
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2331                                     RONA FIELDS,                                Plaintiff, Appellant,                                          v.                                  CLARK UNIVERSITY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Pettine,* Senior District Judge.                                       _____________________                                 ____________________            Frederick T.  Golder with  whom Bernstein,  Golder &  Miller, P.A.            ____________________            __________________________________        was on brief for appellant.            William L. Patton with whom David J. Kerman  and Ropes & Gray were            _________________           _______________      ____________        on brief for appellee.                                 ____________________                                 ____________________        _____________________        *Of the District of Rhode Island, sitting by designation.             PETTINE, Senior District Judge.                      _____________________                                          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").                                               ________             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.                                         -2-                                          2                       The  case was  subsequently appealed to  the First             Circuit Court of  Appeals.   In Fields v.  Clark Univ.,  817                                             ______________________             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                                              ____________________             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."                                         -3-                                          3             VII.  Rona  Fields v.  Clark University,  No. 80-1011-K  (D.                   _________________________________             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                     _________________________________             S.Ct. 1817,  36 L.Ed.2d  668 (1973) (rearticulated  in Texas                                                                    _____             Dep't. of Commercial Affairs  v. Burdine, 450 U.S.  248, 101             ________________________________________             S.Ct.  1089, 67 L.Ed.2d 207 (1981)), and in Price Waterhouse                                                         ________________             v.  Hopkins, 490 U.S. 228,  109 S.Ct. 1775,  104 L.Ed.2d 268             ___________             (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.                                    ______                       On appeal, Plaintiff-Appellant argued that, by not             choosing one standard (McDonnell Douglas/Burdine) or another                                    _________________________             (Price   Waterhouse),   the  District   Court,   in  effect,              __________________             erroneously relied on the McDonnell standard.  This argument                                       _________             necessitates    further    analysis    of   the    McDonnell                                                                _________             Douglas/Burdine  and Price Waterhouse Title VII frameworks.             _______________      ________________                                         -4-                                          4             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             _______                      _________________________             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.                                                          _______________             Corp. v. Waters, 438 U.S.  567, 568, 98 S.Ct 2943,  2945, 57             _______________             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,                                                                 _______             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                                         -5-                                          5             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.                                                          ___                       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                                                       _________   ______             States Postal  Serv. Bd.  of Governors v.  Aikens, 460  U.S.             _________________________________________________             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                           _______                              _________             Douglas, 411 U.S. at 804-05.             _______             2.  THE PRICE WATERHOUSE STANDARD                     ________________                                         -6-                                          6                       In Price  Waterhouse,  490  U.S.  at  241-42,  the                          _________________             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.             ___                       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                      ___             not  employ burden-shifting,  this  framework  differs  from             Burdine.    Under  Price  Waterhouse,  "the  plaintiff  must             ________           _________________                                         -7-                                          7             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.             ________________                       Price  Waterhouse  therefore  does   not  supplant                       _________________             Burdine.    Burdine's  burden-shifting  approach  applies to             _______     _______             cases  where "either a legitimate or  an illegitimate set of                           ______              __             considerations led to  the challenged decision."  Id. at 247                                                               ___             (emphasis in  original).    Price  Waterhouse  applies  only                                         _________________             "[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             ________________             greater  demands on  the  employer than  does the  McDonnell                                                                _________             Douglas/Burdine framework.  Indeed, as Judge Keeton stated:              _______________                       [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.               ______                                         -8-                                          8                       The  District  Court   found  that  under   either             McDonnell Douglas/Burdine or Price Waterhouse, plaintiff did             _________________________    ________________             not clear her first legal hurdle.                        Plaintiff has failed to offer sufficient                                                     __________                       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).             ______              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                                     ________________             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                                            ______  _________________                                              ____________________             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                                              _________________             Hopkins  to  make this  a mixed  motive  case rather  than a             _______             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.                                         _______              ______             80-1011-K, slip op. at 8-9.                                         -9-                                          9             Price  Waterhouse analysis to the instant case.  Only if the             _________________             District Court's  analysis  of the  facts  of the  case  was             clearly erroneous  and the  plaintiff did  successfully make                                                   ___             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                                         -10-                                          10             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,             _________   _______________________________________________             648 F.2d 61, 62 (1st Cir. 1981), cert. denied, 454 U.S. 1098                                              ____________             (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             ________                     _______  ______________________             Trustees of Smith  College, 495 F.  Supp. 1148, 1155-56  (D.             __________________________             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                                         -11-                                          11                       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.             ______                       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                                             ___             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             ____________________________________________             (1st Cir.  1985) (Campbell,  C.J.,  concurring).   "[T]enure             decisions are by their nature judgmental and subjective.  In                                         -12-                                          12             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,                                                    ___             "[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).                      ___                       We quote extensively  from Kumar to  emphasize the                                                  _____             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                                              ____________________             3Even if this Court  found that Plaintiff-Appellant had made                                                                 ___             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,                                    __________________________             rather, under  the Price  Waterhouse framework.   Under both                                _________________             standards,  Defendant-Appellee  would  prevail   because  it             sufficiently  demonstrated  that Dr.  Fields' qualifications             for tenure were at least questionable.                                         -13-                                          13             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.               ______                       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                                         -14-                                          14             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                                          ___             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.,                                _____                                         -15-                                          15             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.                                         -16-                                          16
