Geraldine POWELL, Plaintiff-Appellant, v. SYRACUSE UNIVERSITY Et Al., Defendants-Appellees

MOORE, Circuit Judge

(concurring):

In the dicta comprising Part III, the majority opinion purports to strike a blow for justice by encouraging the courts to intervene into the affairs of our colleges and universities. Any reluctance of the federal courts to interfere with the decision-making process of universities does not come from an interest in promoting discrimination. Rather, such reluctance reflects the inability of the courts to perform “a discriminating analysis of the qualifications of each candidate for hiring or advancement, taking into consideration his or her educational experience, the specifications of the particular position open and, of great importance, the personality of the candidate.” Faro v. New York University, 502 F.2d 1229, 1232 (2d Cir. 1974). The courts in cases cited by the majority, in my opinion, have not abdicated their responsibility to uphold the Equal Employment Opportunity Act of 1972. Instead, they have indicated the difficulty faced by courts in attempting to evaluate the ability of a faculty member.

“A professor’s value depends upon his creativity, his rapport with students and colleagues, his teaching ability, and numerous other intangible qualities which cannot be measured by objective standards.” Lewis v. Chicago State College, 299 F.Supp. 1357 (N.D.Ill.1969).

This difficulty has done no more than create a justified reluctance among the courts to override the “rational and well-considered judgment of those possessing expertise in the field”. Green v. Board of Regents of Texas Tech University, 335 F.Supp. 249, 250 (N.D.Tex.1971), aff’d, 474 F.2d 594 (5th Cir. 1973). See Huang v. College of the Holy Cross, 436 F.Supp. 639, 653 (D.Mass.1977); Peters v. Middlebury College, 409 F.Supp. 857, 868 (D.Vt.1976). If we took a “common sense position” in Faro (and there is no good reason here presented to abandon this approach), we appear to have the support of many other courts.

As to the merits of this case, I agree that Syracuse University successfully rebutted the contention that Powell’s termination was the result of racial or sex animus. In addition, I believe that Powell did not even establish a prima facie case of discrimination. The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) articulated a standard that the complainant must meet in order to establish a prima facie case. The complainant must show:

“(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.”13

Id. at 802, 93 S.Ct. at 1824.

In McDonnell Douglas the company did not “dispute [claimant’s] qualifications and acknowledge^] that his past work performance in [McDonnells Douglas’] employ was satisfactory.” Id. The particular qualifications of a job must of necessity vary with the occupation and the type of employer. Qualifications for a job to work as a mechanic for a manufacturer (as in McDonnell Douglas) are more easily measured and quantified than qualifications to hold a faculty position at a university. Here Powell did not prove that she was qualified for the job for which Syracuse University was seeking applicants and that Syracuse University continued to seek applicants with Powell’s qualifications.

*1158While generally an architecture degree is a prerequisite for teaching in the School of Architecture at Syracuse University, exceptions are made for certain courses such as history of architecture and basic design. Powell, with a degree in fine arts, had no teaching experience at the time she was hired as a part-time lecturer in 1972. Even assuming that she met the minimum educational requirements to be employed initially in a teaching position, the mere attainment of a degree does not qualify an individual to teach in a university. Powell never demonstrated that she was qualified to continue her post at Syracuse University. To the contrary the members of the Tenure and Promotion Committee based their conclusion not to rehire Powell on the grounds that her academic background was inadequate and her students’ work was inadequate. Also, there was some question whether her personality was appropriate for teaching and counseling students. These are factors which may properly be taken into account in determining whether a faculty member possesses the “qualifications” for continued employment.

In addition, Powell was not replaced by someone of comparable qualifications. After Powell was terminated in May 1974, Christopher Gray was hired in the fall of 1974 to teach the rendering course. He possessed different qualifications, having degrees in architecture and prior teaching experience. Subsequently, two white women without architectural degrees were hired. One, with a Ph.D. degree in art history, was hired to teach history of architecture, a course which Powell never taught. The other, with a degree in fine arts, was hired in the fall of 1975 to teach basic design. This was two years after Powell had ceased teaching that course, and she could not be considered to have “replaced” Powell.

Thus, I would conclude that Powell failed even to make a prima facie case of discrimination. This does not, as the majority opinion suggests, force the plaintiff to prove she is the best qualified for the job. Rather, it only forces the plaintiff to prove that she does meet at least the minimal level of competence required of a university faculty member, which she did not prove.

The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.”