UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1263
CYRUS BINA,
Plaintiff - Appellant,
v.
PROVIDENCE COLLEGE, ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Keeton,* District Judge.
Robert B. Mann, with whom Mann & Mitchell and Harold Krause
were on brief for appellant.
Richard P. McMahon, with whom Marifrances McGinn and McMahon
& McMahon were on brief for appellees.
November 4, 1994
* Of the District of Massachusetts, sitting by designation.
KEETON, District Judge. This is an action for ethnic
discrimination in employment and breach of contract arising out
of denial of an application for a tenure track position. For the
reasons explained, we affirm the judgment of the district court
for defendants.
I. Background
I. Background
In 1987, the Department of Economics of Providence
College employed the plaintiff, Dr. Cyrus Bina, as an Adjunct
Associate Professor. Dr. Bina, Iranian by birth, had received
his Ph.D in the United States.
In April 1988, members of the Economics Department
voted unanimously to recommend Dr. Bina for a tenure track
position because they believed that his record of research and
publication would strengthen the department. Under the College's
rules and practices, both the Committee on Academic Rank and
Tenure (CART) and the President of the College must approve an
appointment. CART voted nine to zero against Dr. Bina's
appointment.
Dr. William J. Simeone, Chair and Associate Professor
of Economics at the College, asked Father John Cunningham,
President of the College, to overrule CART. Father Cunningham
responded that he lacked authority to do so, but at his
extraordinary request CART reconsidered Dr. Bina's application on
June 22, 1988. On June 26, CART voted four to three in favor of
the appointment.
Dr. Francis MacKay, CART chairman and Vice President
-2-
2
for Academic Affairs, sent Dr. Bina a letter on June 27
extending to him an invitation "to join the Ordinary Faculty of
Providence College for the academic year 1988-89" as an Associate
Professor of Economics. The letter made clear that Dr. Bina
would have to serve a four year probationary period before
receiving tenure. The letter stated that "[t]he offer is
considered open and valid for 10 days from the date of this
letter." Dr. MacKay further indicated that he would forward a
contract to Dr. Bina "[w]hen you let us know in writing that our
offer is acceptable to you."
In a July 1 meeting with Father Cunningham, Dr. Bina
expressed his dissatisfaction with the probation condition of the
offer. In fact, every tenured member of the department had
served four years of probation. Father Cunningham explained that
he could suggest only that Dr. Bina take his case to Dr. MacKay,
and told Dr. Bina that "if necessary, the time [limit] could be
extended for a few days." Dr. Bina immediately sought out Dr.
MacKay, but was not able to obtain an audience with him until
July 26, 1988. At that meeting, Dr. MacKay urged Dr. Bina to
accept the original offer, but Dr. Bina refused.
Dr. Bina was dismayed to receive a letter, dated
August 3, from the Associate Vice President, writing by authority
of Dr. MacKay, informing him that the offer of a tenure track
position extended on June 27, 1988, had expired. The August 3
letter also informed Dr. Bina that he could remain as an Adjunct
Associate Professor through 1990, under his 1987 agreement with
-3-
3
the College. Dr. Bina again turned to Father Cunningham for aid,
this time by a letter (of August 11) consisting largely of a
protest against his perceived mistreatment by the College.
Dr. MacKay, responding on Father Cunningham's behalf, reiterated
that the June 27 offer had expired without being accepted. On
August 31, 1988, Dr. Bina finally wrote "to accept the offer of
the tenure track position." But it was too late, and his
contract as an Adjunct Associate Professor was renewed for 1988-
89 on September 2.
Near the end of the 1988-89 academic year, CART again
considered Dr. Bina for a tenure track position. This time, a
committee consisting of three new members voted four to three not
to offer Dr. Bina the position. It is not clear whether the
position was subsequently filled or remained open.
On May 17, 1991, Dr. Bina brought suit against the
College, Father Cunningham, and Dr. MacKay in federal district
court, alleging ethnic discrimination in violation of 42 U.S.C.
2000(e) et seq. (1988) (Title VII), 42 U.S.C. 1981 (1988), and
R.I. Gen. Laws 42-112 et seq. (1990), and a pendent claim of
breach of contract. After pretrial proceedings that narrowed
issues and a four-day bench trial, the district court ordered
judgment for defendants on all counts. We limit our discussion
to the issues presented on appeal.
II. Title VII Claim
II. Title VII Claim
Plaintiff contends that CART denied him a tenure track
position in May 1989 because he is Iranian. In his brief, the
-4-
4
plaintiff also raises the specter of discrimination because of
his accent in speech, but does not develop this as an independent
claim, so we do not address it separately.
-5-
5
A. The District Court's Application of the Burden-Shifting
A. The District Court's Application of the Burden-Shifting
Framework
Framework
Plaintiff's appeal rests largely on the argument that
defendants did not meet their burden of articulating a
legitimate, nondiscriminatory reason why Dr. Bina was not offered
a tenure track position in May 1989. See Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). This
argument, in turn, rests principally on a short exchange between
the district court and one of the defendants' attorneys. On the
last day of trial, in response to the court's question why CART
did not offer Dr. Bina a tenure track position in May 1989, the
College's attorney responded:
Your Honor, CART is secret ballot. I
have no idea why. It was the CART
Committee and they made a decision in
June of 1988. It was four to three in
favor. In 1989 it was four to three
against. I do not know why they decided
the way they decided in either case.
According to plaintiff, this admission clinches his contention
that defendants did not meet their burden of production. Defense
counsel's moment of exceptional candor, however, is no smoking
gun.
Plaintiff's heavy reliance on the above exchange
displays a fundamental misinterpretation of the burden-shifting
framework in Title VII cases and, in particular, of the nature of
defendant's burden of production.
In deciding this appeal, we need not decide between
plaintiff's and defendants' positions about whether plaintiff
proved his prima facie case by a preponderance of the evidence.
-6-
6
Plaintiff says he did. Defendants contend that plaintiff did not
make out his prima facie case because the district court could
not determine whether the position was given to someone outside
the protected class or remained open, but found that "one or the
other occurred." District Court Opinion, at 6. The district
court, however, addressed and put to rest defendant's argument
when it made clear that the prima facie case could be met either
by showing that the position was filled by someone outside the
protected group, or that "'the employer had a continued need for
someone to perform the same work after [the complainant] left.'"
District Court Opinion at 17 (quoting Cumpiano v. Banco Santander
Puerto Rico, 902 F.2d 148, 155 (1st Cir. 1990) (internal
quotation omitted)). Thus, one may reasonably interpret the
District Court Opinion as finding, or at least assuming, that
plaintiff met the burden of proving a prima facie case by a
preponderance of the evidence.
We do not address plaintiff's argument that the
district court erred in finding Dr. Bina unqualified for the
position. We need not do so, not only because we are assuming
that plaintiff proved his prima facie case, but also because the
district court found that CART considered Dr. Bina unqualified,
not that Dr. Bina was in fact unqualified.
We proceed to consider whether defendants met their
burden of producing evidence that plaintiff's application was
rejected for a legitimate, nondiscriminatory reason. See
Burdine, 450 U.S. at 254-55.
-7-
7
Under the Burdine structure for decision, a defendant
does not have this burden until plaintiff proves the elements of
the prima facie case by a preponderance of the evidence. As a
pragmatic matter, however, "the defendant feels the 'burden' not
when the plaintiff's prima facie case is proved, but as soon as
evidence of it is introduced." St. Mary's Honor Center v. Hicks,
U.S. , , 113 S. Ct. 2742, 2749 n.3 (1993). There is
thus no discrete moment at which a defendant, concluding that
plaintiff has proved a prima facie case, must formally articulate
nondiscriminatory reasons for the employment decision. Id. at
2755. Rather, as Justice Scalia made clear in response to a
concern of the dissent in St. Mary's Honor Center, "the
defendant's articulated reasons themselves are to be found
lurking in the record." Id. (internal quotations omitted).
It is precisely in the record that the district court,
in this case, looked to find defendant's articulated reasons--and
in a part of the record highlighted by counsel on both sides in
the district court and on appeal. The minutes of the May 1989
CART meeting, reproduced in full in the district court opinion,
reveal that several members of the committee agreed that
"Dr. Bina is very hard to understand at times and often appears
disorganized when lecturing to an audience." District Court
Opinion at 10, n.3. Two members strongly implied that Dr. Bina's
teaching skills, as measured by student evaluations, had not
improved since his application for the tenure track position the
year before, when significant questions were raised about his
-8-
8
teaching ability. Furthermore, the minutes of the May 1989
meeting reflect a concern about Dr. Bina's attitude toward the
College. Some appeared to feel, partly on the basis of his
declining the 1988 offer, that he held the College in contempt.
The minutes thus "articulate" the College's reasons for denying
Dr. Bina a tenure track position.
Even if these reasons were voiced by a minority of the
committee members, their presence in this record is sufficient to
meet the articulation burden. A "defendant need not persuade the
court that it was actually motivated by the proffered reasons."
See Burdine, 450 U.S. at 254. Thus, in this case defendants need
not show, in order to meet their burden of production, that a
majority of the committee were motivated by the reasons advanced
by individual members, as reflected in the minutes.
Once the court received into the record evidence from
which legitimate reasons for defendants' employment action could
be gleaned, the burden of production was met. Defense counsel's
statement that she was unaware why the committee voted as it did
(on which plaintiff relies as if it were a binding admission of
failure to articulate any nondiscriminatory reason) does not have
the effect of striking from the record the articulation of
nondiscriminatory reasons already there. A defendant's reasons
for an employment decision are to be established "through the
introduction of admissible evidence," not through nontestimonial
statements by defendant's counsel. St. Mary's Honor Center, 113
S. Ct. at 2755 (internal quotations omitted). Moreover, in
-9-
9
context, counsel's statement to the court may reasonably be
understood as a candid admission of lack of knowledge why any
particular member of the committee voted as he or she did. "CART
is secret ballot. I have no idea why." On this record, the
district court could reasonably find that this statement by
counsel was not an admission that no legitimate,
nondiscriminatory reason had been articulated.
Plaintiff implied in oral argument and in his brief
that entry of the minutes in the record was not sufficient to
meet defendants' burden of production because plaintiff rather
than defendants introduced the minutes into evidence. To adopt
such a view, however, would be to convert the Burdine
decisionmaking structure from an aid to fair adjudication on the
merits to a set of procedural snares for the unwary. Plaintiff
could set a trap by offering evidence that, if offered by
defendant, would meet defendant's burden. Plaintiff could then
wait to spring the trap until defendant had rested (without
wasting public and private resources by offering again, as part
of defendant's case, precisely the same evidence that the court
had already received in evidence, without any suggestion by
either party that the court had received or should have received
the evidence for a limited purpose). This argument would deserve
no more attention now even if it had been openly presented to the
district court, not just on appeal.
We conclude that the district court did not err in
determining that defendants met their burden of production.
-10-
10
B. District Court's Finding of No Discrimination
B. District Court's Finding of No Discrimination
Plaintiff further contends that the district court
erred in finding that plaintiff failed to prove intentional
discrimination by defendants.
A court of appeals may disturb a trial court's finding
on this question of ultimate fact only if it is clearly
erroneous. See Anderson v. Bessemer City, 470 U.S. 564, 573-76
(1985); Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148,
152 (1st Cir. 1990).
This court has previously suggested that trial court
review of tenure decisions should be guided by an appropriately
deferential standard.
A court may not simply substitute its own
views concerning the plaintiff's
qualifications for those of the properly
instituted authorities; the evidence must
be of such strength and quality as to
permit a reasonable finding that the
denial of tenure was "obviously" or
"manifestly" unsupported.
Brown v. Trustees of Boston University, 891 F.2d 337, 346 (1st
Cir. 1989). The district court appropriately applied this
standard to the present case, even though this is a case not of
denial of tenure but of denial of appointment to a tenure track
position. The district court's finding is amply supported by the
record.
Plaintiff points to two major categories of evidence
that he contends warrant a determination of clear error. The
first consists of allegedly derogatory or prejudiced statements
made by various people who participated in reviewing Dr. Bina's
-11-
11
application for a tenure track position. These statements,
however, do not support a determination that the district court
committed clear error. The few instances of statements that are
reasonably construed as insensitive or narrow-minded were
instances of statements made in 1987 and 1988. Even if construed
in the most negative light, Dr. MacKay's comment in 1987 and the
comments by him and others during the April and June 1988 CART
meetings do not compel a finding that the 1989 meeting and
decision were infected by intentional discrimination. Indeed,
the minutes of the May 1989 meeting, to which the district court
understandably assigned great weight, reveal not a hint of
discriminatory animus.
Nor did the district court clearly err in finding that
most of the statements plaintiff points to were properly
understood in a neutral, nondiscriminatory light. For example,
references to audience difficulty in understanding Dr. Bina may
reasonably be interpreted as expressing a concern about his
ability to communicate to students rather than discriminatory
animus based on ethnicity or accent.
Plaintiff makes, also, an implied disparate treatment
claim when he relies on the "different" treatment accorded
Dr. Bina. The district court found that, between 1986 and 1991,
there was only one other applicant besides Dr. Bina who was
recommended for a tenure track position by his department, yet
rejected by CART. That person, in contrast to Dr. Bina, had no
research experience. We can not determine that the district
-12-
12
court committed clear error in declining to infer that this break
in the hiring pattern was a result of intentional discrimination.
This is a case where statistical evidence "might be suggestive or
it might be meaningless," and we do not second-guess the district
court's decision to attach minimal weight to it. See Cumpiano,
902 F.2d at 156.
We decline to disturb the district court's finding that
none of the defendants intentionally discriminated against
Dr. Bina.
III. Breach of Contract
III. Breach of Contract
Plaintiff bases his claim of breach of contract on two
flawed assertions. First, he argues that he accepted the
College's offer within a reasonable time. Second, he argues that
the offer was made irrevocable because supported by
consideration. The second is merely a variant of the first,
since irrevocability is never permanent but only for a reasonable
period.
The question whether a contract has been formed is one
of fact so long as the evidence does not point unerringly in a
single direction but is capable of supporting conflicting
inferences. Crellin Technologies, Inc. v. Equipmentlease Corp.,
18 F.3d 1, 7 (1st Cir. 1994). Thus, the district court's finding
that no contract was formed is subject to clear error review.
Plaintiff's appeal is meritless because the June 27
offer expired by the time of Dr. Bina's purported acceptance on
August 31. It does not matter, for purposes of this appeal,
-13-
13
whether the offer was extinguished because Dr. Bina rejected it--
as is apparent from the record--or because the College withdrew
it--as is clear from the record. At no point before August 31
did Dr. Bina express a "definite and unequivocal" acceptance, see
Ardente v. Horan, 117 R.I. 254, 259, 366 A.2d 162, 165 (1976),
and by then it was too late. Even if Father Cunningham's alleged
extension of the offer "for a few days" beyond the 10-day period
were understood to keep it open until the July 26 meeting with
Dr. MacKay--a contention we decline to endorse--the district
court's finding that Dr. Bina rejected the offer at that meeting
was not clearly erroneous. In any event, the College terminated
its offer by the August 3 letter, well before Dr. Bina's
purported acceptance. See Merit Land Corp. v. Marcello, 110 R.I.
166, 171-72, 291 A.2d 263, 266 (1972).
We therefore conclude that the district court did not
err in finding that no contract was formed between Dr. Bina and
the College.
The judgment of the district court is affirmed. Costs
are awarded to appellees.
-14-
14