be found from circumstantial evidence and inferences from the circumstances.
We agree that the statistics and other evidence of discrimination showing the imbalance of men and women with tenure in the School of Medicine and the Department of Biochemistry in particular make out a prima facie case which imposes upon the defendant the duty to go forward with rebutting evidence. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970); Jurinko v. Weigand Co. (3d Cir. 1973, infra). The bases for this conclusion are shown in the findings of fact. We do not necessarily have to agree with Dr. Gerald Gardner that the probability of no discrimination shown in these figures is one chance in 400 million but we would agree that the chances are very small. The defendants offered no contradictory statistical testimony and did not in any way cast doubt on Dr. Gardner's figures. The defendant instead attempted to show that sex discrimination did not enter into the decision of tenured faculty to deny plaintiff tenure and promotion to an associate professorship, and also introduced evidence, most of it gathered after the making of the decision to discharge her, to indicate that she was a poor teacher. The evidence offered in this case shows that out of 401 faculty members in the School of Medicine, only 5 women have tenure. Six Departments in the School have no women at all, eleven have no tenured women and only three have women with tenure. The average salary for male tenured professors is $37,500 while the average salary for women with tenure is $27,000. Increases in salary are granted at a higher rate to male professors than female. There are four times as many women eligible for tenure on this faculty as there are men. During the last six years, 70 men were given tenure as compared to 3 women. The figures sent by the Medical School to the Affirmative Action office of the University show that the Medical School plans little by way of affirmative action at any definite time so as to change these figures and alter the imbalance in any way. This Affirmative Action office was established after a prior investigation by the Department of Health, Education and Welfare of sex discrimination at the University.
When the instant matter was taken before the University Senate Subcommittee on Academic Freedom and Tenure it was indicated that there was some substance to Dr. Johnson's charges that there was some discrimination in this department and it should be investigated. The evidence with respect to discrimination is clinched by the fact that the number of women in the faculty has been decreasing in the past two years as compared to men whereas one would expect in the face of charges such as these some attempt would be made to increase the number of women.
The defendant introduced a large amount of evidence indicating that plaintiff was not a satisfactory teacher. It is not the function of this court to determine what weight should be given in a university of the high stature of the University of Pittsburgh to basic and advanced research versus teaching abilities. Nevertheless the handbook and guidelines adopted by this University do indicate various criteria which are to be used in determining tenure, only one of which was given any weight in this particular case. As might be expected various individual students rated the plaintiff low in teaching ability while others rated her high. (See testimony of Dr. Davis as to this.) When all the evaluations were gathered in, however, it appeared that there was only a miniscule difference between plaintiff's standing and that of a man who was given tenure. After the decision of the tenured faculty, opinions derogatory to plaintiff's teaching ability were sought and received to justify the decision. The previous head of the Department, however, contacted in Europe stated that he thought she should be given tenure.
In a case such as this the question is whether there is a disparate treatment of males and females based upon sex: Cypress v. Newport News Hospital, 375 F.2d 648 (4th Cir. 1967). A review of the testimony in this case indicates that there has been such disparate treatment in this medical school.
We do not reach the question of due process in connection with plaintiff's discharge because there is no evidence that she was denied tenure as a result of the exercise of her constitutional rights such as free speech or other things protected as "liberty" or "property". See Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Walker v. California State College Board of Trustees, 351 F.S. 997 (W.D. Pa. 1972). We are, of course, aware of the recent case of Green v. Board of Regents of Texas Tech., 335 F.S. 249 (N.D. Tex. 1971) aff'd 474 F.2d 594 (5th Cir. 1973). In that case after a trial on the merits the court found that the female teacher had been refused a promotion to full professor not because of her sex and not because of any pattern of sex discrimination. The District Court found as a matter of fact that there was no discrimination operating in the school, that all the established criteria for a promotion had been considered, and that they were reasonably applied in the case. Such is not the situation in the case at bar.
In arriving at our conclusion, we have also carefully considered the decision of the Court of Appeals for this Circuit in Jurinko v. Wiegand Co. in general affirming Judge Teitelbaum of this court in 331 F. Supp. 1184 (W.D. Pa. 1971). See OPINION, 477 F.2d 1038, 1043 (3rd Cir. 1973) where the court said:
"Nor was the evidence insufficient to support the finding of a violation of Title VII as to these particular plaintiffs. The evidence, especially the fact that during the six month period following the plaintiffs' application (and when the plaintiffs were told that the company was not then hiring) 43 new male employees were hired despite the fact of plaintiffs' prior experience and good work records with the company, does support an inference of discrimination as the district court found. Plaintiffs made out a prima facie case of unlawful discrimination, thereby shifting the onus of going forward with evidence to Wiegand. As was said in Hodgson v. First Federal Savings and Loan Association of Broward County, Florida (4 EMP.PRAC. DEC. P 7629) 455 F.2d 818 (5th Cir. 1972), 'In discrimination cases the law with respect to burden of proof is well settled. The plaintiff is required to make out a prima facie case of unlawful discrimination which point the burden shifts to the defendant to justify the existence of any disparities. See, e.g., Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935); Muniz v. Beto, 434 F.2d 697 (CA5, 1970); Weeks v. Southern Bell Telephone and Telegraph Co., (1 EMPL. PRAC. DEC. P 9970) 408 F.2d 228 (CA5, 1969); Gates v. Georgia Pacific Corp. (2 EMPL. PRAC. DEC. P 10,305) 326 F.S. 397 (D.C.D. Or. 1970). Once the plaintiff has made out his prima facie case we look to the defendant for an explanation since he is in a position to know whether he failed to hire a person for reasons which would exonerate him '".