KEARSE, Circuit Judge:
Defendants, the Board of Education of the City School District of the City of Olean and its members (collectively the "Board"), appeal from a final judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, entered on the motion of plaintiff Rose Schwabenbauer, a teacher, for summary judgment. Schwabenbauer contended that the Board's termination of her employment constituted discriminatory treatment on the basis of her sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (1976). The district court agreed and awarded Schwabenbauer
Certain facts are not in dispute. In 1968, the Board hired Schwabenbauer as a probationary elementary school teacher to commence September 1, 1968. At that time New York law required a new teacher to serve a three-year probationary period during which his or her performance could be observed and evaluated before a tenure decision was made by a board of education. See New York Education Law § 2509 (McKinney 1970). Schwabenbauer taught until February 1, 1970, a period of one year and five months, when she was granted, at her request, a maternity leave of absence for a period of up to two years. Schwabenbauer unexpectedly gave birth prematurely on February 7, 1970, and suffered adverse medical consequences; on her doctor's orders, she remained on leave for the remainder of the school year.
At Schwabenbauer's request the Board terminated her maternity leave as of September 1, 1970. Schwabenbauer returned to work on that date and worked until May 15, 1972, when she received notice from the Board that she would not receive tenure and that her employment would be terminated on June 30, 1972.
Schwabenbauer then began a series of attempts to gain reinstatement.
The Motions for Summary Judgment
Following their agreement to two short stipulations of fact, both sides moved for summary judgment. In principal part the stipulations described the Board's treatment of two other female probationary teachers each of whom had been granted tenure on the third anniversary of her appointment despite a disability leave of absence lasting approximately three months. One was Kathryn L. Kenney, who was appointed as of September 1, 1968, and did not work from September 1, 1968, through December 6, 1968, due to illness (the nature of which was not specified in the stipulation), but was granted tenure effective September 1, 1971. The other, Mary Elizabeth Smith, was appointed as of September 1, 1952, was injured in an automobile accident on December 21, 1952, and did not work from December 1, 1952, to March 26, 1953; she was nevertheless granted tenure effective September 1, 1955.
Schwabenbauer contended that the Board's granting of credit to Smith and Kenney for the periods during which they were absent with non-pregnancy-related disabilities and the denial of similar credit to plaintiff for her absence for disability due to pregnancy demonstrated a Board policy of sex discrimination in violation of Title VII. She moved for summary judgment on the ground that no material facts were in dispute.
The Board cross-moved for summary judgment, on the ground that the undisputed material facts failed to establish a prima facie case of discrimination on the basis of sex. First, it contended that the 1952-55 events involving Smith, which predated Title VII by a decade, were so remote as to be worthless as proof of discriminatory treatment of Schwabenbauer, or as proof of a Board policy of discrimination, in the 1970's. Second, the Board contended that, even giving full play to the Board's treatment of Smith and Kenney, plaintiff's evidence showed, at best, discrimination among women, and that gender discrimination could not be proven by showing that some women were treated differently from other women. Third, the Board argued that the cases of Kenney and Smith were distinguishable from that of Schwabenbauer because their leaves were shorter than Schwabenbauer's and did not occur in the middle of their probationary terms, making evaluation of their abilities easier.
The District Court's Decision
The district court, in an opinion reported at 498 F.Supp. 119, granted summary judgment to Schwabenbauer. Noting that the parties had "agreed that [the] stipulations constitute[d] all the evidence in this case and that, accordingly, I should grant summary judgment on the existing record for one party or the other," id. at 120, the court stated that the "decision must be based on these facts [and] on whatever inferences I may permissibly draw from them." Id.
Focusing on the Board's treatment of Kenney and Smith, in 1971 and 1955, respectively, the court "as a trier of fact," id. at 121, inferred "that defendants had an informal, unwritten, generally sex-neutral policy of including disability leave time but that such policy was not extended to leaves due to pregnancy," id., and it therefore ruled that Schwabenbauer had established a prima facie case of sex discrimination. Rejecting the Board's argument that the
The court also discounted the Board's argument that Schwabenbauer had presented no evidence to show that she had been treated differently from any man, pointing out that the Board had presented no evidence to show that men would not have been given the same treatment as Kenney and Smith. And as to the Board's contention that the length and timing of the Smith and Kenney absences were significantly different, the court stated that the Board had made no evidentiary showing that such differences were in fact the reasons for the Board's actions, and that the Board had therefore failed to rebut Schwabenbauer's prima facie case.
Holding that the Board's refusal to grant credit to Schwabenbauer for her maternity leave was unlawful, the court restored the credit, concluded that her probationary period had ended on August 31, 1971, and ruled that on September 1, 1971, Schwabenbauer had acquired tenure by acquiescence, see note 3, supra. The court ordered the Board to reinstate Schwabenbauer with seniority from September 1, 1968, and to pay her backpay totaling $123,555, plus interest, and attorneys' fees.
Because the record below cannot support a grant of summary judgment, we vacate the judgment and remand for further proceedings.
A. The Substantive Framework
Section 703(a) of Title VII, enacted in 1964 as part of the Civil Rights Act, makes it unlawful for an employer to discriminate against an employee "because of ... sex":
42 U.S.C. § 2000e-2(a). To establish a prima facie case of sex discrimination under § 703(a) a female plaintiff may show that she was treated less favorably than men in circumstances from which a gender-based motive could be inferred (a "disparate-treatment" claim), or she may show that an employment practice that is facially neutral in its treatment of men and women in fact falls more harshly on women than on men (a "disparate-impact" claim). See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 349, 97 S.Ct. 1843, 1854 n.15, 1861, 52 L.Ed.2d 396 (1977); Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977) (impact case); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973) (treatment case). For a plaintiff to prevail in a disparate-treatment case, "[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Teamsters, supra, 431 U.S. at 335 n.15, 97 S.Ct. at 1854 n.15. In a disparate-impact case, proof of discriminatory motive is not required. Id. at 336 n.15, 97 S.Ct. at 1854 n.15.
In the two types of cases the allocations of the evidentiary burdens between plaintiff and defendant are similar. In each, once a plaintiff has established a prima facie case of sex discrimination, the burden shifts to the defendant to make a showing in rebuttal; the nature of the rebuttal issues, however, varies in the two
1. Principles Relating to Pregnancy
At the times pertinent to the present case, Title VII did not specify whether or not an employer's differentiation between disabilities relating to pregnancy and disabilities relating to other conditions was intended to constitute discrimination because of sex.
Id. at 134-35, 97 S.Ct. at 407 (quoting Geduldig v. Aiello, 417 U.S. at 496-97 n.20, 94 S.Ct. at 2491-92 n.20). In thus ruling
The Gilbert Court then proceeded, on the basis of disparate-impact analysis, to assess the effect of General Electric's policy of excluding pregnancy-related disabilities from its benefit plans. In Geduldig the Court had found the virtually identical plan to have no discriminatory effect:
417 U.S. at 496-97, 94 S.Ct. at 2491-92 (quoted in Gilbert, 429 U.S. at 135, 97 S.Ct. at 407). In Gilbert the Court similarly observed that both men and women were subject generally to the disabilities that were covered by the General Electric plan, and that there was no evidence that men received more benefits from the disability fund than did women. 429 U.S. at 138, 97 S.Ct. at 409. It found, therefore, that the General Electric plan was nondiscriminatory in its effect. Having noted that if an employer's policy is not discriminatory in either its terms or its effect it cannot violate § 703(a)(1), id. at 137-38 n.15, 97 S.Ct. at 408-09 n.15, the Court thus concluded that the General Electric plan was not unlawful.
In Nashville Gas Co. v. Satty, supra, the Court reviewed a different kind of practice,
434 U.S. at 141-42, 98 S.Ct. at 351 (footnote omitted). Since no business necessity had been shown for Nashville Gas's seniority policies, the Court upheld the rulings of the lower courts that those policies violated Title VII.
2. Title VII Issues in the Present Case
In determining whether or not the Board's refusal to grant credit to Schwabenbauer for her maternity leave violated Title VII, the court must, in light of the teachings of Gilbert and Satty, pursue several lines of inquiry. Assuming that there is an identifiable Board policy (but see part B, infra), the first inquiry is whether its terms discriminate because of sex. We think it clear that the policy as alleged by Schwabenbauer and found by the district court in this case did not so discriminate by its terms. That policy is not simply to grant credit to men while denying it to women. Rather, the assumed Board policy divides probationers, "`into two groups — pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.'" Gilbert, supra, 429 U.S. at 135, 97 S.Ct. at 407 (quoting Geduldig, 417 U.S. at 496-97 n.20, 94 S.Ct. at 2491-92 n.20). Thus, while Schwabenbauer perceives of her case as asserting a claim of disparate treatment and the district court appears to have referred to disparate-treatment issues,
In granting judgment for Schwabenbauer the district court viewed the Board's policy as more analogous to the policy of Nashville Gas in Satty than to that of General Electric in Gilbert, and appears to have assumed that the discriminatory impact that was obvious in Satty existed here as well. In the abstract, we agree that a policy of denying credit for maternity leave while granting it for other types of leave does not deny or confer fringe benefits so much as it affects the status of the probationary teacher; indeed, the direct purpose and effect of denying credit are to require that the probationary teacher remain, for a longer period, an untenured probationer. Nevertheless, the analogy to Satty is not so perfect that discriminatory impact is to be presumed from the Board's policy. First, a policy of denying or granting probationary credit for maternity and other types of leave is more like that portion of Nashville Gas's policy that simply denied continuing accumulation of seniority to those on maternity leaves while granting such accumulation to those on nonmaternity leaves. Since it is not claimed here that the Board's policy strips pregnant probationers of credit for their teaching time prior to taking leave, its policy is not analogous to Nashville Gas's policy of depriving pregnant employees of their previously accumulated leave. In recognizing the obvious adverse
Assuming that the Board's policy is found to have a discriminatory effect, so that the plaintiff has made out a prima facie case of disparate impact, the court must determine whether or not there was a business necessity justifying the policy. As the Satty Court observed.
434 U.S. at 143, 94 S.Ct. at 352 (citations omitted). And finally, if the Board rebuts a prima facie case by demonstrating a business necessity, Schwabenbauer must be given the opportunity to show that the claimed necessity is merely a pretext for discriminating on the basis of sex.
B. Summary Judgement Principles
The requirements for granting summary judgment are well established. There must be "no genuine issue as to any material fact," and a party must be "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The burden is on the moving party `to demonstrate the absence of any material factual issue genuinely in dispute.' Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)." American International Group, Inc. v. London American International Corp., 664 F.2d 348 (2d Cir. 1981). Not only must there be no genuine issue as to the evidentiary facts, but there must also be no controversy as to the inferences to be drawn from them. E.g., Phoenix Savings & Loan, Inc. v. Aetna Casualty & Surety Co., 381 F.2d 245, 249 (4th Cir. 1967). In determining whether or not there is a genuine factual issue, the court should resolve all ambiguities and draw all reasonable inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).
The contention of one party that there are no issues of material fact preventing entry of judgment in its favor does not bar that party from asserting that there are issues of fact sufficient to prevent the entry of judgment as a matter of law against it. Walling v. Richmond Screw Anchor Co., 154 F.2d 780, 784 (2d Cir.), cert. denied, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640 (1946). Thus, the fact that both sides have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other. E.g., Home Insurance Co. v. Aetna Casualty &
Applying these principles within the framework of the Title VII analysis mandated by Gilbert and Satty, we conclude that the district court erred in granting summary judgment in favor of Schwabenbauer. The rather sketchy evidence and the sparse stipulations of fact entered into by the parties simply did not permit the kind of analysis required.
First, there is the threshold question of whether there existed a Board policy regarding the granting of credit for leaves of absence during a probationary period. Plaintiff offered no documents, testimony, or affidavits attesting to an actual Board policy. The court had before it just three instances in which the Board acted to grant or deny such credit, which were inadequate to justify the inference of a policy as a matter of law. Although the contemporaneous different treatments of Schwabenbauer and Kenney may permit the inference that the Board had a defined policy regarding credit for leaves during a probationary period, such an inference is scarcely compelled. The evidence as to Smith is even less probative. While Smith was granted credit in the 1950's there is no evidence that credit for a pregnancy leave had ever before been denied to anyone, or that such credit was thereafter denied to anyone within the next eighteen years. The isolated evidence as to Smith therefore hardly even permits an inference of a defined Board policy in the 1950's. Rather than inferring from these three instances that the Board "had an informal, unwritten ... policy," "then and now," the court was required, in ruling on Schwabenbauer's motion, to draw all reasonable inferences in favor of the Board. Had it done so, it would have concluded that a question existed as to whether in fact the Board had a defined policy respecting the granting of credit for leaves during a probationary period.
Second, assuming that the circumstances of Smith, Kenney, and Schwabenbauer reflect a Board policy, there is the question as to the content of that policy. The district court inferred that it was a "policy of including disability leave time [except for] leaves due to pregnancy." 498 F.Supp. at 121. There are, however, at least two unanswered questions as to the content of the Board policy, one relating to the nature of the leave, and the other relating to the length of the absence. As to the nature of the leave, the cases of Smith and Kenney are clear; theirs were leaves due to disability. Schwabenbauer on the other hand, does not appear to have sought her leave merely for pregnancy related "disability": she requested a leave of absence for a period of up to two years. If we assume that disability due to pregnancy, without complications, normally extends for a period of six to eight weeks, see Gilbert, supra, 429 U.S.
Third, assuming that there was a Board policy, and that in general it denied credit for pregnancy leaves while granting credit for other types of leave, the question remains whether the Board's policy had the effect of discriminating against women because of their sex. There is no evidence in the record from which this question could have been answered. The only proof offered showed credit granted or denied to women and the tenure decisions as to those three women. As to possible gender-discriminatory effects of the assumed policy, it cannot be determined from the present record, for example, whether on the average it takes women significantly longer than men to complete their probationary periods, whether proportionately more women than men fail to gain tenure at the end of their probationary periods, whether a longer probationary period reduces the likelihood that tenure will be granted, whether a longer probationary period adversely affects seniority, whether a longer probationary period adversely affects other job opportunities, and so forth. In the absence of any answers to questions such as these there can be no finding of a gender-based effect.
Finally, if the Board's leave policy is found to have an adverse effect on women, thereby establishing a prima facie case, the Board may nevertheless be able to defend successfully if that policy was adopted because of business necessity. The Board contended, for example, that too long a leave by a probationary teacher hampers the school board's evaluation efforts that are required by law. The record before the court revealed that Schwabenbauer's leave, as taken, was more than twice as long as those of Smith and Kenney; and as originally requested Schwabenbauer's leave could have lasted two years. Viewing these facts in light of the requirement of New York's Education Law that the Board evaluate teachers for a three-year probationary period, and of the ruling of the New York Commissioner of Education that substantial leaves other than for military service may not be counted toward completion of this period, see In re Luchans, 2 Educ.Dept.Rep. 424 (1963), the rejection of a business necessity defense as a matter of law was improper.
In vacating the judgment entered in favor of Schwabenbauer,
The judgment is vacated and the cause remanded for proceedings not inconsistent with this opinion.
Act of October 31, 1978, Pub.L.No. 95-555, § 1, 92 Stat. 2076, 42 U.S.C. § 2000e(k) (Supp. III 1979). Since Congress provided that the amendment would take effect on the date of its enactment, Act of 1978, § 2(a) (except as to certain benefit programs in effect on the enactment date, as to which effectiveness was delayed 180 days, id. § 2(b)), there is no basis for applying the 1979 amendment to Schwabenbauer's experiences in 1968-72. Condit v. United Air Lines, Inc., 631 F.2d 1136, 1139-40 (4th Cir. 1980). Cases such as Fusari v. Steinberg, 419 U.S. 379, 387, 95 S.Ct. 533, 538, 42 L.Ed.2d 521 (1975), and Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575, 30 L.Ed.2d 567 (1972) (per curiam), relied on by Schwabenbauer in seeking retroactive application of the 1979 amendment to her case, are inapposite. Those cases did not hold that a prospective statute invalidated past conduct; they held simply that in reviewing a ruling on a request for declaratory or injunctive relief against enforcement of a statute, the appellate court must make its judgment based on the law as it exists at the time of its own decision, rather than on the law that existed when the case was before the lower court.
434 U.S. at 142 n.4, 98 S.Ct. at 351 n.4 (ellipses in opinion).
1. The plaintiff is a female.
2. The plaintiff at all times relevant to this action was a duly certified teacher in the State of New York within the elementary tenure area.
3. That the actions complained of by the plaintiff were allegedly committed within the Western District of the State of New York.
4. Plaintiff gave birth to her child on February 7, 1970 one month earlier than the normal and expected period of gestation.
5. The plaintiff, because of health complications, and upon the advice of her physician, was unable to return to her teaching position until after June 1970.
6. On January 11, 1973 the plaintiff filed the instant complaint with the Equal Employment Opportunity Commission.
On the other hand, if the court determines that there has been a violation of § 703(a), Title VII itself gives the court broad discretion to fashion a remedy. See e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 763-67, 96 S.Ct. 1251, 1263-65, 47 L.Ed.2d 444 (1976); Albemarle Paper Co. v. Moody, supra. In determining what relief may be appropriate, the court should bear in mind that Title VII did not become applicable to the Board until March 24, 1972, and should consider whether Schwabenbauer's maternity leave was in fact the reason for the Board's refusal to grant her tenure or whether that leave simply delayed the making of a non-gender-based decision.