USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2331
RONA FIELDS,
Plaintiff, Appellant,
v.
CLARK UNIVERSITY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Pettine,* Senior District Judge.
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Frederick T. Golder with whom Bernstein, Golder & Miller, P.A.
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was on brief for appellant.
William L. Patton with whom David J. Kerman and Ropes & Gray were
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on brief for appellee.
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*Of the District of Rhode Island, sitting by designation.
PETTINE, Senior District Judge.
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I.
This appeal centers on a sex discrimination claim
arising under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e et seq. ("Title VII").
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Plaintiff-Appellant Dr. Rona Fields, a former associate
professor of sociology at Clark University, instituted this
lawsuit in May 1980, claiming she was denied tenure at Clark
because of her gender. The case was tried before Judge
Skinner, Massachusetts Federal District Court, in September
1985. Judge Skinner concluded that Dr. Fields had not
proven entitlement to tenure; nonetheless, he held that
Title VII relief was appropriate in light of the sexually
discriminatory atmosphere of Clark University's sociology
department. Accordingly, Judge Skinner held Clark
University liable to Dr. Fields for back pay and attorneys'
fees, and ordered the University to reappoint Dr. Fields for
a two-year probationary period before reconsidering her
tenure application.
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The case was subsequently appealed to the First
Circuit Court of Appeals. In Fields v. Clark Univ., 817
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F.2d 931, 937 (1st Cir. 1987), this Court held:
The district court's finding that sexual
discrimination "impermissibly infected"
the decision not to grant Fields tenure
appears to us to be the equivalent of a
finding that she proved by direct
evidence that discrimination was a
motivating factor in the decision. This
finding cannot be reconciled with the
court's putting the burden on Fields to
prove that she was entitled to tenure.
Therefore, the court erred in its
allocation of this burden of proof. The
court also erred by reinstating Fields
for two years and awarding back pay
without finding that the university,
after having been afforded the
opportunity to prove Fields would not
have been granted tenure absent
discrimination, failed to carry its
burden of proof. We, therefore, remand
the case for a new trial on all issues
by another district court judge.
The case was then heard in an abbreviated format1 by
District Judge Keeton. On April 16, 1991, Judge Keeton
entered judgment for Clark University, ruling that Dr.
Fields had failed to establish that the tenure decision was
impermissibly tainted by gender bias in violation of Title
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1The parties agreed by written stipulation to proceed by
mini-trial, using time-saving procedures such as witness
affidavits in lieu of live testimony; the result was a four-
day "Tailored Non-Jury Trial."
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VII. Rona Fields v. Clark University, No. 80-1011-K (D.
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Mass. Apr. 16, 1991.).
II.
A. THE TITLE VII LEGAL STANDARD
The court below discussed the burdens of
production and persuasion in Title VII cases as set forth
both in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
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S.Ct. 1817, 36 L.Ed.2d 668 (1973) (rearticulated in Texas
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Dep't. of Commercial Affairs v. Burdine, 450 U.S. 248, 101
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S.Ct. 1089, 67 L.Ed.2d 207 (1981)), and in Price Waterhouse
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v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268
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(1989). The District Court judge refrained from deciding
which of these standards applied to the instant case,
finding that Dr. Fields had not satisfactorily established a
prima facie case under either standard.
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On appeal, Plaintiff-Appellant argued that, by not
choosing one standard (McDonnell Douglas/Burdine) or another
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(Price Waterhouse), the District Court, in effect,
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erroneously relied on the McDonnell standard. This argument
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necessitates further analysis of the McDonnell
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Douglas/Burdine and Price Waterhouse Title VII frameworks.
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1. THE MCDONNELL DOUGLAS/BURDINE STANDARD
In order for a plaintiff to prevail in a Title VII
action, the court must first find that plaintiff has proved
a prima facie case by a preponderance of the evidence.
Burdine, 450 U.S. at 253. A McDonnell Douglas/Burdine prima
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facie showing is "proof of actions taken by the employer
from which discriminatory animus can be inferred because
experience has proved that in the absence of any other
explanation it is more likely than not those actions were
based on impermissible considerations." Furnco Constr.
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Corp. v. Waters, 438 U.S. 567, 568, 98 S.Ct 2943, 2945, 57
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L.Ed.2d 957 (1978). "The burden of establishing a prima
facie case of disparate treatment is not onerous. The
plaintiff must prove by a preponderance of the evidence that
she applied for an available position for which she was
qualified, but was rejected under circumstances which give
rise to an inference of unlawful discrimination." Burdine,
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450 U.S. at 253.
If the court concludes that the plaintiff has
proved a prima facie case by a preponderance of the
evidence, the court must then consider the defendant's
justification for the presumptively discriminatory action or
practice. The defendant must meet a burden of production by
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articulating a legitimate, nondiscriminatory reason for its
challenged actions; however, it need not prove that it was
actually motivated by the proffered reason. Id. at 254-55.
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The plaintiff then must have an opportunity to
prove by a preponderance of the evidence that the
defendant's proffered reason was merely a pretext for
discrimination. If she successfully demonstrates that such
a pretext exists, she has proven defendant's commission of a
Title VII violation; if she fails to do so, the presumption
of discrimination drops from the case. See, e.g., Unites
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States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
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711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983).
Plaintiff's burden of persuasion, retained throughout, would
then "merge[] with the ultimate burden of persuading the
court that she has been the victim of intentional
discrimination. She may succeed in this either directly by
persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that
the employer's proffered explanation is unworthy of
credence." Burdine, 450 U.S. at 256, citing McDonnell
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Douglas, 411 U.S. at 804-05.
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2. THE PRICE WATERHOUSE STANDARD
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In Price Waterhouse, 490 U.S. at 241-42, the
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Supreme Court held that "[w]hen...an employer considers both
gender and legitimate factors at the time of making a
decision...[the employee is not obligated] to identify the
precise causal role played by legitimate and illegitimate
motivations in the employment decision she challenges. We
conclude, instead, that Congress meant to obligate her to
prove that the employer relied upon sex-based considerations
in coming to its decision." The Court continued:
In saying that gender played a
motivating part in an employment
decision, we mean that, if we asked the
employer at the moment of the decision
what its reasons were and if we received
a truthful response, one of those
reasons would be that the applicant or
employee was a woman.
Id. at 250.
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Once the plaintiff has proven that her gender
partly motivated the employer's adverse employment action or
decision, the employer will be liable under Title VII unless
"it can prove that, even if it had not taken gender into
account, it would have come to the same decision regarding
[her]." Id. at 242. The Court noted that, because it does
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not employ burden-shifting, this framework differs from
Burdine. Under Price Waterhouse, "the plaintiff must
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persuade the factfinder on one point, and then the employer,
if it wishes to prevail, must persuade it on another."
Price Waterhouse, 490 U.S. at 246.
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Price Waterhouse therefore does not supplant
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Burdine. Burdine's burden-shifting approach applies to
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cases where "either a legitimate or an illegitimate set of
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considerations led to the challenged decision." Id. at 247
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(emphasis in original). Price Waterhouse applies only
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"[w]here a decision was the product of a mixture of
legitimate and illegitimate motives" (commonly referred to
as "mixed motive" cases). Id. at 247.
3. THE APPROPRIATE STANDARD FOR THIS CASE
Plaintiff-appellant urges this Court to hold that
the appropriate legal framework for this case is found in
Price Waterhouse, presumably because this framework places
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greater demands on the employer than does the McDonnell
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Douglas/Burdine framework. Indeed, as Judge Keeton stated:
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[T]he defendant must satisfy a greater
burden once plaintiff has proved...that
her gender played a motivating part in
an employment decision....[This] in
effect transforms the defendant's
burden, once plaintiff proves a
discriminatory motive, from a burden of
production to a burden of persuasion.
Fields, No. 80-1011-K, slip op. at 5.
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The District Court found that under either
McDonnell Douglas/Burdine or Price Waterhouse, plaintiff did
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not clear her first legal hurdle.
Plaintiff has failed to offer sufficient
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evidence...that gender was a motivating
factor in any of the unanimous decisions
against her at each level of the
decisionmaking process.
Fields, No. 80-1011-K, slip op. at 8 (emphasis in original).
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Thus, there was no need to determine which standard would
dictate defendant's subsequent burden, since the next stage
of the battle would not be reached.2
As a matter of law, the District Court did not err
in failing to apply the Price Waterhouse standard. If it is
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true that plaintiff-appellant did not make out her prima
facie case of sex discrimination, then a court cannot
require defendant-appellee to do anything to defend its
actions. The District Court appropriately refrained from
applying the second tier of either McDonnell Douglas or
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2The District Judge further found that "even if I were to
determine that plaintiff had introduced sufficient evidence
to show a prima facie case under McDonnell Douglas, or under
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Hopkins to make this a mixed motive case rather than a
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pretext case, I would not ultimately decide for the
plaintiff because defendant has introduced sufficient
evidence of a legitimate, non-discriminatory reason for its
decision to deny plaintiff tenure to satisfy its burden of
persuasion even under the Hopkins analysis." Fields, No.
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80-1011-K, slip op. at 8-9.
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Price Waterhouse analysis to the instant case. Only if the
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District Court's analysis of the facts of the case was
clearly erroneous and the plaintiff did successfully make
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out a prima facie case of discrimination would the court
have committed error by failing to articulate the applicable
legal standard. Accordingly, we proceed to evaluate whether
the district court's determination that Dr. Fields failed to
make out a prima facie case was clearly erroneous.
B. SUCCESS OR FAILURE OF PLAINTIFF-APPELLANT'S PRIMA FACIE
CASE
In order to make out a prima facie case, the
plaintiff must show:
(1) that she is a member of a protected class under
Title VII;
(2) that she was a candidate for tenure and was
qualified under Clark University standards,
practices or customs;
(3) that despite her qualifications she was rejected;
and
(4) that tenure positions in the Department of
Sociology at Clark University were open at the
time plaintiff was denied tenure, in the sense
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that others were granted tenure in the
department during a period relatively near to
the time plaintiff was denied tenure.
See, e.g., Banerjee v. Board of Trustees of Smith College,
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648 F.2d 61, 62 (1st Cir. 1981), cert. denied, 454 U.S. 1098
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(1981).
The only contested element of plaintiff's prima
facie case is the second element--her qualifications. To
pass this portion of the prima facie test, plaintiff
need only show that [s]he was
sufficiently qualified to be among those
persons from whom a selection, to some
extent discretionary, would be made.
That is, [s]he need not show only that
h[er] qualifications were at least
sufficient to place h[er] in the middle
group of tenure candidates as to whom a
decision granting tenure and a decision
denying tenure could be justified as a
reasonable exercise of discretion by the
tenure-decision making body.
Banerjee, 648 F.2d at 63, quoting Banerjee v. Board of
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Trustees of Smith College, 495 F. Supp. 1148, 1155-56 (D.
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Mass. 1980).
In concluding that Dr. Fields had not fulfilled
the requirements of the second element of her prima facie
showing, the court below stated:
Having weighed the evidence presented by
plaintiff in this case, I find that she
has not shown by a preponderance of the
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evidence that she was sufficiently
qualified to place her in the middle
group of tenure candidates in the
sociology department at Clark
University....plaintiff was denied
tenure by unanimous vote at each stage
in the tenure review process, and failed
to receive support from other men and
women on the Clark faculty. Plaintiff's
own testimony established that she had
difficulties teaching some of the large
courses to which she was assigned, and
much of plaintiff's testimony was in the
form of argument as opposed to
recitation of fact. Defendant has
introduced student evaluations and
testimony from the plaintiff and the
defense witnesses showing that her
teaching was criticized by several of
her students and that the chair of her
department told her on numerous
occasions that he was receiving
complaints from her students.
Fields, No. 80-1011-K, slip op. at 9-10.
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In reviewing a university's tenure decision,
neither the trial court nor the appellate court may "simply
speculate that [the] plaintiff may have been denied tenure
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for reasons of [gender]....Inevitably, some tenure
decisions...will be very close....Courts have no license to
resolve such disputes except where there is evidence from
which to conclude that an illicit motive was at work."
Kumar v. Board of Trustees, Univ. of Mass., 774 F.2d 1, 12
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(1st Cir. 1985) (Campbell, C.J., concurring). "[T]enure
decisions are by their nature judgmental and subjective. In
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close cases reasonable people can differ. It is the choice
of the university, however, not of the court, that is called
for in a faculty member's contract." Id. at 15. Moreover,
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"[i]n the very complex and nuanced environment of university
tenure decisions, a discrimination case with no 'smoking
gun' evidence can be excruciatingly close for the district
court." Id. at 21 (Coffin, J., dissenting).
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We quote extensively from Kumar to emphasize the
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high degree of deference due to both the University's tenure
decision and the District Court's Opinion. While we might
be suspicious of Defendant-Appellee's motives, thorough
review of the record provides no opportunity for this Court
to find that the District Court's decision was clearly
erroneous.3
III.
We have reviewed this case with special care
because, as noted above, the parties agreed by stipulation
to proceed by "mini-trial." There can be little doubt that
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3Even if this Court found that Plaintiff-Appellant had made
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out a prima facie case, we would not need to determine
whether Defendant-Appellee's actions should be evaluated in
accordance with the McDonnell Douglas/Burdine test or,
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rather, under the Price Waterhouse framework. Under both
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standards, Defendant-Appellee would prevail because it
sufficiently demonstrated that Dr. Fields' qualifications
for tenure were at least questionable.
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Title VII plaintiffs face serious obstacles in carrying
their onerous evidentiary burdens and, arguably, abbreviated
trials may not be the most appropriate procedural format for
suits of this kind. Having combed the record in this case,
however, we find nothing to demonstrate that the tailored
trial compromised Dr. Fields' case. Instead, it appears the
trial judge willingly entertained live testimony when the
litigants wished to supplement their affidavits. For
example, when the defendant wished to present live testimony
of several witnesses, the following colloquy took place:
THE COURT: Tell me this: Do you want to bring them
before me to offer testimony beyond what's
in their affidavit, or do you just want me to see
them?
DEFENSE No, essentially we want to bring them before
COUNSEL: you to testify what's [sic] in their
affidavit. To the extent their credibility
is an issue in the case, we want you to see
them.
PLAINTIFF'S I have no objection.
COUNSEL:
THE COURT: Well, all right. I'll allow it. I may place
some limitation on how much repetition I
hear, but I'll allow it.
Fields, No. 80-1011-K, Trial Transcript at 36.
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Similarly, when plaintiff's counsel requested the
Court's leave to present live testimony by plaintiff, the
judge queried, "Why is it you want to call the plaintiff
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live, for the same reason the defendants have been
mentioning, you want me to see and hear the plaintiff, or is
there something more that's not in the affidavit?"
Plaintiff's counsel responded, "It's not just the
credibility of the witness....the live testimony of Dr.
Fields is going to consist to some extent in rebutting some
of [defendant's exhibits]." Id. at 38. The judge permitted
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Dr. Fields to testify.
In short, the District Judge's orchestration of
this particular case was extremely flexible. There is
nothing in the trial record to indicate Dr. Fields could not
have introduced additional live testimony, either to
highlight witness credibility or to augment her substantive
case. Moreover, Dr. Fields stipulated to the use of a mini-
trial process. Given all of this, we cannot speculate that
the trial procedure was unfair or incomplete.
IV.
"The fact that a court might be sympathetic to a
tenure award is not enough from which to find discrimination
unless the University's stated reasons are palpably unworthy
of credence or there is other evidence pointing to
discrimination." Kumar, 774 F.2d at 12 (Campbell, C.J.,
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concurring). This Court is neither unaware of nor
unsympathetic to the difficulties faced by female
academicians who aspire to tenured faculty positions;
nonetheless, Dr. Fields has provided us with no basis to
reverse the lower court's holding.
Accordingly, the judgment of the District Court
must be Affirmed.
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