actual or probable existence of the racial, sexual or otherwise-invidious motivation of the employer. A review of existing case law shows several common methods of meeting plaintiff's burdens of proof.
In some cases discriminatory motive is closer to the surface than in others, or the difference in qualifications of competing applicants is so obvious as to raise a question as to motive. In United States v. Wattsburg Area School Dist., 429 F. Supp. 1370 (W.D.Pa.1977), a case brought in our district court, a plaintiff was able to prove through several witnesses' testimony that her employer had expressed a desire to hire a male teacher for a middle school position. She also proved that her qualifications for the position were markedly superior in her academic performance, student teaching, and actual experience to those of the male who was hired for the position. On these facts, Judge William Knox concluded that sufficient sex animus was demonstrated to establish a prima facie case. See also Rogillio v. Diamond Shamrock Chemical Co., 446 F. Supp. 423 (S.D.Tex.1977) (proof of superior objective qualifications of female lifeguard over those of male who was hired made out a prima facie case). In the case before us, the only proof plaintiff has offered that would remotely suggest a discriminatory motive or bias against females was her testimony that she and Dr. Taylor differed on the subject of abortion and that Dr. Taylor believed women with children should not work. Dr. Taylor was not asked about these matters, but accepting plaintiff's testimony as true, any theoretical opinions of Dr. Taylor are, of course, protected by the First Amendment to our Constitution, so long as those opinions would not be implemented in a way that discriminated against women as a class. Common sense prevents the conclusion that opinions expressed by men favoring or disapproving abortion display a general bias against women when women themselves are divided on this issue.
Plaintiff's suggestion that Dr. Taylor believed women with children should not work may be true; however, any inference that he enforced such a belief among his employees is overcome by the plaintiff's own testimony that he hired several women with young children, including Mrs. Watterman, Mrs. Steranko, and the plaintiff herself who had four children under the age of six when she was first hired.
Moreover, although plaintiff's work was exemplary for many years, she has not proved that her qualifications were superior to those of any employees who were kept on when she was let go. Neither has she shown that she was displaced or replaced by a member of the opposite sex. In fact, no one replaced her and the laboratory from which she was discharged continued to operate with only her former co-employee another female.
Another method of establishing a plaintiff's case is proving disparate treatment between the plaintiff and members of the other class. This is normally accomplished by showing specific examples in which members of the different sexes or races have been treated disparately, or by demonstrating disparate treatment through statistics. A total absence or very nominal number of members of the protected class in a work force constitutes a permissible basis for inferring existence of unlawful discrimination. Badillo v. Dallas County Community Action Committee, Inc., 394 F. Supp. 694 (D.Tex.1975); EEOC v. Local 14, Int'l Union of Operating Engineers, 553 F.2d 251 (2d Cir. 1977).
The Supreme Court has held that "gross statistical disparities" alone may, in certain cases, constitute prima facie proof. Hazelwood School Dist. v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977). In a case tried in this district, a plaintiff suing the University of Pittsburgh School of Medicine for an alleged sexually-motivated denial of tenure presented statistics showing, Inter alia, that of 401 faculty members in the school only 5 women had tenure; that 70 men had been given tenure as compared to 3 women in the six years preceding suit; that there were four times as many women eligible for tenure as men; that 45% Of men in the tenure stream achieve that goal, but only 6% Of the women; and that the average salary for tenured male professors was over $ 10,000 more than the average for females. On these facts, a prima facie case was established. Johnson v. University of Pittsburgh, 435 F. Supp. 1328 (W.D.Pa.1977). See also Ostapowicz v. Johnson Bronze Co., 369 F. Supp. 522, 532 (W.D.Pa.1973). Of course, statistics may not always be dramatic; they must, however, support a plaintiff's claim where she or he relies on such proof.
In this case, plaintiff's testimony about the sexual composition of employees tended to refute her claim. She stated that all the full-time technicians in her lab were female and almost all the lab technicians she had ever come in contact with at the hospital had been female.
She relied heavily on examples of the procedures used in discharging employees, arguing that these procedures were applied differently in her case, that of a woman being discharged, than they had been applied in cases of men being discharged. This kind of evidence may properly be used to establish a pattern of disparate treatment or to show that a facially neutral policy of an employer has a disparate impact on a certain class of employees. This latter proof disparate impact may alone be a valid way of establishing a prima facie case. See Kirkland v. New York State Dept. of Correctional Services, 520 F.2d 420, 425 (2d Cir. 1975), Cert. denied 429 U.S. 823, 97 S. Ct. 73, 50 L. Ed. 2d 84 (1976), Reh. denied, 429 U.S. 1124, 97 S. Ct. 1162, 51 L. Ed. 2d 574 (1976), where Judge Van Graafeiland wrote:
"Proof in employment discrimination cases proceeds from effect to cause. Plaintiffs establish the . . . disparate consequences of defendant's employment practices, and defendants must then justify such consequences on constitutionally acceptable grounds."
Plaintiff's proof at least established that the policies articulated by the defendant were not followed systematically. In the specific cases cited by plaintiff, where men were discharged, some of the men received one warning; some two or three or more; some were suspended; some were not. Although the defendant's personnel director testified that it was a hospital policy to suspend non-supervisory employees before finally terminating them, this policy was not consistently followed in the cases of the men whom the plaintiff brought to our attention. Moreover, almost all of these employees functioned in non-skilled jobs, unlike plaintiff's position, and most of them worked at the hospital for less than two years.
Of course, since almost all of the employees in plaintiff's job category were also female, she could not establish disparate treatment by comparing their discharges against her own. But the fact that females were hired almost exclusively for this category militates strongly against a claim that the employer practiced sex discrimination at least such a claim brought by a female.
One male who was a foreman in the maintenance department and was listed by the hospital as a supervisor for some purposes, similar in that one regard to plaintiff's classification, did receive two warnings, a suspension, and a demotion prior to his discharge. For the purposes of establishing a pattern of discrimination or disparate impact on females, all that the plaintiff has established is that one male, similarly classified in one respect, was discharged after progressive steps of discipline and that many other males were disciplined in various, almost haphazard, ways prior to their discharges. She has not offered evidence that other females were deprived of these disciplinary steps. Nor has she shown that she did not receive any warnings prior to discharge; Doctors Taylor, Allen, and Stinson all testified that plaintiff was informally warned during 1972 and 1973 that her performance was unsatisfactory, and her own letters to Dr. Taylor indicate that she feared her job was on the line.
An employment discrimination suit may be proven in other ways than those enumerated here; perhaps in ways yet to arise in case law. However, the crux of the proof must be the necessary link between the plaintiff's protected status and the adverse employment action. That essential link is absent here; there is no clear proof pointing to sex bias against females; in fact, most of the proof in this case points the other way. There is nothing from which we may logically infer a bias against women held by the defendant or Dr. Taylor and exercised in the discharge of the plaintiff.
In summary, plaintiff has proven that she was a hard worker and a competent worker at defendant's laboratories for many years, and that she played a significant role in important research projects and in training new doctors. She established that Dr. Taylor relied on her for a long while to assist him in his work, and that she, too, relied on Dr. Taylor. By her own proofs, she established that she did not have a good working relationship with Dr. Allen, a male, or with Dr. Stinson, a female. She disagreed with some of their methods and criticized them to Dr. Taylor. Through his testimony and that of her children she established that her arduous schedule at the lab during the lambing seasons during 1971 and 1972 was hard on her and that she was very tired in the evenings. She has shown that she was an employee of the hospital although directly answerable to Dr. Taylor, a non-employee, and that the hospital personnel policies should have been applied to her. She has shown that some male hospital employees were treated differently than she was, but she has also shown that these males were treated differently from one another. In all these proofs, there is a total lack of indication of any sexual animosity against females, or any pattern of discrimination from which we might infer a sexually-biased motivation.
We make no finding as to the propriety of the defendant's employment practices or the propriety of this plaintiff's discharge. Absent sex discrimination, they are not in issue here. Moreover, since the plaintiff has failed to establish a prima facie case, the defendant need not proffer any defense.
In this regard, however, we note that the EEOC based its determination of "reasonable cause" on the defendant's reaction to the charge rather than on an analysis of the charge itself, finding that "no evidence has been adduced by (defendant) to persuade this Commission that their assertions are valid" and that "their assertions are inconsistent with each other" and therefore concluding that defendant's "reasons for discharging the female were pretextual" (plaintiff's Exh. 20). Although we admitted this exhibit into the record, we cannot reach the issues on which the EEOC made its determination without first finding that plaintiff has established a prima facie case. So long as the EEOC employs standards and methods different from the federal courts for determining the validity of claims, court decisions are bound to differ frequently from EEOC determinations.
We conclude, as a matter of law, that plaintiff has failed to meet the original burden of proof under McDonnell Douglas. Defendant's motion will therefore be granted and a verdict directed in its favor.