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COHEN v. COMMUNITY COLLEGE OF PHILADELPHIA

January 29, 1980

MADELINE L. COHEN
v.
COMMUNITY COLLEGE OF PHILADELPHIA and MONICA SOKOLSKY v. COMMUNITY COLLEGE OF PHILADELPHIA and JAN S. COWARD v. COMMUNITY COLLEGE OF PHILADELPHIA



The opinion of the court was delivered by: DITTER

ADJUDICATION

The plaintiffs in this case were employed as teachers by the defendant Community College of Philadelphia (CCP) in part-time capacities for varying periods of time between 1970 and 1975. In 1974, all three plaintiffs were denied appointment to full-time positions on defendant's faculty. Each of the plaintiffs filed complaints with the Equal Employment Opportunity Commission (EEOC), alleging that they had been refused employment because of their race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Essentially, plaintiffs charged that they were victims of so-called "reverse discrimination" because they had been denied full-time faculty positions in favor of allegedly less-qualified minority candidates.

 After receiving the requisite notices of right to sue from the EEOC, plaintiffs each filed timely complaints in this court, seeking relief under Title VII. The cases were consolidated for a trial before the court, without a jury, producing a record of more than 1200 pages.

 After considering the evidence at great length, as well as the briefs of counsel and the prevailing case law, I conclude that plaintiffs have failed to show a violation of Title VII. The relief sought must therefore be denied.

 In connection with this holding, I make the following:

 I. FINDINGS OF FACT

 1. CCP is a public college providing, inter alia, a two-year, post-secondary, college-parallel education from its principal campuses located at 34 South 11th Street and 1600 Spring Garden Street, Philadelphia, Pennsylvania. *fn1"

 2. CCP was organized and exists pursuant to the Community College Act of 1963, 24 P.S. § 5201 et seq. ("Act"). The Act governs CCP's operations.

 3. CCP opened in September, 1965, after the passage of an enabling ordinance by the City Council of Philadelphia in 1964.

 4. CCP is administered and supervised by a Board of Trustees appointed by its local sponsor, the City of Philadelphia (24 P.S. §§ 5205, 5206).

 5. CCP's operating funds are derived from the following sources: one-third student tuition (24 P.S. § 5209); approximately one-third from the Commonwealth of Pennsylvania (24 P.S. § 5214(b)); and the balance from the City of Philadelphia (24 P.S. § 5214(a)). The Commonwealth pays up to one-half of CCP's annual capital expenses as approved by the Department of Public Instruction (24 P.S. § 5214(b) and (c)).

 7. CCP's faculty consists of three categories: full-time, visiting lecturers, and part-time.

 8. Full-time faculty members are tenure track employees divided into eight ranks. At all times relevant hereto, the relationship between CCP and its full-time faculty was governed by a collective bargaining agreement (Exhibit 1) effective October 20, 1972, to August 31, 1975, between CCP and the Faculty Federation of the Community College of Philadelphia, Local 2026, of the American Federation of Teachers, AFL-CIO. ("Federation").

 9. Visiting lecturers also teach full-time, but for a stated period of time (usually one or two semesters), without any obligation on the part of CCP to renew their services. Part-time faculty members are those teaching less than nine credit hours per semester. The visiting lecturers and part-time instructors are not subject to a collective bargaining agreement.

 10. Plaintiffs applied for appointment as full-time faculty members in the Department of Music and Art in the Division of Humanities and Applied Arts for the 1974-1975 academic year.

 11. In prior semesters, plaintiffs had served as either visiting lecturers or part-time instructors.

 12. Initial appointments for full-time faculty positions were governed by Article VI A(1) of the Collective Bargaining Agreement which stated in part:

 
Responsibility for initiating recommendations for hiring shall normally vest with the members of the department where a newly hired Employee will be working. In any case, all recommendations for the hiring of new employees in a department shall be subject to the consideration and approval first of the Department Committee elected by the department, next by the Department Head, and then by the Division Director and by the Provost. The Department Head and Department Committee shall be required to provide (a) a list of all applicants rejected; and (b) upon the request of the Provost, a written statement explaining any specific rejection. Final decisions with respect to the appointment of any new Employee shall be made by the Board upon the recommendation of the President and an appointment shall normally be for a term of one (1) year.

 13. At all times relevant hereto, the president was Dr. Allen T. Bonnell, ("Bonnell"), the provost was Dr. Raymond Pietak, the director of the Division of Humanities and Applied Arts was William Baker, and the department head of the Department of Music and Art was Clayton White. Due to the differing natures of the disciplines, there were two departmental hiring committees, one for music and one for art. The members of the art hiring committee were Bobbye Burke and R. Daniel Evans. The members of the music hiring committee were Clayton White, Leon Silvan, and Brian Kovach.

 14. It was necessary for the music department to hire for the academic year 1974-1975 in that CCP had approved a separate expanded music curriculum to commence in the fall semester 1974. (N.T. 8-26, 27, 10-43 to 10-45).

 15. Although there was a need for new instructors who could teach in a number of areas, there were particular needs for specialists in theory, history, ethnomusicology, and piano. (N.T. 8-28).

 16. The hiring committee in music met to consider the applications of various candidates. On April 25, 1974, the committee recommended to the division director the hiring of Joy Simpson ("Simpson") (Exhibit 28).

 17. Plaintiffs Jan Coward ("Coward") and Monica Sokolsky ("Sokolsky") joined with the hiring committee in recommending Simpson. (Exhibit 28).

 18. Coward had received a B.M. (1965) from East Carolina University and a M.M. (1971) from the University of North Carolina. He had been employed as either a visiting lecturer or part-time instructor at CCP from January, 1972.

 19. Sokolsky had received a B.F.A. (1968) from Carnegie-Mellon University and a M.M. (1970) from Temple University. She had been employed as either a visiting lecturer or part-time instructor from September, 1970.

 20. Simpson had received a Bachelor of Music Education (1968) from Temple University and a M.M. (1972) from the Julliard School (Exhibit 34).

 21. As an undergraduate she majored in piano and voice education and majored in voice in her masters studies at the Julliard School. Simpson had an outstanding record as an opera singer as well as considerable experience as a secondary school music teacher. She had been involved during the 1973-1974 academic year as assistant director of the CCP choir. (Exhibit 34, N.T. 9-2 to 9-10).

 22. In August of 1974, Simpson had promise to be, at the least, a greater asset to the music department at CCP than Jan Coward. (N.T. 5-87).

 23. In late August of 1974, CCP extended a job offer to Simpson. She was at least as well qualified for this job as were both plaintiffs Sokolsky and Coward.

 24. CCP could reasonably conclude that Joy Simpson was better qualified for the position than either Sokolsky or Coward, given her qualifications and the needs of the college.

 25. In August, 1974, the music hiring committee continued to meet and sent a series of memoranda to the division director recommending the hiring of candidates (Exhibits 29-31). (Stipulation of Facts P 22).

 26. CCP hired Simpson, Horatio Miller ("Miller"), and Dr. George Starks ("Starks") for the music positions rather than plaintiffs Coward and Sokolsky. (Stipulation of Facts P 23).

 27. Starks had received a B.S. (1964) from North Carolina A & T State University, M.S. in Music Education (1965) from the University of Illinois, and a Ph.D. in Ethnomusicology (1973) from Wesleyan University (Exhibit 35). (Stipulation of Facts P 28).

 28. Starks doctoral studies were in ethnomusicology with particular emphasis, including his dissertation, on Afro-American music. He had taught at the college level since 1965 at Coppin State College, Baltimore, Maryland, Wesleyan University, and Howard University. (Exhibit 33).

 29. Miller had received a B.A. (1970) from the University of Pennsylvania and a M.M. (1973) from Temple University (Exhibit 35). (Stipulation of Facts P 27).

 30. Miller's undergraduate major was in musicology and his master's studies in piano performance. He had taught at the college level as both an instructor and graduate assistant at Temple University and Cheyney State College. He was considered to be an outstanding young pianist, and at the time of hire had recently been chosen by the Soviet Union to be a participant in the Tchaikovsky International Music Competition. (Exhibit 35, N.T. 7-58 to 7-63).

 31. Starks fulfilled CCP's need for an ethnomusicologist, Simpson fulfilled CCP's need for an instructor in theory and aural training, and Miller fulfilled needs in piano and history. (N.T. 7-69; 8-42; 8-49; 9-13).

 32. CCP could reasonably conclude that Starks, Simpson and Miller were the most qualified candidates for the jobs considering their education, backgrounds, experiences, and CCP's needs. (N.T. 9-90 to 9-92; 10-45 to 10-58; 5-85, 86; 8-40; 8-43).

 33. The art hiring committee after drafting criteria (Exhibit 11) and advertisement (Exhibit 10), received twenty applicants and interviewed seven candidates for a position in art. On July 30, 1974, the hiring committee recommended to the department head, Clayton White, plaintiff, Madeline Cohen ("Cohen") as their first choice, and Jacqueline Brown ("Brown") as their second choice (Exhibit 13).

 35. African art had been taught as part of the primitive art course. However, there was considerable student demand for courses dealing with both African art and Afro-American art, which had never been taught at CCP. (N.T. 2-78, 3-79, 80, 7-144, 146, 10-24).

 36. The hiring criteria utilized by the hiring committee required an M.A. in art history from an accredited graduate school, a strong commitment to undergraduate teaching, an ability to teach the introductory survey course, and the ability to teach (or a prediction of successful teaching of) a course in non-western art. Ability to teach non-western art could be demonstrated by teaching experience in that area or completion of undergraduate or graduate courses in the specific area and the ability to organize and prepare a new course offering in one of these areas. (Exhibit 11).

 37. Brown had obtained a B.A. degree (1969) from Spelman College and an M.A. (1974) from Howard University (Exhibit 14).

 38. Brown had majored in art at undergraduate school and her masters work was in art history with emphasis and concentration in African and Afro-American art. She had served as an instructor in art at L. J. Price High School, Atlanta, Georgia, design instructor at Federal City College; lecturer in African studies, Museum of African Art, Washington, D.C.; instructor in art, Washington, D.C. Public School System, and a graduate assistant at Howard University (Exhibit 14, N.T. 7-100 to 7-102). By background and education, Brown satisfied all the hiring criteria. (N.T. 2-100, 102, 3-91, 8-12, 10-35, 36).

 39. When interviewed by the hiring committee, Brown distributed to the committee and discussed with them a syllabus for a proposed Afro-American art course. (Exhibits 15-16, N.T. 2-97, 3-93).

 40. Cohen had obtained a B.A. degree (1966) from Brooklyn College, an M.A. (1970) from the University of Pennsylvania, and was taking courses towards a Ph.D. at the University of Pennsylvania. She had been employed at CCP as either a visiting lecturer or part-time instructor from September, 1972. (N.T. 2-4 to 2-10).

 41. Cohen majored in both mathematics and art history as an undergraduate, her masters work centered on painting, sculpture, and architecture with her thesis in modern art. Her doctoral work emphasized architecture and urban history. Her proposed dissertation was in architectural history. (N.T. 2-4 to 2-10).

 42. Prior to making any hiring decision, both Baker and White reviewed Cohen's transcripts, checked with the University of Pennsylvania as to course offerings, and consulted an expert on African art, Dr. Donaldson, to ascertain whether Cohen's academic preparation in Islamic architecture was sufficient to teach African and Afro-American Art. (N.T. 8-7, 9, 8-13, 8-18, 9-19, 20, 9-23 to 9-27, 10-29, 30, 10-35).

 43. CCP could reasonably conclude that Cohen did not satisfy the hiring committee criteria in that she had no academic preparation in the area of African or Afro-American Art. (Exhibit 11, N.T. 2-4-2-10, 2-41, 2-94-2-97, 2-114, 3-83-3-84).

 44. Cohen did not indicate a desire, ability or willingness to teach Afro-American Art until after final candidate selection had been made. (Exhibit 26, N.T. 2-40-41, 3-92-93).

 45. CCP could reasonably conclude that Brown was the most qualified candidate for the job considering her education, background and experience, as well as CCP's needs. (Exhibit 12, N.T. 10-35, 10-38-10-42).

 46. CCP hired Brown for the art position.

 47. Simpson, Miller, Starks, and Brown are black, and Coward is a white male, Cohen is a Russian Jewish female, and Sokolsky is a Slovak-Russian Catholic female.

 49. Clayton White had no hiring authority. Rather, he could only make recommendations. He had no authority to bind the college by his statements regarding hiring.

 50. No witness testified to hearing anyone other than Clayton White make remarks similar to those described in Finding No. 48.

 51. Mr. White's statements were in fact inaccurate. See Finding No. 85.

 52. Before the recommendation to hire Simpson (Exhibit 28) was submitted, Clayton White discussed with the other members of the music department, including Sokolsky and Coward, the possibility of using "ringers" or "bogus candidates." (N.T. 2-134, 135; 3-116, 117; 5-76, 77; 6-56, 57; 8-31).

 53. A "ringer" would be a minority candidate who actually had no interest in a job at CCP. The purpose of the "ringer" idea was to facilitate the hiring of Sokolsky and Coward. The committee would submit the names of "ringer" candidates along with those of Sokolsky and Coward. The "ringers" would then withdraw at the last moment, leaving CCP no time to find other candidates. CCP would then be forced to hire Sokolsky and Coward. (N.T. 2-135; 5-77; 6-56).

 54. The "ringer" possibility was discussed solely as a theory or a hypothetical. It was never agreed to as a plan of action, and it was never carried out. (N.T. 5-76; 6-7; 8-31).

 55. In order to succeed, a plan based on the "ringer" theory would require the knowledge and cooperation of the "ringer" candidates themselves.

 56. Although plaintiffs Sokolsky and Coward were both present for Joy Simpson's interview, the possibility of Simpson's being a "ringer" was not discussed. (N.T. 3-26).

 57. Neither Clayton White nor anyone else ever told plaintiffs that Joy Simpson was in fact a "ringer." (N.T. 3-26, 27).

 58. No one ever told plaintiffs that Joy Simpson was paid for rendering services as a "ringer," nor were they ever told that any "ringers" were to be paid. (N.T. 3-27, 28).

 59. No other persons were ever identified to plaintiffs as either potential or actual "ringers." (N.T. 3-28, 29).

 60. Plaintiffs Sokolsky and Coward had no reasonable basis for believing that Simpson was a "ringer" or anything other than a legitimate candidate when they joined in the ...


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