{i}f the district court’s account of

the evidence is plausible in light of

the record viewed in its entirety, the

App. 42

court of appeals may not reverse it even

though convinced that had it been

sitting as the trier of fact, it would

have weighed the evidence differently, "

Anderson, 470 U.S. at 573-74. Facts are

conclusive on appeal, therefore, unless

they are plainly wrong. Being removed

in time and place from the trial, not

enjoying the advantage of five

testimony, or assessing the deportment

and credibility of witnesses, reviewing

courts tread gingerly in reviewing

facts. Jiminez, therefore, is well-

armed with the sword and buckler of Rule

52(a) in defending the district court’s

judgment to the extent MWC challenges

the factual findings.

App. 43

Our reservation, however, does not

compel the conclusion that factual

findings are so sacrosanct as to evade

review. See, e.q., Wileman v. Frank,

979 F.2d 30 (4th Cir. 1992) (concluding

that factual findings by the district

court in a Title VH suit were clearly

erroneous and accordingly reversing) ;

Lilly v. Harris-Teeter Supermarket, 842

F.2d 1496 (4th Cir. 1988) (same); Miller

v. Mercy Hosp., Inc., 720 F.2d 356 (4th

Cir. 1983) (same), cert. denied, 470

U.S. 1083 (1985). As the Anderson Court

explained, the district court may not

“insulate his fmdings from review" by

casting them as being grounded on

credibility determinations. Anderson,

470 U.S. at 575. We reverse a factual

finding as being clearly erroneous it,

“although there is evidence to support

App. 44

it, the reviewing court on the entire

evidence is left with the definite and

firm conviction that a mistake has been

committed." United States v. United

States Gypsum Co., 333 U.S. 364, 395

(1948). In concluding that the district

court has made a mistake, we tend to

focus on four avenues in which the

district court may go awry in arriving

at its factual findings: (1) the

district court labored under an improper

-yiew or misconception of the appropriate

legal standard; (2) the district court’s

factual determinations are not supported

by substantial evidence; (3) the

district court disregardéd substantial

evidence that would militate a

conclusion contrary to that reached; and

(4) the district court's conclusion is

contrary to the clear weight of the

App. 45

evidence considered in light of the

entire record. See Miller, 720 F.2d at

361. The result of this focus is to

channel our review “upon factfinding

processes rather than directly upon

fact-fmding results," id., which, of

course, comports with the Zenith Radio

Corp.-Anderson admonition that an appeal

not transform into a plenary trial by

which facts are adduced in the first

instance. Accordingly, MWC may assault

the citadel provided by Rule 52(a) by

demonstrating pitfalls in the avenue by

which the district court arrived -at its

factual findings. While Miller

categorized the various modes in which a

district court may clearly err in

adducing facts, we.do not intimate that.

these are the only modes that may give

rise to clear error. These observations

App. 46

being made, we proceed to analyze the

district court’s factual findings,

focusing on the issue of whether Jiminez

proved that the reason for his receipt

of a terminal contract was a pretext for

invidious discrimination and was the

genuine reason for MWC’s decision to

issue a one-year terminal contract.

MWC issued Jiminez a terminal

contract based on three reasons: (1)

consistently poor student evaluations;

(2) failure to obtain his Ph.D. ina

timely manner; and (3) failure to

produce scholarly work. ’

We address these reasons and the facts

on which they are premised seriatim.

We first examine the district court’s

conclusions regarding the student

evaluations. First, the district court

App. 47

disregarded all save the last three

semesters of Jiminez’ student

evaluations, concluding that the first

five semesters’ evaluations were

tainted. Second, the district court

found that MWC knew of this taint.

1. The district court concluded

that the more favorable student evalu-

ations Jiminez received during his

sixth, seventh, and eighth semesters at

MWC constituted proof that his student

evaluations for the first five semesters

were tainted by the collusive effort of

some white students. According to the

district court, the student evaluations

for the sixth, seventh, and eighth

semesters are exclusively accurate

because various white students who had

given Jiminez poor evaluations real-

‘At oral argument, MWC represented that

"yd sia Qaeda Sab ad teeta na cata te Bal ets tune : : mags” 7%

App. 48

even disregarding the student

evaluations, Jiminez would not have been

granted tenure because: (1) he had no

departmental support; (2) he failed to

obtain his Ph.D., (3) he had a negative

self-evaluation by the economics

department; and (4) he failed to cover

course material. We find that the

latter three reasons are subsumed by the

remaining two reasons — in the text

of the opinion.

by spring of 1992 that their collusion

in evaluating Jiminez would not be

tolerated. The district court,

therefore, disregarded completely

student evaluations for the fust five

semesters Jiminez was at MWC, i.e., all

of the evaluations reflecting that

Jiminez was a dismal instructor. We

conclude that the first five semesters’

App. 49

student evaluations were neither

tainted, nor should they have been

disregarded. |

The record does not support the

district court’s conclusion that the

first five semesters’ student

evaluations were tainted. One, the

“evidence” that the poor student

evaluations were tainted by a-

“conspiracy” motivated by -invidious

discrimination consists of the letters

and testimony from some students stating

that there was a collaborative effort

against Jiminez by some white students

to have him removed from tenure-track

status. These letters and testimony are

nothing but rank speculation and are far

too insubstantial to give rise to the

inference that for five semesters

Jiminez incurred poor student

App. 50

evaluations because of collusive

discrimination based on an unlawful

animus by some white students. This

“evidence” proves nothing, but merely

alludes to the assertion that some,

unnamed white students gave Jiminez poor

evaluations. Two, many of these letters

are undated and unsigned, speak in the

vaguest of genexalities, and are nothing

sponsored a forum about the death

App. 52

threat; and MWC, which was over-

whelmingly white, subjected itself to

“sensitivity training."

letter reported that the statement “Hire

a professor who speaks English" was “the

truest form of discrimination." (J.A. at

481). We find this bald assertion

absurd-requiring that a professor speak

the native tongue in order to convey his

ideas is not any form of discrimination,

invidious or otherwise. This sentence

merely expresses the frustration of a

student stymied by a professor not

conversant in’ the language of his

students. This explanation comports

with Kasley’s testimony that Jiminez

himself recognized that he was difficult

to understand. We agree with the First

Circuit that “references to audience

difficulty in understanding [a Title VII

App. 53

professor seeking tenure] may reasonably

be interpreted as expressing a concern

about his ability to communicate to

students rather than discriminatory

animus based on ethnicity or accent."

Bina,, 39 F.3d at 26. Likewise, Hol-

land’s letter suggested that because

some white students wanted to give

Jiminez inferior evaluations, this was

motivated by invidious discrimination,

but there is nothing unlawfully

discriminatory about this ascription of

conduct. The letter and testimony by

Kasley stating that there was a

collective effort to give Jiminez poor

evaluations did not attribute any

alleged conspiracy to any form of

invidious discrimination. Rather,,

Kasley attributed the poor student

evaluations to students who “did not

App. 54

take the time required ... to fully

understand the material." (J.A. at 472)

(emphasis added). Further bolstering

this conclusion, Kasley testified that

“Iam not sure why many of the students

in... economics class gave Mr. Jiminez

poor evaluations, ... ." Id. (emphasis

added). Ultimately, Kasley opined that

Some students did not do well because

they did not work hard enough.

Harmonizing with this testimony,, former

part-time student Kathryn Meyers stated

that students critical of Jiminez were

likely “those that either talk to their

friends throughout class or those who

Simply choose not to attend the majority

of classes." Id. at 468. Bielak’s

letter is equally unavailing because it’

“wonder[(ed)" whether there “might” have

been prejudice against Jiminez, but it

App. 55

ascribed any possible prejudice to no

invidious motive. Id. at 482. Apart

from being mere speculation, these

observations do not demonstrate a

conspiracy or collusive effort against

Jiminez based on any form of invidious

discrimination. Similarly, Brown’s

testimony does not establish a

conspiracy motivated by an improper

racial animus. According to Brown,

Jiminez could not contxol his class, and

this lack of control led to “utter

chaos.“ As with the other evidence of

the “conspixracy," Brown’s testimony

reveals no invidious discrimination, but

at most that Jiminez lacked the capacity

to exert control. These students fail

to perceive that the majority of other.

students may have-and apparently did-fmd

Jiminez to be an abominable instructor.

App. 56

Succinctly put, this evidence is too

insubstantial to establish a

“conspiracy” to zenave Jimines from

tenure-track status, the impetus of

which was invidious discrimination.

Rather, one guiding force behind

Jiminez’ being issued a terminal

contract was that he was considered an

unsuitable instructor by MWC students as

reflected in five semesters of execrable

student evaluations. In subscribing to

this “conspiracy” theory, the district

court clearly effed.

The compelled conclusion,

therefore, is that the district court

erred in finding the first five

semesters’ student evaluations were

tainted, and thus properly disregarded,

because there was not substantial evi-

dence to support the finding that for

App. 57

five semesters the student evaluations

were tainted. The record conclusively

establishes that this evidence was

grossly insubstantial to permit the

conclusion that there was a conspiracy

to effect Jiminez’ employment status

based on invidious discrimination.

Moreover, the record does not establish

that all five semesters’ worth of

student evaluations should be disre-

garded. Even though the district court

found that all five semesters’ student

evaluations were tainted, it made no

specific fmdings with respect to each

semester, but merely engaged in a

wholesale dismissal of all evaluations

for Jiminez’ first five semesters at

MWC. We are disturbed by this dismissal

because many of the letters: recounting .

the collusive effort are undated, and

App. 58

the letters that are dated were from

April, May, and December of 1992, and do

not list specific dates, other than

1991, that the alleged collaboration

occurred. See Bina, 39 F.3d at 26.

Having concluded that there was

insubstantial evidence to support a

conspiracy theory based on tainted

student evaluations, the district court

erred in failing to consider the student

evaluations for the first five semesters

of Jiminez’ career at MWC because, as

the Eighth Circuit succinctly explained,

“student reaction is a legitimate,

nondiscriminatory factor on which to

evaluate tenure candidates." Brousard-

Norcross, 935 F.2d at 976; see also

Fields, 966 F.2d at 53-54 (using student

evaluations in reviewing denial-of-

tenure decision). The student

App. 59

evaluations that were disregarded

disclosed that Jiminez was an inferior

instructor, disorganized, confused,

experienced difficulty in explaining

concepts and answering questions, and

these student evaluations coincided with

the three evaluations conducted by MWC.

Additionally, the district court

appeared to conclude

that MWC issued Jiminez a terminal

contract based only on the fact that it

gave credence’ to the Five Students who

complained to: Rycroft, but Jiminez’

being issued a terminal contract was

based on a plethora of information, _

namely the student and N4WC evaluations.

Likewise, the district court

disregarded conflicting.testimony. For ,

instance, MWC elicited the testimony of

Chip Walker, a former student of

App. 60

Jiminez’, who stated that Jiminez was

ineffective and generally a poor

professor. In exievuatsg such testimony

from its calculus in determining whether

Jiminez was the victim of invidious

discrimination, the district court

clearly erred. See Wileman, 979 F.2d at

35 n.6; Hayes v. Invesco, Inc., 907 F.2d

853, 858 (8th Cir. 1990) (reversing the

district court’s factual finding with

respect to pretext in a discrimination

suit because the district court "failed

to consider . . . important evidence").

In crediting only the latter three

semesters’ evaluations, the district

court did not consider the fact that

during this time Jiminez awarded higher

grades or that his class size was

substantially smaller than average. The

district court disregarded this evidence

App. 61

because it “was not considered or even

available at the time the terminal

contract decision was made. * (J.A. at

548-49). This finding, however, is

erroneous for at least two reasons: One,

Hall knew of the poor student

evaluations; indeed, in his May 22, 1992

letter informing Jinines that he was

being given a terminal contract, Hall

mentioned the five semesters of negative

student evaluations, and Hall was privy

to the three MWC evaluations of Jiminez.

Two, this view of the evaluations

demonstrates MWC’s position that Jiminez

was an ineffective professor and his

latter evaluations were artificially

inflated because of the higher grades he

awarded and his shrinking class size, as

demonstrated by the May'22, 1992 letter,

which observed the “unusual and dramatic

App. 62

‘turnaround"’ in Jiminez’ student

evaluations. (J.A. at 523). Thus, the

district court made a factual finding

“without properly taking into account

substantial evidence to the contrary” in

reaching its decision. See Miller, 720

F.2d at 361 (factual findings of the

district court in a Title VII action

reversed as clearly erroneous because

they were not supported by substantial

evidence or were made without

considering substantial contrary

evidence).

Also, the district court found that only

these latter evaluations were

accurate because white students

“realized that such collusion would

not be tolerated." (J.A. at 546). There

is, however, no evidence that this

intolerance was conveyed or published so

App. 63

that white students were supposedly

apprised of it. Indeed, Brown stated

that the allegedly collusive student

evaluations were made subsequent to the

decision to issue Jiminez a one-year

terminal contract. We are, therefore,

“left with a definite and firm

conviction that a mistake has been com-

mitted" because the district court’s

findings with respect to the first five

semesters’ student evaluations were

neither supported by the record, nor was

contrary substantial evidence considered

in adducing the facts.

. We now turn our attention to

the district court’s fmding that MWC

knew the student evaluations were

tainted, yet failed to take any cor-

rective measures. While the district .

court found that Hall “accepted as true"

App. 64

what the Six Students told him

respecting Jiminez’ evaluaions, id.

at 544, this characterization of Hall’s

testimony is clearly

erroneous: Hall did not testify that

the poor student evaluations were

tainted by discrimination, but merely

that the Six Students “wanted to

remind me that there was a possibility

that the students had done this because

of his race and his national origin,

although the behavior they described

said nothing about race--there wasn’t

anything in the behavior itself that was

racial." Id. at 335 (emphasis added).

We are persuaded, therefore, that the

testimony does not support the finding

that Hall improperly relied on tainted

information in deciding to issue Jiminez

a terminal contract. See Miller, 720

i i Nh ig a

App. 65

F.2d at 364-68 (reversing a judgment in

favor of a Title VII plaintiff based,

inter alia, on the district court’s

misunderstanding testimony); see also

Briney v. Sears, Roebuck & Co., 782 F.2d

585, 588-89 (6th Cir. 1986) (reversing

Judement as a matter of law ona

negligent design claim because the dis-

trict court misconstrued testimony).

Most revealingly, there his no evidence

that any alleged “conspiracy" influenced

MWC’s decision to ten-ninate Jiminez.

There is, therefore, no nexus between

the challenged conduct and the adverse

action. See Clay Printing Co., 955 F.2d

at 942-43. Contrary to the district

court’s factual finding,’ therefore, MWC

did not knowingly, improperly use

tainted evaluations in reaching its

decision to issue Jiminez a ten-ninal

App. 66

contract.

With respect to Jiminez’ failure to

obtain his Ph.D. and produce scholarly

work, the district court gave short

shrift to these reasons, merely reciting

that they were "pretextual as well" in

light of Greenlaw’s career at MWC.

Accordingly, the district court ruled

that Jiminez carried his ultimate burden

of demonstrating that he was the victim

of intentional, invidious race and

national origin discrimination: “because

he has proven both that [MWC’s)

‘proffered explanation is unworthy of

credence,‘ and that the reasons given

were merely a pretext for

discrimination.” (J.A. at 552). As

stated, we conclude that the district

court incorrectly applied St. Mary’s.

i i it -

— eee ale a

App. 67

We conclude further that

the factual premise upon which these

legal conclusions were rendered is

clearly erroneous.

Jiminez failed to obtain his Ph.D. by

August 16, 1989, and the August 3, 1989

letter informing Jiminez of the offer by

MWC expressly conditioned his employment

success at MWC on his obtaining a Ph.D.

This failure rendered Jiminez

unqualified because tenuretrack

professors were required to obtain a

terminal degree. While Jiminez

submitted a letter from the University

of New Mexico dated August 21, 1992,

stating that he had successfully

defended his dissertation, the letter

also explained-that Jiminez was “making

final editorial changes for the

submission of the complete

POPE IS SOS PEER EO LER St ea

App. 68

dissertation." Id. at 459. At oral

argument, the parties represented that

Jiminez had failed to obtain his Ph.D.

by the date of trial and failed to

answer our repeated inquiries as to

whether Jiminez had yet been awarded his

Ph.D. We, therefore, cannot determine

whether Jiminez achieved his terminal

degree. Regardless of when, if ever, he

obtained his Ph.D., he failed to do so

within the prescribed time, and his

employment was conditioned expressly on

his receiving his Ph.D. by August 16,

1989.

The district court, however, concluded

that Jiminez’ failure to obtain his

Ph.D. was mere pretext for:

discrimination because Greenlaw was at

MWC for four years before obtaining a

Ph.D., yet was not terminated... This

App. 69

fmding is flawed because when Greenlaw

was hired in 1982, having a Ph.D. was

not _ a requirement for promotion, whereas

when Jiminez was hired, it was.

Comparing Jiminez with Greenlaw is thus

not only inapt, see Bennun v. Rutgers

State Univ., 941 F.2d 154, 178 (3d Cir.

199 1), cert. denied, 502 U.S. 1066

(1992), but also disregards the

predicate and procedure under which each

was hired, see Parson v. Kaiser Aluminum

& Chem. Corp., 575 F.2d 13741) 1384

(Sth Cir. 1978), cert. denied, 441 U.S.

968 (1979). The district court erred,,

therefore,, in comparing the timing and

conditions of Greenlaw’s hire with that

of Jiminez’. Unlike the district court,

we cannot “infer discrimination from a

comparison among candidates"-for a

professorial appointment because "[a]

App. 70

university’s prerogative ‘to determine

for itself on academic grounds who may

teach’ is an important part of our long

tradition of academic freedom."

Lieberman, 630 F.2d at 67 (quoting

Sweeny v. New Hampshire, 354 U.S. 234,

263 (1957) (FTankfurter,, J.,

concurring). A defendant’s requirements

with respect to a Title VII plaintiff's

academic degree does not constitute

invidious discrimination. See, e.g.,

Wileman,, 979 F.2d at 37 (holding that

an employer’s preferring an applicant

who obtained a masters degree, as

opposed to Title VH plaintiff “who had

thirty-seven credits in business

administration classes taken over a

ten[-)year period" was not evidence of .

pretext for discrimination and the

OF i ete al i ee i ee

district court erred .in finding

App. 71

otherwise); Wrenn v. Gould, 808 F.2d

4939 502 (6th Cir. 1987) (explaining

that in a Title VU suit an employer may

prefer, but not require, that an

applicant have a particular degree and

such a requirement is not improper);

Hernandez-Cruz v. Fordham Univ.,, 521 F.

Supp. 1059,1071 (S.D.N.Y¥. 1981) (holding

that an unsuccessful tenure applicant

asserting a Title VU claim based on race

and national origin was not awarded

tenure for failure to secure a Ph.D.,

not because of invidious discrimination

motivated by improper animus) (Lombard,

Circuit Judge). ParentheticaUy, we

observe that, unlike Jiminez, Greenlaw

had consistently superior student

evaluations, as well as the support of

the Economics Department. The crucial

issue in a Title VIII action is an

App. 72

unlawfully discriminatory motive for a

defendant’s conduct, not the wisdom or

folly of its business judgment. See

Furnco Constr. Corp. v. Waters,, 438

U.S. 567, 577 (1978). To this end, the

district court erred in concluding that

despite the fact Jiminez was not the

best qualified candidate,, on hiring him

MWC assumed particular or additional

burdens “to protect Jiminez from racial

and national origin animus." (J.A. at

549). MWC’s duty was only to refrain

from taking adverse employment action

against him because of snekibwes racial

discrimination, and MWC’s obligation did

not extend to protecting Jiminez against

any alleged racial and national origin

animus by others in the employment. _

community, nor to excusing derelictions

in job performance because

App. 73

the animus of others may have

contributed to it.

The district court’s conclusion is

erroneous because it failed to consider

other substantial, contrary evidence.

For instance, Cynthia Grund, a white

professor hired in 1990, was terminated

after one year exciusively because she

failed to complete her Ph.D.

Additionally, Rick Hydell, a former

faculty member at MWC who is white, was

given a terminal contract in the same

year Jiminez was hired and MWC implies

in its brief (although the record is

unclear) that his termination was for

failure to obtain his doctorate degree,

even though Hydell’s student evaluations

were superior to those of Jiminez.

Clear error was the result of

disregarding this evidence. See Soria

App. 74

v. Ozinga Bros., Inc., 704 F.2d 990, 999

(7th Cir. 1983) (stating that the

district court committed clear error in

disregarding evidence of discrimination

in a Title VII suit, but that the error

in that instance was harmless).

Equally, the district court disregarded

the fact that other black professors

prospered at MWC. Taddessa Adera, a

native Ethiopian, enjoyed superior

student evaluations, and he passed his

third-year review at MWC. Likewise,

Professor George King, who was also

black and Chairman of the Physics

Department, received stellar student

evaluations. These crucial facts were

not considered by the district court in

rendering its judgment and hence did not

enter the calculus in resolving this

case. ‘The district court was not at

App. 75

liberty to disregard this evidence. See

Ezold v. Wolf, Block, Schorr and Solis-

Cohen-,- 983 F.2d 509, 538 (3d Cir.

1992) (stating that “when the evidence

sheds light on whether the employer

treated similarly situated males and

females alike, it should not be

ignored"), cert. denied, 114 S. CL 88

(1993).

Jiminez produced no scholarly work.

While he was somewhat excused from this

requirement while working on his Ph.D.,

he did not complete his Ph.D. in the

prescribed time, nor by the time he was

given a terminal contract; hence, he

cannot take refuge in this safe harbor.

Jiminez himself testified that during

his entire stint at the college, he

never published a single work in a peer-

namie tee

App. 76

review publication. We note that

Jiminez’ failure to produce scholarly

publications presents a legitimate

rationale for issuing a terminal

contract. See King v. Board of Regents

of Univ. of Wis. Sys., 898 F.2d 533,

540 (7th Cir. 1990) (explaining that a

Title VII plaintiff “was not qualified

for tenure renewal," inter alia, because

she failed to produce “scholarly pub-

lications"); Lieberman, 630 F.2d at 66

(noting that scholarship is an integral

factor in assessing tenure-type

decisions). As with the other evidence,

the district court disregarded the fact

that Jiminez had defaulted on this |

obligation and, in so doing, clearly ; |

erred.

IV.

We are left with the definite

App. 77

conviction that the factual fmdings of

the district court are clearly

erroneous. Predicated on such a faulty

premise, the district court’s legal

conclusions cannot withstand scrutiny.

Here, the district court ignored

substantial evidence or failed to

evaluate substantial-contrary evidence

in making its findings of fact. We hold

that Jiminez failed to satisfy the

obligations imposed on him by St. Mary’s

in that he failed to prove that he was a

victim of invidi- ous discrimination.

The judgment of the district court,

therefore, is reversed.

REVERSED

App. 78

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ANTHONY E. JIMINEZ

Plaintiff,

MARY WASHINGTON COLLEGE and

PHILIP HALL,

Defendants.

C.A. No. 93-459

INTERIM ORDER

This matter is before the Court for

resolution following a bench trial

conducted on February 14-15, 1994. For

the reasons stated-in the accompanying

Findings of Fact and Conclusions of ne

the Court renders judgment for plaintiff

and against defendant Mary Washington

College with respect to plaintiff's

claims pursuant to Title VII. of the

es oh A

App. 79

Civil Rights Act of 1964, as amended, 42

U.S.C. SS 2000e to 2000e-17, and 42

U.S.C 5 1981, and for Jiminez and

against defendant Hall with respect to

plaintiff’s claim under 42 U.S.C. S

1983.. Because the Court bifurcated the

liability and relief phases of,the

trial, the Court directs the parties to

schedule a hearing on the relief

attorney’s fees within on the relief

phase and any corresponding request for

attorney’s fees within 10 days from the

date of entry of this Interim Order. If

such a hearing is not scheduled, the

Court will consider plaintiff's request

for ‘relief to be abandoned.

It is so ORDERED.

Let the Clerk send a copy of these

Findings of Fact and Conclusions of Law

along with the accompanying order to all

App. 80

counsel of record.

DATE

April 15 1994

App. 81

16. The purposeful discrimination

element of a claim alleging racial

and/or national origin discrimination in

employment under 42 U.S.C. S 1983 is

analyzed in the same manner as a Title

VII claim. Hicks v. St. Mary’s Honor

Center, 970 F.2d 487 (8th Cir. 1992),

revid on other grounds, St. Mary’s Honor

Center v. Hicks, 113 S. Ct. 2742 (1993).

Therefore, the McDonnell framework set

Out above is applicable to Jiminez’ s

1983 claim against Hall. 113 S. Ct. at

2746 n.l.

17. Because Hall was intimately

involved with the decision to give

Jiminez a terminal contract and his

actions were causally connected to

Jiminez receiving a terminal contract,

the analysis set out in Conclusions of

Law qq 3-11 apply with equal force to

App. 82

the S 1983 claim. Hicks, 970 F.2d at

491.

18. Therefore, the Court finds for

Jiminez and against Hall on Jiminez, S

1983 clain.

C. Plaintiff‘s Relief

19. At the commencement of the

trial, the Court agreed to consider the

relief aspect of this case separate from

the liability phase. Some evidence

related to damages was introduced at

trial, but an additional hearing will bg

necessary so that the Court can

determine what relief is appropriate for

the plaintiff based on the Court’s

conclusions with respect to liability.

(4 f 4% wy ? « HY

decision. Having found that the

student evaluation rationale was

pretextual, the Court determines that

the other reasons given by MWC for its

App. 83

action, Jiminez, failure to defend his

dissertation and to produce scholarly

work, were pretextual as well. These

reasons simply cannot withstand scrutiny

in light of the fact that Greenlaw,

viewed on the same time scale, had the

same shortcomings and was still kept on

the tenure track and eventually granted

tenure. (See Findings %% 12-15). The

rationale put forth by MWC was a pretext

for discrimination.

12. Therefore,, the Court finds

for Jiminez and against MWC on Jiminez’

Title VII and S 1981 claims.

B. 9 1983 Claim Against Hall

13. 42 U.S.C. S 1983 provides in

relevant part:

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage,

of any State subjects, or

causes to be subjected, any

citizen

f the United States or other

App. 84

person within the jurisdiction

thereof to the deprivation of

any rights, privileges, or

immunities secured by the

Constitution and laws, shall be

liable to the party injured .

14. An action under 5 1983 has two

essential elements: (i) the defendant

must have been “acting under color of

state law"; and (ii) the defendant’s

conduct must have “deprived a person of

rights, privileges, or immunities

secured by the Constitution or laws of

the United States." Parratt v. Taylor,

451 U.S. 527, 535 (1981), overruled on

other grounds by Daniels v. Williams,

474 U.S. 327 (1986).

15. In this case it has not been

challenged, and the Court finds, that

Hall was acting under color of state

law.

i 3

ll.

App. 85

to award a three-year contract to

Jiminez. As set out in Hall’s

letter of May 22, 1992 to Jiminez,

{see Finding ‘ff 33), MWC’s reasons

for giving Jiminez a terminal

contract were: (1) that Jiminez’

student evaluations over five

semesters were poor; (2) that he

had not successfully defended his

dissertation; and (3) that he had

not produced scholarly works.

However, Jiminez has successfully

carried his ultimate burden of

persuading the Court that he has been

the victim of intentional discrimination

on the basis of his race and national

Origin because he has proven both that

App. 86

defendants, “proffered explanation is

unworthy of credence," Burdine, 450 U.S.

at 256, and that the reasons given were

merely a pretext for discrimination. See

St. Mary’s Honor Center v. Hicks, 113 S.

Ct. 2742, 2752 (1993). As the Court

found in Finding 1 37, after being made

aware that Jiminez, student evaluations

had been tainted by collusion and racial

and national origin animus, the

Department of Economics, Hall and

Anderson either should have ignored

Jiminez’ student evaluations in reaching

their respective decisions about his

contract, or should have conducted an

in-depth investigation to determine the

extent of the taint. They did neither.

Rather, they intentionally gave credence

to the questionable evaluations and to

the selective examination of five white

9 EN

App. 87

Students by Rycroft in assessing

Jiminez, teaching effectiveness. They

then relied heavily upon this assessment

in reaching their conclusion that

Jiminez should be given a terminal

contract, thereby knowingly using

information tainted by discrimination to

reach their

rejected; and (iv) that, after his

rejection, the position remained open

and the employer continued to seek

applicants from persons of complainant's

qualifications. .

411 U.S. at 802.

8. The court in Kumar v. Board of

App. 88

Trustees, Universit

e cour in Kumar v. Board of

Trustees, University of Massachusetts,

774 F.2d 1 (lst Cir. 1985), adapted this

prima facie test to apply in the context

of a tenure decision. While the case

before this Court does not specifically

involve a tenure decision, the language

used by the Ku.mar court is helpful.

The Kumar court altered the second prong

of the McDonnell test by requiring the

plaintiff to show that he was a

candidate for tenure and was qualified

under the school’s standards, practices,

and customs. The fourth prong was

altered such that the plaintiff must

show that tenure positions were open at

the time of his rejection. Id. at 7.

9. Jiminez has satisfied the prima

facie test in this case:

App. 89

(1) he is a member of both a racial

and a national origin minority;

(2) he was a candidate for a three-

year contract which is the final

phase prior to the tenure decision at

MWC and, as the Court found in Findings

‘off 37-38, he was qualified to receive

the contract under MWC’s standards,

practices, and customs; (3) despite his

qualifications, he did not receive the

three-year contract but instead was

given a one-year terminal contract; and

(4) soon after Jiminez was given the

terminal contract, the Department of

Economics began actively seeking to fill

the tenure-track position that Jiminez

had occupied.

10. MWC has rebutted plaintiff’s

prima facie case by putting forth

legitimate, non-discriminatory reasons

for their decision not 17

App. 90

256. To do this, the plaintiff must

prove by a preponderance of the evidence

that the reason given is not the real

reason, but is merely a pretext for

discriminatory actions. The plaintiff

"may succeed in this either directly by

persuading the court that a

discriminatory reason more likely

motivated the employer or indirectly by

showing that the employer’s proffered

explanation is unworthy of credence.,,

Id.

6. 42 U.S.C. S 1981 provides in

pertinent part:

(a) All persons within the

jurisdiction of the United States

shall have the same right in every

State and Territory to make and

enforce contracts .. . and to the

full and equal benefit of all laws

and proceedings for the security of

persons and property as is enjoyed

by white citizens ‘

App. 91

(b) For purposes of this section, the

term "make and enforce contracts"

includes the making, performance, modif

ication, and termination of contracts,

and the enjoyment of all benefits,

privileges, terms, and conditions of the

contractual relationship.

(Cc) The rights protected by this section

are protected

against impairment..... under color of

State law.

" et nd di Me tial

The burden of proof arrangement for

‘ actions brought pursuant

to 42 U.S.C. S 1981 is identical to that

used in disparate

eae I A IT is eats scr hace a oS.

treatment cases under Title VII.

Patterson v. clean Credit

Union,

La EO PbO! SA Ra ASE TPR S Gr ORR AREA AR ATE AN beat SB AINE CE nod

491 U.S. 164, 186 (1989), revld on other

App. 92

grounds, Civil Rights Act of 1991, P.L.

102-166; see also Williams v.

Cerberonics, Inc.,, 871 F.2d 452, 457-58

4th Cir. 1989).

a In McDonrell, the

U.S. Supreme Court noted

that a

plaintiff may meet the

prima facie case burden

by showing

(i) that he belongs to a

racial (or national

origin]

minority; (ii) that he applied and

was qualified for a job for which

the employer was seeking

applicants;

(iii) that, despite his qualifications,

he was

I -41 . 7 I..) i

considered or even available at the

time the terminal contract decision was

made.

App. 93

40. The Court also finds that once

MWC made the decision to hire Jiminez,

despite the fact that he was, according

to Greenlaw and Rycroft, not the best

qualified candidate, it made a

commitment to protect Jiminez from

racial and national origin animus.

az. CONCLUSIONS OF LAW

A. Title VII and 5 1981 Claims Acrainst

MWC

p Jiminez:is a member of a

distinct subgroup protected by Title VII

against racial and national origin

discrimination.

2. Defendant MWC is an agency

employing more than 15 persons within

the meaning of Title VII, 42 U.S.C. SS

2000e to 2000e-17.

: In Title VII cases, the burden

of proof is allocated

according

according to the scheme set out in

McDonnell Doucflas Corp. v.

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

App. 94

plaintiff in a disparate treatment

case must

case must initially prove a prima facie

case’ of racial and/or national origin

discrimination.

4. Proof of a prima facie case then

gives rise to an

inf erence of discrimination.

Co., 882 F.2d 908 (4th Cir.

an erence of discrimination. Mallory v.

Booth Refrigeration Sui)plv Co., 882

F.2d 908 (4th Cir. 19810). To rebut

this inference, the employer must

_. T

At eae mire An wrt

App. 95

articulate a legitimate,

nondiscriminatory reason for the adverse

employment action. Texas Dept. of

Community Af fairs v. Burdine, 450 U.S.

248, 253 (1981).

5. Once the defendant articulates

a legitimate reason, the plaintiff must

carry his ultimate burden of persuading

the Court that he has been the victim of

intentional discrimination. Id. at

(‘10-1113

collusion and webhe’ and national

origin animus were made known to Hall

and Anderson, Jiminez had been treated

in a non-discriminatory fashion by the

staff and faculty at MWC. However, once

App. 96

they became aware that the student

evaluations were tainted, and knowing

that MWC was a predominantly white

college with a history of racial

tension, (see Ilff 9-11), the Department

of Roontmbie: Hall and Anderson either

should have ignored Jiminez’ student

evaluations in reaching their respective

decisions about his contract, or should

have conducted an in-depth investigation

to determine the extent of the taint.

They did neither, but rather gave

credence both to the evaluations and the

selective examination of five white

students by Rycroft in assessing

Jiminez, teaching effectiveness. In

giving Jiminez the right to reapply for

the tenure track position, the

department, Hall, and Anderson merely

"glossed over" the fact that Jiminez,

App. 97

evaluations were tainted and, without an

investigation, unreliable.

38. Because no investigation was

conducted with respect to Jiminez’

student evaluations for his first five

semesters, those evaluations should have

been ignored. The Court finds that it

ee «es pens eee

must ignore those evaluations in the

preci

context of this suit and therefore finds

that Jiminez was qualified to receive

the subsequent threeyear contract.

39. Defendants presented a

statistical analysis at trial of the

student enrollment in Jiminez, classes

Tilt eerie Tiegh nan A ak a aa

abi bial,

and of the grades awarded by Jiminez.

(Test. of Hall; Defs.1 Exs. 23, 24).

t The Court finds that there is no

evidence showing that these data were

App. 98

(10@ . Is

that he would have to fulfill certain

conditions in order to be considered a

viable candidate. These conditicns

were:

1. Substantial improvement of the

student evaluations of [Jiminezl]

classes, and,

2. Favorable evaluations by (the]

department as a

result of their [sic] unannounced visits

to [the]

classes, and,

3. Successfully defend[{) [his]

dissertation by August

31, 1992, and,

4. {] [Tlake[{]) appropriate steps to be

included on the program to present a

paper at a regional economics

conference.

34 - On June 10, 1992, Anderson

wrote a letter to Jiminez informing him

a tka oiiibeacaaeadinn one iota

BROT SONY a RAE Me gies

App. 99

that Anderson concurred in Hall’s

recommendation and had forwarded that

recommendation to the Board of Visitors.

(Pi 20. 29),

35. On June 17, 1992, Jiminez

received confirmation from Anderson that

the Board of Visitors voted to give

Jiminez a one year terminal contract for

1992-93. (Pl.’s Ex. 20).

36. In December 1992, Jiminez asked

Hall whether Hall thought

Jiminez should reapply for the tenure

track position. Hall mentioned that he

did not think the department would

change its decision. (Test. of Hall).

Jimtnez did not reapply.

37. Based on the standards

utilized by MWC for promotion and tenure

decisions, (see 11 7), and a comparison

with Greenlaw, a tenured faculty member

in the Department of Economics, Jiminez

was

qualif ied to receive the three-year

contract which

receive e t.ree-year

App. 100

contract which would have carried him

through his tenure-decision year except

for the results of his student

evaluations. Prior to the time that

assertions of

further proof that the earlier student

cnutnatchaan were "skewed" by

collusion; on these later evaluations,

the students realized that such

collusion would not be tolerated.

33. On May 22, 1992, Hall sent

Jiminez a letter advising him of the

position he was going to take with

respect to the Department of Economics

recommendation to give Jiminez a

terminal contract for academic year

See ee ny eer a ee ee ee De eee gs ee wert.

«hoo ES OD each ae a aey y ees , .

SEER BNI IDOLS LT

App. 101

1992-93. (Defs.1 Ex. 12; Pl.’s Ex. 17).

Hall noted that he and the members of

the department were getting "two very

different messages about [Jiminezl]

teaching effectiveness" and he was

“uncertain and therefore uncomfortable"

about the decision to make. On the one

hand, noted Hall, Jiminez, student

evaluations over five semesters had been

"decidedly sub-par" and a “significant

number of students" had registered their

unhappiness. Hall commented that, on

the other hand, Jiminez, student

evaluations for the Spring 1992 semester

were "at or above College averages" and

comments and visits from students were

"heavily in (Jiminez’] favor." Hall

added, however, that there was not

enough information to draw the

conclusion that the high evaluations and

App. 102

student comments signalled “an unusual

and dramatic ‘turn-around. I " In

addition, Hall noted that Jiminez had

not defended his dissertation and had

“not produced much in the way of

scholarly output. On this basis, Hall

stated that he was recommending to

Anderson that Jiminez be given a

terminal contract and that the

department would advertise and recruit

candidates for Jiminez’ position but

Jiminez could reapply for his tenure

track position at the end of the one

year contract if he so desired. Hall

went on to inform Jiminez

@- 0-%-16

obtained from the evaluations over

PE eed | er A ale celled

App. 103

several semesters. In addition, he

had not seen any discernible pattern

indicating that student evaluations of

African-American professors were lower

than those for white professors (Test.

of Hall).

30. Some students also approached

Anderson during this time frame,

informing him of their concerns that

Jiminez had been the victim of collusion

on his evaluations and that the student

action might have been racially

motivated. (Test. of Laura Kasley,

Nicole Dixon and Anderson). Anderson

found the students to be credible, but

he did not conduct an investigation into

the matter.

31. Under MWC’s student evaluation

policy, faculty are not permitted in

class during the student ratings.

App. 104

However, it is inconsistent with school

policy for students to confer with one

another while filling out the

evaluations. (Test. of Anderson).

32. Jiminez’ student evaluations for

the Spring 1992 semester were

dramatically higher than his previous

evaluations and were, in fact, higher

than the department averages. (Test. of

Jiminez and Hall; Defs. I Ex. 22; Pl.

Is Ex. 15). Jiminez, Fall 1992

evaluations were slightly under the

department average but higher than the

scores he received during his f.i-rst

five semesters. His Spring 1993

evaluations were back above the

department average. (Test. of Hall;

Defs.1 Ex. 22). Rycroft testified that

he had never seen a faculty member’s

evaluations go from being consistently

App. 105

low to being above average or average as

was the case with Jiminez. (Test. of

Rycroft). The Court finds that the

higher evaluations Jiminez received in

his sixth, seventh and) eighth semesters

| offer \.

4 11

‘

;

I %(I-- ;I-- ‘j- ,Iti

. spread, Hall and Anderson received

| numerous letters from students

Supportive of Jiminez. (Pl.’s Ex.

23). The letters on the whole

4 spoke positively of Jiminez’

teaching ability and the manner in

which he worked with students.

Some of the letters also noted that

some students had "collaborated" to

give Jiminez low evaluation scores

App. 106

and had made the evaluation process

a collective effort. One letter

ref erred to "“bigotted [ sic ]

student evaluations, " (pl. , s Ex.

23-18), and another stated, “To

deny (Jiminez] a contract renewal

because a few people cannot see

beyond his color or accent is a

crime and blatant discrimination."

(Pl.’s Ex. 23-19). Another student

expressed the “opinion that there

is considerable doubt as to the

validity of the evaluations from

(her) class." (Pl.’s Ex. 23-21).

29. On April 28, 1992, a group of

six students visited Hall. These

students also were supportive of Jiminez

and they informed Hall that they

believed there had been a collusive

effort by some students to mark Jiminez

¥;

TE ak ad cies cael (ca an a

ye pry

—_

CEE RE eR EEO Yes

jeaphs ch Doc he ete al

# SPARS

2A PRE Li at Aes SPIE NEN

App. 107

down on evaluations based on his race

and accent. Hall took notes during this

meeting in which he recorded the

"students’ perceptions." His notes

mention that “class was a zoo because

the ee him hell,"

1ll(sjtudents came in with bad

attitudes," and then later: “Race.

Accent. Mannerisms. Students here are

not tolerant." (Test. of Hall; Pl.’s Ex.

27). Hall stated that he accepted as

true what the students said. The

students asked Hall to conduct an

investigation, but Hall did not do so.

Hall stated that he discounted the

likelihood that the collusion was

extensive enough to markedly affect the

information

App. 108

c;@1-Ilili

(Test. of Rycroft). While Rycroft

acknowledged in the evaluation that

Jiminez had strengths as a teacher,

Rycroft stated that the most weight must

be put on "in the classroom" teaching

and that Jiminez had not met the MWC

standard in this regard. Rycroft stated

that Jiminez, record of service for the

year was good. With respect to

scholarship/professional activity,

Rycroft focused on the fact that Jiminez

had not completed his dissertation. In

summary, Rycroft stated, "(TJjeaching and

professional activity remain areas of

significant weakness as they have been

in the past," and added that "the

department must recommend a one year

App. 109

terminal contract.,,

26. The decision to recommend to

Hall that Jiminez be given a terminal

contract was reached unanimously by all

three tenured members of the Department

of Economics: Rycroft, Greenlaw and

Steve Stageburg. (Test. of Rycroft and

Greenlaw).

27. On March 30, 1992, Carole

Corcoran, a tenured faculty member in

the Department of Psychology sent Hall a

letter. (Pl.’s Ex. 13). In the letter,

Corcoran noted her disappointment over

the fact that the Department of

Economics had recommended giving

Jiininez a terminal contract and advised

Hall that a student had expressed "anger

at the disrespect shown by some white

students toward (Jiminezj." Corcoran

also mentioned to Hall that “racism,

App. 110

however subtle,, has to be taken into

account when..... examin [ ing } student

and f aculty evaluations of C Jiminez

(Pl. I.8 Bx. 13).

28. As word of the Department of

Economics, recommendation

('01"-'-13

candidate is thorough. At this

time, candidates generally get

either a three-year contract taking

them up to their “tenure

decision year," or a one-year terminal

contract. (Defs.’ Ex. 8;

Test. of Hall and Rycroft).

aa« On December 20, 1991, Mehrabi

was suspended from his

position as departmental chair and

Rycroft was appointed acting

chair. (Test. of Mehrabi, Hall and

Rycroft).

App. 111

23. Daniel Abel, a faculty member in

the Department of Biological Sciences at

MWC, sat in on several of Jiminez’ |

environmental economics classes during

the Fall 1991 semester. On January 25,

1992, Abel wrote Rycroft a letter

advising him of this

fact and relating a positive critique

of Jiminez, teaching. (Test.

of Abel; Pl.’s Ex. 8).

24. In February 1992, Rycroft

sent a draft of Jiminez, annual

evaluation to Hall. Hall suggested a

"slight re-write of the first

paragraph" -and stated, “On the whole I

think you have done an excellent job on

this, Bob. It strikes just the right

tone." (Pl.’s Ex_. 10; Test. of

Jiminez, Hall and Rycroft). Rycroft

incorporated Hall’s re-write into the

final evaluation which wasdated

February 26, 1992. (Pl.’s Ex. 9; Defs.1

App. 112

Ex. 9).

25. In this evaluation, Jiminez,

third annual evaluation, Rycroft noted

Jiminez, “perennially low" course

evaluation scores and stated that

“comments on course evaluation forms, as

well as oral comments solicited by the

chair from selected students, have

been mainly critical.-’ (Pl - ’s_ Ex.

9; Def s - Ex. 9) -Rycroft

Solicited comments from five students,

all of whom were white.

(I (Il <3 IT I-. , je 4. os

is bound to have. -I Rycroft then

listed positive aspects of Jiminez’

teaching and noted that he

App. 113

"expect(ed] great things (from

Jiminez I in the future." With

respect to scholarship/prof

essional activity, Rycroft stated

that Jiminez’ “major focus for the

immediate future must be completion

of his dissertation. (Def s. Ex.

6).

19. Jiminez was given a second

contract of employment

covering academic years 1990-91 and

1991-92. His next annual evaluation

was performed by Shah Mehrabi, then the

departmental chair, on April 2, 1991.

Mehrabi noted Jiminez, “below average"

student evaluation scores but qualified

his statement by adding

that “with experience and once

students get accustomed to

(Jiminez’ ]} style of teaching,

(jiminez, evaluations]

should

improve.,, Mehrabi did not note any

criticisms of Jiminez’

scholarship/professional activity or

service. (Defs.1 Ex. 7).

20. During the Spring semester of

1991, Jiminez invited Rycroft to attend,

App. 114

unannounced, any of Jiminez’ classes to

observe and critique his classroom

performance. Rycroft accepted the

invitation but never attended any of

Jiminez’ classes. (Test. of Jiminez and

Rycrof t) . In fact, none of the

Department of Economics faculty members

attended any of Jiminez’ classes in an

attempt to monitor his progress or offer

help. (Test. of Jiminez).

21. On December 10,

1991, near the end of

Jiminez’ fifth

semester of teaching, Hall wrote

departmental chair Mehrabi

remind him that Jiminez I third year

review should ‘be done. (Def

s. fi

Ex. 8). Under MWC practice, the

third year review of a

tenure

Sap P RRR EE ron eI mRE gS THEO

ay Sato ees AR KDE

NOES RIUM STS RRC agit CRA

App. 115

(+. £%.:g- aug @ BO

14. During his four-year stint at

MWC, Jiminez did not publish in a peer-

refereed journal. (Test. of Jiminez).

15. Greenlaw, like Jiminez, did

not publish in a peer-refereed journal

before his fourth year at MWC.

Greenlaw).

(Test. of

16. Professors and the courses they

teach are evaluated every

semester by the students in the

respective courses. These

evaluations are done on forms titled

"Student Course Reaction

Questionnaire.,, (Defs.1 Ex. 11). In

his first semester

at MWC,

App. 116

the Fall 1989 academic semester,

Jiminez received

student

evaluations which ranked 37th out of

the 41 tenure track

faculty

members. For the four semesters from

Spring 1990 through Fall 1991, Jiminez’

student evaluations were the lowest

of the approximately 40 tenure track

faculty members. (Test. of Hall).

During these five semesters, Jiminez’

evaluation scores were below

the Department of Economics average

evaluation scores.

22).

(Def s. ’ Ex.

17. Greenlaw has received student

App. 117

evaluations which are

consistently above the Department of

Economics average. (Test. of Greenlaw).

18. As noted in Iff 8, f aculty members

are given a written

evaluation yearly by their departmental

chair. Jiminez I first evaluation was

written by Rycroft on February 20, 1990.

Rycroft noted that the “numerical scores

on [Jiminezl] student course ratings

were f airly low" and mentioned some

student criticisms, but added that the

areas criticized were “shortcomings any

new teacher

(Test. of

(I (j,2,- -@ It

f aculty and administrators at which

Anderson, s . taff and faculty members,

and students spoke about their concerns

over the racial climate at MWC. (Test.

of Anderson and Carole Corcoran; Pl.’s

Ex. 14). Years prior to this, concerns

App. 118

had been voiced to Hall and Anderson

that some students were giving f aculty

member Karen Williams negative

evaluations based on her race. (Test. of

Hall and Brenda Sloan). In

approximately 1986 or 1987, on the basis

of affirmative action concerns, MWC

commissioned a study to an outside

consultant, Sharon Friesz. Friesz I

report indicated that MWC needed to

implement some type of sensitivity

training. (Test. of

Brenda King). Such training was

implemented in 1992. (Test. of

Sloan).

-C. Jiminez I Evaluations and Eventual

Receipt of Termina..-- Contract

12. When Jiminez applied for

App. 119

employment with MWC on March 4,

Ha: MELE BO AE SS, PP

1989, he wrote on his application:

"PhD in Economics expected June

19 8 9. (Def s. I Ex - 1) . However,

; Jiminez actually did not complete

3 the requirements for receiving his

¢,

Ph.D. from the University of New Mexico

until approximately August 1992, (Pl.

Is Ex. 21), after being taken off the

tenure track and given a one-year

terminal contract by MWC.

13. Steven Greenlaw, a tenured

professor in the Economics Department at

MWC who is white, did not receive his

Ph.D. until his fourth year at MWC.

Despite being told that he would lose

his job if he did not get his Ph.D.

before the end of his first year,

Greenlaw was allowed to remain and

subsequently received tenure. (Test. of

Greenlaw).

App. 120

| s

Service to the college is measured

based on factors such as academic

advising, club sponsorship, service on

committees, and role in college

governance. Promotion and tenure

decisions are made based upon a f aculty

member I s perf ormance as measured by

these three criteria. (Defs.1 Ex. 5).

8. Faculty members are given a

written performance evaluation yearly by

their departmental chair. (See, e.g.,

Defs.1 Exs. 6, 7, 9).

B. Racial Setting at MWC

9 . The student body at MWC is

comprised primarily of white

students. President Anderson

testified that when he became

App. 121

president in 1983, minority students

represented only about three percent

(3%) of the student population. Now,

this figure has jumped to approximately

twelve percent (12%). (Test. of

Anderson) - 10. As of the Fall

semester in 1989 (when Jiminez began

his appdintuent at MWC), MWC “employed

a total of 148 full time

tenured/tenure-eligible, and 18 non-

tenure eligible faculty members. of

See Pe

these[, ] Black faculty tenure/tenure-

eligible members were 6, and 2 were

non-tenure-eligible.11 (Defs.1 Ex. 20).

ii. In the years preceding Jiminez’

arrival, as well as during his stint at

MWC, there was a climate of racial

tension at MWC. Instances occurred

which openly manifested an atmosphere of

App. 122

racism and intolerance. For example,

during academic year 1991-92 three

African-American students received a

death threat over the telephone. (Test.

of Anderson; Pl.‘s Ex. 14). Shortly

after this threat, in January 1992, a

gathering was held for MWC students,

Sie hp

Ss. The Department of Economics

conducted a national search when it

sought to fill the tenure-track position

for which Jiminez was ultimately hired.

Three candidates, including Jiminez,

were invited to MWC for an interview.

Though the members of the Department of

Economics recommended by a 3-2 vote that

App. 123

Jiminez be hired, they did not view

Jiminez as the most qualified candidate

of the three. However, they wanted to

hire him peneues he met their

requirements and they wanted to

diversify the faculty. (Test. of Rycroft

and Greenlaw).

6. A tenure-track professor at

MWC usually has to go through three

contract phases prior to being

considered for tenure -- an initial one-

year appointment, a two-year contract,

and a three-year contract. (Test. of

Hall; Defs.1 Ex. 5 at S 2.2-2).

7. At the time that Jiminez

started his employment with MWC, the

1982 version of the MWC Faculty Handbook

("Handbook"), as amended over a period

of years, was in effect. The Handbook

was revised in 1990. (Test. of Hall;

App. 124

Defs., Exs. 4, 5). According to the

Handbook,. faculty performance is

evaluated in three areas: teaching,

scholarly/creative/professional

activity, and service. Teaching

effectiveness is measured based on a

variety of factors, including

evaluations by students, colleagues, the

department chair and the professor

(self-evaluation), attainment of course

outcome objectives, and maintenance of

academic standards. Professional

activity/scholarship is evidenced by

scholarly publication, presentations of

papers and addresses before audiences of

professional peers, and similar evidence

of scholarly endeavors.

App. 125

% ita i Huan ecrey ‘

ef p ie |

primarily undergraduate education in

liberal arts and sciences. College

| policy and programs are set by a Board

| of Visitors. The chief executive of MWC

is the President, William Anderson

("Anderson"), who is appointed by and

responsible to the Board of Visitors.

3. Defendant Philip Hall ("Hall")

is currently Provost of MWC, having

assumed that position in July 1993.

From July 1985 until July 1993, Hall

served as Dean and Vice-President for

Academic Affairs. (Test. of Hall).

4. iiminez applied for a tenure

track position as a member of the

faculty of the Department of Economics

at MWC by application dated March 4,

1989. (Defs.1 Ex. 1). As part of his

application

App. 126

process, Jiminez interviewed with Hall.

The menlbers of the

Department of Economics voted 3-2 in

favor of recommending to Hall

that Jiminez be hired. (Test. of

Steven Greenlaw and Robert

Rycroft). Hall then approved this

recommendation and carried it forward to

Anderson who in turn carried it to the

Board of Visitors. (Test. of Hall). On

August 3, 1989, Anderson sent a letter

to Jiminez notifying him that the Board

of Visitors had taken the following

action on his behalf:

RESOLVED By The Rector and

Visitors of Mary Washington

College that Anthony E. Jiminez

be, and he hereby is, elected to

the faculty of Mary Washington

College, in a full-time, tenure

(Defs.

@to .

App. 127

track position of Assistant

Professor in the Department of

Economics, to teach Economics for

a one-year contractual period,

beginning August 16, 1989 and

ending May 15, 1990, at an annual

salary of $29,500, contingent upon

your being granted the terminal

degree by August 16, 1989.

1 Ex. 2).

-I

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ANTHONY E. JIMINEZ,

Plaintiff,

Richmond Division

Affl I

App. 128

CL;RK, U.S. DISTRIOT C@’j@,T

RICH, ?7ACND, VA

C.A. No. 93-459

MARY WASHINGTON COLLEGE, et al,

Defendants.

FINDIN OF FACT AND

CONCLUSIONS OF LAW

This matter is before the Court for

resolution following a bench trial

conducted on February 14-15, 1994. The

Court makes the following Findings of

Fact and Conclusions of Law, pursuant to

‘Fed.

R. Civ. Proc. 52:3

App. 129

- FINDINGS OF FACT

A. Jiminez’ An at WC and the

i inez Appointment at MWC and the

Faculty Evaluation Process l. Plaintiff

Anthony E. Jiminez ("Jiminez") is a

citizen of Trinidad of African born

descent. He has filed this suit

pursuant to 42 U.S.C. SS 1981 and 1983

and Title VII of the Civil Rights Act

of 1964, as amended, 42 U.-S.C@..

. aS amended, 42 U.-S.C@é.. SS

2000e to 2000e-17, alleging

discrimination in employment on the

basis of race and national origin.

Jiminez timely filed a charge of

discrimination with the Equal Employment

‘

App. 130

Opportunity Commission on October 2,

1992, and on March 31, 1993 received a

Notice of Right to Sue letter. (pl.’s

Exs. 28, 29). This suit was filed on

June 29, 1993.

2. Daepnaant Mary Washington

College ("MWC") is a college funded and

operated by the Commonwealth of

Virginia, offering

-) tj

Let the Clerk send a copy of this

Interim Order and the accompanying

Findings of Fact and Conclusions of Law

to all counsel of record.

DATE

App. 131

APR 1 5 1994

B/.

SENIOR UNITED STATES DISTRICT J-UDGE

B2O 2-8 . ._ Pt

you’ve heard all the evidence, Your

Honor, you will see that while it may be

unfortunate to mr. Jiminez, it was the

right decision to make. It was

consistent with tenure criteria that

were published. It was consistent with

expectations. It was consistent with

good college management. For that

reason we think the evidence will show

that this complaint has no merit.

Thank you, Your Honor.

THE COURT: Thank you.

App. 132

Call your first witness, Mr. El-Amin.

MR. EL-AMIN: Brenda Sloan.

BRENDA SLOAN

was sworn and testified as follows:

DIRECT EXAMINATION

BY MR. EL-AMIN:

Q Good morning, Ms. Sloan.

How are you?

A Good morning.

Q Would you state your full

name, please.

A Brenda D. Sloan.

Q And by whom are you

employed, Ms. Sloan?

A Mary Washington College.

Q And what is your position

at Mary Washington

App. 133

College?

A I’m special collections

librarian.

Halasz & Halasz

Q And how long have yor been

employed at Mary

Washington College?

A Since January of

1982.

Q All right. And are

you an academic

appointment? Do you have an academic

appointment? Are you

considered faculty?

Administrative faculty.

Administrative faculty?

Right.

And for the record, your race?

African-American.

o FF ob ke Db &

All right. Now Ms. Sloan, were

you ever

the -- was there ever a

black faculty staff

App. 134

association

created at Mary Washington

College?

A Yes. I was one of

the founding members of

that association and cochair in 1986.

Q 1986. And how long did you

stay at cochair?

A To 1990. And then from 1990 to

1992 I was president of the association.

Q All right. And why was the

association

created?

A Well, there were a lot of

incidents going on on campus that

involved the African-American community

that we felt should be addressed.

Q Such as?

App. 135

Halasz & Halasz

3 0

A There were people who had come

to us about being harassed in the

physical plant.

MR. HORSLEY: objection, Your Honor.

This is going to be a continuing

objection.

THE COURT: She isn’t offering it for

the truth. It’s background information

on why the black faculty association

came to be.

MR. HORSLEY: Her testimony relates to a

period of time before Mr. Jiminez was

ever hired by the college.

App. 136

THE COURT: All right.

BY MR. EL-AMIN:

Q Go ahead. What were the other

reasons for creating the association?

A Well, we were also concerned with the

recruitment; getting more black faculty

staff on campus. ‘,@e were involved

with not only the faculty and staff, but

the concerns of our African-American

students. We wanted to be able to

assist administrators in trying to

recruit black students and black

faculty. And we also served as a

networ@é: in which we were a support

network for each other because there

were only a handful of us there, and we

felt we needed this network.

Q All right. In terms of percentages,

would you

App. 137

Halasz & Halasz

(,-(()25

-@A

indicate whether the black faculty

represented -- was that less than -- was

it more than 10 percent of the faculty

or less?

A Less. At that time.

Q All right. Now did you

present your gz oup to

Dr. Hall and Dr. Anderson?

A Yes. We met on a --

App. 138

sometimes monthly basis.

Like, it was, like, a forum that members

of the black

faculty staff would come and address

concerns that we had.

Q And what was your experience in

respect to Dr. Anderson and’Dr. Hall’s

receptivity to the concerns and your

organization?

A well, in one of our meetings we

were told by Dr. Anderson that there was

some faculty members on our campus that

considered our group an adversarial

organization.

Q All right.

A Of course, my response at that

time was, What

App. 139

was your response to them.

Q What did he say?

A He didn’t answer. So my

response was, Well, I suppose when they

made that negative comment about us and

you didn’t respond, that was like

telling them that yes, they are.

Q Did he seem to be Opposed to the

organization

Halasz & Halasz

(It0026

as a group? Did he appear to have

any opposition to it or express any

Opposition?

A He never told us that he had any

Opposition to it, but when we would take

concerns, it took a while to get them

App. 140

addressed, and it was a lot of red tape.

And we were -- you know, we were asked

that you address a particular dean or a

particular department, and it would just

take so very long to get correspondence

answered. And a lot of our meetings

were canceled an hour or two before we

were supposed to meet, so we got the

impression that we weren’t really

important.

Q All right. Did

there -- and what about

ie.

Hall; did you have to interface with

him as dean and

president and vice president for

academic affairs?

A He met with our

group several times when

had concerns that -- see, what they

would do is bring i. n

those people in the departments where

we had a concern. SC when we had a

App. 141

conc aba teaching faculty and

promotions and mentoring programs and

student evaluations, we would bring in

‘ ‘ Cc nd ou

know, we would discuss things with him.

Q And in terms of implementing some of

t d and concerns that you have

how did you find Dr. Hall? How was his

xr tiv ur _ concerns?

A Wel we got the

impression that, you know,

£a-..«1

afl)’, -,9

1, 7,

App. 142

what we would do comb the chronicles of

higher education to find out what other

schools were doing that had black

faculty and Xerox articles and make

things available to them. And, you

know, sometimes our response would be,

Well, _— know we can’t violate academic

freedom; we r-an’t force people to do

things. And the only thing we

were.asking, you know -- we would also

maintain the direction would have to

come from the top. And if they don’t

get directions from the dean and the

president, then things would go on as

usual.

Q And over this course of, say,

1986 to 1992, did you feel -- what was

your impression in respect to them being

App. 143

proactive in terms of presenting the

kind of atmosphere that you thought was

necessary to deal with racial climate?

Was it good or bad?

A Well, it was not -- it was not

very good because we would -- when we

would come up with these suggestions, it

would be -- for instance, like, at one

mo we came up with the suggestion for

recruiting; that when various department

heads would go out recruiting, that --

maybe professional meetings, that they

would take a member of the black faculty

staff so that we would, you know, show

some type of concern that we wanted to

recruit. And that was accepted, but it

never was followed through on.

Q Whose responsibility would

it have been?

App. 144

Halasz & Halasz

im .Cog. sR

A I assume that because Phil Hall

said that @,,e would do this. But the

letter that went out to faculty -

-nembers was not a letter saying, This

is what I want you to do. It was saying,

It would be wise if you did that. So to

us that read, You do it if you want, you

don’t have to do it.

Q Now do you recall the incident

involving student evaluations with Karen

Williams?

A Yes, I do.

Q All right. Do you know -- what

was the concern in respect -- was Dr.

Williams black or white?

A She’s African-American.

Q And what was some of the

concerns raised by her situation? Do

App. 145

you recall?

MR. HORSLEY: Objection.

Again, your Honor, we’re not trying

Karen Williams’ case, and we’re not

trying racial attitudes on campus.

We’re trying simple-discrimination case.

My objection would be continuing.

THE COURT: You have a

continuing objection.

Proceed.

MR. EL-AMIN: All right.

BY MR. EL-AMIN:

Q Explain what you recall of

the Karen Williams

af fair.

Halasz & Halasz

(!1C(jLo.g

3 6

A In one of our meetings that we

had with Anderson -- and I don’t know --

App. 146

Dr. Anderson was always present, but I

don’t remember whether or not Phil Hall

was there. But I remember that we did

discuss negative student evaluations and

the kinds of things that -- especially

Karen’s situation because she was a

black female, and we thought that was a

double whammy for her because the kinds

of things she had to encounter that we

did not feel that was happening to other

women. For instance, she would -- every

semester she was confronted by students

wanting to know whether or not she had

proper credentials to teach them. And

we brought those concerns that that kind

of foolishness should stop in the

Classroom where African-American faculty

members are confronted by students in

such a negative manner.

App. 147

Q What was Dr.

Anderson’s response to

that?

A I really don’t

remember, but nothing

happened.

I don’t think her

department -- according

to Karen and

meetings that we had --

she always kept us

informed -- and

nothing, she said, went back to the

director of her department that

something should be done about that and _

about the negative evaluations that she

was beginning to receive about whether

Or not she was organized, whether or not

she was competent, whether or not she

was available and whether Or not she

knew that she was there because she was

Halasz & Halasz

App. 148

00030

an affirmative action person.

Q Those were comments being made

by students?

A Those are comments that Karen

shared with us in a public meeting about

the kind of things she had to encounter

every semester. And every semester her

evaluations got worse, and so our

concern was for everybody. We wanted to

correct it for everyone, and we were

concerned that the school weighted

student evaluations so heavily,

especially unsigned student evaluations,

which meant we felt students felt if

they didn’t have to sign it, they could

sav anything they wanted to. And we

were concerned that the college -- some

departments, I should say -- some

departments would use those evaluations

NC nT NT NED CNN ee

App. 149

and say, Well, it’s obvious you’re not

an effective teacher. And we would

bring those concerns because we thought

they should do somet ag about student

evaluations counting so heavily because

a lot of our members were receiving a

lot of negative evaluations and some of

them were just downright racist.

Q All right. Now did you -- was

Dr. Hall and Dr. Anderson aware that

you-all were bringing these concerns of

racist evaluations to their attention?

A Yes. They were on our

agenda almost every

month.

Q Did you ever -- did Dr.

Hall or Dr. Anderson

App. 150

ever issue in writing indicating that

-that would not be

Halasz & Halasz

C(?0-11l-1

/ 4

eee

tolerated?

A Well, they would say that.

Q Did they ever issue something to

the department or to the students?

A We never saw it.

Q You never saw it?

A We never saw it.

Q All right. Were you looking for

that to

happen?

Defendant’s

Exhibit 11

MARY WASHINGTON COLLEGE

STUDENT COURSE REACTION QUESTIONNAIRE

Course Information: Discipline

Course Number Suffix

Section Date:

Instructor

As a teaching institution, Mary

Washington is committed to the continued

improvement of its courses of

instruction. Students can play a role in

this process by furnishing candid and

honest reactions to the instruction they

are receiving. This questionnaire gives

you an opportunity to express anonymously

your views concerning this course and the

way it has been taught. The results of

this questionnaire will be considered

when personal decisions concerning this

faculty member are made.

IN ORDER FOR YOUR EVALUATION TO BE

TABULATED, ITEMS 1-5 MUST BE ANSWERED

1. My student status is: fae eS

Freshman, [ ](2) Sophomore, [ ](3) Junior

{ }(4) Senior [ ](5) Other

2. This course is [{ }(1) In major

and required, [{ ]}(2) In major but not

required, [{ )(3) Not a major but

required, [ ](4) Not in major or

required.

3. The number of times I have been

absent from this class is: [ ](1) 0 to 3,

( .}€2)- 4) to byt 3¢3) °F t6°9, £° 344) 10

or more.

4. My overall GPA is: [{ J](1) 3.00

or greater, [{ }](2) 2.00-2.99, [ }(3)

1.00-1.99, [ ]}(4) Less than 1.00, [ ] No

GPA yet.

5. The grade I expect to receive in

this course is: [{ }(%) A, { }(2) 8B, [

}(3) C, [ }(4) D, [ 9(5) F, ( (6) Other

(P.S. etc)

RESPOND TO EACH OF THE FOLLOWING

STATEMENTS WITH THE RESPONSE NUMBER WHICH

MOST ACCURATELY DESCRIBES YOUR REACTION

TO THE STATEMENT, PLEASE USE THE “O"

RESPONSE IF IT APPLIES.

(Use #2 Pencil) (O) Not applicable or

don’t know; (1) Strongly disagree; (2)

Disagree; (3) Neutral, neither

agree/disagree; (4) Agree, (5) Strongly

agree.

6. CO} (1) (2) (3) [4) [5) The

course material was presented in an

Organized manner.

7. (0) [1) [2) (3) [4) (5] Class

time was used constructively.

Sec: (OY (RP E27 E33 (4; (5] The

course material was covered at a pace

that was neither too fast nor too slow.

9. (0) (1) [2] [3] [4] [5] The

objectives for the course were clearly

stated.

10. [0) (1) (2) [3] [4] [5] The

professor was well prepared for class.

11. (0) (1) (2) (3] [4] [5] The

professor helped to clarify difficult

material in class.

12. [0} (1) (2) (3) [4] [5] The

professor encouraged questions and/or

expressions of opinions in class.

13. (0) (1) [2] (3) [4] [5] The

professor aroused interest in the

subject.

14. (0) (1) (2) (3) (4) [5] The

professor was helpful when answering

student questions. |

15. (0) (1) [2] [3] [4] [5] The

professor encouraged students to think.

16. (0) (1) [2] (3) [4) [5) The

professor showed concern for student

progress.

17. (0) (1) (2) (3) (4) [(5}) The

professor maintained office hours.

18. (0) [1] (2) (3) [4) [5) The

professor was available outside of class

for help.

19. (0) (1) (2) (3) (4) [5]

Assignment deadlines and/or major test

dates were announced well in advance.

20. (0) [1] [2) [3] [4] [5] The

tests reflected the important aspects of

the course.

21. (0) (1) (2) (3) (4) (5)

Assignments and/or tests were handed back

within a reasonable length of time.

22. (0) {1} (2) (3) (4) [5) The

professor made helpful comments on papers

and/or tests.

23. (0) (1) [2] [3] [4] [5] The

professor’s criteria for grading were

clear.

24. (0) {1} (2) [3] [4] [5] Please

give this course an overall rating on a

scale of one to five (five being the

highest).

YOUR PROFESSOR MAY PROVIDE ADDITIONAL

QUESTIONS TO BE ANSWERED AS ABOVE.

25. (0) (1) (2) (3) (4) [5]

26. (0) (1) (2) (3) (4) [5]

27. [0} (1) [2] [3] (4) [5]

28. (9) (1) (2) [3] (4) [5]

29. (0) (1) [2] (3) (4) [5]

Please use the back of this sheet to

make written comments on the strong and

weak aspects of the course or to

elaborate on any of the questions above.

Your comments will be read by the Dean,

the Department Chairperson and the

Instructor.

Defendant’s

Exhibit 1

COMMONWEALTH OF VIRGINIA

APPLICATION FOR EMPLOYMENT

Employees of the Commonwealth and

applicants for employment shall be

afforded equal Opportunity in all aspects

of employment without regard to race,

color, religion, political affiliation,

national origin, handicap, sex or age.

i Position applied for: Assistant

Professor of Economics.

2. Agency: Mary Washington College.

38 Social Security No.: 293-68-5144.

(NOTE: Completion of number three is

Optional. Failure to submit social

security number on this form will not

prohibit employment consideration.

Social Security Number may be required on

other forms prior to employment. )

4. Full legal name: Jiminez, Anthony

Ernest.

- Address: 2 Maple -_E. Apartment

#T, Albuquerque, NM _ 87106.

6. Home Phone: (505) 247-4307

7. Business Phone: 0 77-

8. Date of Birth: 4/15/50

(NOTE: The Age Discrimination in

Employment Act of 1967 as amended

prohibits discrimination of the basis of

age with respect to individuals who are

at least 40 years of age.)

9. Education

a. Circle highest grade completed:

12345 67.89 1319:41.142

Year Completed 1968

b. If you did not complete high

school, do you have a high’ school

equivalency diploma? —_ Yes __ No Date

Received

c. Circle number of years of post

high school education 123 45 67

Name and Location of Institution

3% ou town tate niversit

Youngstown, OH 44553

Hrs. 195

Degree Received BA (Cum Laude)

Major or Specialty Economics & Finance

Minor Accounting and Political Science

Dates Attended 1975-1982

2. University of New Mexico

Hrs. 72

Decree Received See (d) below

Major or Specialty Natural Resource Econ

Minor Applied Microeconomics and Math

Economics

Dates Attended 1982-1989

d. If you expect to complete an

educational program in the near future,

please indicate what type of degree or

program and expected completion date:

PhD in Economics Expected June 1989

10. Experience - Use Supplementary

Experience Form(s) for additional space.

Starting with the most recent, describe

ALL paid, military and applicable

voluntary experience. Highlight your

knowledge, skills and abilities which

best demonstrate your qualifications for

this position. You may list

significantly different jobs within the

same organization as separate items. May

we contact your present supervisor?

a. Job Title Teaching Associate

Employer University of New Mexico

Address Albuquerque, NM _ 87131

Phone (505) 277-5304

Type of Business University

Immediate Supervisor Dr. Ronald Cummings

Title Chairman-Economics Department

Salary (start) $840/mth (finish) $840/mth

Dates (mo/yr) 8/88 to (mo/yr) present

Full-time Part-time Hours/Week 8

Duties Teach Micrdeconomic Theory and

Macroeconomic Theory at _Both the

Introducto nd te Vv

Number and titles of employees you

supervised 216 Students Currently

Equipment used

Reason for leaving Accepted Faculty

Positio t Ma Washinaton College

Your name if different from present

b. Job Title Teaching/Research

Assistant

Employer University of New Mexico

Address Albuquerque, NM 87131

Phone (505) 277-5304

Type of Business University

Immediate Supervisor Dr. Ronald Cummings

Title Chairman-Economics Department

Salary (start) $450/mth (finish) $600/mth

Dates (mo/yr) 8/82 to (mo/yr) 5/88

Full-time Part-time Hours/Week 20

Duties Assist in Ongoing Research,

Lecturi xamination eview

Examination Discussions and Grading for

Microeconomic Theory at Both the

Introductory and Intermediate Levels

Number and titles of employees (students)

you supervised 90 per semester (on

average)

Equipment used

Reason for leaving

Your name if different from present

c. Job Title Management Trainee

Employer Reid’‘s Shoe Factory

Address Pole # 148 Chinapoo Village,

Laventille Rd., Port-of-Spain, Trinidad,

Phone

Type of Business Shoe factory

Immediate Supervisor Mrs. Margot Reid

Title Co-Owner

Salary (start) 12 mt (finish)

$1500/mth

Dates (mo/yr) to (mo/yr)

Full-time Part-time Hours/Week __

Duties In Training to Oversee The

Accounting Department

Number and titles of employees you

supervised 10

Equipment used

Reason for leaving To Attend Graduate

School

Your name if different from present

e. Use this Space for any

additional information you think would

help us evaluate your application,

including training, seminars, workshops,

special achievements or specialized

skills

£. Automated word processing

(specify equipment)

typing speed words per minute.

Shorthand speed words per minute.

g.- License (to include driver’s),

certificate or other authorization to

practice a trade or profession.

Type

License Number

Expiration date

Granted by (licensing board)

ll. References

List names, addresses and relationships

of three persons not related to you who

know your qualifications: Dr. Ronald

Cummings, c/o Economics Dept., Universit

of New Mexico, (505) 277-5304, my

professor

Dr. Stuart Burness, c/o Economics Dept.,

University of New Mexico, (505) 277-5304,

my professor

Dr. rt Churc c/o Economics Dept.,

University of New Mexico, (505) 277-5304,

my professor

12. Miscellaneous

a. Check which shift you will

accept: day evening night

Rotating Weekends Specify shift

hours

b. Check which job status you would

accept full-time part-time

(specify)

Cc. Check which empioyment status

you’d accept: salaried (benefits)

hourly (no benefits) part-time

salaried (leave benefits only).

d. Are you willing to accept

employment which requires you to travel?

__no yes. If yes, __—s during the

day only, ____ ‘occasionally overnight ___

frequently overnight.

e. List the geographic locations in

which you are willing work. If anywhere

in Virginia, write "all" Fredericksburg.

f. For purposes of compliance with

The Immigration Reform and Control Act,

are you legally eligible for employment

in the United States? yes ___ no.

Under the Immigration Reform and Control

Act of 1986, you will be required to fill

out a certification verifying that you

are eligible to be employed and verifying

your identify. Further, you will be

required to provide documentation to that

effect should you be employed.

g. Are you willing to provide your

Own transportation if necessary for your

employment? —_ yes ___ no.

h. For purposes of compliance with

Section 2.1-112 of the Code of Virginia

have you ever served in the Armed Forces

of the United States during the following

dates? (check the appropriate dates):

World War I-4/16/17-4/1/20;

World War II-12/7/41-12/31/46; __—- Korean

Conflict-6/27/50-1/31/55; _ $Vietnam

Conflict-8/5/64-3/7/75; _ |= None of the

dates shown, but I did serve in the

military.

i. Have you ever been convicted of

a law violation(s), including moving

traffic violations but excluding offenses

committed before your eighteenth birthday

which were finally adjudicated in a

Juvenile Court or under a youth offender

law? Yes no. If yes, list all

and explain.

13. When will you be available to start

work? (No date is necessary if you are

available as soon as you give two (2)

weeks notice.) 8/21/89

14. CERTIFICATION- Each Application

Requires Current Date and Original

Signature.

I hereby certify that all entries on both

sides and attachments are true and

complete, and I agree and understand that’

any falsification of information herein,

regardless of time of discovery, may

cause forfeiture on my part to any

employment in the service of the state of

Virginia. I understand that all

information on this application is

subject to verification and I consent to

references and former employers’ and

educational institutions listed being

contacted regarding this application. I

further authorize the Commonwealth to

rely upon and use as it sees fit any

information received from such contacts.

Information contained on this application

may be disseminated to other agencies,

non-governmental organizations or systems

on a need to know basis for good cause

shown as determined by the agency head or

designee.

Date 3/4/89 Applicant Signature

/s/ Anthony E. Jiminez

COURSE TOTALS FOR ECON 354 01 ****

JIMINEZ, ANTHONY

Number of Surveys 6

Student Status

FR: 0 SO: 0 JR: 6 SR: O Other:0

Course Relation to Major

MR: 0 MNR: 3 NMR: 0 NMNR: 3

Number of Absences

0-3: 2 4-6: 2 7-9: 2 10+: 0

Student Overall GPA

3-4: 3 2-3: 2 1-2:1 0-1: 0 NoGPA: 0

Student Expected Grade

A’s: 5 B’s: Q C’s: 0 D’s: O F’s: QO

Other 0

STUDENT REACTION SURVEY

Survey Frequency Average

Statement / (Exclude 0)

Category , 2 foa & &

6 , & & & @& 2 4.3

7 S @& @ G ae 4 4.7

ue]

re)

Totals

Summary

0.0

Totals

Totals (Excluding 25-29)

00421

000420

COURSE TOTALS FOR ECON 202B 02 ****

JIMINEZ, ANTHONY

Number of Surveys 16

Student Status

FR: 8 SO: 3 JR: 3 SR: 0 Other:2

Course Relation to Major

MR: 5 MNR: 0 NMR: 6 NMNR: 5

Number of Absences

0-3: 10 4-6: 3 7-9: 2 10+: 0

Student Overall GPA

3-4: 7 2-3: 8 1-2:0 0-1: 0 NoGPA: 0

Student Expected Grade

Other 1

STUDENT REACTION SURVEY

Survey Frequency Average

Statement / (Exclude 0)

Category Se oe Fee

Totals

Totals 48s @ Bree. S28

Summary

24 a? a oe ee 4.1

25 °° 60 8 & @ 0.0

26 0600 0 0 0 0.0

27 ae a eo ae 0.0

28 0 00 0 0 0 0.0

29 °c @ @¢G¢@ iG 0.0

Totals Re & € SF 0.0

Totals (Excluding 25-29)

12 15 45 108 133 4.7

Defendant's Exhibit

No. 22

Student Course Reaction Questionaires

Org Org Clas Clas Rel Rel

AEJ Econ AEJ Econ AEJ Econ

o “Sie: v2

24. NeR

+198 SOR eRe OR ee eet en eeee ees Oe eeeeeeeseeeseess

: - : . : i

F89 S90 F90 S91 F91 S92 F92 S93

C AEJ =) Econ ‘ ra ae gest dee

eee e nee cesceces

seeeee ese

Defendant's

Exhibit No. 22

Defendant’s Exhibit No.

Average Section Enrollment

per Semester

AEJ ECON

SSG 27 23

PSG 27 28 ‘

S3k 624 26

Yok: 20 27

592° 11 26

¥S2 24 27

S93 9 26

MEE ececcs Eh bese gee “Pacceesd oacece] feossees 2

ese 7 bod

“yt gg "\F90,.,, S91", F91°. S92 F92 S93

pee [MAES GECON

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