
USCA1 Opinion

	




                            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
