Bina v. Providence

• Court: Court of Appeals for the First Circuit
• Decided: November 4, 1994
• Docket: 94-1263
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 94-1263

                                     CYRUS BINA,

                                Plaintiff - Appellant,

                                          v.

                             PROVIDENCE COLLEGE, ET AL.,

                               Defendants - Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                             and Keeton,* District Judge.
                                          ______________

                                _____________________

               Robert  B. Mann, with whom Mann & Mitchell and Harold Krause
               _______________            _______________     _____________
          were on brief for appellant.
               Richard P. McMahon, with whom Marifrances McGinn and McMahon
               __________________            __________________     _______
          & McMahon were on brief for appellees.
          _________

____________________

                                   November 4, 1994
                                 ____________________
                              
          ____________________

          *  Of the District of Massachusetts, sitting by designation.


KEETON, District  Judge.  This is an  action for ethnic
                            _______________

          discrimination in  employment and breach of  contract arising out

          of denial of an application for a tenure track position.  For the

          reasons  explained, we affirm the  judgment of the district court

          for defendants.

                                    I.  Background
                                    I.  Background

                    In  1987,  the  Department of  Economics  of Providence

          College employed  the plaintiff,  Dr. Cyrus Bina,  as an  Adjunct

          Associate Professor.   Dr. Bina,  Iranian by birth,  had received

          his Ph.D in the United States.

                    In April  1988,  members of  the  Economics  Department

          voted unanimously  to  recommend  Dr.  Bina for  a  tenure  track

          position because they  believed that his  record of research  and

          publication would strengthen the department.  Under the College's

          rules and  practices, both  the Committee  on  Academic Rank  and

          Tenure  (CART) and the President  of the College  must approve an

          appointment.    CART  voted  nine  to  zero  against  Dr.  Bina's

          appointment.

                    Dr. William  J. Simeone, Chair  and Associate Professor

          of  Economics  at  the  College, asked  Father  John  Cunningham,

          President of  the College, to  overrule CART.   Father Cunningham

          responded  that  he  lacked  authority  to  do  so,  but  at  his

          extraordinary request CART reconsidered Dr. Bina's application on

          June  22, 1988.  On June 26, CART voted four to three in favor of

          the appointment.

                    Dr. Francis  MacKay, CART chairman  and Vice  President

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for    Academic Affairs,  sent  Dr.  Bina  a letter  on  June  27

          extending to him an  invitation "to join the Ordinary  Faculty of

          Providence College for the academic year 1988-89" as an Associate

          Professor  of Economics.   The  letter made  clear that  Dr. Bina

          would  have  to  serve  a four  year  probationary  period before

          receiving  tenure.   The  letter  stated  that  "[t]he  offer  is

          considered  open and  valid for  10 days  from  the date  of this

          letter."   Dr. MacKay further  indicated that he  would forward a

          contract to Dr. Bina "[w]hen you  let us know in writing that our

          offer is acceptable to you."

                    In a  July 1 meeting  with Father Cunningham,  Dr. Bina

          expressed his dissatisfaction with the probation condition of the

          offer.    In fact,  every tenured  member  of the  department had

          served four years of probation.  Father Cunningham explained that

          he could suggest only that Dr.  Bina take his case to Dr. MacKay,

          and told Dr.  Bina that "if necessary, the time  [limit] could be

          extended for  a few days."   Dr. Bina immediately  sought out Dr.

          MacKay,  but was  not able to  obtain an audience  with him until

          July 26, 1988.   At that  meeting, Dr. MacKay  urged Dr. Bina  to

          accept the original offer, but Dr. Bina refused.

                    Dr.  Bina  was  dismayed  to receive  a  letter,  dated

          August 3, from the Associate Vice President, writing by authority

          of  Dr. MacKay, informing  him that the  offer of a  tenure track

          position extended on June  27, 1988, had expired.   The August  3

          letter also informed Dr. Bina that he could  remain as an Adjunct

          Associate Professor  through 1990, under his  1987 agreement with

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the College.  Dr. Bina again turned to Father Cunningham for aid,

          this time  by a  letter (of  August 11)  consisting largely of  a

          protest  against  his  perceived  mistreatment  by  the  College.

          Dr. MacKay,  responding on Father Cunningham's behalf, reiterated

          that  the June 27 offer had  expired without being  accepted.  On

          August  31, 1988, Dr. Bina finally  wrote "to accept the offer of

          the  tenure track  position."    But it  was  too late,  and  his

          contract  as an Adjunct Associate Professor was renewed for 1988-

          89 on September 2.

                    Near the  end of the 1988-89 academic  year, CART again

          considered Dr. Bina  for a tenure track  position.  This time,  a

          committee consisting of three new members voted four to three not

          to  offer Dr.  Bina the position.   It  is not  clear whether the

          position was subsequently filled or remained open.

                    On May  17, 1991,  Dr. Bina  brought  suit against  the

          College, Father  Cunningham, and  Dr. MacKay in  federal district

          court, alleging  ethnic discrimination in violation  of 42 U.S.C.

           2000(e)  et seq. (1988) (Title VII), 42 U.S.C.  1981 (1988), and
                    __ ___

          R.I. Gen.  Laws  42-112 et  seq. (1990),  and a pendent  claim of
                                  __  ___

          breach  of contract.   After  pretrial proceedings  that narrowed

          issues and  a four-day bench  trial, the  district court  ordered

          judgment for defendants on  all counts.  We limit  our discussion

          to the issues presented on appeal.

                                 II.  Title VII Claim
                                 II.  Title VII Claim

                    Plaintiff contends that CART  denied him a tenure track

          position in  May 1989 because he  is Iranian.  In  his brief, the

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plaintiff also  raises the  specter of discrimination  because of

          his accent in speech, but does not develop this as an independent

          claim, so we do not address it separately.

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A.        The District Court's Application of the Burden-Shifting
          A.        The District Court's Application of the Burden-Shifting
                    Framework
                    Framework

                    Plaintiff's appeal rests  largely on the  argument that

          defendants  did   not  meet   their  burden  of   articulating  a

          legitimate, nondiscriminatory reason why Dr. Bina was not offered

          a  tenure  track  position in  May  1989.    See  Texas Dept.  of
                                                       ___  _______________

          Community  Affairs v. Burdine, 450 U.S. 248, 252-56 (1981).  This
          __________________    _______

          argument, in turn, rests principally on a short  exchange between

          the district court and one of the defendants'  attorneys.  On the

          last day of trial,  in response to the court's  question why CART

          did not offer  Dr. Bina a tenure track position  in May 1989, the

          College's attorney responded:

                      Your  Honor, CART  is secret  ballot.   I
                      have  no  idea  why.   It  was  the  CART
                      Committee  and they  made  a decision  in
                      June  of 1988.   It was four  to three in
                      favor.   In  1989  it was  four to  three
                      against.  I do  not know why they decided
                      the way they decided in either case.

          According  to plaintiff,  this admission clinches  his contention

          that defendants did not meet their burden of production.  Defense

          counsel's moment  of exceptional  candor, however, is  no smoking

          gun.

                    Plaintiff's   heavy  reliance  on  the  above  exchange

          displays  a fundamental misinterpretation  of the burden-shifting

          framework in Title VII cases and, in particular, of the nature of

          defendant's burden of production.

                    In  deciding this  appeal, we  need not  decide between

          plaintiff's  and defendants'  positions  about whether  plaintiff

          proved his prima facie  case by a preponderance of  the evidence.

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Plaintiff says he did.  Defendants contend that plaintiff did not

          make  out his prima facie  case because the  district court could

          not  determine whether the position was  given to someone outside

          the  protected class or remained open, but found that "one or the

          other occurred."   District Court  Opinion, at 6.   The  district

          court, however,  addressed and  put to rest  defendant's argument

          when it made clear that the prima facie case could  be met either
                                                                     ______

          by  showing that the position  was filled by  someone outside the

          protected  group, or that "'the employer had a continued need for

          someone to perform the same work after [the complainant]  left.'"

          District Court Opinion at 17 (quoting Cumpiano v. Banco Santander
                                                ________    _______________

          Puerto  Rico,  902  F.2d  148,  155  (1st  Cir.  1990)  (internal
          ____________

          quotation  omitted)).   Thus,  one may  reasonably interpret  the

          District  Court Opinion as  finding, or  at least  assuming, that

          plaintiff met  the burden  of proving  a  prima facie  case by  a

          preponderance of the evidence.

                    We  do  not  address  plaintiff's   argument  that  the

          district  court erred  in finding  Dr. Bina  unqualified for  the

          position.   We need not do  so, not only because  we are assuming

          that  plaintiff proved his prima facie case, but also because the

          district court  found that CART considered  Dr. Bina unqualified,
                                          __________

          not that Dr. Bina was in fact unqualified.

                    We  proceed to  consider whether  defendants met  their

          burden  of  producing evidence  that plaintiff's  application was

          rejected  for  a  legitimate,  nondiscriminatory  reason.     See
                                                                        ___

          Burdine, 450 U.S. at 254-55. 
          _______

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Under the  Burdine structure for decision,  a defendant
                               _______

          does  not have this burden until plaintiff proves the elements of

          the prima  facie case by a  preponderance of the evidence.   As a

          pragmatic matter, however, "the  defendant feels the 'burden' not
                                                     _____

          when the plaintiff's  prima facie case is proved, but  as soon as
                                                    ______

          evidence of it is introduced."  St. Mary's Honor Center v. Hicks,
                                          _______________________    _____

          ___ U.S. ___,  ___, 113 S. Ct. 2742,  2749 n.3 (1993).   There is

          thus no  discrete moment  at which a  defendant, concluding  that

          plaintiff has proved a prima facie case, must formally articulate

          nondiscriminatory reasons  for the  employment decision.   Id. at
                                                                     ___

          2755.  Rather,  as Justice  Scalia made  clear in  response to  a

          concern  of  the  dissent  in  St.  Mary's  Honor   Center,  "the
                                         ___________________________

          defendant's  articulated  reasons  themselves  are  to  be  found
                                             __________

          lurking in the record."  Id. (internal quotations omitted).
                                   ___

                    It is  precisely in the record that the district court,

          in this case, looked to find defendant's articulated reasons--and

          in a part of the  record highlighted by counsel on both  sides in

          the district  court and on appeal.   The minutes of  the May 1989

          CART meeting,  reproduced in full in the  district court opinion,

          reveal  that  several  members   of  the  committee  agreed  that

          "Dr. Bina is very hard  to understand at times and  often appears

          disorganized  when lecturing  to  an audience."   District  Court

          Opinion at 10, n.3.  Two members strongly implied that Dr. Bina's

          teaching  skills, as  measured  by student  evaluations, had  not

          improved since his application for the  tenure track position the

          year  before, when  significant questions  were raised  about his

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teaching  ability.   Furthermore,  the  minutes of  the  May 1989

          meeting reflect  a concern about  Dr. Bina's attitude  toward the

          College.   Some  appeared to  feel, partly  on the  basis of  his

          declining the 1988 offer,  that he held the College  in contempt.

          The minutes  thus "articulate" the College's  reasons for denying

          Dr. Bina a tenure track position.

                    Even  if these reasons were voiced by a minority of the

          committee members, their presence in this record is sufficient to

          meet the articulation burden.  A "defendant need not persuade the

          court that  it was actually motivated by  the proffered reasons."

          See Burdine, 450 U.S. at 254.  Thus, in this case defendants need
          ___ _______

          not  show, in order  to meet their  burden of production,  that a

          majority of the  committee were motivated by the reasons advanced

          by individual members, as reflected in the minutes.

                    Once the  court received into the  record evidence from

          which legitimate reasons for  defendants' employment action could

          be  gleaned, the burden of production was met.  Defense counsel's

          statement that  she was unaware why the committee voted as it did

          (on which plaintiff  relies as if it were a  binding admission of

          failure to articulate any nondiscriminatory reason) does not have

          the effect  of  striking  from  the record  the  articulation  of

          nondiscriminatory reasons  already there.  A  defendant's reasons

          for  an employment decision  are to  be established  "through the

          introduction of admissible  evidence," not through nontestimonial

          statements by defendant's counsel.  St.  Mary's Honor Center, 113
                                              ________________________

          S. Ct.  at  2755 (internal  quotations  omitted).   Moreover,  in

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context,  counsel's  statement to  the  court  may reasonably  be

          understood as a  candid admission  of lack of  knowledge why  any

          particular member of the committee voted as he or she did.  "CART

          is secret ballot.   I  have no idea  why."  On  this record,  the

          district  court  could reasonably  find  that  this statement  by

          counsel    was   not    an   admission   that    no   legitimate,

          nondiscriminatory reason had been articulated.

                    Plaintiff  implied in  oral argument  and in  his brief

          that entry of  the minutes in  the record was  not sufficient  to

          meet defendants' burden  of production  because plaintiff  rather

          than defendants introduced  the minutes into evidence.   To adopt

          such  a   view,  however,  would   be  to  convert   the  Burdine
                                                                    _______

          decisionmaking structure from  an aid to fair adjudication on the

          merits to a set of  procedural snares for the unwary.   Plaintiff

          could  set  a  trap by  offering  evidence  that,  if offered  by

          defendant, would  meet defendant's burden.   Plaintiff could then

          wait to  spring  the trap  until  defendant had  rested  (without

          wasting public and  private resources by offering  again, as part

          of defendant's  case, precisely the same evidence  that the court

          had  already  received in  evidence,  without  any suggestion  by

          either  party that the court had received or should have received

          the evidence for a limited purpose).  This argument would deserve

          no more attention now even if it had been openly presented to the

          district court, not just on appeal.

                    We  conclude  that the  district court  did not  err in

          determining that defendants met their burden of production.

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B.        District Court's Finding of No Discrimination
          B.        District Court's Finding of No Discrimination

                    Plaintiff  further  contends  that  the  district court

          erred  in  finding that  plaintiff  failed  to prove  intentional

          discrimination by defendants.  

                    A court of appeals may disturb a  trial court's finding

          on  this  question  of  ultimate  fact  only  if  it  is  clearly

          erroneous.  See Anderson  v. Bessemer City, 470 U.S.  564, 573-76
                      ___ ________     _____________

          (1985);  Cumpiano v. Banco  Santander Puerto Rico,  902 F.2d 148,
                   ________    ____________________________

          152 (1st Cir. 1990).  

                    This court has  previously suggested  that trial  court

          review of tenure  decisions should be guided  by an appropriately

          deferential standard.  

                      A court may not simply substitute its own
                      views    concerning    the    plaintiff's
                      qualifications for those of  the properly
                      instituted authorities; the evidence must
                      be  of such  strength and  quality as  to
                      permit  a  reasonable  finding  that  the
                      denial  of  tenure  was   "obviously"  or
                      "manifestly" unsupported. 

          Brown  v. Trustees of Boston  University, 891 F.2d  337, 346 (1st
          _____     ______________________________

          Cir.  1989).    The  district court  appropriately  applied  this

          standard to the  present case, even though this is  a case not of

          denial of tenure but  of denial of appointment to  a tenure track

          position.  The district court's finding is amply supported by the

          record.

                    Plaintiff  points to  two major categories  of evidence

          that he contends  warrant a  determination of clear  error.   The

          first consists  of allegedly derogatory or  prejudiced statements

          made  by various people who  participated in reviewing Dr. Bina's

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application  for  a tenure  track  position.   These  statements,

          however, do not  support a determination that  the district court

          committed  clear error.  The few instances of statements that are

          reasonably  construed  as   insensitive  or  narrow-minded   were

          instances of statements made in 1987 and 1988.  Even if construed

          in the most negative light, Dr. MacKay's comment in  1987 and the

          comments by  him and others during  the April and  June 1988 CART

          meetings  do not  compel  a finding  that  the 1989  meeting  and

          decision were  infected by  intentional discrimination.   Indeed,

          the minutes of  the May 1989 meeting, to which the district court

          understandably  assigned  great  weight,  reveal not  a  hint  of

          discriminatory animus.

                    Nor did the  district court clearly err in finding that

          most  of  the  statements   plaintiff  points  to  were  properly

          understood in  a neutral, nondiscriminatory light.   For example,

          references to  audience difficulty in understanding  Dr. Bina may

          reasonably  be  interpreted as  expressing  a  concern about  his

          ability to  communicate  to students  rather than  discriminatory

          animus based on ethnicity or accent.

                    Plaintiff  makes, also, an  implied disparate treatment

          claim  when  he  relies  on the  "different"  treatment  accorded

          Dr. Bina.   The district court found that, between 1986 and 1991,

          there  was  only one  other applicant  besides  Dr. Bina  who was

          recommended for  a tenure track  position by his  department, yet

          rejected  by CART.  That person, in  contrast to Dr. Bina, had no

          research  experience.   We can  not  determine that  the district

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court committed clear error in declining to infer that this break

          in the hiring pattern was a result of intentional discrimination.

          This is a case where statistical evidence "might be suggestive or

          it might be meaningless," and we do not second-guess the district

          court's decision to attach  minimal weight to it.   See Cumpiano,
                                                              ___ ________

          902 F.2d at 156.

                    We decline to disturb the district court's finding that

          none  of  the  defendants  intentionally   discriminated  against

          Dr. Bina.

                               III.  Breach of Contract
                               III.  Breach of Contract

                    Plaintiff bases his claim of  breach of contract on two

          flawed  assertions.    First,  he  argues  that  he accepted  the

          College's offer within a reasonable time.  Second, he argues that

          the   offer   was   made   irrevocable   because   supported   by

          consideration.   The  second is  merely a  variant of  the first,

          since irrevocability is never permanent but only for a reasonable

          period.

                    The question whether a contract  has been formed is one

          of fact  so long as the  evidence does not point  unerringly in a

          single   direction  but  is  capable  of  supporting  conflicting

          inferences.   Crellin Technologies, Inc. v. Equipmentlease Corp.,
                        __________________________    ____________________

          18 F.3d 1, 7 (1st Cir. 1994).  Thus, the district court's finding

          that no contract was formed is subject to clear error review.

                    Plaintiff's  appeal  is meritless  because the  June 27

          offer expired by the  time of Dr. Bina's purported  acceptance on

          August  31.   It does  not matter, for  purposes of  this appeal,

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whether the offer was extinguished because Dr. Bina rejected it--

          as is apparent  from the record--or because  the College withdrew

          it--as is  clear from the record.   At no point  before August 31

          did Dr. Bina express a "definite and unequivocal" acceptance, see
                                                                        ___

          Ardente v.  Horan, 117 R.I. 254,  259, 366 A.2d 162,  165 (1976),
          _______     _____

          and by then it was too late.  Even if Father Cunningham's alleged

          extension of  the offer "for a few days" beyond the 10-day period

          were understood  to keep it open  until the July 26  meeting with

          Dr.  MacKay--a contention  we  decline  to endorse--the  district

          court's  finding that Dr. Bina rejected the offer at that meeting

          was  not clearly erroneous.  In any event, the College terminated

          its  offer by  the  August  3  letter,  well  before  Dr.  Bina's

          purported acceptance.  See Merit Land Corp. v. Marcello, 110 R.I.
                                 ___ ________________    ________

          166, 171-72, 291 A.2d 263, 266 (1972).

                    We therefore  conclude that the district  court did not

          err in finding  that no contract was formed between  Dr. Bina and

          the College.

                    The judgment of the district  court is affirmed.  Costs
                                                           ________

          are awarded to appellees.

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