Nancy Kobrin v. University of MN ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2674
___________
Nancy Kobrin, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
University of Minnesota; The Regents *
of the University of Minnesota, *
*
Appellees. *
___________
Submitted: March 10, 1997
Filed: August 12, 1997
___________
Before WOLLMAN, JOHN R. GIBSON, and MAGILL,1 Circuit Judges.
___________
MAGILL, Circuit Judge.
We revisit this sex discrimination case as Nancy Kobrin
appeals from the district court’s2 order that both adopted
the special master’s3 findings of fact as well as granted
1
The Honorable Frank J. Magill was an active judge at the time this case was
submitted and assumed senior status on April 1, 1997, before the opinion was filed.
2
The Honorable Paul A. Magnuson, Chief Judge, United States District Court for
the District of Minnesota.
3
Special Master Leonard E. Lindquist.
judgment in favor of the defendant, the University of
Minnesota (University). Kobrin argues that the district
court’s order should be reversed for any one of the
following three reasons: (1) she was entitled to have a
hearing before a panel of three persons rather than the
special master alone; (2) the special master applied the
wrong legal standard when reviewing Kobrin’s claim; and
(3) the University was unable to produce all of the
documents that the University is required to maintain
under its own hiring guidelines. We affirm.
I.
In 1980, the University settled a class action sex
discrimination suit, Rajender v. University of Minnesota,
No. 4-73-435 (D. Minn. Aug. 13, 1980), by entering into
a consent decree. Under the terms of the Rajender
consent decree, the University must conduct a nationwide
search to fill any academic, non-student position. The
University must also make a good faith effort to hire
“approximately equally well qualified” female candidates
under an affirmative action plan until the percentage of
women employed at all levels within a University
department equals the percentage of women available for
hiring. Rajender Consent Decree at 3-4. To comply with
this requirement, the University annually compiles
faculty gender statistics of the percentage of women
employed at each level within each department of the
University. As part of its good faith effort, the
University has written hiring guidelines for each
department. The hiring guidelines require each
department to keep extensive records of its hiring
-2-
process. These hiring guidelines, however, are not part
of the Rajender consent decree.
Kobrin became a Ph.D. candidate in the University’s
Department of Comparative Literature (Department) in
1978. She also pursued psychoanalytical training as an
advanced research fellow at the Institute for
Psychoanalysis in Chicago. Before receiving her Ph.D. in
comparative literature from the University in 1984,
Kobrin
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served as the Acting Program Director for the
University’s Center for Humanistic Studies (CHS).4
After Kobrin received her Ph.D. in 1984, she applied,
interviewed, and was selected for the position of CHS
Program Coordinator. This selection process complied
with the provisions of the Rajender consent decree. The
position of CHS Program Coordinator was a non-tenured,
year-to-year position that Kobrin held until 1988. In
addition to her duties as CHS Program Coordinator, Kobrin
also taught some classes for the Department. In 1988,
however, the University closed the CHS. Consequently,
Kobrin’s position as CHS Program Coordinator was
eliminated.
Around the same time, two professors resigned from
the Department. On the recommendation of one of the
resigning professors, the University hired Kobrin as a
lecturer5 for the Department. Kobrin’s position as a
lecturer for the Department was funded by a “soft money
fund,” a type of University grant given to a department
for a specific purpose on an annual basis. Kobrin was
notified that her job would last from September 16, 1989,
through June 15, 1990.
After Kobrin was hired as a lecturer, the University
informed Kobrin that the creation of the lecturer
position for which she had just been hired triggered the
4
The CHS was an interdisciplinary center established by the College of Liberal
Arts to promote research in the humanities.
5
The term “lecturer” applies to non-permanent, non-tenure track teaching
positions. These positions can involve some administrative duties as well.
-4-
need for a search pursuant to the Rajender consent
decree. Kobrin objected to the need for a Rajender
search, arguing that she did not occupy a newly created
position because the position was not substantially
different from her previous position as CHS Program
Coordinator. The deans of the Department disagreed with
Kobrin and decided that a Rajender search was necessary
because, in their opinion, Kobrin’s new position was
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materially different from her old one. By the time the
deans had made this decision, however, there was not
enough time to conduct a Rajender search prior to the
start of the academic year. Therefore, Kobrin was
allowed to keep her position as a Department lecturer for
one year. However, the University’s Equal Opportunity
Office made it clear to the Department that Kobrin could
not continue in her position as lecturer unless she was
selected for that position in the course of the Rajender
search that would be conducted before the start of the
next academic year.
To conduct a Rajender search, the Department must
first form a search committee. The committee’s job is to
make a final selection for the advertised position based
on characteristics such as a candidate’s training, his or
her experience, the quality and quantity of a candidate’s
published works, and the academic recommendations
submitted on behalf of each candidate. If a Rajender
search results in the hiring of a male candidate, the
search committee must list the three most qualified women
who were considered and document the committee’s reasons
for not hiring one of these women.
In 1988, the Department approved funding for a new
senior faculty position and a new junior faculty
position. Both of these were tenure-track positions. To
fill the two positions, the Department formed a search
committee of three women and four men and then advertised
for candidates with a solid background in critical theory
and a background in at least one of the following areas:
literature with an emergent critical interest,
continental European critical interest, continental
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European literature of a period after 1600, or media
studies. About one hundred people applied to the
Department for the junior faculty position, including
Kobrin. The search committee narrowed this pool to a
group of about fifteen candidates, which included Kobrin.
The search committee further narrowed the pool of
candidates to a group of approximately three finalists.
Kobrin, however, was not chosen as a finalist because, in
the opinion of the search committee, there were several
other candidates that were better qualified than she.
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Ultimately, the search committee selected a male,
Prabhakara Jha, for the junior faculty position. He had
a strong background in literature with an emergent
critical interest. For the senior position, the search
committee selected a candidate who ultimately declined
the offer. Finding no other suitable candidates for the
senior position, the committee received permission from
the University to hire a second junior faculty member
instead. Before filling this position, the University
did not recalculate the Department’s faculty gender
statistics for the junior faculty level, even though the
hiring of professor Jha was likely to have changed the
percentage of males and females at that level within the
Department. The committee finally selected Peter Canning
to fill the second junior faculty position. The chair of
the search committee informed Kobrin of the committee’s
decision by mail in July 1989.
After receiving news of the search committee’s
decision, Kobrin asked for the documents that the
Department is required to create under its own hiring
guidelines. The Department was able to produce some, but
not all, of these documents.
Kobrin filed a Rajender sex discrimination claim
against the University in the district court.6 In her
complaint, Kobrin alleged that the Department had
6
As we previously explained in Kobrin v. University of Minnesota, 34 F.3d 698
(8th Cir. 1994) (Kobrin I), “[s]ex discrimination claims against the University are
brought under the Rajender consent decree, but Title VII [of the Civil Rights Act of
1964, 42 U.S.C. § 2000e to 2000e-17,] standards still govern the claims.” 34 F.3d at
701 n.2.
-8-
discriminated against her based on her sex when it failed
to hire her for the second junior faculty position. The
University subsequently elected not to renew Kobrin’s
lecturer position. Kobrin then filed a second Rajender
claim against the University in the district court, this
time alleging that she was terminated in retaliation for
having filed her first claim.
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Kobrin’s sex discrimination and retaliation claims
were considered by a special master, who recommended that
the district court grant the University’s motion for
summary judgment on all claims. The district court
adopted the recommendation of the special master and
granted the University summary judgment. Kobrin appealed
the district court’s decision to this Court. We affirmed
the district court’s grant of summary judgment to the
University on the retaliation claim. Kobrin v.
University of Minn., 34 F.3d 698, 705 (8th Cir. 1994)
(Kobrin I). However, we found that Kobrin had
established a prima facie case of sex discrimination and
that there was a genuine issue of fact as to whether the
University’s proffered reasons for failing to hire Kobrin
were mere pretext. Id. at 702-03. Accordingly, we
affirmed in part and reversed in part the district
court’s grant of summary judgement, and remanded the case
for further proceedings. Id. at 705.
On remand, the district court appointed special
master Leonard E. Lindquist to hear Kobrin’s case. The
special master held a hearing on Kobrin’s sex
discrimination claim from April 3, 1995, through April 7,
1995. Although Kobrin was entitled to a hearing in front
of a three-person panel under the terms of the Rajender
consent decree, at no time before or during the hearing
did Kobrin object to the fact that the special master was
presiding by himself, nor did Kobrin ever assert before
the special master her right to a three-person panel.
During this time, Kobrin’s counsel was an attorney who
was simultaneously representing several other claimants
suing the University pursuant to the Rajender consent
decree.
-10-
After the conclusion of the hearing, the special
master wrote an extensive, twenty-eight page report
detailing his findings of fact with respect to Kobrin’s
claims. The special master first recounted the steps
that the University had taken in deciding whom it would
hire for the second junior faculty position. The special
master then found that the Department did not
discriminate against Kobrin on the basis of her gender in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
to 2000e-17, when it declined to hire Kobrin. The special
master also found that the
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Department’s failure to hire Kobrin did not violate the
affirmative action hiring plan outlined by the Rajender
consent decree.
After the special master filed his unfavorable
report, Kobrin objected to the special master’s findings
in the district court. Kobrin objected on the grounds
that: (1) she was entitled to a hearing in front of a
three-person panel instead of just the special master;
(2) the special master had applied the wrong legal
standard when he reviewed Kobrin’s claim; and (3) the
University was unable to produce all of the documents
related to the hiring process that the University is
required to maintain under its own hiring guidelines.
The district court adopted the special master’s
findings of fact and entered judgment for the defendants.
Kobrin appeals to this Court.
II.
Kobrin argues that the decision of the district court
should be reversed because she was entitled to a hearing
in front of a three-person panel rather than only a
special master. We disagree.
Ordinarily, when a party fails to object in a timely
manner to the appointment of a special master, the
objection is waived. See Burlington Northern R.R. Co. v.
Department of Revenue of Washington, 934 F.2d 1064, 1069
(9th Cir. 1991); see also First Iowa Hydro Elec. Coop.
v. Iowa-Illinois Gas and Elec. Co., 245 F.2d 613, 628
(8th Cir. 1957) (“Failure to make [a] timely objection to
the appointment of a [special m]aster either at the time
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of the order [appointing the special master] or promptly
thereafter constitutes a waiver of error and objections
. . . .”). Moreover, where a litigant waits to object to
the appointment of a special master until after that
special master has filed an unfavorable report, any
objections to the appointment of that special master are
particularly unpersuasive. See Burlington Northern, 934
F.2d at 1069.
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In the instant case, Kobrin did not immediately
object to the appointment of the special master but
instead sat on her rights throughout the five-day period
during which the special master conducted the hearing.
Furthermore, Kobrin did not object to the special
master’s appointment until after the special master filed
his unfavorable, twenty-eight page report. Finally,
given Kobrin’s counsel’s experience in litigating
Rajender claims, Kobrin’s counsel almost certainly was
aware of Kobrin’s right to a three-person panel.
Nevertheless, Kobrin did not assert her right to be heard
by a three-person panel in a timely manner. Based on
these factors, we hold that Kobrin waived her right to a
three-person panel.
III.
Kobrin argues that, although the University has
offered a legitimate, non-discriminatory reason for not
hiring her, the University’s failure to recalculate the
Department faculty gender statistics proves that the
University’s proffered reasons for hiring Canning instead
of her were mere pretext for engaging in sex
discrimination. According to Kobrin, the district court
erred when it did not conclude that the University’s
failure to recalculate the faculty gender statistics
constitutes proof of pretext. More specifically, Kobrin
argues that the district court erred when it accepted the
University’s assessment of Kobrin’s qualifications and
the University’s argument that, even if the University
were obligated to recalculate the faculty gender
statistics, Kobrin would not have been hired. Kobrin
argues that the district court was instead required to
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make an independent review of her qualifications for the
junior faculty position. We disagree.
In a Title VII case in which a plaintiff does not
present direct evidence of illegal discrimination, the
plaintiff has the initial burden of establishing a prima
facie case. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 506 (1993). Once the plaintiff establishes a prima
facie case, there is a presumption that the employer
committed illegal discrimination. Id. If the plaintiff
establishes a prima facie case of illegal
-15-
discrimination, then it falls to the defendant to rebut
the resulting presumption of discrimination by producing
a legitimate, non-discriminatory reason for the
defendant’s actions. Id. at 506-07. When the defendant
proffers a legitimate, non-discriminatory reason for its
actions, the presumption of illegal discrimination has
been rebutted and it falls to the plaintiff to prove that
the proffered reason is mere pretext. Id. at 507.
Notwithstanding the presumption of discrimination that
arises after the plaintiff establishes her prima facie
case, the plaintiff retains, at all times, “the ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff . . .
.” Id. (quotations, citation, and alteration omitted).
We have already held in Kobrin I that Kobrin
established a prima facie case against the University.
34 F.3d at 702. Kobrin has shown that (1) she is a
member of a protected class; (2) she was qualified for
the position for which the University was accepting
applications; (3) she was denied the position; and (4)
the University hired a male candidate, Peter Canning, for
the position. Id. The University has, however, rebutted
the presumption, created by Kobrin’s prima facie case, by
stating as its legitimate, non-discriminatory reason for
hiring Canning instead of Kobrin that Canning was the
most qualified candidate for the junior faculty position.
Id. at 703. This case thus turns on the issue of whether
Kobrin can offer sufficient proof that the University’s
stated reason for not hiring her was mere pretext. Id.
Under the Rajender consent decree, the University is
obligated to hire an approximately equally well qualified
female candidate when the percentage of women in the
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hiring pool is greater than the percentage of women at
the level in the Department for which a candidate is
sought. Rajender Consent Decree at 3-4. The University,
however, did not recalculate the faculty gender
statistics after professor Jha was hired for the junior
faculty position. Kobrin asserts that, had the
University recalculated the faculty gender statistics,
the University would have been required, pursuant to the
Rajender consent decree, to hire an approximately equally
well qualified female candidate for the second junior
faculty position. Kobrin further asserts that the
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University’s decision not to recalculate the faculty
gender statistics proves that the University’s proffered
reason for not hiring Kobrin was mere pretext for
engaging in sex discrimination.
The district court rejected Kobrin’s proof of pretext
because the district court had already accepted the
University’s conclusion that Kobrin was not an
approximately equally well qualified female candidate.
Mem. Op. (May 7, 1996) at 9. Accordingly, the district
court reasoned that the University’s failure to
recalculate the faculty gender statistics could not be
proof of pretext because, even if the University had
recalculated the faculty gender statistics, the
University would not have been obligated to hire Kobrin
since she was not an approximately equally well qualified
candidate. Kobrin, however, argues that the district
court should have independently assessed Kobrin’s
qualifications rather than relying on the University’s
findings.
This Court reviews a district court’s conclusions of
law de novo and its findings of fact under the clearly
erroneous standard. Sawheny v. Pioneer Hi-Bred Int’l,
Inc., 93 F.3d 1401, 1407 (8th Cir. 1996). Moreover, it
is inappropriate for a court to “sit as a super personnel
council to review tenure decisions.” Brousard-Norcross
v. Augustana College Ass’n, 935 F.2d 974, 976 (8th Cir.
1991) (quotations omitted). As we explained in Kobrin I,
we
accord a high degree of deference to the
judgment of university decision-makers regarding
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candidates’ qualifications for academic
positions. To prevail, the plaintiff must show
something more than a mere dispute over her
qualifications for the position. Indeed, in the
tenure context, for example, the plaintiff’s
evidence of pretext must be of such strength and
quality as to permit a reasonable finding that
the denial of tenure was obviously unsupported.
34 F.3d at 704 n.4 (quotations, alteration, and citations
omitted).
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The district court’s finding that Kobrin was not an
approximately equally well qualified candidate was not
clearly erroneous. The record contains ample evidence to
support the district court’s conclusion. For example,
the professors on the search committee testified that
Kobrin’s application was weaker than the applications of
several other candidates, both male and female.
Professor Ronald W. Sousa, a member of the search
committee, testified that Kobrin was at the bottom of the
semi-finalist list, not the top. Mem. Op. and Rec. Or.
(Feb. 28, 1996) at 16 (Special Master). Professor Nancy
Armstrong, another member of the search committee,
testified to being underwhelmed by Kobrin’s candidacy and
specifically noted that she did not find Kobrin to be an
approximately equally well qualified candidate. Id. at
17. Finally, professor Rey Chow, also a member of the
search committee, testified that not only was Kobrin “not
good enough for the department,” but also that there were
other, better qualified female candidates who had applied
for the junior faculty position. Id.
Furthermore, Kobrin was not one of the candidates
that the University listed as the three best qualified
women candidates, a listing that was required by the
Rajender consent decree. As a result, there were at
least three women that the University found to be more
qualified than Kobrin.
Based on the district court’s findings, which are
fully supported by the record, it is apparent that Kobrin
was not an approximately equally well qualified
candidate. Thus, even if the University had recalculated
the Department faculty gender statistics, Kobrin would
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not have been hired for the second junior faculty
position. Accordingly, the University’s failure to
recalculate the Department faculty gender statistics is
not sufficient proof of pretext in these circumstances.
IV.
Finally, Kobrin argues that the decision of the
district court must be reversed because the University
was unable to produce all of the documents that the
University
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is required to maintain under its own hiring guidelines.
Kobrin asserts that this demonstrates the University’s
lack of good faith, a violation of the Rajender consent
decree. We disagree.
The determination of whether a party has acted in
good faith is a factual determination that we review
under the clearly erroneous standard. Cf. McMahon Food
Corp. v. Burger Dairy Co., 103 F.3d 1307, 1313 (7th Cir.
1996) (“A trial court’s conclusion that a party failed to
act in good faith [in the context of a commercial case]
is a finding of fact which we reverse only for clear
error.”); Cramer v. Commissioner, 64 F.3d 1406, 1415 (9th
Cir. 1995) (“The Tax Court also found that appellants did
not act in good faith. We review this finding of fact
for clear error.”), cert. denied, 116 S. Ct. 2499 (1996);
United States v. Singer, 785 F.2d 228, 234 n.6 (8th Cir.
1986) (reviewing the trial court’s determination of good
faith for clear error in the context of a criminal case).
Under the terms of the Rajender consent decree, the
University was only required to make a good faith effort
to hire approximately equally well qualified female
candidates. Rajender Consent Decree at 3-4. The
University’s hiring guidelines are not part of the
Rajender consent decree. As a result, that the
University was not able to produce all of the documents
it is supposed to maintain under its own hiring
guidelines was not, by itself, a per se violation of the
Rajender consent decree.
Furthermore, the district court’s finding that the
University had conducted the Rajender search in good
-22-
faith is not clearly erroneous. With respect to the
missing documents, the special master specifically found
that “[t]here is not one iota of evidence to support a
finding that these [missing] documents were intentionally
destroyed, nor is there any indication that the documents
contained information contrary to the testimony of the
three search committee members . . . .” Mem. Op. and
Rec. Or. at 20-21. Kobrin herself has offered no
evidence that the loss of some of the documents was
anything other than inadvertent. Given the University’s
general
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compliance with the terms of the Rajender consent decree
when it undertook its search to fill the junior faculty
position, the University’s failure to maintain every
single document required by the University’s hiring
guidelines is not enough to compel the conclusion that
the University failed to act in good faith.
V.
For the foregoing reasons, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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