APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-1955)
Before Seitz, Chief Judge, Garth and Sloviter, Circuit Judges.
This case raises significant questions regarding the application in an educational setting of the statutory provisions prohibiting discrimination on the basis of sex and the appropriate relief to be awarded when discrimination has been proven.
Connie Rae Kunda, an instructor in the Department of Physical Education at Muhlenberg College in Allentown, Lehigh County, Pennsylvania, brought this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976), alleging that Muhlenberg had discriminated against her on the basis of sex when it failed to promote her and denied her tenure.*fn1 Kunda sought an injunction requiring Muhlenberg to appoint her as an Associate Professor of Physical Education with tenure, backpay, and costs and attorneys' fees.
After a trial on the merits, the district court found that Muhlenberg discriminated against Kunda on the basis of sex. In its Order of October 19, 1978, amended November 17, 1978, the court ordered that Muhlenberg grant Kunda (1) reinstatement; (2) backpay, from the date of termination, less amounts earned in the interim; (3) promotion to the rank of Assistant Professor effective September, 1973; and (4) the opportunity to complete or substantially complete the requirements of a master's degree within two full school years from the date of the Order and, if the master's degree is successfully achieved, an award of tenure effective September, 1975. Kunda v. Muhlenberg College, 463 F. Supp. 294 (E.D.Pa.1978). Muhlenberg has appealed. For the reasons that follow, we affirm the Order of the district court.
The procedure for awarding of promotion and granting of tenure at Muhlenberg at the time in question was set forth in the Muhlenberg College Bylaws and the Muhlenberg College Faculty Handbook. Normally, the Department Head initiates the action with regard to promotion and/or tenure of a faculty member in his or her department by submitting to the Dean a written recommendation. This recommendation is forwarded by the Dean to the Faculty Personnel and Policies Committee, hereinafter "FPPC", composed of six elected faculty members, which has the responsibility, inter alia, of reviewing recommendations concerning promotion and/or tenure submitted by the Department Head and making and submitting its own recommendation to the President of the College. The three recommendations, that of the Department Head, the FPPC, and the independent recommendation of the Dean, are reviewed by the President who must make his own recommendations to the Board of Trustees Committee on Educational Policies and Faculty Affairs, hereinafter "Trustees Committee." The Trustees Committee reports to the full Board of Trustees, which is vested with the power to award promotion and grant tenure.
The exhibits show that in practice the Board of Trustees, at least since 1970, invariably followed the President's recommendations, granting tenure on his recommendation and similarly denying it when he recommended against it, even when there were contrary recommendations by the Dean or FPPC. The same was true for promotions. There is one additional procedure available to those faculty members who wish to appeal from adverse decisions regarding promotion and/or tenure. There is a Faculty Board of Appeals, hereinafter "FBA", created by the Board of Trustees on November 5, 1973, composed of seven non-administrative faculty members and three alternates elected by the faculty, which can consider the appeals of individual teaching-faculty members pertaining to questions of promotion and tenure and then make its own recommendation to the President. Thus, in effect, there are two separate faculty committees which independently review a candidate's credentials and performance and which make recommendations to the President on behalf of the faculty members of the College regarding promotion and tenure.
The faculty ranks at Muhlenberg are Professor, Associate Professor, Assistant Professor, Instructor, and Lecturer. The policy for promotion, as set forth in the Faculty Handbook, is:
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.
For faculty members in the Physical Education Department, the terminal degree for purposes of tenure and promotion is the master's degree.
The Faculty Handbook does not articulate the requirements for tenure as it does for promotion. The President of the College testified that the academic qualifications for the grant of tenure were similar to those published for promotion, i. e. possession of the terminal academic degree or its scholarly equivalent or recognized achievement in the field.
A college's policy for tenure and promotion often encompasses not only the qualifications needed but also the time schedule in which a candidate must show achievement of the necessary credentials. In the case of promotion to Assistant Professor, the rank relevant in this case, the Faculty Handbook provides that "no person may remain indefinitely at the rank of Instructor although contracts as Instructor may be renewed annually for no more than nine years."
The relevant Faculty Handbook provision regarding tenure is:
Tenure is 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 or university teaching at the rank of Instructor, Assistant Professor or Associate Professor, at least four of which shall have been at Muhlenberg. Not more than three of the total seven years shall be served at the rank of Instructor. No person, however, shall teach at Muhlenberg for more than nine years without obtaining tenure.
Although there were different interpretations as to the meaning of the above provision, the President testifying that a faculty member must have served at least four years at a professional rank, i. e. above Instructor, before entitlement to tenure and a contrary position taken by the faculty member who helped draft the policy, the trial court found that the Board of Trustees retained the power to grant tenure to a faculty member who had not served at a professional rank for four years.
Connie Rae Kunda was appointed as an instructor in the Department of Physical Education of Muhlenberg College in September 1966, a position she held until June 1975 following annual reappointments. At the time Kunda was hired she had a Bachelor of Arts degree in Physical Education. The trial court found that at the time she was hired she was not told a master's degree was needed for employment or advancement at the College.
At all relevant times, Raymond Whispell was the Chairman of the Physical Education Department, Philip B. Secor was the Dean, and John H. Morey was the President of Muhlenberg.
The first recommendation of Kunda for promotion occurred on October 14, 1971 (her fifth year on the faculty) when Professor Whispell wrote to Dean Secor recommending that she be promoted to Assistant Professor. Kunda's name was sent to the FPPC which divided equally on whether to recommend her promotion. Dean Secor did not recommend Kunda for promotion. President Morey also did not recommend the promotion, testifying that he considered the FPPC tie vote to be a failure to recommend promotion. At the request of Professor Whispell the FPPC reconsidered the Kunda promotion at its March 15, 1972 meeting. Dean Secor, who did not usually attend such meetings of the FPPC, spoke in opposition, stating that the future of the Physical Education Department was doubtful and that the decision to promote Kunda should be made at a later date. Thereafter, the FPPC voted not to recommend the promotion by a vote of 4 (no) to 2 (yes).
In the spring of 1972, in an effort to ascertain the reasons for denial of the promotion, Kunda met separately with Professor Whispell, Dean Secor and President Morey. The trial court found that:
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.
The following academic year, 1972-73, Professor Whispell again initiated the promotion process by sending a written recommendation to Dean Secor on October 5, 1972 that Kunda be promoted to Assistant Professor. Although all but one of the other recommendations were timely forwarded by Dean Secor to the FPPC, Dean Secor wrote to the FPPC that due to an "egregious oversight", he had failed to bring the promotion recommendation of Kunda to the FPPC's attention when it was considering the other tenure and promotion decisions. By this time, Dean Secor had forwarded all of his recommendations to President Morey, President Morey had in turn 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.
At its meeting of January 25, 1973 the FPPC unanimously recommended Kunda's promotion. The FPPC noted "that despite the lack of an advanced degree, Mrs. Kunda provide(d) a vital service in the athletic program and, in fact, does have training beyond the Baccalaureate level." The FPPC recommendation was forwarded to President Morey.
Dean Secor recommended that Kunda not be promoted. His letter to President Morey of February 13, 1973 contained the following comments:
Concerning Mrs. Kunda, I have considerable difficulties. I cannot recommend that she be promoted because she holds only a Bachelor's degree. If she held a Master's degree I would certainly recommend her promotion on the strength of the known excellence of her work at the College. She is an outstanding teacher in her area, has made fine contributions within the Physical Education Department, and has been a dedicated and loyal member of the faculty.
The problem here obviously is that under our present regulations if Mrs. Kunda is not promoted she cannot receive tenure for she will have too many years in rank as an Instructor. I would suggest considering some option whereby Mrs. Kunda might be appointed as Lecturer in the faculty, thereby removing her from consideration for tenure. It would be a pity to have to abandon our work in modern dance and, indeed, to have to turn Mrs. Kunda loose when she does such a fine job for us, simply because of ridiculous and outdated tenure policy. I would hope that we might work out a new kind of relationship with Mrs. Kunda so that we could keep her in our employ as long as this is mutually to her advantage and ours.
President Morey did not recommend Kunda's promotion to the rank of Assistant Professor that year, and she was not promoted.
During the next academic year, once again Kunda's Department Chairman, Professor Whispell, this time joined by all senior members of her department, wrote to Dean Secor by letter dated October 2, 1973 recommending that Kunda be promoted and also, for the first time, recommending that she be granted tenure. The FPPC unanimously concurred by a vote of 6 (yes) to 0 (no). The FPPC found Kunda was an excellent teacher who had developed several new courses, participated in numerous professional organizations related to her specialty of dance, taken some post-graduate courses, published in her field, and presented a television series on physical fitness. The FPPC statement concluded:
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.
Once again, Dean Secor forwarded to the President a negative recommendation, this time as to tenure. He acknowledged that Kunda's "performance justifies a permanent appointment," but cited as the basis for his position the high percentage of tenured faculty in the Physical Education Department and the uncertainty of the Department's future at Muhlenberg. Dean Secor's memo did not refer to Kunda's lack of a terminal degree.
President Morey did not recommend Kunda's appointment to the Board of Trustees. Accordingly, she was notified that tenure had been denied and that she would receive a terminal contract for the 1974-75 academic year.
Kunda appealed the decision to deny her tenure to the FBA which referred her appeal to a three member subcommittee. The subcommittee unanimously recommended that Kunda be granted tenure and promoted to the rank of assistant professor. The full FBA adopted this recommendation, also unanimously. It notified President Morey on January 20, 1975 that its recommendation was based on the fact that Kunda displayed the scholarly equivalent of a master's degree, that the policy of granting promotions only to those who had obtained the appropriate degree had been bypassed in the Physical Education Department with some frequency, and that there were no significant fiscal considerations which mandated the ultimate decision, since the abandonment of the Physical Education requirement did not seem to be a real possibility.
Upon receiving the FBA recommendation, President Morey invited Kunda to present her case at a meeting of the Trustee Committee. Morey prepared a memorandum for the meeting defending his refusal to recommend Kunda for tenure because she lacked a master's degree. After a hearing, the Trustees Committee voted not to grant Kunda tenure, and, in March 1975, the Board of Trustees adopted this recommendation. Kunda then initiated this action.
The statute prohibits only "discrimination." Therefore, consideration of the practices of the college toward the plaintiff must be evaluated in light of its practices toward the allegedly more favored group, in this case males.
With respect to promotion, three members of the faculty of the Physical Education Department were promoted during the period of Kunda's employment notwithstanding their failure to have a master's degree. Professor Whispell, the department chairman, was promoted to full Professor effective September 1970, although he had only a bachelor of science degree. Ronald Lauchnor, hired as an Instructor in 1967, was promoted to Assistant Professor effective September 1972 even though he did not have a master's degree.*fn2 William Flamish was promoted to Associate Professor effective September 1972 although he did not have a master's degree. In departments other than Physical Education, Robert Bohm was promoted to Assistant Professor of Classics effective September 1972 although he lacked the terminal degree.
Central to the trial court's ultimate finding of disparate treatment was the difference in counseling received by male members of the Physical Education Department and by plaintiff. Although plaintiff had not been told of the necessity to have a master's degree either at the time of her initial employment at the college or by her department chairman, Dean, or President when she was being considered for promotion and tenure, male candidates for promotion and tenure were so advised. Dean Secor initiated a meeting with Ronald Lauchnor, a candidate for tenure about the same time as Kunda, and specifically advised him that he should obtain a master's degree because it was required for grant of tenure. Dean Secor encouraged him to pursue that degree. Dean Secor also initiated two meetings with Samuel Beidleman, an Instructor in the Physical Education Department, in the fall of 1967 and 1968 and advised him that a master's degree was a prerequisite to his tenure and promotion. A sabbatical leave had been offered to Robert Bohm, the professor in the Classics Department, so that he would be enabled to return to full-time doctoral study, which would have been required for him to obtain tenure.
The trial court found that the College discriminated against Kunda on the basis of her sex with respect to both the denial of promotion and the denial of tenure. The court found that plaintiff had satisfied both alternatives to the terminal degree requirement for promotion, in that she had the scholarly equivalent of the master's degree and recognized achievement in her field. Using the paradigm for such cases prescribed in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1977), the court determined plaintiff established a prima facie case of violation of the statute with regard to Muhlenberg's failure to promote her to Assistant Professor. The court found that ...