65. In late 1991 Mary Jacobs was brought into LaBrum and Doak as an associate. Immediately prior to joining the firm she had been a partner at a comparable Philadelphia firm. Ms. Jacobs was required to remain at LaBrum and Doak for approximately one year before being elevated to partner. All male attorneys who were brought to LaBrum and Doak from partnerships at other firms were hired as partners.
66. In 1985 Ms. Passante was preparing to try a case on appeal from an arbitration award. The client informed James Wilder, the partner supervising the case, that it did not want a woman to try the case. Mr. Wilder removed Ms. Passante from the case despite the fact that he was impressed with her work on the file and that he saw no reason that she could not have tried the case, perhaps to a more successful resolution than he could.
67. Mr. Estrin occasionally refers to women in a degrading manner and he occasionally uses profanity in the office, though not intending it to be heard publicly. He makes comments of a sexual nature while in the office, intending them to be private. He does not believe he makes such comments in front of women. Mr. Estrin's comments, however, have been heard by female attorneys at the firm.
68. Shortly after Ms. Miller was hired by LaBrum and Doak she was introduced by Mr. Ryan to two judges as "the new broad we just hired." Mr. Ryan intended the comment to be a joke and so explained it to the judges. Ms. Miller nonetheless was offended by the comment.
69. After Ms. Masterson was denied partnership she spoke with Mr. Ledwith who stated to her: "Now you know how it feels to be black." Mr. Ledwith had been representing a fraternity which believed itself to be the object of discrimination. Mr. Ledwith felt great empathy for the members of the fraternity.
70. LaBrum and Doak historically has treated female attorneys differently than male attorneys.
71. Since the Hildebrandt report was received in 1988 LaBrum and Doak has elected partners at a substantial rate, including two in 1990 and five in 1991. The firm has also accepted partners through the merger with Holland, Taylor and Hollenbach. This fact is inconsistent with the firm's stated concern with its partner to associate ratio.
72. Plaintiff earned $ 20,125.00 less in 1991 than she would have had she been elected to partnership in 1991.
73. Plaintiff earned $ 18,448.00 less in 1992 than she would have had she been elected to partnership in 1991.
74. No evidence was introduced as to plaintiff's 1993 salary or the partnership earnings in 1993. Nevertheless, it may reasonably be determined that the differential between plaintiff's salary in 1993 and the amount she would have earned as a partner in 1993 would be no less than the $ 18,448.00 differential from 1992.
CONCLUSIONS OF LAW
1. After the close of evidence in this case plaintiff submitted to the Court a request to consider this case solely as a pretext case. Plaintiff specifically withdrew the case from consideration under a mixed motive theory. Defendant has not objected to plaintiff's request. Therefore, this Court will grant plaintiff's request and analyze the case as a pretext case.
2. The plaintiff has fully complied with the administrative prerequisites for suit under Title VII. 42 U.S.C. § 2000e-5.
3. In a pretext case a plaintiff first must establish by a preponderance of the evidence a prima facie case of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992), cert. denied, 126 L. Ed. 2d 56, 114 S. Ct. 88 (1993).
4. A plaintiff may establish a prima facie case by establishing that she is a member of a protected class; that she was qualified for a position and rejected; and that non-members of the protected class were treated more favorably. Ezold, 983 F.2d at 522; Roebuck v. Drexel Univ., 852 F.2d 715, 726 (3d Cir. 1988).
5. A plaintiff may meet this initial burden by demonstrating that she "was sufficiently qualified to be among those persons from whom a selection, to some extent discretionary, would be made." Ezold, 983 F.2d at 523 (quoting Bennun v. Rutgers State Univ., 941 F.2d 154, 171, cert. denied, 117 L. Ed. 2d 124, 112 S. Ct. 956 (1992)). A prima facie case is easily made out. Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 n.1 (3d Cir. 1988), cert. denied, 490 U.S. 1098, 104 L. Ed. 2d 1004, 109 S. Ct. 2449 (1989).
6. Plaintiff has demonstrated that she was qualified for partnership consideration. The favorable evaluations that plaintiff received from Messrs. Ledwith and Seehousen are sufficient to support this conclusion. See Ezold, 983 F.2d at 523 (favorable evaluations from partners sufficient to establish qualification).
7. Once a plaintiff has established a prima facie case the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its decision regarding the plaintiff. Burdine, 450 U.S. at 252. If the defendant produces evidence which creates a genuine issue of fact the presumption of discrimination is removed from the case. Id. at 254-55.
8. LaBrum and Doak introduced evidence that it denied partnership to plaintiff because she failed to develop business for the firm. This evidence creates a genuine issue of fact as to the reasons for plaintiff's partnership denial.
9. Placing the burden of production on the defendant serves two purposes. First, it meets the plaintiff's prima facie case, and establishes a genuine issue of fact for resolution. Second, it "frames the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext." Burdine, 450 U.S. at 255-56.
10. LaBrum and Doak has therefore framed the issue in this case as whether the reason advanced for plaintiff's partnership denial, that she failed to develop business, was a legitimate reason or a pretext for a discriminatory reason.
11. Once a defendant meets its burden of production, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the defendant's proffered reasons were a pretext for discrimination. Burdine, 450 U.S. at 257; Ezold, 983 F.2d at 522. This burden merges into the plaintiff's ultimate burden of proving that she was the victim of intentional discrimination. Ezold, 983 F.2d at 523.
12. A plaintiff can establish pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence." Burdine, 450 U.S. at 256.
13. Evidence of an employer's past treatment of the plaintiff may be sufficient to establish pretext. Ezold, 983 F.2d at 523 (citing Patterson v. McLean Credit Union, 491 U.S. 164, 188, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)).
14. The employer's general policy and practice with regard to the employment of females may also be relevant. McDonnell Douglas, 411 U.S. at 804-05.
15. Actions of an employer must apply equally to male and female employees. Differential treatment is evidence of pretext for discrimination. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282-84, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976).
16. Additionally, if the plaintiff proves that "the employer did not act for its proffered reason, then the employer's decision remains unexplained and the inferences from the evidence produced by the plaintiff may be sufficient to prove the ultimate fact of discriminatory intent." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052 (1987).
17. A showing that a proffered reason is pretextual compels a finding that the employer intentionally discriminated. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir.), cert. denied, 469 U.S. 1087, 83 L. Ed. 2d 702, 105 S. Ct. 592 (1984).
18. Ms. Masterson has established that the defendant's proffered reason for its refusal to elect her to partnership is pretextual. She has established that she was treated differently from the males who were eligible for partnership in 1991. Specifically, plaintiff has demonstrated that she was not informed that business production was an established partnership criterion prior to the partnership election in 1991 whereas Messrs. Kent, Gebauer and Vitullo were so informed. As a consequence, plaintiff was being judged by a standard that she was never given the opportunity to meet. This disparate treatment is evidence of pretext. See McDonald, 427 U.S. at 282-84.
19. Moreover, plaintiff had in fact generated some business prior to the partnership election in 1991. This fact was never made known to the partnership, though the partnership was aware of the business generated by the male candidates. No partners ever made any effort to determine what plaintiff's business production was.
Additionally, because Ms. Masterson was asked by Mr. Ledwith to continue to work for him after she was scheduled to be "on her own" and no action was taken by the firm to extricate her from this situation plaintiff did not have the same opportunity to develop business as those male associates who were "on their own." This is further evidence of pretext. Id.
20. LaBrum and Doak evidenced an historical pattern of treating males and females differently as demonstrated by the firings of Ms. Miller and Ms. Bill, the removal of Ms. Passante from a case because of her sex, the circumstances of Ms. Jacobs' hiring, and Ms. Passante's 1990 review where she was not informed that business production was a partnership criterion. The fact that LaBrum and Doak has had so few female partners in its history while in itself not sufficient to establish discriminatory practices nevertheless may be considered along with all of the other evidence. It lends support to the conclusion that discrimination was the motivating factor in the firm's decision with regard to Ms. Masterson. See McDonnell Douglas, 411 U.S. at 804-05 (evidence of employer's practice with regard to employment of women relevant to issue of discrimination).
21. Plaintiff also demonstrated that LaBrum and Doak operated, to an extent, in a discriminatory environment. For example, Mr. Ryan's reference to Ms. Miller as a "broad", even though intended to be humorous, warrants the conclusion that women were not regarded at the firm to be professional equals of men. Similarly, Mr. Estrin's use of demeaning comments regarding women, his use of profanity, and his comments of a sexual nature made while in the office and with little regard for whether women were present evidence an atmosphere in which women were not regarded as equals to men. Reflective of that environment was Mr. Ledwith's comment to Ms. Masterson that: "Now you know how it feels to be black." Such an atmosphere is suggestive of discrimination. See McDonnell Douglas, 411 U.S. at 804-05.
22. The defendant may well have considered business production in making its partnership decision. The Court does not mean to suggest that this would be an inappropriate criterion. The Court's decision is based, rather, on the fact that the plaintiff was never given the same opportunity as comparable males to meet this criterion because she was never adequately informed of it as were the male candidates prior to the partnership decision nor was she ever permitted to be fully "on her own" prior to the 1991 election.
Further supporting this finding of pretext is the firm's historical practice of treating women differently from men.
23. Plaintiff has succeeded in proving that LaBrum and Doak did not act for its proffered reason. This leaves the reason for the partnership denial explained by the inference of discrimination that this Court draws from plaintiff's evidence. The Court is satisfied that plaintiff has met her burden of establishing the ultimate fact of discriminatory intent. See Chipollini, 814 F.2d at 899.
An appropriate Order follows.
Clarence C. Newcomer, J.
AND NOW, this 17th day of December, 1993, upon consideration of the testimony of the witnesses, the admitted exhibits and the arguments of counsel, and consistent with the foregoing findings of fact and conclusions of law, it is hereby ORDERED that judgment is entered in favor of the plaintiff, Ellen Masterson, and against the defendant, LaBrum and Doak, on plaintiff's claim that the defendant refused to promote her to partner in 1991 on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964.
IT IS FURTHER ORDERED that plaintiff be immediately instated as a partner in defendant law firm.
IT IS FURTHER ORDERED that defendant pay to plaintiff the sum of $ 57,021.00 as back pay from the date of the wrongful denial of partnership to the present.
AND IT IS SO ORDERED.
Clarence C. Newcomer, J.