APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil No. 74-0058)
Before Adams, Hunter and Garth, Circuit Judges.
Dr. Nolvert P. Scott, Jr., a black former assistant professor at the University of Delaware, contended that the University discriminated on the basis of race in the hiring and promotion of its faculty members. He brought this action in the district court alleging claims under Title VII and the Civil Rights Acts of 1866 and 1871. Scott sought relief on his individual claims and on the claims of a class consisting of prospective faculty members who might be discriminated against by the University's hiring practices and current faculty members subject to discrimination by the University's contract renewal, promotion, and tenure practices. The district court, after certifying the class action, found against Scott on both his individual and class claims. The issues before the district court are now presented to us on appeal.
We conclude that the district court properly ruled against Scott on his individual claims. With respect to the class claims, we hold that the class action should have been decertified, and thus do not reach the merits of the class action.
Dr. Scott, who had only recently received his doctoral degree in sociology, was appointed an assistant professor in the University's Sociology Department in September, 1971. His previous experience included eight years of teaching at a Canadian University and three years as a part-time graduate teaching assistant at Pennsylvania State University. During negotiations for his appointment to the Sociology Department, he requested and received from the University a salary commitment of $15,000 during the first year of his three year contract. This was $3,000 above the rate at which the University normally compensated new faculty members in the Sociology Department who possessed doctoral degrees.
When new faculty members were appointed to the Sociology Department, they were provided with a mimeographed brochure describing the personnel policies of the department. This brochure, originally published in 1969, described the criteria that would be considered in contract renewal, promotion, and tenure decisions:*fn1
The criteria fall into three general categories: 1) teaching effort and effectiveness, 2) scholarly activity, and 3) service to the department, the University, the community. Criteria in all three categories will be considered in formulating a recommendation.
The brochure thus served to inform new faculty members of the basic criteria that would be considered in contract renewal decisions.
During his discussions with the sociology faculty, Scott was informed that it was the general practice of the Department to evaluate candidates for contract renewal at the end of the second year of their three year contract. In this way, a candidate would receive one year's notice in the event his or her contract was not to be renewed. On May 1, 1973, the Sociology Department faculty met and reviewed Scott's performance, but concluded that Scott had produced inadequate evidence of research activity to permit a thorough evaluation of his work. As a consequence, Scott was asked to submit additional materials regarding his scholarly activities. On May 3, 1973, those members of the faculty in the Department who were senior to Scott met and, on the basis of Scott's supplemented record, recommended that his contract not be renewed. On May 8, 1973, the full Sociology Department met and voted against renewal 9 to 1, with 2 abstentions. Accordingly, Scott's employment with the University was terminated when his contract expired after the 1973-74 academic year. Scott then commenced this legal action. It was reported to this court at the time of oral argument on this appeal that on March 31, 1979, Dr. Scott had died.
II. SCOTT'S INDIVIDUAL CLAIMS.
Scott alleged individual claims of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., and the Civil Rights Acts of 1866, 42 U.S.C. § 1981, and 1871, 42 U.S.C. § 1983. With respect to each of these claims Scott proceeded in the district court on a "disparate treatment" theory, contending that he was purposefully treated less favorably by the University than similarly situated white faculty members. Both in the district court and on appeal, the parties have proceeded under the assumption that the substantive scope of liability under each of the Civil Rights Acts is the same with respect to Scott's individual claims of discrimination. Since the case has been presented to us in these terms, we will assume without deciding that this reflects a proper interpretation of these statutes.*fn2
The parameters of a disparate treatment theory in the context of an individual Title VII action were described by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973) (footnote omitted):
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
Once the plaintiff establishes such a prima facie case, "(t)he burden must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. If the employer produces evidence which satisfies this burden, the individual plaintiff must then be presented with "a fair opportunity to show that (the employer's) stated reason for (the individual plaintiff's) rejection was in fact pretext." Id. at 803, 93 S. Ct. at 1824. Accord, Furnco Construction Corporation v. Waters, 438 U.S. 567, 575-78, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978).*fn3
In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), the Supreme Court expressed what was only implicit in McDonnell Douglas that proof of discriminatory motive is required in a disparate treatment action. This disparate treatment theory of discrimination was explained as follows:
"Disparate treatment" such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. See, e.g., Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-266, (97 S. Ct. 555, 563-565, 50 L. Ed. 2d 450).
Id. at 335 n.15, 97 S. Ct. at 1854.
The citation to Arlington Heights suggests that the motive requirement in disparate treatment cases is similar to that prevailing in equal protection analysis. See generally The Supreme Court, 1976 Term, 91 Harv.L.Rev. 70, 163 (1977).
In order to establish his disparate treatment claim, Scott presented evidence concerning the University's contract renewal and promotion practices with respect to other members of the faculty. He also presented evidence of individual instances of discrimination against him by members of the University community. Scott contended that this evidence demonstrated the University's discriminatory behavior in that other members of the faculty were granted contract renewals or promotions despite performance in the areas of teaching, scholarship, and community service which was comparable or inferior to his own. After a careful analysis of this evidence and of the facts surrounding the decision not to renew Scott's contract,*fn4 the district court concluded, essentially on two grounds, that Scott had failed to establish a prima facie case. First, the district court found that the nonrenewal of Scott's contract was not motivated by any racial animus, but "resulted from the opinion of nine members of the Sociology Department that (Scott) was not, and would not develop into, an acceptable permanent professional colleague."*fn5 Second, the district court found that Scott was not similarly situated to those whom he alleges received preferential treatment, and that Scott's evidence concerning the University's treatment of other faculty members did not indicate racial discrimination.*fn6
Members of the sociology department testified at trial that although Scott's rating in connection with service to the community was high, he had not developed the high performance levels in the areas of scholarship and teaching that would justify contract renewal. The evidence indicated that Scott had not established a satisfactory record of publication in professional journals and that his teaching effectiveness, despite his previous extensive teaching experience, was criticized by both faculty members and students.
Scott's claim that he was comparable to other faculty members who received preferential treatment was undermined by evidence indicating that those other faculty members lacked his previous teaching experience and that the contract renewal and promotion criteria employed in other departments differed somewhat from those used in the Sociology Department. Moreover, many faculty members with whom Scott compared himself had accepted positions at the University prior to 1967, the year in which the University changed its employment policies to emphasize scholarship as a primary criterion in faculty hiring, renewal, and promotions. The University simply provided these faculty members with an opportunity to prove themselves under the new criteria; when they failed to do so, they were terminated. Scott, in contrast, was fully apprised of the relevant evaluation criteria shortly after he assumed his position at the University. Based on this evidence the district court found that Scott was ...