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PRESSEISEN v. SWARTHMORE COLLEGE

September 2, 1977

BARBARA Z. PRESSEISEN, on behalf of herself and all others similarly situated, and U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Intervenor
v.
SWARTHMORE COLLEGE, THEODORE FRIEND, President, STEPHEN G. LAX, Chairman, CHARLES E. GILBERT, Chairman, ALICE K. BRODHEAD



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 INTRODUCTION

 Plaintiff is a former Assistant Professor in the Education Program at Swarthmore College ("Swarthmore"). On February 29, 1972, plaintiff received notification from Swarthmore that she would not be reappointed as an Assistant Professor for the 1972-73 academic year due to "logistical" considerations. After exhausting the appropriate administrative remedies, plaintiff commenced this class action alleging that this nonrenewal was based solely on account of her sex, in violation of, inter alia, the Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103 (1972), 42 U.S.C. § 2000e et seq. (Supp. V), amending, Civil Rights Act of 1964, 78 Stat. 253. (All subsequent citations to Title VII in this Opinion are to the 1964 Act as amended.) The action was bifurcated, and the liability aspect of the case was tried, non-jury, before this Court. After careful review and consideration of the testimony and exhibits presented at trial, the pre- and post-trial briefs and arguments of counsel, and the proposed findings of fact and conclusions of law submitted by the parties, the Court makes the following narrative findings of fact and conclusions of law. The bracketed references to the record set forth the primary sources from which the statements contained herein are drawn.

 FINDINGS OF FACT

 I. PARTIES

 The only individually named plaintiff, Barbara Z. Presseisen, was employed by defendant Swarthmore as a part-time Lecturer in the academic year 1970-71, and as a full-time Assistant Professor in the academic year 1971-72.

 The intervening plaintiff, the U.S. Equal Employment Opportunity Commission ("EEOC"), was granted leave to intervene as a plaintiff by Order dated June 4, 1976.

 Defendant Swarthmore is an "employer" within the definition of 42 U.S.C. § 2000e(b).

 Defendant Charles E. Gilbert served as the Provost of Swarthmore from the period of 1969 through 1974. The Provost is the chief academic officer under the President and has the primary responsibility for faculty personnel matters. [N.T. 23-184.]

 II. BACKGROUND

 On June 2, 1972, plaintiff filed a charge against defendants with the Pennsylvania Human Relations Commission ("PHRC") alleging that defendants had discriminated against her on account of sex.

 On November 27, 1972, plaintiff filed a charge with the EEOC, alleging that defendants had discriminated against her on account of sex.

 Plaintiff then filed her judicial complaint on May 28, 1974.

 Pursuant to plaintiff's motion to amend, this Court granted leave to plaintiff to file an amended complaint, which included, inter alia, class action allegations pursuant to Rule 23, Fed.R.Civ.P. Plaintiff's amended complaint was filed on December 11, 1974.

 Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, by Opinion and Order dated March 25, 1976, this Court certified this action as a class action. We defined the class as all present female faculty employees at Swarthmore College, all future female faculty employees at Swarthmore College, all former female faculty employees who left the employ of Swarthmore College on or subsequent to March 24, 1972, and those applicants for faculty positions who applied to Swarthmore College and were rejected on or subsequent to March 24, 1972, who have been, are at present being or in the future may be:

 (1) denied hire, promotion and/or tenure at Swarthmore College or were not recruited by Swarthmore on account of their sex; and/or

 (2) denied equal compensation for performance of substantially similar work as is performed by male faculty members at Swarthmore College, on account of their sex.

 However, we certified the class action as to declaratory and injunctive relief only. A certification ruling on damages in the form of back pay was deferred until after a determination of liability.

 In addition, the March 25 Opinion and Order dismissed plaintiff's claims brought under 42 U.S.C. §§ 1981 and 1985(3), and dismissed plaintiff's Title VII claim against those individual defendants (Theodore Friend, Stephen G. Lax and Alice K. Brodhead) not named in plaintiff's charge before the EEOC. By Order dated January 12, 1977, we also dismissed plaintiff's claim brought under 42 U.S.C. § 1983.

 At the time trial commenced, the only defendants before the Court were Swarthmore and Mr. Gilbert, and plaintiffs' claims were based solely on Title VII.

 III. THE TRIAL

 Plaintiffs' evidence at trial consisted mainly of the testimony of 16 class members, Barbara Presseisen's own testimony as individual plaintiff, the testimony of a statistical expert witness, Dr. John deCani, Professor of Statistics at the University of Pennsylvania, and numerous exhibits. Plaintiffs included in their presentation of evidence in the class case hundreds of documents from faculty personnel files, which they contend, when considered in conjunction with the testimony and statistical evidence, establish a prima facie case of a pattern and practice of sex discrimination by defendants. The Court directed plaintiffs' counsel to file a written statement to identify specifically what women were unfairly treated due to their sex and in what way. Plaintiffs, in response, submitted "Plaintiffs' Memorandum of Comparisons."

 At the close of plaintiffs' evidence, defendants moved for dismissal pursuant to Fed.R.Civ.P. 50(a), and later amended the motion to dismiss pursuant to Fed.R.Civ.P. 41(b). The Court deferred ruling on defendants' motion and requested defendants to present their evidence in defense.

 Defendants' primary witness was Harold E. Pagliaro, present Provost of Swarthmore, who described all aspects of Swarthmore's employment practices and procedures regarding the faculty. He further testified with respect to defendants' response to plaintiffs' Memorandum of Comparisons. [Ex. D-147.] Defendants also presented Dr. Robert Cross, Alice Brodhead and Mr. Gilbert, all of whom testified with respect to Barbara Presseisen's individual case. Finally, defendants offered the testimony of two statistical expert witnesses, Dr. Paul Meier, Professor of Statistics at the University of Chicago, and Dr. Gudmund Iversen, Professor of Statistics at Swarthmore College.

 DISCUSSION OF APPLICABLE LEGAL PRINCIPLES

 On May 31, 1977, in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396, the Supreme Court set forth specific guidelines with respect to the burden of proof of the respective parties in a Title VII class action case. Although Teamsters was a Government-initiated pattern or practice suit, the Court finds, and all parties are in agreement, that the evidentiary bases for a private across-the-board class action suit are almost identical to a Government pattern or practice suit. Accordingly, we will look to Teamsters as our primary source of guidance in this case.

 Teamsters makes clear that the plaintiff must prove illegal discrimination in his or her individual case and a pattern or practice of discrimination against the class he or she represents. Quite simply, plaintiffs in this case contend that Swarthmore regularly and purposefully treated women faculty members less favorably than male faculty members. They allege disparate treatment with respect to, inter alia, recruitment, hiring, salary, promotion, reappointments and tenure. Accordingly, as stated in Teamsters, at 335, "[the] ultimate factual issues are thus simply whether there was a pattern or practice of such disparate treatment and, if so, whether the differences were 'racially [or in this case sexually] premised.'" (Citation omitted.) (Footnote omitted.)

 Before we address the specific burden of proof with respect to the individual and the class case, we note that the Court in Teamsters recognized that there are two types of discrimination in Title VII cases. The first are claims of disparate treatment wherein the "employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin." Teamsters, supra, at 335 n.15. The other type of claims stress disparate impact which "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. Since plaintiffs concede in their "Post Trial Brief in Support of Findings of Fact and Conclusions of Law," at pp. 2-4, that the entire thrust of their case was to establish that disparate treatment was accorded to women faculty members by Swarthmore in all terms and conditions of employment, we need only concern ourselves with the "disparate treatment" type of discrimination.

 The distinction is an important one since, as was stated in Teamsters, supra, at 335 n.15, under a disparate treatment theory, "[proof] of discriminatory motive is critical," whereas under a disparate impact theory proof of discriminatory motive is not required. Id. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Dothard v. Rawlinson, 433 U.S. 321, 328, 97 S. Ct. 2720, 2726, 53 L. Ed. 2d 786 (1977). As defendants point out in their Supplemental Memorandum of Law, at pp. 10-11, the Supreme Court's citation, in Teamsters, 431 U.S. at 335 n.15, to its previous opinion in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977), is most instructive with respect to proof of discriminatory motive. In Arlington Heights, the Court noted that, since legislators and administrators are concerned with balancing numerous competing considerations in making decisions, as must the administration of Swarthmore, "courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality." 429 U.S. at 265-266. This judicial deference is no longer justified "[when] there is a proof that a discriminatory purpose has been a motivating factor in the decision . . . ." Id. The Court in Arlington Heights then went on to explain as to how one might establish an invidious discriminatory purpose:

 
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action -- whether it "bears more heavily on one race than another," Washington v. Davis, 426 U.S. 229, at 242 -- may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. . . . The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence. *fn15" (Citations omitted.)

 Accordingly, it is the plaintiff's burden in a Title VII disparate treatment case to establish not only the existence of disparate treatment but also that such treatment was caused by purposeful or intentional discrimination.

 Since plaintiffs in effect have brought a pattern and practice case, Teamsters explicitly defined what the plaintiffs must do in order to establish a prima facie case of class discrimination. They must show that alleged differences in treatment between men and women are sexually premised. In addition, since plaintiffs alleged a system-wide pattern or practice of resistance to the full enjoyment of Title VII rights, they must show by a preponderance of the evidence that sex discrimination against female faculty members is the standard operating procedure of Swarthmore. As the Teamsters Court noted:

 
the Government ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure -- the regular rather than the usual practice. 431 U.S. 324 at 336 (footnote omitted).

 One of the most widely used and effective means of establishing a pattern or practice of discrimination is by the use of statistics. As the Court noted both in Teamsters and in Hazelwood School District v. United States, 433 U.S. 299, at 306-309, 97 S. Ct. 2736, at 2741-2742, 53 L. Ed. 2d 768 (1977), statistics can be an important source of proof in employment discrimination cases. This is due to the fact that:

 
absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population. Teamsters, supra, at 340 n.20.

 Furthermore, "[where] gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. Teamsters, supra, at 339." Hazelwood, supra, at 307-8. However, the Court in Teamsters went on to state that:

 
[we] caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. Teamsters, supra, at 340.

 Defendants contend, at pp. 14-16 of their Supplemental Memorandum of Law, that cases such as Teamsters and Hazelwood which make statistical comparisons of a defendant's work force with the available labor pool or relevant labor market are not relevant in evaluating the statistical evidence presented by plaintiffs in this case through Dr. deCani. This is due to the fact that, for the most part, Dr. deCani's statistical studies on rank, hiring, promotion and salary were internal comparisons concerned with analyzing Swarthmore's faculty given the members actually appointed, and determining the probabilities of the distribution of the faculty by rank, length of contract and salary if that distribution were determined by chance alone. The fact that the particular statistical methods utilized in Teamsters and Hazelwood shed little light on plaintiffs' statistical methodology is irrelevant, since Teamsters and Hazelwood explicitly recognized that statistics come in an infinite variety and that their usefulness depends on all of the surrounding facts and circumstances. Therefore, although an infinite variety of statistics may be used in an attempt to establish a prima facie case of a pattern or practice of sex discrimination, the Court must carefully analyze the particular statistical methods used and then, assuming their propriety, must determine whether the statistics, either alone or in conjunction with other evidence, establish that Swarthmore has regularly and routinely discriminated against women faculty members.

 In addition to their statistical evidence, plaintiffs chose to bolster their statistical presentation by offering the testimony of individual class members. The defendants' position is that, although at the liability stage the plaintiffs are not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policies, see Teamsters, supra slip op. at 33, if individual cases are used as evidence to create, in conjunction with statistics, an inference of a pattern or practice of discrimination, then the individual cases must meet the formula for establishing a prima facie case of discrimination outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). On the specific facts there involved, the Court held that this burden may be met by showing that a qualified applicant, who was a member of a racial minority group, had unsuccessfully sought a job for which there was a vacancy and for which the employer continued thereafter to seek applicants with similar qualifications. Upon such a showing, the burden then shifted to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Id. at 802. On the other hand, the plaintiffs' position is that whether or not the specific instances meet the McDonnell Douglas test, "they certainly rise to the level of bolstering the statistical evidence such that the evidence as a whole creates an inference of sex discrimination." [N.T. 27-18.]

 First of all, if a class member testifies in the liability stage of the class case, his or her testimony need not exactly fit the McDonnell Douglas formula. As the Court pointed out in Teamsters, supra at 358, their decision in McDonnell Douglas "did not purport to create an inflexible formulation. . . . The importance of McDonnell Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act." Teamsters, supra at 358 (footnote omitted).

 Second, what an individual class member's burden of proof is depends on whether she testifies and, if she does testify, what her testimony consists of. For example, if plaintiffs are successful in establishing a broad-based policy of employment discrimination through the use of statistics alone, then a court may infer that individual hiring decisions were made in pursuit of the discriminatory policy. Teamsters, supra slip op. at 32. The plaintiffs must then only show that an alleged individual discriminatee unsuccessfully applied for a job, was denied promotion or was not granted tenure, though eligible, and was therefore, a victim of proven discrimination. Id. slip op. at 35. However, if plaintiffs present the testimony of class members to bolster statistical evidence in an attempt to make out a prima facie case, then, whether or not that class member must carry the initial burden of offering evidence adequate to create an inference of unlawful discrimination, depends on the content of the testimony. Thus, if a female faculty member were to testify that she overheard a conversation between the President and the Provost wherein the President of the College told the Provost to make sure that no women are promoted above the rank of Assistant Professor, then such testimony obviously would not have to meet a McDonnell Douglas -type formula. However, if a female faculty member were to testify, as many did in this case, that, by reason of their own personal experience at Swarthmore, they were victims of alleged discrimination, then they would have to show more than the mere fact that they were not hired, promoted, renewed, tenured, etc. They must also demonstrate that the alleged discrimination did not result from the most common legitimate non-sexist reason on which Swarthmore might deny a female faculty member a promotion, renewal and tenure -- an absolute or relative lack of qualification -- and in the case of hiring, an absence of a vacancy. See Teamsters, supra at 338 & n.19, 358 & n.44.

 The final legal issue we must address is the effect of the Supreme Court's recent decisions in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977), and in Hazelwood, supra, as to the relevance of pre-Act discrimination which, in this case, are alleged discriminatory acts which took place prior to March 24, 1972 -- the date educational institutions became subject to Title VII's coverage.

 First, we may quickly dispose of any argument that Evans precludes this Court from considering any act of discrimination which was not itself the subject of a timely charge. [ See N.T. 27-26 to 27-27.] This is due to the fact that we have already decided that Barbara Presseisen, who herself filed timely charges, may properly bring a class action on behalf of those who had not filed charges with the EEOC, 71 F.R.D. 34, 47-48 (E.D.Pa. 1976); see United Airlines, Inc. v. McDonald, 432 U.S. 385, at 394, n.6, 97 S. Ct. 2464, 53 L. Ed. 2d 423 (1977), as long as the class members left the employ of Swarthmore on or subsequent to March 24, 1972, or applied for faculty positions and were rejected on or subsequent to March 24, 1972. The crucial issue then is how do we treat pre-Act discrimination.

 As the Court noted in Hazelwood, racial discrimination by public employers, like sex discrimination by educational institutions, was not made illegal until March 24, 1972. Accordingly, a public employer or, as in this case a college, "who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white work force by purposefully excluding Negroes." 433 U.S. 299 at 309 (footnote omitted). In Evans, the Court also noted that:

 
[a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. 431 U.S. 553 at 558.
 
[proof] that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decisionmaking process had undergone little change. Cf. Fed. Rule Evid. 406; Village of Arlington Heights v. Metropolitan Development Corp., supra, slip op., at 14; 2 J. Wigmore, Evidence §§ 92, 302-305, 371, 375 (3d ed. 1940).

 Since, for the reasons stated in our findings infra, we do not find that Swarthmore's employment practices before 1972 were so clearly discriminatory, pre-1972 acts of discrimination will be accorded little, if any, evidentiary weight. In addition, we do not believe that any pre-Act individual instance of discrimination, such as the failure of a female faculty member to be promoted from Assistant to Associate Professor in 1968, for example, can be deemed a continuing violation such that relief may be awarded for such an alleged act of discrimination. The act of discrimination took place in 1968 and is in the category of being "merely an unfortunate event in history which has no present legal consequences." But see EEOC; Interpretative Memorandum, released 7/12/77, 46 U.S.L.W. 2028.

 Finally, plaintiffs argued for the first time at final arguments [N.T. 27-21 to 27-22] that pre-Act individual discrimination incidents can still serve as a basis for liability, if the discriminatory incident is locked-in by a post-Act sexually neutral employment practice. As mentioned above, these are claims that stress "disparate impact" and involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Examples of such neutral practices are the use of qualifying tests, see Griggs, supra, or the height and weight requirement for prison guards which disparately exclude women. See Dothard, supra. The only facially neutral lock-in practice identified by the plaintiffs is contained in Proposed Finding of Fact V.B. 2, wherein they allege that "annual raises are determined across the board by rank on a percentage basis such as for example, 5% for Professors, 7 1/2% for Associate Professors and 8% for Assistant Professors." Plaintiffs argue, for example, that if a woman were hired initially as an Instructor but should have been initially hired as an Assistant Professor but for sex discrimination, then Swarthmore's annual salary percentage increase has a continuing impact on her pay, i.e., she will never make up the money lost by being hired initially at a lower rank.

 The Court has two responses to plaintiffs' contention. The first is that plaintiffs have always, from the beginning of this case until the middle of the 27th day of trial, treated this case as one of disparate treatment and their late-inning attempt to establish a disparate impact theory is somewhat disturbing. Second, Evans held that a sexually neutral seniority system which gives present effect to a past act of discrimination cannot be the basis of any liability if the complainant failed to file a timely charge of discrimination. Since Evans held that a discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred ...


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