Rona Fields v. Clark University

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 91-2331

                                     RONA FIELDS,

                                Plaintiff, Appellant,

                                          v.

                                  CLARK UNIVERSITY,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                         and Pettine,* Senior District Judge.
                                       _____________________

                                 ____________________

            Frederick T.  Golder with  whom Bernstein,  Golder &  Miller, P.A.
            ____________________            __________________________________
        was on brief for appellant.
            William L. Patton with whom David J. Kerman  and Ropes & Gray were
            _________________           _______________      ____________
        on brief for appellee.

____________________

____________________

        _____________________

        *Of the District of Rhode Island, sitting by designation.

PETTINE, Senior District Judge.
                      _____________________

I.

                       This appeal centers on a sex  discrimination claim

             arising under Title VII of the Civil Rights  Act of 1964, as

             amended,  42   U.S.C.      2000e  et  seq.   ("Title  VII").
                                               ________

             Plaintiff-Appellant  Dr.  Rona  Fields, a  former  associate

             professor of sociology at  Clark University, instituted this

             lawsuit in May 1980, claiming she was denied tenure at Clark

             because  of her  gender.   The case  was tried  before Judge

             Skinner,  Massachusetts Federal District Court, in September

             1985.   Judge  Skinner  concluded that  Dr.  Fields had  not

             proven  entitlement  to tenure;  nonetheless,  he held  that

             Title VII relief  was appropriate in  light of the  sexually

             discriminatory  atmosphere  of Clark  University's sociology

             department.     Accordingly,   Judge   Skinner  held   Clark

             University liable to Dr. Fields for  back pay and attorneys'

             fees, and ordered the University to reappoint Dr. Fields for

             a  two-year  probationary  period before  reconsidering  her

             tenure application.

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The  case was  subsequently appealed to  the First

             Circuit Court of  Appeals.   In Fields v.  Clark Univ.,  817
                                             ______________________

             F.2d 931, 937 (1st Cir. 1987), this Court held:

                       The district court's finding that sexual
                       discrimination  "impermissibly infected"
                       the decision not to grant  Fields tenure
                       appears to us to  be the equivalent of a
                       finding  that  she   proved  by   direct
                       evidence   that  discrimination   was  a
                       motivating factor in the decision.  This
                       finding  cannot  be reconciled  with the
                       court's putting the burden on  Fields to
                       prove that she  was entitled to  tenure.
                       Therefore,  the  court   erred  in   its
                       allocation of this burden of proof.  The
                       court also erred  by reinstating  Fields
                       for  two  years  and awarding  back  pay
                       without  finding  that  the  university,
                       after    having   been    afforded   the
                       opportunity  to  prove Fields  would not
                       have   been    granted   tenure   absent
                       discrimination,  failed   to  carry  its
                       burden of proof.   We, therefore, remand
                       the case  for a new trial  on all issues
                       by another district court judge.

             The case  was  then  heard  in  an  abbreviated  format1  by

             District  Judge Keeton.   On  April 16,  1991, Judge  Keeton

             entered  judgment  for  Clark  University,  ruling  that Dr.

             Fields had failed to establish  that the tenure decision was

             impermissibly tainted  by gender bias in  violation of Title

____________________

             1The  parties agreed  by written  stipulation to  proceed by
             mini-trial,  using time-saving  procedures  such as  witness
             affidavits in lieu of live testimony; the result was a four-
             day "Tailored Non-Jury Trial."

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VII.  Rona  Fields v.  Clark University,  No. 80-1011-K  (D.
                   _________________________________

             Mass. Apr. 16, 1991.). 

II.

             A.  THE TITLE VII LEGAL STANDARD

                       The   court  below   discussed   the  burdens   of

             production and persuasion  in Title VII  cases as set  forth

             both in McDonnell Douglas  Corp. v. Green, 411 U.S.  792, 93
                     _________________________________

             S.Ct. 1817,  36 L.Ed.2d  668 (1973) (rearticulated  in Texas
                                                                    _____

             Dep't. of Commercial Affairs  v. Burdine, 450 U.S.  248, 101
             ________________________________________

             S.Ct.  1089, 67 L.Ed.2d 207 (1981)), and in Price Waterhouse
                                                         ________________

             v.  Hopkins, 490 U.S. 228,  109 S.Ct. 1775,  104 L.Ed.2d 268
             ___________

             (1989).   The District  Court judge refrained  from deciding

             which  of  these  standards  applied to  the  instant  case,

             finding that Dr. Fields had not satisfactorily established a

             prima facie case under either standard.
                                    ______

                       On appeal, Plaintiff-Appellant argued that, by not

             choosing one standard (McDonnell Douglas/Burdine) or another
                                    _________________________

             (Price   Waterhouse),   the  District   Court,   in  effect,
              __________________

             erroneously relied on the McDonnell standard.  This argument
                                       _________

             necessitates    further    analysis    of   the    McDonnell
                                                                _________

             Douglas/Burdine  and Price Waterhouse Title VII frameworks.
             _______________      ________________

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1.  THE MCDONNELL DOUGLAS/BURDINE STANDARD

                       In order for a plaintiff to prevail in a Title VII

             action, the court must first  find that plaintiff has proved

             a  prima  facie case  by  a preponderance  of  the evidence.

             Burdine, 450 U.S. at 253.  A McDonnell Douglas/Burdine prima
             _______                      _________________________

             facie showing  is "proof of  actions taken  by the  employer

             from  which discriminatory  animus  can be  inferred because

             experience has  proved  that in  the  absence of  any  other

             explanation it  is more likely  than not those  actions were

             based  on impermissible  considerations."    Furnco  Constr.
                                                          _______________

             Corp. v. Waters, 438 U.S.  567, 568, 98 S.Ct 2943,  2945, 57
             _______________

             L.Ed.2d 957  (1978).   "The burden  of establishing  a prima

             facie  case  of disparate  treatment  is not  onerous.   The

             plaintiff must prove by a preponderance of the evidence that

             she  applied for  an  available position  for which  she was

             qualified, but was rejected  under circumstances which  give

             rise to an inference  of unlawful discrimination."  Burdine,
                                                                 _______

             450 U.S. at 253.

                       If  the  court concludes  that  the  plaintiff has

             proved  a  prima  facie  case  by  a  preponderance  of  the

             evidence,  the  court  must  then  consider  the defendant's

             justification for the presumptively discriminatory action or

             practice.  The defendant must meet a burden of production by

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articulating  a legitimate, nondiscriminatory reason for its

             challenged actions; however,  it need not prove that  it was

             actually motivated by the proffered reason.  Id. at 254-55.
                                                          ___

                       The  plaintiff then  must have  an opportunity  to

             prove  by   a  preponderance   of  the  evidence   that  the

             defendant's  proffered  reason  was  merely  a  pretext  for

             discrimination.  If she successfully demonstrates that  such

             a pretext exists, she has proven defendant's commission of a

             Title  VII violation; if she fails to do so, the presumption

             of discrimination drops  from the case.   See, e.g.,  Unites
                                                       _________   ______

             States Postal  Serv. Bd.  of Governors v.  Aikens, 460  U.S.
             _________________________________________________

             711,  715, 103  S.Ct.  1478, 1481,  75  L.Ed.2d 403  (1983).

             Plaintiff's burden of persuasion, retained throughout, would

             then  "merge[] with  the ultimate  burden of  persuading the

             court  that   she  has   been  the  victim   of  intentional

             discrimination.  She  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."    Burdine, 450  U.S.  at  256, citing  McDonnell
                           _______                              _________

             Douglas, 411 U.S. at 804-05.
             _______

2.  THE PRICE WATERHOUSE STANDARD
                     ________________

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In Price  Waterhouse,  490  U.S.  at  241-42,  the
                          _________________

             Supreme Court held that "[w]hen...an employer considers both

             gender  and  legitimate factors  at  the  time of  making  a

             decision...[the employee  is not obligated] to  identify the

             precise causal role  played by  legitimate and  illegitimate

             motivations in  the employment decision she  challenges.  We

             conclude, instead,  that Congress  meant to obligate  her to

             prove that the employer relied upon sex-based considerations

             in coming to its decision."   The Court continued:

                       In   saying   that   gender   played   a
                       motivating   part   in   an   employment

                       decision,  we mean that, if we asked the
                       employer at  the moment of  the decision
                       what its reasons were and if we received
                       a  truthful  response,   one  of   those
                       reasons would  be that the  applicant or
                       employee was a woman.  

             Id. at 250.
             ___

                       Once  the  plaintiff  has proven  that  her gender

             partly motivated the employer's adverse employment action or

             decision, the employer will be liable under Title VII unless

             "it can  prove that, even  if it had  not taken gender  into

             account, it would  have come to the same  decision regarding

             [her]."  Id. at 242.   The Court noted that, because it does
                      ___

             not  employ burden-shifting,  this  framework  differs  from

             Burdine.    Under  Price  Waterhouse,  "the  plaintiff  must
             ________           _________________

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persuade the factfinder on one point, and then the employer,

             if it  wishes  to prevail,  must  persuade it  on  another."

             Price Waterhouse, 490 U.S. at 246.
             ________________

                       Price  Waterhouse  therefore  does   not  supplant
                       _________________

             Burdine.    Burdine's  burden-shifting  approach  applies to
             _______     _______

             cases  where "either a legitimate or  an illegitimate set of
                           ______              __

             considerations led to  the challenged decision."  Id. at 247
                                                               ___

             (emphasis in  original).    Price  Waterhouse  applies  only
                                         _________________

             "[w]here  a  decision  was  the  product  of  a  mixture  of

             legitimate and illegitimate  motives" (commonly referred  to

             as "mixed motive" cases).  Id. at 247. 

3.  THE APPROPRIATE STANDARD FOR THIS CASE

                       Plaintiff-appellant urges this Court to  hold that

             the appropriate  legal framework for  this case is  found in

             Price Waterhouse, presumably  because this framework  places
             ________________

             greater  demands on  the  employer than  does the  McDonnell
                                                                _________

             Douglas/Burdine framework.  Indeed, as Judge Keeton stated: 
             _______________

                       [T]he defendant must  satisfy a  greater
                       burden once  plaintiff has proved...that
                       her  gender played a  motivating part in
                       an   employment   decision....[This]  in
                       effect   transforms    the   defendant's
                       burden,   once    plaintiff   proves   a
                       discriminatory motive, from a  burden of
                       production to a burden of persuasion.  

             Fields, No. 80-1011-K, slip op. at 5.  
             ______

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                                          8

The  District  Court   found  that  under   either

             McDonnell Douglas/Burdine or Price Waterhouse, plaintiff did
             _________________________    ________________

             not clear her first legal hurdle. 

                       Plaintiff has failed to offer sufficient
                                                     __________
                       evidence...that gender  was a motivating
                       factor in any of the unanimous decisions
                       against  her  at   each  level  of   the
                       decisionmaking process.  

             Fields, No. 80-1011-K, slip op. at 8 (emphasis in original).
             ______

              Thus, there was no need  to determine which standard  would

             dictate defendant's  subsequent burden, since the next stage

             of the battle would not be reached.2

                       As a matter of law, the District Court did not err

             in failing to apply the Price Waterhouse standard.  If it is
                                     ________________

             true  that plaintiff-appellant  did not  make out  her prima

             facie  case  of  sex  discrimination, then  a  court  cannot

             require  defendant-appellee  to do  anything  to defend  its

             actions.   The District  Court appropriately refrained  from

             applying  the second  tier  of either  McDonnell Douglas  or
                                            ______  _________________

____________________

             2The  District Judge further found  that "even if  I were to
             determine that plaintiff  had introduced sufficient evidence
             to show a prima facie case under McDonnell Douglas, or under
                                              _________________
             Hopkins  to  make this  a mixed  motive  case rather  than a
             _______
             pretext  case,  I  would   not  ultimately  decide  for  the
             plaintiff  because  defendant   has  introduced   sufficient
             evidence  of a legitimate, non-discriminatory reason for its
             decision to deny plaintiff  tenure to satisfy its burden  of
             persuasion even  under the  Hopkins analysis."   Fields, No.
                                         _______              ______
             80-1011-K, slip op. at 8-9.

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Price  Waterhouse analysis to the instant case.  Only if the
             _________________

             District Court's  analysis  of the  facts  of the  case  was

             clearly erroneous  and the  plaintiff did  successfully make
                                                   ___

             out  a prima  facie case of  discrimination would  the court

             have committed error by failing to articulate the applicable

             legal standard.  Accordingly, we proceed to evaluate whether

             the district court's determination that Dr. Fields failed to

             make out a prima facie case was clearly erroneous.

B.  SUCCESS OR  FAILURE OF PLAINTIFF-APPELLANT'S PRIMA FACIE

             CASE

                       In  order to  make  out a  prima  facie case,  the

             plaintiff must show:

             (1)       that she is a member of a protected class under   

                       Title VII;

             (2)       that she was a candidate for tenure and was       

                       qualified under Clark University standards,       

                       practices or customs;

             (3)       that despite her qualifications she was rejected; 

                       and

             (4)       that  tenure   positions  in  the   Department  of

             Sociology              at  Clark University were open at the

             time plaintiff              was denied tenure, in  the sense

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that others  were                     granted tenure in  the

             department during a period                relatively near to

             the time plaintiff was denied              tenure.  

             See, e.g.,  Banerjee v. Board of Trustees  of Smith College,
             _________   _______________________________________________

             648 F.2d 61, 62 (1st Cir. 1981), cert. denied, 454 U.S. 1098
                                              ____________

             (1981).

                       The  only contested  element of  plaintiff's prima

             facie case  is the  second element--her qualifications.   To

             pass this portion of the prima facie test, plaintiff 

                       need   only   show   that    [s]he   was
                       sufficiently qualified to be among those
                       persons  from whom a  selection, to some
                       extent  discretionary,  would  be  made.
                       That is, [s]he  need not show only  that
                       h[er]   qualifications  were   at  least
                       sufficient  to place h[er] in the middle
                       group of tenure candidates  as to whom a
                       decision granting tenure and  a decision
                       denying tenure could  be justified as  a
                       reasonable exercise of discretion by the
                       tenure-decision making body.

             Banerjee,  648 F.2d  at  63, quoting  Banerjee  v. Board  of
             ________                     _______  ______________________

             Trustees of Smith  College, 495 F.  Supp. 1148, 1155-56  (D.
             __________________________

             Mass. 1980).

                       In concluding  that Dr.  Fields had not  fulfilled

             the requirements of  the second element  of her prima  facie

             showing, the court below stated:

                       Having weighed the evidence presented by
                       plaintiff in  this case, I find that she
                       has not shown by a preponderance  of the

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evidence   that  she   was  sufficiently
                       qualified  to place  her  in the  middle
                       group  of  tenure   candidates  in   the
                       sociology     department     at    Clark
                       University....plaintiff    was    denied
                       tenure  by unanimous vote  at each stage
                       in the tenure review process, and failed
                       to  receive support  from other  men and
                       women on the Clark faculty.  Plaintiff's
                       own testimony established  that she  had
                       difficulties teaching some of  the large
                       courses  to which she  was assigned, and
                       much of plaintiff's testimony was in the
                       form   of   argument   as   opposed   to
                       recitation  of  fact.     Defendant  has
                       introduced   student   evaluations   and
                       testimony  from  the  plaintiff and  the
                       defense   witnesses  showing   that  her
                       teaching  was  criticized by  several of
                       her students  and that the  chair of her
                       department   told    her   on   numerous
                       occasions   that    he   was   receiving
                       complaints from her students.

             Fields, No. 80-1011-K, slip op. at 9-10.
             ______

                       In  reviewing  a  university's   tenure  decision,

             neither the trial court nor the appellate court  may "simply

             speculate that  [the] plaintiff may have  been denied tenure
                                             ___

             for   reasons   of   [gender]....Inevitably,   some   tenure

             decisions...will be very close....Courts  have no license to

             resolve such  disputes except  where there is  evidence from

             which to  conclude  that an  illicit  motive was  at  work."

             Kumar  v. Board of Trustees, Univ.  of Mass., 774 F.2d 1, 12
             ____________________________________________

             (1st Cir.  1985) (Campbell,  C.J.,  concurring).   "[T]enure

             decisions are by their nature judgmental and subjective.  In

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close  cases reasonable people can differ.  It is the choice

             of the university, however, not of the court, that is called

             for in a  faculty member's contract."  Id. at 15.  Moreover,
                                                    ___

             "[i]n the very complex and nuanced environment of university

             tenure  decisions,  a discrimination  case with  no 'smoking

             gun' evidence  can be excruciatingly close  for the district

             court."  Id. at 21 (Coffin, J., dissenting).
                      ___

                       We quote extensively  from Kumar to  emphasize the
                                                  _____

             high degree of deference due to both the University's tenure

             decision and the District  Court's Opinion.  While  we might

             be  suspicious  of  Defendant-Appellee's  motives,  thorough

             review of the record provides  no opportunity for this Court

             to  find  that the  District  Court's  decision was  clearly

             erroneous.3  

                                         III.

                       We  have reviewed  this  case  with  special  care

             because, as  noted above, the parties  agreed by stipulation

             to  proceed by "mini-trial."  There can be little doubt that

____________________

             3Even if this Court  found that Plaintiff-Appellant had made
                                                                 ___
             out  a  prima facie  case, we  would  not need  to determine
             whether Defendant-Appellee's actions  should be evaluated in
             accordance  with  the  McDonnell  Douglas/Burdine  test  or,
                                    __________________________
             rather, under  the Price  Waterhouse framework.   Under both
                                _________________
             standards,  Defendant-Appellee  would  prevail   because  it
             sufficiently  demonstrated  that Dr.  Fields' qualifications
             for tenure were at least questionable.

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                                          13

Title  VII  plaintiffs face  serious  obstacles in  carrying

             their onerous evidentiary burdens and, arguably, abbreviated

             trials may not be the most appropriate procedural format for

             suits of this kind. Having combed the  record in this  case,

             however, we  find nothing  to demonstrate that  the tailored

             trial compromised Dr. Fields' case.  Instead, it appears the

             trial judge  willingly entertained live  testimony when  the

             litigants  wished  to  supplement  their  affidavits.    For

             example, when the defendant wished to present live testimony

             of several witnesses, the following colloquy took place:

             THE COURT:     Tell  me  this: Do  you  want  to bring  them
             before                   me to offer testimony beyond what's
             in their       affidavit,  or do  you  just want  me to  see
             them?

             DEFENSE        No, essentially we want  to bring them before
             COUNSEL:       you   to  testify   what's  [sic]   in  their
             affidavit.                   To the extent their credibility
             is an issue in                  the case, we want you to see
             them.

             PLAINTIFF'S    I have no objection.
             COUNSEL:

             THE COURT:     Well, all right.  I'll allow it.  I may place
                            some  limitation  on  how  much  repetition I
             hear,                 but I'll allow it.

             Fields, No. 80-1011-K, Trial Transcript at 36.  
             ______

                       Similarly, when plaintiff's counsel  requested the

             Court's leave  to present  live testimony by  plaintiff, the

             judge queried, "Why  is it  you want to  call the  plaintiff

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live,  for   the  same  reason  the   defendants  have  been

             mentioning, you want me to see and hear the plaintiff, or is

             there  something   more  that's   not  in   the  affidavit?"

             Plaintiff's   counsel  responded,   "It's   not   just   the

             credibility  of  the witness....the  live  testimony  of Dr.

             Fields  is going to consist to some extent in rebutting some

             of [defendant's exhibits]."  Id. at 38.  The judge permitted
                                          ___

             Dr. Fields to testify.

                       In  short, the  District Judge's  orchestration of

             this  particular  case was  extremely  flexible.   There  is

             nothing in the trial record to indicate Dr. Fields could not

             have  introduced   additional  live  testimony,   either  to

             highlight witness credibility or to augment  her substantive

             case.  Moreover, Dr. Fields stipulated to the use of a mini-

             trial  process.  Given all of this, we cannot speculate that

             the trial procedure was unfair or incomplete.

IV.  

                       "The fact that a  court might be sympathetic  to a

             tenure award is not enough from which to find discrimination

             unless the University's stated reasons are palpably unworthy

             of  credence   or  there  is  other   evidence  pointing  to

             discrimination."   Kumar,  774 F.2d  at 12  (Campbell, C.J.,
                                _____

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                                          15

concurring).     This  Court  is  neither   unaware  of  nor

             unsympathetic   to   the   difficulties   faced   by  female

             academicians  who  aspire   to  tenured  faculty  positions;

             nonetheless,  Dr. Fields  has provided us  with no  basis to

             reverse the lower court's holding.  

                       Accordingly,  the judgment  of the  District Court

             must be Affirmed.

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