Chance v. Rice University

Opinion

UNITED STATES COURT OF APPEALS for the Fifth Circuit

_____________________________________

No. 91-6187 _____________________________________

DR. JANE CHANCE,

Plaintiff-Appellant,

VERSUS

RICE UNIVERSITY AND ALAN GROB,

Defendants-Appellees.

______________________________________________________

Appeal from the United States District Court for the Southern District of Texas ______________________________________________________ (April 12, 1993)

ON SUGGESTION FOR REHEARING EN BANC

(Opinion February 25, 1993, 5th Cir., ____F.2d___)

Before WISDOM AND DUHÉ, Circuit Judges, and DOHERTY,1 District Judge.

DUHÉ, Circuit Judge:

Dr. Jane Chance petitions this Court for rehearing, arguing

that we erred in failing to apply the "disparate impact" standard

of Title VII of the Civil Rights Act of 1964 to her claim that Rice

University sexually discriminated against her in violation of Title

IX of the Education Amendments of 1972. Because we find that Dr.

Chance could not prevail on her Title IX claim under the "disparate

impact" standard, we need not decide which standard applies, and we

deny her petition for rehearing.

1 District Judge of the Western District of Louisiana, sitting by designation. BACKGROUND

In 1988, Dr. Chance sued Rice University (Rice) and Dr. Alan

Grob, alleging that Rice violated Title IX of the Education

Amendments of 19722 (Title IX) as well as the Equal Pay Act,3 and

that Dr. Grob intentionally inflicted emotional distress upon her.

The district court directed a verdict in favor of Dr. Grob, and

ultimately granted judgment in favor of Rice.

Dr. Chance appealed, arguing inter alia that the district

court incorrectly analyzed her Title IX claim under the

"intentional discrimination" standard set forth in Title VI of the

Civil Rights Act of 1964.4 We affirmed the district court. See

Chance v. Rice University, 984 F.2d 151 (5th Cir. 1993).

Dr. Chance has filed a Suggestion for Rehearing En Banc, again

raising the argument that her Title IX claim was analyzed

incorrectly.

ANALYSIS

Dr. Chance argues that her Title IX claim should have been

analyzed under the "disparate impact" standard of Title VII of the

Civil Rights Act of 1964. Application of this standard would

require Dr. Chance to show that certain "facially neutral

employment standards operated more harshly on one group than

another" in order to establish a prima facie case of sexual

discrimination. Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1367

2 20 U.S.C. § 1681. 3 29 U.S.C. § 206(d)(1). 4 42 U.S.C. §§ 2000d - 2000d-7.

2 (5th Cir. 1992), petition for cert. filed, (U.S. Sept. 29, 1992)

(No. 92-737); Carpenter v. Stephen F. Austin State University, 706

F.2d 608, 621 (5th Cir. 1983). Dr. Chance claims that the

subjective determination of compensation and promotion within her

department at Rice is a process controlled by males and has the

effect of denying her equal compensation and promotions compared to

her male colleagues.

The district court specifically found that no statistically

significant salary differential existed between tenured or tenure

track men and women in the Humanities Division at Rice (which

includes Dr. Chance's department) during 1987-88 and 1989-90, that

the Humanities Division actually pays tenured or tenure track women

more than tenured or tenure track men, and that all faculty members

within the same rank are treated equally in terms of assignment and

compensation. The court also found that the failure to grant Dr.

Chance the promotions she sought (two endowed chairs within the

English Department), and any differential in pay among professors

were in no way related to sexual discrimination. These findings

are supported by the evidence and are not clearly erroneous.

In light of the court's factual findings, we conclude that Dr.

Chance could not establish a prima facie case of disparate impact

sexual discrimination, as that standard is applied to her Title IX

claim, and we therefore need not decide whether her claim should

have been analyzed under that standard.

CONCLUSION

For the foregoing reasons, Dr. Chance's petition for rehearing

3 is DENIED and no member of this panel nor Judge in regular active

service on the Court having requested that the Court be polled on

rehearing en banc (Federal Rules of Appellate Procedure and Local

Rule 35) the Suggestion For Rehearing En Banc is DENIED.