MURNAGHAN, Circuit Judge:
When the Department of Religion at the University of North Carolina declined to promote or to reappoint Assistant Professor Mary Carroll Smith, she, after unsuccessfully pursuing administrative avenues of relief, filed an action in the United States District Court for the Middle District of North Carolina against the University and several faculty members. Alleging that various University members had violated her federal and state constitutional and statutory rights when they decided not to renew her teaching contract, she sought declaratory and injunctive relief, damages, and either reappointment or promotion with tenure. While numerous issues were raised and decided by the district court, the only remaining issues of concern to us are whether the University
The age discrimination issue was tried before a jury which rendered a verdict in favor of the University.
As an interim measure, pending a decision on the merits, this Court had reversed the district court's refusal to enter a temporary
Although she failed in the end to prevail on the merits on any of her claims, the court, pursuant to 42 U.S.C. § 2000e-5(k), awarded Smith $8,300 in attorneys' fees and $302.06 in related litigation expenses which represented the costs incurred in obtaining the preliminary injunction.
Smith now seeks our review of the proceedings below, contending that: (1) the court's instructions to the jury were erroneous with respect to the standard applicable to age discrimination claims and to her burden of proof; (2) the court erred when it refused to grant her motions for summary judgment and judgment notwithstanding the verdict on the age discrimination claim; and (3) the court's findings regarding the sex and religious discrimination claims were clearly erroneous. Dissatisfied by the award of attorneys' fees, the University filed a cross-appeal in which it argues that Smith, although successful in obtaining a preliminary injunction, was not a "prevailing party" within the meaning of the pertinent statutory provision and, therefore, is ineligible for attorneys' fees.
In early 1973, Mary Carroll Smith was 38 and a recent recipient of a Ph.D. from Harvard University in Sanskrit and Indian Studies. Her predominant area of scholarly concentration, interest, and research was the computer study of Sanskrit texts.
During early 1973, the Religion Department at the University of North Carolina was striving to develop a graduate program in religion. Because the faculty was small and the budget limited, the Department faculty preferred a graduate program of general religion studies which integrated the interests and talents of all department members, rather than a program aimed at specialization. To create an academic balance within the Department, the faculty embarked on a search for a person knowledgeable in nonwestern religions-an area in which the Department perceived itself as weak. Professor Ruel Tyson, a professor of Religion at the University and then acting
Through academic channels, Tyson became aware that Smith had training suitable to the faculty vacancy. He, by letter, inquired of Smith whether she would be interested in interviewing for the position. She replied affirmatively. Thereafter the interviewing process commenced.
After interviewing Smith in Boston, Massachusetts, Tyson, desirous for advice, forwarded Smith's resumé and supporting materials to Professor John Schutz, the chairman of the Department, who was in Europe conducting research. In his letter, Tyson wrote that he was very favorably impressed with Smith and proceeded to enumerate her strengths. Despite his positive impression of her, Tyson did have a few reservations which he expressed as follows:
Reflecting upon these remarks at trial, Tyson said the only reason he mentioned Smith's age was because he, as acting chairman, was a novice in the reappointment process and was unsure what considerations were important. He claimed that he "took an affirmative view toward [Smith's] age," believing that, in her case, it was an indicator of "maturity and experience." With regard to the question about promotion at first review, Tyson again attributed it to his new role and also to Smith's specific inquiry directing his attention to the issue.
Responding to Tyson's letter, Schutz was "less than dazzled by Ms. Smith on paper." His primary concern was that she had "a technical interest in texts which happen to have religion as their subject matter," as opposed to having "an interest in religion as a subject matter." Also troubling Schutz were the periods of time in which Smith failed to explain her activities. Tyson, in a letter, attempted to address and dispel Schutz's concerns.
After much deliberation, Professor Tyson, in April 1973, extended an employment offer to Smith. Tyson explained to Smith that the University was offering her an initial 3-year probationary contract and that during the second year of the probationary period, the department chairman would make a recommendation to reappoint, to promote, or not to renew her contract. Smith accepted the offer and, by letter, stated, "the Faculty Legislation on University Government does not mention the promotion of an assistant professor at the first review.... I am accepting the position in the hopes of promotion at the first review." Responding to Smith's desire for early promotion, Tyson expressed his understanding of the promotion process as follows:
In July 1973, Professor John Schutz returned from England and resumed his duties as department chairman. The next month Smith assumed her teaching duties. She was the first full-time woman faculty member in the history of the Department. On October 1, 1974, Professor Schutz wrote to Smith informing her that it was time to review her teaching contract. Reiterating what Tyson had stated in his offer of employment, he explained that the review process would have one of three possible outcomes: reappointment; promotion; or nonrenewal.
To enhance her possibilities of reappointment or, hopefully, promotion, Smith submitted several research papers in addition to a statement of her scholarly goals.
A meeting of the tenured faculty was held on November 5, 1974 to discuss the renewal of Smith's teaching contract.
Professor Schutz testified that the meeting commenced with a review of Smith's background. After that introduction, Professor Tyson recalled that the meeting had two distinct parts. The first issue addressed was whether promotion was appropriate. According to Schutz, the criteria guiding the promotion and tenure decision were: scholarship; teaching; service to the Department and the University; and the ability of the person to satisfy the goals and needs of the Department. Mindful of those criteria, the faculty, after much debate, decided unanimously that it was premature to consider Smith for promotion and tenure.
Having foreclosed the possibility of promotion, the faculty spent the second part of the meeting discussing whether reappointment was desirable. Schutz testified that the criteria for reappointment were identical to those for promotion and tenure, the difference being the weight assigned to each criterion.
The conclusion of most of the faculty members was that reappointment should not be offered. For example, while Professor Peck believed that Smith was a good Sanskrit scholar, he felt she was critically deficient in her abilities to perform the wider responsibilities of her teaching position. He questioned her capacity for growth and development.
Professor Long voiced criticism about Smith's inability to recognize the implications of her work. He also was concerned over the narrowness of her work; Smith channeled most of her energy into the technical aspects of the Mahabharata, ignoring the nonwestern religions and the basic issues, common to all religions.
Similar concerns were raised by Professor Tyson who in addition noted that she was doing little comparatively with her knowledge of the epics nor did she seem able to recognize the implications of her narrow focus nor to transfer them to other areas of religion. Recalling his impressions at trial, Tyson testified that he noticed that Smith had difficulty teaching religion and discerning the subject matter which should be discussed. Furthermore, he found her arguments and discussions in meetings to be difficult to follow, and frequently they were not pertinent to the issues being addressed.
Having had numerous occasions to engage in scholarly discussions with Smith, Professor Dixon was distressed about her responses to his questions. In his words:
Moreover, when she participated in faculty meetings, she dominated them with irrelevant issues that other faculty members did not desire to discuss. It was his perception that her nonresponsiveness extended to her teaching activities; her students were asking to be taught but she was not honoring their request.
Of particular concern to the faculty, in this meeting, was, if Smith were reappointed, what were her prospects for tenure when the next review occurred in three years. As Schutz testified, the feeling was that if the possibility of tenure were low, then there was a strong justification for not renewing the contract.
Professor Schutz testified on cross-examination that Smith's background as a member in the Roman Catholic teaching order played no role in the evaluation and review of her. Her training as a Roman Catholic was neither relevant as experience nor as an individual religious preference considered in the employment decision.
When the meeting ended, the prevailing mood was that an offer of reappointment should not be extended. Professor Sasson was the only member harboring doubts on that issue. He was concerned that they were being too harsh in their criticisms of Smith. In his November 6, 1974 letter to Professor Schutz, he expressed his dissatisfaction with the meeting:
Professor Long also expressed concern about the review procedures. He felt that a desperate need existed to establish departmental criteria. In his letter to Professor Schutz he recommended that the criteria should be "teaching, research and writing, general faculty responsibilities, [and] compatibility within the intellectual orientation of the faculty." Applying his recommended criteria, Long proceeded to evaluate Smith. With respect to her research and writing Long opined:
Noting that her teaching was difficult to evaluate, he nevertheless criticized her for her "mystical attitude" towards teaching. Long, reviewing one of her examination questions, felt it to be "absolutely naive."
Nor did Long have favorable comments about Smith's compatibility within the intellectual context of the faculty. He observed that:
In concluding that Smith should not be reappointed, Long raised these general considerations:
Schutz responded to Long's letter on November 7, 1974. While acknowledging that the Department did not have specific procedures and criteria, he noted that there were "very few departments which [could] reduce these factors to precise equations...." Moreover, the issues raised by the Smith case had never arisen before.
Aware of Long's dissatisfaction with the first meeting and Sasson's feelings that they were being too harsh in their criticism of Smith, Schutz thought it advisable to convene a second meeting. He believed that a second meeting would afford the faculty another opportunity to evaluate Smith after having had time to reflect following the first meeting. Perhaps more importantly, he wanted to insure that the initial criticisms in the first meeting had not merely served as a catalyst to list Smith's negative traits, without attention being properly paid to her strengths. The meeting was held on November 12th. Retracing his thinking at the second meeting, Tyson remembered that his conviction had intensified that there was a strong probability that "Smith would not develop sufficiently in the areas that most concerned [him] to present [the Department] with a strong candidate for tenure three years hence...."
To facilitate his analysis, Schutz, after the second meeting, made notes. In the notes he listed Smith's strengths and weaknesses. When comparing these characteristics with those of Professor Sanford, "[i]t was clear [to him] that it was a generally shared perception that she was not very sophisticated in Religious Studies." Schutz read into the record the following remarks he made in his notes:
When asked at trial what he intended by the reference to Smith's age, Schutz responded:
With respect to the question whether like cases were treated alike, Schutz explained that, to ensure fairness to Smith, the question was designed to force him to retrace the steps taken in the reviews of Sanford and Smith. He concluded that the considerations
The affirmative action remark was simply to force him to analyze and determine whether the review complied with the University affirmative action guidelines. Pursuant to that goal, Schutz considered whether his recommendation would be different if Smith were a white male. He concluded that his decision would not differ.
By the last remark, Schutz explained that he was concerned with two considerations. First, if there only was but a slim possibility that if Smith were reappointed, she would be promoted at the next review, it would seem fairer to her both personally and professionally to make the decision at the first review rather than delaying an adverse determination for another three years. Apart from that concern, Schutz also had to decide what was in the Department's best interests. Being a small department with limited funding, it was of particular importance that each professor perform a function in the Department's growth and development plan. If a professor was not satisfying the expectations of the department, its goals would be thwarted.
Following much deliberation, Schutz, on November 15, 1974
Schutz informed Smith of his decision in person and by letter dated November 15, 1974. He told her that, after considering her work "as a teacher, departmental and University citizen, and as a publishing scholar, `the faculty questioned, despite its "strong affirmation of much of [her] work,"' ... the overall appropriateness of [her] work for [the Department] and [its] needs...."
Shocked by the decision, Smith wrote a note to Schutz asking him to elaborate upon the reasons why she was not reappointed. Schutz explained the decision by writing:
On November 21st, after consulting with Dean Gaskin of the College of Arts and Sciences, Smith requested the Department to reconsider its determination. Schutz alerted the faculty to the reconsideration request. Not entirely certain as to what constituted a reconsideration, Schutz sought advice from Dean Gaskin. Gaskin told Schutz that a reconsideration was simply a thorough and thoughtful reevaluation of the Department's decision. To enable an uninhibited discussion, Gaskin suggested to Schutz that he should absent himself from the reconsideration meeting. Schutz agreed. He scheduled the reconsideration meeting for early December.
When the reconsideration meeting commenced, Schutz instructed the faculty that it had two tasks: first, to reconsider its earlier review of Smith and, second, to review his recommendation. The only new material submitted for their consideration was a December 3rd memorandum submitted by Smith. After his introductory remarks, Schutz, pursuant to Dean Gaskin's recommendation, informed the faculty that he was going to absent himself from their discussions. In Schutz's absence, Professor Boyd chaired the meeting. Despite initial confusion over the novelty of Schutz's absence, the meeting eventually assumed structure. The tone of the meeting, however, did not deviate from that of the earlier sessions.
Following the reconsideration meeting Professor Boyd sent a letter to Schutz and, because it met with "immediate and enthusiastic approval," enclosed a copy of Professor Long's list of reasons for terminating Smith. Boyd summarized Long's position as, apart from a judgment on Smith's professional competence, "she [did] not fill [the] place within the plans of the department which was envisioned at the time of her employment." Boyd concurred with Long's assessment that a general statement of reasons for termination, in contrast to a specific enumeration of reasons, would be more immune to attack as being discriminatory.
Because some confusion persisted as to the legitimacy of the reconsideration meeting due to Chairman Schutz's voluntary absence, Schutz called a fourth meeting. The purpose of the meeting was to clarify the reasons for his absence in addition to insuring that Smith's reconsideration had been thoroughly discussed and understood. Recognizing their decision would be reviewed, Schutz stressed to the faculty members the need to focus on standards "early rather than late." Also of importance were the impact of Smith's expression that she did not want consideration of her long term welfare to influence their resolution of the problem and "the relatively unusual nature of a nonrenewal decision in the first term." These considerations were to be balanced with those initially evaluated: "1) long range promise as a scholar-teacher with several facets, skills and dimensions; and 2) [the Department's] current needs during the next five years...."
The conclusion reached in the fourth meeting remained unchanged from the previous sessions. Accordingly, Schutz, in January, informed Smith that the reconsideration
Having exhausted the review possibilities within the Department, Smith, on October 2, 1975, submitted her case to the University Grievance Committee. The Committee interpreted Smith's grievance as alleging due process deficiencies in the University review procedures and discrimination because of sex, religion, and the exercise of First Amendment rights.
The Department, in summarizing its reasons for its decision to the Committee, stated:
The Committee, after conducting a thorough investigation, rendered its report on February 17, 1976. Among its findings were that: Smith was the first full-time female faculty member in the Religion Department and the first member of that Department not to be reappointed or promoted during the review process; the Department did not have a formal list of criteria for reappointment and promotion; and Smith was a victim of discrimination. It was their opinion that age was a factor in the Department's decision especially since Smith, by requesting promotion, had imposed a greater seriousness in the Department's deliberations than if only a reappointment decision was involved.
The Committee, after finding that Smith had demonstrated a prima facie case of sex discrimination, found that the Department's reliance upon Smith's deficiencies in the history of religion was a protect for sex discrimination. To justify its conclusion the Committee relied on two items of evidence: the reason for not reappointing Smith did not relate to the Department's established formal or informal criteria; and although Smith's weakness was present in some male members of the faculty, it was not examined in their reappointment or promotion decisions. In summarizing its findings, the Committee held:
The Committee recommended that the Department reconsider its action and offer Smith reappointment with the understanding that tenure would not be automatic after the expiration of the three-year reappointment contract.
In spite of the Grievance Committee's recommendation, the Department, after several meetings, refused to alter its prior determination. Professor Tyson, the new chairman of the Department, informed Smith of his determination on March 24, 1976. Smith's appeal of the decision to all levels of the University was unavailing. Thereafter, on July 16, 1976, she filed a complaint in the United States District Court for the Middle District of North Carolina.
It is in the context of the detailed factual situation which has been described with particularity, that the several legal contentions advanced by the parties must be analyzed and dealt with. It should be observed, that following a full-scale trial, with findings of both jury and judge, the University, as the winning party, became entitled to a statement of facts as strongly favorable to its contentions as the proceedings would permit. We have stated the facts not as we necessarily should have found them, acting de novo, but as the factfinder (jury or judge) reasonably, and with sufficient support, was entitled to find them, or, when articulated, did find them.
I. The Jury Instructions
In instructing the jury on the age discrimination claim, the court explained:
At trial and on appeal, Smith finds fault with the instructions because they, in her opinion, did not set forth with sufficient clarity "the extent to which age discrimination must be involved in the employment decision for it to be actionable." In particular she finds missing from the instructions the information that the justifications offered by the University could be pretextual and that age discrimination could be indirect or unintentional. Furthermore, Smith argues that the court erroneously stressed to the jury that age must be the sole criterion for refusing reappointment or promotion and that the University could escape liability for age discrimination if it could show that it would have reached the same decision if age had not been considered. It is Smith's position that once age has been shown to have been considered, the University has the burden to show that age was not a factor influencing its decision.
We commence our review by recognizing that an appellate court, when assessing the adequacy of jury instructions, is guided by the rule that the instructions should be viewed as a whole. "If the judge's instructions properly present the issues and the law as applicable, it is no ground for complaint that certain portions, taken by themselves and isolated, may appear to be ambiguous, incomplete or otherwise subject to criticism." See Laugesen v. Anaconda Co., 510 F.2d 307, 315 (6th Cir. 1975).
In an ADEA action, the plaintiff has the burden to show that his dismissal was attributable to age discrimination. Loeb v. Textron, Inc., 600 F.2d 1003, 1017 (1st Cir. 1979). When an ADEA case is tried by a jury, "[t]he central issue, which the court must put directly to the jury, is whether or not plaintiff was discharged `because of his age.'" Id. Many courts in setting fourth the elements of proof and allocating the burdens of proof in ADEA cases have borrowed the principles enunciated in the Title VII case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case of discrimination under McDonnell Douglas, a plaintiff must show: (i) that he is a member of the protected class; (ii) "that he ... was qualified for [the] job [and his performance satisfied his employer's expectations] ...; (iii) that, despite his qualifications [and performance], he was [dismissed]; and (iv) that, after his [dismissal], the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id. at 802, 93 S.Ct., at 1824; see Loeb v. Textron, Inc., 600 F.2d at 1011-14; Schwager v. Sun Oil Co. of Pennsylvania, 591 F.2d 58, 60-61 (10th Cir. 1979); Kentroti v. Frontier Airlines, Inc., 585 F.2d 967, 969-70 (10th Cir. 1978); Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir. 1977).
Under the approach of McDonnell Douglas, when a plaintiff is successful in proving a prima facie case, the second stage of proof requires the employer only "to articulate some legitimate, nondiscriminatory reason" for its action. McDonnell Douglas Corp. v. Green, 411 U.S. at 802-03, 93
Examining the instructions which were given to the jury in the present appeal, it is apparent that the court did not recite the full McDonnell Douglas formulation. The court instructed the jury that first, it had to find that Smith was covered by the ADEA; second, that she was denied reappointment and promotion; and third, and most importantly, that the University's decision was because of Smith's age. With respect to the first element, the court told the jury that it was undisputed that Smith was covered by the Act. While the court did not explicitly instruct the jury that it was to find for the plaintiff as to the second element, obviously it was a point as to which there was no dispute; everyone acknowledged that Smith had not been reappointed and that she had not been promoted. The plaintiff was excused from the burden of proving the other two elements, under McDonnell Douglas, of a prima facie case. Having mentioned two necessary elements of proof as to which indisputably Smith had made out her case, all that remained to be proven under the charge was that the reason the University refused to reappoint or to promote was because of her age. Age need not be the sole reason but it must have been a substantial or motivating reason—a determinative reason—in the University's determination. Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979). That determination, as mentioned previously, is the central concern in all age discrimination cases. The court then instructed the jury that, once Smith had proved the three elements, she would be entitled to recover unless the jury should determine that the University had demonstrated, by a preponderance of the evidence, that "it would have reached the same decision not to reappoint or promote the Plaintiff if it had not considered the Plaintiff's age or some other illegitimate fact." Unless the University satisfied its burden—again it must have done so by a preponderance of the evidence—the jury was instructed that it must render a verdict for Smith.
Again, therefore, the McDonnell Douglas formula was curtailed in a manner favorable to Smith. Instead of requiring a two step proof, with the University required to shoulder the burden of articulating a legitimate nondiscriminatory reason and the plaintiff then compelled to adduce evidence of pretext, the district court placed the final burden directly on the University of demonstrating by a preponderance of the evidence that age discrimination did not cause the action of which plaintiff complained. It, therefore, essentially gave the jury the benefit of a finding that pretext had been made out. Technically, Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295 (1978), was violated, but since it was the University, as the party who prevailed under the jury verdict, who was injured, not Smith, any error is not grounds for reversal.
To recapitulate, comparing the instructions with the McDonnell Douglas formula we note that the instructions: (1) omitted some of the elements of a prima facie case as to which the burden under McDonnell Douglas is assigned to the plaintiff; (2) rather than merely requiring the defendant to articulate a legitimate, nondiscriminatory reason, it required it to prove, by a preponderance of the evidence that it would in fact have reached the same decision if it had not considered the plaintiff's age; and (3) plaintiff was not required to prove pretext at all in order to have the University forced to assume the burden of
B. Degree of Required Identity with McDonnell Douglas Instructions
Recently, the First Circuit, in Loeb v. Textron, Inc., 600 F.2d 1003 (1979) had occasion to address the applicability of the McDonnell Douglas principles, composed for a court trial under Title VII, to a jury trial of an ADEA claim. Noting the similarities in purpose and provision between the ADEA and Title VII and the absence of any indication in the legislative history that Congress intended "age discrimination ... to be subject to different standards and methods of proof than race or sex discrimination," the court concluded that the McDonnell Douglas formulation was appropriate for ADEA cases tried by a jury.
Although appropriate for ADEA cases, the court was careful to stress that the jury need not be instructed as to all the McDonnell Douglas elements. It stated:
Id. at 1016.
Depending on the nature of the evidence, the jury may never need to be educated as to the elements of a prima facie case. Recognizing that "direct evidence of discrimination is likely to be unavailable,
However, as suggested by the court in Loeb, when a plaintiff introduces direct and/or circumstantial evidence of discrimination, instructing the jury about the elements of a prima facie case, in addition to being superfluous, may be confusing. That court stated:
Id. at 1018.
Thus Loeb teaches first, that, while McDonnell Douglas may be appropriate to a jury trial of an ADEA case, all the elements need not be recited to the jury, and second, that, despite its appropriateness to age discrimination claims, McDonnell Douglas is not the only permissible standard;
Most of the evidence that Smith introduced consisted of notes taken by and correspondence among Religion Department professors. In such a situation, the jury was not concerned so much with the inferences possible from the McDonnell Douglas type prima facie case as it was with whether the direct evidence that Smith introduced, demonstrated that the University's decision was unlawfully motivated by her age.
As we construe the court's language, the three elements that it required Smith to
Even though at an earlier stage the court has determined that a prima facie case has been made out to the effect that age was an impermissible factor in the determinations not to promote, that does not end the matter. It does not shut off the defendant's right of rebuttal. That right encompasses an opportunity to prove by a preponderance of the evidence that in fact age was not a causative factor. As stated in Laugesen v. Anaconda Co., 510 F.2d 307 at 317:
While the intermediate answer is that the evidence suffices to permit a conclusion that age was impermissibly relied on, it does not foreclose a final determination, based on evidence advanced by the defendant, that actually age had not played a part in the determination not to reappoint or promote—that the very same result would have come about if age discrimination, prima facie or otherwise, had never existed. Cf. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 286-87, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977):
While Mt. Healthy arises under the First and Fourteenth Amendments, both in it and in our ADEA case, the question of causality is involved in essentially the same fashion. As the statute makes clear, it prohibits discrimination "because of such individual's age" (Emphasis added). Appellant freely acknowledges at p. 2 of her Reply Brief: "We admit causation is the standard, and that, in fact, is the thrust of our argument." Mt. Healthy was also articulating standards with respect to a "rule of causation." Mt. Healthy, 429 U.S. at 285, 97 S.Ct. at 575.
As for not mentioning pretext, the district court treated that issue as decided in Smith's favor, moving directly to require the University to prove that the failure to reappoint or promote was not causally linked to considerations of age. There was, consequently, no occasion for an instruction as to pretext.
Having imposed upon the University the burden of showing that, even without
600 F.2d at 1012.
The instruction was altogether fair to the plaintiff; the jury in finding for the University obviously concluded that the University had met its burden.
C. Other Alleged Errors in the Jury Instructions
Addressing Smith's remaining challenges to the instructions we find them all devoid of merit. That the instruction failed to mention that age discrimination may be direct or unintentional does not render it reversible error. In Laugesen v. Anaconda Co., 510 F.2d 307, 314 (6th Cir. 1975), the court also omitted an instruction that the employer did not have to have the specific intent to discriminate, but rather, as the court did here, when referring to the reason for the University's actions employed the term "because of the plaintiff's age." Id. We think that, although language precisely relating the nature of the requisite intent was not present, the instruction managed to convey to the jury, in understandable terms, the applicable law which was that the discrimination could be either intentional or unintentional; the important consideration was whether the decision was influenced by the employee's age. "... the judge's instructions substantially charged the jury in the manner desired by plaintiff without using the specific language requested." Id.
Myopically focusing upon another aspect of the instruction, Smith contends that the court, by using the phrase "because of age" stressed to the jury that, in order to find for her, they must find that age was the sole criterion for the University's decision. It is clear, of course, that the law requires only that age be a causative or determinative factor in the decision, not the sole reason. Nevertheless, Smith misreads the jury instructions when she claims that they required a finding that age was the sole consideration. They clearly stated that: "The Plaintiff is not required to prove that the refusal to reappoint or promote her was based solely on her age.... The Plaintiff is required to prove only that her age was a substantial or motivating factor in the decision not to reappoint or promote." See Loeb v. Textron, Inc., 600 F.2d at 1019. We are satisfied that the jury was correctly instructed on the point.
II. Should the Motions for Summary Judgment and Judgment Notwithstanding the Verdict Have Been Granted?
The district court denied orally Smith's motion and the University's cross-motion
The standards governing the review of a denial of summary judgment are identical to those guiding the original decision whether the motion should be granted. The Supreme Court stated in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962):
Accord Weahkee v. Perry, 587 F.2d 1256, 1265 (D.C.Cir.1978). Thus, when a court denies a party's motion for summary judgment, it does so because "the moving party has failed to establish that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law...." Wright & Miller, Federal Practice and Procedure: Civil § 2715 at 424 (1973). In assessing the correctness of the court's denial, we must examine the record in a light most favorable to the party opposing the motion. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Habib v. Raytheon Co., 616 F.2d 1204, 1208 (D.C.Cir.1980); Federal Deposit Insurance Corp. v. First National Finance Co., 587 F.2d 1009, 1010-11 (9th Cir. 1978); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543 (9th Cir. 1975); Wright & Miller, Federal Practice and Procedure: Civil § 2716 at 430-32 (1973).
Applying those principles to the present appeal, we are unable to conclude that the court erred in its ruling. A genuine issue as to a material fact did exist. The reasons underlying the University's decision not to reappoint or to promote Smith were in dispute. While Smith directed the court's attention to references to her age, the references were not unambiguously indicative of age discrimination. The University offered alternative explanations for the references which the jury might find to be reasonable and which, the jury might conclude, negated the age discrimination claim. Moreover, in cases such as this one, in which an issue of unsatisfactory performance is involved, the credibility and testimony of witnesses are indeed determinative of the discrimination claim. See Weahkee v. Perry, 587 F.2d 1256, 1266 (D.C.Cir.1978). Summary judgment therefore was inappropriate.
Viewed as a whole a case went to the jury which could have been decided either way.
III. Were the District Court's Findings as to Smith's Title VII Claims of Discrimination on Grounds of Sex or Religion Clearly Erroneous?
Title VII of the Civil Rights Act protects employees from various kinds of discrimination, particularly for our present purposes discrimination on grounds of sex or of religion.
Id. at 802, 93 S.Ct. at 1824. Due to factual differences among individual cases, the Supreme Court has acknowledged that all of the listed specifications set out in McDonnell
Once the prima facie case has been established, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason [for its action]." Id. at 802, 93 S.Ct. at 1824. Articulation of a legitimate, nondiscriminatory reason suffices at that stage—there is no requirement that the employer prove by a preponderance of the evidence that the legitimate nondiscriminatory reason was in fact the motivating force. See, e. g., Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-2950, 57 L.Ed.2d 957 (1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978):
If the employer makes the requisite showing, the employee must then move to the next stage and prove that the employer's articulated justification is a pretext for illegal discrimination, and the employer is permitted to adduce evidence to rebut the assertion of pretext, including proof that the legitimate nondiscriminatory reason was in fact the motivating force. McDonnell Douglas Corp. v. Green, 411 U.S. at 804-05, 93 S.Ct. at 1825-1826. While under McDonnell Douglas there obviously is a shifting of the burden of production between plaintiff and defendant, the ultimate burden of persuasion never leaves the plaintiff's shoulders. Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106, 108 (1st Cir. 1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62 L.Ed.2d 731 (1980).
Adapting the McDonnell Douglas criteria to the educational scene and to the University's decision not to reappoint or promote assistant professor Smith,
Turning to the third element, it was too obvious to need elaboration. Everyone knew and proceeded on the basic understanding that Smith was not reappointed, much less promoted.
Directing its attention to the fourth element, the court, acknowledging the difficulty in adapting it to the faculty context, stated the modified guidelines as:
Cognizant of the standard thus spelled out by the district judge, and recognizing his general analysis as appropriate, we now turn to address separately the precise determinations that Smith's nonreappointment and nonpromotion did not offend applicable law. Our review of the district court's findings is limited by the clearly erroneous standard of review. See Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106, 109 (1st Cir. 1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62 L.Ed.2d 731 (1980); Stewart v. General Motors Corp., 542 F.2d 445, 449 (7th Cir. 1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977).
A. The Nonreappointment Decision
With respect to the reappointment issue, the court concluded that Smith had established a prima facie case of discrimination as to her nonreappointment claim. Smith's membership in a disadvantaged class and her nonreappointment were undisputed. The evidence established that Smith was qualified for the position: she had engaged in several types of scholarly work; had presented papers and lectures; had taught courses at Duke University; had received grants to conduct scholarly research; and had been nominated for a teaching award. There was no indication in the record that the University disputed Smith's competency as a teacher in her specialized field of study. Moreover, Chairman Schutz had never expressed dissatisfaction to Smith about her performance, having in June 1974 given her a $1000 merit raise. By offering Smith's position to Diane Eck, a fellow Harvard graduate, the court found that the University had sought to fill Smith's position with
Finding that Smith had established a prima facie case, the court then focused its attention on its next task: had the University articulated a legitimate, nondiscriminatory reason for its action. The court observed that the University had advanced two reasons in its defense. It found the justifications in a letter from Schutz to Smith in which he attempted to explain to her the reasons for the Department's decision. Schutz wrote:
The court interpreted the letter to indicate first that Smith's knowledge of her scholarly discipline was deficient, and second, and most importantly, that Smith was unable to "relate her specialized field of study to issues of more general importance to a department of religion...."
Because both of the reasons were, on their face, legitimate, nondiscriminatory reasons for not reappointing Smith, the court had next to determine whether they were merely a pretext for discrimination on the grounds of sex or religion. Although opining that the faculty members, whose scholarly expertise was in areas other than nonwestern religions, had no basis or knowledge upon which to premise their evaluation of Smith's academic deficiencies, the court characterized Chairman Schutz's assessment of Smith's competence as, at most, an honest mistake and determined that it was not a pretext for discrimination.
To assess the validity of the University's second justification, the court examined the backgrounds and performances of Dr. Jouett Powell and Dr. James Sanford, two professors who were reappointed during the same period that Smith's reappointment was denied. Dr. Powell, having served one term as an instructor and almost one term as an assistant professor, had more teaching experience at the University than Smith. The predominant reason for his reappointment was his excellent teaching ability and his willing participation in department projects. Acknowledging that Powell, in comparison to Smith, had undertaken little scholarly work, the court deduced from this that the University attributed less importance to publication than to other areas.
Perhaps more persuasive than the comparison to Powell, was the comparison of Sanford to Smith. Sanford, a Roman Catholic, was reappointed immediately prior to the commencement of Smith's evaluation. In addition Sanford, like Smith, specialized in nonwestern religions. Remarking as to the evidence of Sanford's excellent teaching ability and his valued service to the department, the most important finding by the court was that Sanford was able to "`bridge the possible gap between the very demanding technicalities of [his] specialized work and the much more general responsibilities' the members of the department share[d]." That last characteristic was precisely the one in which the University contended that Smith was deficient. According this correlation much weight, the court concluded that the second justification also was not pretextual.
Smith contends that the court's findings were clearly erroneous. In her brief she cites numerous alleged errors committed by the court. We find it unnecessary to comment upon all of Smith's multiple objections to the court's findings. It is sufficient to state as to some of them that we have reviewed them and are not persuaded that error was committed. Those asserted errors which deserve more than summary disposal are:
1. Because she taught introductory courses in religion, Smith argues that the court overlooked her ability as a "generalist."
2. Smith also compares her academic performance and achievements with other faculty members who were reappointed or promoted. Conducting a point by point analysis, she is able to develop arguments of superiority as to particularized attributes. What she ignores by this approach, besides the inevitable element of subjectivity involved, is the Department's predominant reason for its decision: Smith was a specialist unable to transfer her knowledge to the generalized study of religion. There was no evidence to indicate that the professors to whom she sought to compare herself were deficient in that ability. Thus, Smith was unable to prove that the University's justification was mere pretext.
3. Smith also criticizes the Department's lack of written criteria and procedures to guide their decisionmaking.
Thus, we think that there was adequate evidence to support the district court's determination that a fair interpretation of the record was that the department's justifications for its decision were not a pretext for unlawful discrimination.
B. The Decision Not to Promote
Unlike the reappointment decision, the district court concluded, with respect to the promotion decision, that Smith had not even made out a prima facie case of discrimination. Again, the critical elements that Smith had to show were that she was qualified for promotion and that the University had promoted others with the same qualifications during approximately the same time. The court concluded that Smith had not even shown that she was qualified for promotion.
Comparing the qualifications of Peck and Tyson with those of Smith, we are unable to hold that the court erred in concluding that Smith was not qualified for promotion and tenure. On the other hand, we also are aware that decisions of that nature are difficult decisions for the faculty
Recognizing that such problems exist, we think it merits mention, so as to allay any doubts that Dr. Smith may harbor, that, even if we were to assume arguendo that she had established a prima facie case of discrimination in the decision not to promote and grant tenure, we still would be forced to conclude that the University had shown a sufficient nondiscriminatory reason for its decision. See generally, Cussler v. University of Maryland, 430 F.Supp. 602, 606-07 (D.Md. 1977). The same reasons which supported the University's decision not to reappoint justify its decision not promote and grant tenure. While we recognize that the decisions involve two distinct determinations, we also must be realistic and acknowledge that if a university has justified why a professor should not be reappointed, it would verge on the absurd to hold that it had not substantiated reasons why it need not take the more serious step of promoting her and granting her tenure.
University employment cases have always created a decisional dilemma for the courts. See generally, Runyan, Employment Decision-Making in Educational Institutions, 26 Wayne L.Rev. 955 (1980). Unsure how to evaluate the requirements for appointment, reappointment and tenure, and reluctant to interfere with the subjective and scholarly judgments which are involved, the courts have refused to impose their judgment as to whether the aggrieved academician should have been awarded the desired appointment or promotion.
IV. The Award of Attorney's Fees.
It thus eventuates that Smith's efforts to succeed on the merits have altogether failed. On none of her claims has she ultimately obtained what she sought. The only result favorable to her has been the prolongation of her employment as a result of the preliminary injunction which, as originally entered, was to be effective until the case had been decided on the merits.
The award was made pursuant to 42 U.S.C. § 2000e-5(k), the attorney's fee provision of Title VII which provides:
The question simply becomes, therefore: Did the plaintiff "prevail" in obtaining the preliminary injunction?
As we comprehend the rule, to "prevail" a party must establish in an enduring way that he or she was right on a matter in issue and that the litigation activities served to establish the existence of the right or contributed to an enjoyment of the right. There need not be a formal adjudication in the party's favor; a vindication of rights obtained by a settlement or consent
Neither took place here. The temporary injunction was designed only to preserve the status quo, until resolution on the merits could be obtained. It was designed to increase the likelihood that neither party would be deprived, through change of circumstances, of an opportunity to have her or its fair day in court. The University was deemed better able to weather, without serious adverse consequences, the inconvenience of retaining on its payroll someone it wished to terminate, than could Smith survive dismissal while a case was pending in which she had hopes of obtaining an order that she not be discharged. At the most the preliminary injunction hearing involved a prognosis of probable or possible success. It in no way sought to announce or establish a final result.
The interpretation of the term "prevailing party" is not directly aided by reference to the sparse legislative history, which does, nevertheless, render assistance by emphasizing what the two predominant goals of the statute were. First, since the Senate was shifting responsibility for enforcing Title VII from the EEOC to private individuals the first purpose was to facilitate the bringing of meritorious suits by persons of limited means; and the second goal was "to deter the bringing of lawsuits without foundation" by providing that either side, if it prevailed, could receive attorney's fees. See New York Gaslight Club, Inc. v. Carey, ___ U.S. ___, ___, 100 S.Ct. 2024, 2031, 64 L.Ed.2d 723 (1980); Grubbs v. Butz, 548 F.2d 973, 975 (D.C. Cir. 1976).
It is, of course, more difficult for a prevailing defendant than for a prevailing plaintiff to obtain an award. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). Nevertheless, the ingredient of a right vindicated or a wrong proscribed is a necessity for a plaintiff's claim to mature. "In order to be a `prevailing party,' a plaintiff must have been entitled to some form of relief at the time suit was brought." Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192, 197 (6th Cir. 1978), cert. denied, 441 U.S. 932, 99 S.Ct. 2053, 60 L.Ed.2d 660 (1979). For example, in Harrington, the district court, having found that the employer committed sex discrimination against a female employee by providing her different working conditions, awarded the plaintiff compensatory damages and attorney's fees. On appeal, the court held that the compensatory damages were not authorized by Title VII. Because the plaintiff was not
Smith's arguments favoring award of attorney's fees rely predominantly upon Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974). In Van Hoomissen, an employee sued its employer, the Xerox Corporation, alleging that he was terminated in retaliation for his efforts to recruit minorities. The EEOC sought to intervene on two grounds. It agreed with the employee that Xerox had violated Title VII by retaliating against him but it also asserted that the company was guilty of engaging in discriminatory hiring practices. The district court permitted intervention only as to the issue of retaliation. The EEOC appealed the denial of intervention on the discriminatory hiring practices claim. That was the issue the employee had not raised. The Court of Appeals dismissed the appeal. Thereafter, before the retaliation claim was decided but following final disposition of the discriminatory hiring practices claim, Xerox petitioned the court for attorney's fees incurred in defending the denial of the intervention claim on appeal. The issue presented for the court's resolution was whether Xerox, which had been successful in the interlocutory appeal, was a prevailing party considering that it eventually might lose the principal case on the issue remaining open. In concluding that attorney's fees were appropriate, the court held:
Id. at 1133.
In construing Van Hoomissen, the district court stated:
Purporting to apply the rule enunciated in Van Hoomissen, the district court held that:
The district court erred in fashioning a rule which depended solely on whether the label "preliminary injunction" attached, instead of looking to the appropriate and determining question of whether there had been a final disposition in favor of the party claiming that it had prevailed.
As noted by the District of Columbia Circuit, the holding in Van Hoomissen should properly be interpreted in the more narrow sense:
Grubbs v. Butz, 548 F.2d 973, 974-75 n.5 (D.C. Cir. 1976).
Other cases like Van Hoomissen, which at first glance seem supportive of Smith's position, are, upon examination, distinguishable. For example, in Smallwood v. National Can Co., 583 F.2d 419 (9th Cir. 1978), the plaintiff joined his employer and union in his complaint, suing the former for racial discrimination and the latter for retaliation by denying him reinstatement in the union. The court held a separate hearing on the retaliation claim against the union. From the evidence adduced it concluded that the union had violated 42 U.S.C. § 2000e-3(a) by acting with retaliatory intent. To restrain the union from denying the plaintiff reinstatement and to protect him against further retaliation, the court issued a permanent injunction. It also awarded attorney's fees to the plaintiff, representing the costs incurred in obtaining the injunction. The union appealed. At the time of the appeal the discrimination claims against the employer had not been adjudicated.
With respect to the propriety of granting attorney's fees, the court upheld the district court's award. It held that the employee was a prevailing party since "the attorney's efforts [in the injunction proceedings] were `sufficiently significant and discrete to be treated as a separate unit'...." Id. at 421. A superficial analysis of this opinion would lead one to the general conclusion that attorney's fees are proper when one succeeds in obtaining a preliminary injunction. Yet, a closer examination reveals that, as to the union, once a finding of unlawful retaliation was made and the injunction was ordered, a final result had been reached, and, as against the union, the action was effectively terminated. Smith's case, however, is significantly different. No issue was disposed of as a consequence of the grant of a temporary injunction. To the contrary, the possibility that the University would be found not to have discriminated continued to exist, and, after the hearing on the merits, it was determined that the University had not discriminated, and that thus Smith would not prevail.
Similarly distinguishable is Kimbrough v. Arkansas Activities Assoc., 574 F.2d 423, 426 (8th Cir. 1978), where an injunction was deemed to the district court to justify a claim for attorney's fees since "it effectively disposed of the case." Id. at 425. The Eighth Circuit upheld the district court's award of attorney's fees because the relief granted was "part of a final, appealable order which terminated the controversy." Id. at 426.
To like effect is Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971). In Lea, the court found that the defendant had committed an unlawful employment practice by refusing to employ black females. The court issued an injunction, enjoining the defendant from further discriminatory action and ordering compliance with its order.
Id. at 976-77.
Patterned after 42 U.S.C. § 2000e-5(k), the standards for an award of attorney's fees under 42 U.S.C. § 1988 are generally the same as those applicable to cases of asserted discrimination on the basis of race, sex, religion, national origin, or age. See Bonnes v. Long, 599 F.2d 1316, 1318 n. 2 (4th Cir. 1979); Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192, 198 n. 5 (6th Cir. 1978), cert. denied, 441 U.S. 932, 99 S.Ct. 2053, 60 L.Ed.2d 2053 (1979); Westfall v. Board of Comm'rs of Clayton County, 477 F.Supp. 862, 868 (N.D.Ga.1979). See generally Note, Promoting the Vindication of Civil Rights Through the Attorney's Fee Award Act, 80 Colum.L.Rev. 346 (1980). The operative words in cases under § 1988 are again "prevailing party." Thus, a comparison of cases discussing the propriety of interim awards under § 1988 may be illuminating.
In Hanrahan v. Hampton, ___ U.S. ___, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), the Supreme Court held that the plaintiffs were not prevailing parties despite their success in obtaining: reversals of directed verdicts as to some of the respondents; a reversal of denial of a motion to discover; and an instruction to the district court on remand to consider permitting further discovery and perhaps the imposition of sanctions for noncompliance with prior discovery orders. The court pertinently observed that:
Id. at ___, 100 S.Ct. at 1989.
In ruling against the award of attorney's fees, the Supreme Court cited with approval Bly v. McLeod, 605 F.2d 134 (4th Cir. 1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1315, 63 L.Ed.2d 761 (1980). Id., ___ U.S. at ___ n. 4, 100 S.Ct. at 1989 n. 4. There we were examining whether a litigant was a prevailing party within the meaning of the attorney's fee provision of the Voting Rights Act, 42 U.S.C. § 1973l(e) and the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988. From the holding in Hanrahan v. Hampton, ___ U.S. at ___ n. 4, 100 S.Ct. at 1989 n. 4, it is evident that the definition of the term "prevailing party" was to be deemed identical for 42 U.S.C. § 1973l(e), § 1988, and § 2000e-5(k):
The plaintiffs in Bly claimed to be entitled to attorney's fees because they obtained: a
Id. at 137-38.
The plaintiffs in Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861 (8th Cir. 1977), challenged the constitutionality of a zoning ordinance. Believing that the case raised serious constitutional questions, the district court granted injunctive relief. Prior to an adjudication on the merits, the plaintiffs sought attorney's fees under section 1988. The Eighth Circuit denied the request stating:
Id. at 871.
Thus, as all the cases indicate, to receive attorney's fees allowed by statute to the prevailing party, a party must prevail on the merits of at least some of his claims. Smith clearly failed to prevail on the merits on any claim whatever. There are recognized circumstances, such as the instant case, where the protective policies supporting an injunction make its issuance proper regardless of the ultimate outcome of the suit. However, just because an injunction was issued properly does not signify that a defendant must incur the costs of its issuance when a court has eventually proclaimed him to be innocent of discriminatory conduct. While we recognize that the attorney's fees provision was designed to encourage plaintiffs of limited means to bring meritorious lawsuits, nonetheless, in the end, it was determined that Smith's suit was not meritorious. We find it incongruous to assume that Congress intended a defendant to finance a preliminary injunction, issued solely on a belief, reasonable at
Litigation is not without its financial risks. A fully successful defendant should not be required to reimburse an unsuccessful plaintiff for his legal gamble. The attorney's fees provision was intended to assist those plaintiffs who were successful in prosecuting suspected violators of Title VII, not those who were not.
Having carefully examined the issue, we are convinced that we must reverse the attorney's fees award.
JUDGMENTS AGAINST THE APPELLANT ARE AFFIRMED; THE AWARD OF ATTORNEY'S FEES AGAINST THE APPELLEES IS REVERSED.
Professor Tyson testified that:
After interviewing many candidates, the Department decided to offer the position to Diane Eck, a Harvard Ph.D., who was an exceptional scholar and specialist in Indian religions. However, as her background and her recommendations indicated, her primary focus was not her narrow specialty but religious studies in general. Dr. Eck accepted the position, yet, because of the litigation with Smith, the University was forced to withdraw its offer.
In a different context, we have recently had occasion to remark on the absence of a "guarantee that even `rightful' terminations would be so adjudged in the always chancey litigation process." Garris v. Hanover Ins. Co., 630 F.2d 1001, 1006 (4th Cir. 1980). Smith, in facing a jury on issues which were debatable, in view of conflicting evidence and inferences, inevitably was exposed to the chancey litigation process. She might have won, but she lost, and it does not serve a valid purpose for her to pretend that the evidence admitted only one interpretation, i. e., the one she favors. The contrary conclusion was fully sustainable.
The defendants are correct in their statement that the District Court's denial of the plaintiff's motion for judgment notwithstanding the verdict pursuant to Rule 50(b) was not properly preserved for appellate review. Fed.R.Civ.P. 50(b) provides in pertinent part:
Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict.... (Emphasis added.)
Morrow estimated that annually 10-12 teaching contracts were not renewed.
See also Powell v. Syracuse Univ., 580 F.2d 1150 (2d Cir. 1978), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978) (university's argument that the plaintiff's academic performance was deficient and her academic credentials inadequate was not a pretext for discrimination); Campbell v. Ramsay, 484 F.Supp. 190 (E.D.Ark. 1980) (refusal to reappoint because a professor had not earned a Ph.D. was not a pretext for discrimination); Johnson v. Univ. of Pittsburgh, 435 F.Supp. 1328 (W.D.Pa. 1977) (among the reasons for not promoting a biochemistry professor was that her research was in an area unrelated to the interests and goals of the department). See generally, Joshi v. Florida State Univ., 486 F.Supp. 86 (N.D.Fla. 1980).
It is true, as the Second Circuit later cautioned in Powell v. Syracuse University, 580 F.2d 1150, 1153 (2d Cir. 1978), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978), that there are limits to Faro. Faro does not stand "for the broad proposition that courts should exercise minimal scrutiny of college and university employment practices" or that "colleges and universities [are] virtually immune to charges of employment bias" but only that "courts must be ever-mindful of relative institutional competences," when assessing whether discrimination was practiced. Because discrimination, on grounds of age, sex, and religion, was claimed by Smith, there was a basis for judicial review of the University's non-reappointment and non-promotion decisions. Otherwise there would have been none. "We, therefore, refuse to embark upon a comparative inquiry under an equal protection claim into either the quantity or the quality of the published scholarly contributions of the University's faculty members who have been granted or denied promotion, holding that the determination of such matters by the appropriate University authorities is not reviewable in federal court on any ground other than racial or sex discrimination or a First Amendment violation." Clark v. Whiting, 607 F.2d 634, 641 (4th Cir. 1979).
That there is judicial review where discrimination on the basis of age, sex, and religion has been asserted does not mean, however, that a finding of discrimination is automatic. We do not veer wildly from a rule of no review in an employer's favor, to one of indisputable and inevitable liability in favor of the employee just because she is a member of a disadvantaged class, as to which on some occasions, in some locations discrimination has been practiced. The customary professional questions as to proficiency still remain the province of the educational institutions. Only when age or sex or religion has been shown, in such a case as that brought by Smith, to have been a determinative factor in the decision against her do we intervene.
The record fully permitted the conclusion that valid proficiency or suitability considerations alone led to the decisions not to reappoint or promote and that discrimination played no part. There thus remains no scope for a reversal by us.
See also Wharton v. Knefel, 562 F.2d 550, 556-58 (8th Cir. 1977) (employee, who convinced appellate court that district court's finding that he was not a victim of racial discrimination was clearly erroneous, was entitled to attorney's fees for the appellate phase of the case even though the case was remanded to the district court to consider damages, injunctive relief, and an award of attorney's fees for proceedings before it).
It is to be emphasized that in each of the cases there was a determination that rights of the plaintiff or plaintiffs had been invaded by the defendants.