The opinion of the court was delivered by: HUYETT
FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW AND ORDER
Plaintiff Connie Rae Kunda brought this action against her previous employer, Muhlenberg College, pursuant to Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C. § 2000e Et seq. (Supp. V). In her complaint, plaintiff claimed that she had been denied promotion and a grant of tenure because of her sex.
We held a trial non-jury and now make the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a).
2. Muhlenberg College (College) is a non-profit corporation organized and existing under the laws of the Commonwealth of Pennsylvania with principal administrative offices and places of instruction located in Allentown, Lehigh County, Pennsylvania. (Stipulation, P 2)
3. John H. Morey has been President and Chief Executive Officer of Muhlenberg College since September 1, 1969. (Stipulation, P 3)
4. Philip B. Secor was Dean of Muhlenberg College from July 15, 1967, until July 31, 1974. (Stipulation, P 4)
College Practices and Policies
5. The following provision of the Muhlenberg College Bylaws (Bylaws), which has since at least 1966 been included in the Muhlenberg College Faculty Handbook, is the provision regarding tenure which was in effect at all times plaintiff was a member of the faculty at Muhlenberg College:
Continuous tenure shall be granted only by action of the Board of Trustees upon recommendation of the President. A faculty member shall obtain continuous tenure upon reappointment after seven years' full-time college and university teaching at the rank of Instructor, Assistant Professor or Associate Professor, at least four of which shall have been at the College. Not more than three of the total seven years shall be served at the rank of Instructor. No persons, however, shall teach at the College for more than nine years without obtaining continuous tenure. . . . (Exhibit No. 101)
At all times relevant to this matter, President Morey interpreted that portion of the tenure statement in the Bylaws providing that "not more than three of the total seven years" be served at the rank of Instructor as requiring that a faculty member have served at least four years at a professorial rank, I. e. a rank above Instructor, prior to undertaking a tenured appointment. (This portion of the Bylaws will be hereinafter referred to as the "three-year rule.") However, a different interpretation was given to the "three-year rule" by other faculty members. For example, Dr. Lohr, who took part in drafting the College Tenure Policy, did not believe that the three-year rule placed a limit on the ability of a faculty member who had served only as an Instructor to obtain tenure. Dr. Lohr interpreted the entire relevant clause of the College Bylaws as providing that a faculty member receives tenure Automatically if he or she receives an appointment after teaching for seven years, so long as not more than three of those years were at the rank of Instructor. (Testimony of Dr. Lohr; Exhibit No. 69)
6. At all relevant times, the Board of Trustees retained the power to grant tenure to a faculty member even if the faculty member had not served for four years at a professorial rank. (Testimony of Dr. Reumann)
7. The policy of the College which was in effect at all times relevant to this action with respect to requirements for promotion was set forth in the Faculty Handbook as follows:
Promotion is awarded for meritorious service to the College. For promotion to Professor or Associate Professor, the Ph.D. or its scholarly equivalent or recognized achievement in a field shall be required. These requirements normally apply to the rank of Assistant Professor also, although this rank may be obtained without the Ph.D. if there is sufficient evidence of progress toward the completion of all requirements for the degree. (Stipulation, P 5)
8. A requirement for the grant of tenure at the College, although not specifically set forth in the Faculty Handbook, was the attainment of the Ph.D. (terminal degree), or its scholarly equivalent, or recognized achievement in a field. (Testimony of Dr. Lohr, President Morey)
10. The Faculty Handbook sets forth the normal pattern of promotion as follows:
A. To Assistant Professor :
No person may remain indefinitely at the rank of Instructor although contracts as Instructor may be renewed annually for no more than nine years.
B. To Associate Professor :
Promotion normally takes place before six years of full-time teaching as Assistant Professor. During the third year of active teaching at the Assistant's rank, a comprehensive review of the individual's record shall be made and continued yearly thereafter, as necessary.
Promotion normally takes place any time after six years of full-time teaching as Assistant Professor. During the sixth year of active teaching at the Associate's rank, a comprehensive review of the individual's record shall be made and continued yearly thereafter, as necessary. (Stipulation, P 5)
11. The Faculty Handbook sets forth the procedures followed by the College with respect to the awarding of promotion or the granting of tenure. The process is usually initiated by the Department Chairman, who prepares a recommendation in writing and forwards it to the Dean of the College. The Dean then sends to the Faculty Personnel and Policies Committee (FPPC) the personnel files and recommendations of Department Chairmen of those persons to be considered for promotion or tenure. The FPPC discusses those persons, and votes upon its recommendations for promotion or tenure; the Committee subsequently forwards a written recommendation concerning each candidate to the President. The criteria used by the FPPC in deciding whether to recommend a faculty member for promotion or tenure are those listed in the Faculty Handbook. The President reviews the recommendations of the Department Chairmen, the Dean, and the FPPC and then makes a decision as to the recommendation for promotion or tenure with respect to each candidate. The President's recommendations are then sent to the Board of Trustees, which makes the final decision with regard to promotion and tenure.
12. Additionally, the College has a Faculty Board of Appeals (FBA), made up of seven non-administrative faculty members and three alternates elected by the faculty, which is charged with considering, on appeal, questions of promotion and tenure with regard to individual faculty members and making recommendations to the President.
13. The FPPC and the FBA are charged with the responsibility of communicating to the President the faculty's recommendation with respect to promotion and tenure of candidates.
14. In May, 1974, the Board of Trustees approved a modification of the College's tenure policy which provided that new faculty Hired after the 1973-74 academic year would be offered only "non-tenurable" positions in departments already two-thirds or more "tenured." That policy affected only persons initially hired in or after the 1974-75 academic year and did not affect the tenure consideration of "non-tenured" faculty members, including plaintiff, who had been on the faculty prior to 1974-75. The plaintiff was considered for promotion and tenure in accordance with the procedures and regulations which were in effect at the time she was hired.
Summary of Plaintiff's Employment at Muhlenberg College
15. Plaintiff was initially appointed as Instructor in the Physical Education Department of the College for the 1966-67 academic year (Exhibit J.6) and was thereafter reappointed annually to serve through the 1974-75 academic year. At the time plaintiff was hired by Muhlenberg, she was not told that a masters degree was necessary for employment with or advancement at Muhlenberg. (Stipulation, PP 11, 12, 13, 15, 16, 18, 22, 31, 53; Testimony of Mrs. Kunda).
16. A department chairman normally initiates action with regard to promotion and tenure of a faculty member in his or her department by forwarding a written recommendation to the Dean. Raymond Whispell was the Chairman of the Physical Education department at Muhlenberg College during the entire period of plaintiff's employment at the College. (Stipulation, P 8)
17. On February 13, 1969, Professor Whispell sent a memorandum to Dean Secor in which he rated Mrs. Kunda's performance as "superior" and stated that he planned to recommend her for a promotion in the near future. However, Professor Whispell did not actually recommend that plaintiff be promoted to the rank of Assistant Professor until October 14, 1971 during plaintiff's fifth year on the Muhlenberg faculty. (Exhibit Nos. 13 and 22)
18. In response to Professor Whispell's recommendation, plaintiff's name was submitted by Dean Secor to the FPPC for consideration for promotion. The vote of the FPPC with respect to the promotion of Mrs. Kunda, taken at a meeting held December 14, 1971, was three (yes) to three (no). (Stipulation PP 19, 20; Exhibit No. 23) President Morey viewed this tie vote as a failure to recommend and did not recommend plaintiff for promotion. (Testimony of President Morey; Exhibit No. 95)
19. Professor Whispell appealed the denial of plaintiff's promotion and asked the FPPC to reconsider its decision. In connection with this reconsideration, Professor Whispell appeared at a meeting of the FPPC and spoke on behalf of Mrs. Kunda. (Exhibit No. 27) At its meeting on March 15, 1972, the FPPC reviewed the additional information supplied by Professor Whispell with respect to promotion of Mrs. Kunda, discussed the matter, and voted on whether or not to recommend promotion. (Exhibit No. 30) Although Dean Secor generally absented himself from meetings of the FPPC called specifically for voting on candidates for promotion and tenure, he was present at the meeting at which the FPPC considered Mr. Whispell's appeal. At that meeting, Dean Secor told the FPPC that the future of the Physical Education Department was in doubt and suggested that a decision to promote Mrs. Kunda should be made at a later date. (Testimony of Dr. Lohr) By a vote of four (no) to two (yes), the FPPC voted not to recommend plaintiff for promotion. (Exhibit No. 31)
20. In the late Spring of 1972, after she was denied promotion, Mrs. Kunda spoke with Professor Whispell, Dean Secor, and President Morey to ascertain the reasons for the denial. None of those persons told Mrs. Kunda that she was not promoted because she lacked a masters degree, or stated that a masters degree would be mandatory in order for her to be promoted or considered for tenure in the future. (Testimony of Mrs. Kunda, Professor Whispell; deposition of Dean Secor)
21. Plaintiff was next considered for promotion in the 1972-73 academic year. By memorandum dated October 5, 1972 to Dean Secor, Professor Whispell recommended that plaintiff be promoted to Assistant Professor in the department of Physical Education. (Exhibit No. 38) By memorandum dated December 14, 1972, Dean Secor advised the Chairman of the FPPC that, through "an egregious oversight" on his part, Professor Whispell's recommendation that plaintiff be promoted had not been brought to the FPPC's attention during the time it was considering other recommendations for tenure and promotion; Dean Secor requested that the Chairman bring the matter of promotion of Mrs. Kunda to the attention of the FPPC with all dispatch. (Exhibit No. 39) By December 14, 1972, Dean Secor had already forwarded his recommendations concerning promotions to President Morey, President Morey had already forwarded his recommendations for granting promotions to the Board of Trustees, and the Board of Trustees had already approved all of President Morey's recommendations. (Exhibit Nos. 39 and 77) At the meeting of the FPPC of January 25, 1973, the FPPC unanimously recommended that Mrs. Kunda be promoted.
22. The basis for the FPPC's recommendation that Mrs. Kunda be promoted was the Committee's belief, on the basis of Mrs. Kunda's credentials, that she had attained the scholarly equivalent of a masters degree and recognized achievement in her field. (Testimony of Dr. Lohr and Dr. Reed)
23. President Morey did not recommend to the Board of Trustees that Mrs. Kunda be promoted to the rank of Assistant Professor. (Stipulation P 30) The Board of Trustees did not grant plaintiff a promotion.
24. Pursuant to the College Bylaws and in keeping with AAUP standards, the College was required to offer plaintiff a terminal contract of employment for the 1974-75 academic year if she were not awarded tenure in the 1973-74 academic year.
25. By memorandum dated September 27, 1973 directed to Professor Whispell, Dean Secor reminded Professor Whispell that Mrs. Kunda would be considered for tenure during the current semester and requested Professor Whispell's recommendation in this matter. (Exhibit No. 50) By memorandum dated October 2, 1973 directed to Dean Secor, Professor Whispell and all senior members of the Physical Education Department recommended plaintiff for tenure and promotion to the rank of Assistant Professor. (Exhibit No. 51) Plaintiff was among the faculty members whose promotion and/or tenure was considered by the FPPC in October and November, 1973; in connection therewith, the Committee interviewed Mrs. Kunda on October 29, 1973. (Exhibit No. 53) At the November 12, 1973 meeting of the FPPC, the Committee unanimously recommended that plaintiff be granted tenure. The FPPC reported all recommendations to the President and Dean by memorandum dated November 16, 1973. (Stipulation PP 32-25; Exhibit No. 57)
26. The FPPC explained its recommendation that plaintiff be granted tenure in a memorandum dated November 16, 1973, as follows:
Mrs. Kunda is regarded by her colleagues as an excellent teacher of physical education. In the area of dance her specialty she has developed and introduced course offerings for Muhlenberg students both men and women in "Ballet", "Modern Dance", and "Tap Dance", among others. In addition, she had developed course offerings in physical fitness. Her deep interest in her specialty and in physical education in general is attested to by her participation in many and varied professional organizations both on and off the campus, and at the local and state levels. She is vitally interested in her students and had over the years established an excellent rapport with them as is evidenced by her success in counseling them in educational as well as personal matters.
2) Research and Creative Work
Connie has actively engaged in a variety of post-graduate courses over the past five years. Her work and study have resulted in several publications on her specialty the dance in various professional journals on Physical Education.
3) College and Public Service
She is also active in local women's groups and professional organizations. She has in the past presented on local TV a series on physical education and was recently scheduled for a new TV presentation on "Fun and Fitness" with Mr. Kuntzelman, a former member of Muhlenberg's Athletic Department faculty.
We think an individual's religious commitment is a highly personal matter on which we do not feel competent to comment or judge.
It seems to us that the usual requirement for the Ph.D. does not apply in this case. We should instead measure the professional performance of Mrs. Kunda in teaching physical education at Muhlenberg, participating in professional groups as an officer or as a member, continuing her professional development by attending post-graduate courses and demonstrating her competence before the local audience on Channel 39 TV. (Exhibit No. 56)
27. The November 16, 1973 memorandum of the FPPC, the October 2, 1973 memorandum from Professor Whispell to Dean Secor, and the testimony of Professor Whispell, Ms. Hospodar and Professor Lohr clearly show that in the opinion of the senior members of both her department and the faculty of Muhlenberg, plaintiff had satisfied all of the requirements for promotion and tenure as set forth in the Faculty Handbook.
28. Plaintiff had satisfied both alternatives to the terminal degree requirement for promotion and tenure the scholarly equivalent of the masters degree and recognized achievement in her field as of November 16, 1973, and continued to satisfy these requirements until the time of her tenure denial. (Testimony of Dr. Lohr, Professor Whispell, and Professor Beidleman; Exhibit No. 88)
29. By memorandum dated November 30, 1973 to President Morey, Dean Secor recommended that the President not present to the Board of Trustees the name of Mrs. Kunda for tenure appointment on the College faculty. This recommendation stressed the high quality of plaintiff's performance at Muhlenberg and the difficulty of applying the traditional criteria in evaluating plaintiff's performance, and concluded that "her performance justifies a permanent appointment." However, Dean Secor did not recommend that tenure be granted because of the high percentage of tenured faculty in the Physical Education Department and the economic uncertainty about the future of the department. Dean Secor did not mention Mrs. Kunda's lack of a terminal degree as a basis for denying her tenure. (Exhibit No. 58)
30. President Morey declined to recommend to the Board of Trustees that plaintiff be awarded tenure because of her lack of an advanced degree such as would have qualified her for promotion to the rank of Assistant Professor.
31. By letter dated June 14, 1974, President Morey advised Mrs. Kunda that she had not been recommended to the Board for tenure and that the contract tendered to her for the 1974-75 academic year was a terminal one. (Stipulation, P 38; Exhibit No. 62)
32. By letter dated September 23, 1974, Mrs. Kunda advised the Chairman of the FBA that she sought to appeal the decision not to award her tenure. (Exhibit No. 63) Mrs. Kunda submitted to the Board of Appeals "an outline pertaining to my nine years at Muhlenberg College and why I am appealing to your Committee. . . ." One of her stated reasons for appealing was that she was never given any warning of a need to improve herself professionally or academically, nor was she ever told that a masters degree would be required in order for her to be promoted or granted tenure. (Exhibit No. 65). At the October 11, 1974 meeting of the FBA, Professor Whispell spoke on Mrs. Kunda's behalf and presented to the Board a written statement concerning plaintiff's appeal. Mrs. Kunda also appeared before the FBA on October 11, 1974 in connection with her request that the FBA consider her appeal. (Exhibit No. 68) The FBA determined "to undertake a full-scale examination of Mrs. Connie Kunda's qualifications for tenure and to report its conclusions to the President." (Stipulation, PP 39-41; Exhibit Nos. 68, 71)
33. The FBA made the following observations and conclusions, which we find are accurate, in their Report dated November 11, 1974:
At each of several crucial points unfortunate circumstances prevented her case from being given fair consideration. In addition, testimony indicated that the qualifications of Mrs. Kunda were such that had her case been properly presented at the proper times the eventual tenure decision might well have been different from what it was.
In this report, the FBA also noted that it "ha(d) yet to uncover any statement about (Mrs. Kunda's) contributions to the College that was less ...