Cynthia J. Fisher, Plaintiff-Appellee-Cross-Appellant v. Vassar College, Defendant-Appellant-Cross-Appellee , 114 F.3d 1332 ( 1997 )

JACOBS, Circuit Judge,

concurring:

The in banc majority, naturally, has limited its review to the legal issues presented, and therefore the majority opinion does not address Chief Judge Newman’s fact-specific argument that the panel arrived at the wrong result in this case. As the author of the panel opinion, I write separately to meet the dissent on this ground.¹ The best refutation of the dissent is the panel opinion; there is no complaint that it is too short, and there is no point in reprinting it. I therefore respectfully refer the reader to it, and limit myself in this separate concurrence to rebutting selected arguments and aspersions in the dissent.

I

The dissent’s critique of the panel’s work is rooted in the dissent’s errors of law. Absent “rare” and “special circumstances existing in the record,” see 114 F.3d at 1372 (Newman), the dissent would insulate from reversal any ultimate finding of discrimination premised on a prima facie case coupled with a sustainable finding of pretext. Appellate scrutiny would be limited by the dissent to instances in which the record facts “overwhelmingly establish a third motive for the pretextual proffer, undermine a component of the plaintiffs prima facie case, or demonstrate that the defendant is highly unlikely to have discriminated.” 114 F.3d at 1377 (Newman).² It is unclear in this passage if “overwhelmingly” modifies all three phrases or just the first, but in effect that hardly matters.

The dissent’s application of its new standard of appellate review to the age discrimination claim in this ease neatly demonstrates that the dissent’s new rules would do away with meaningful appellate review of discrimination awards. The dissent would affirm the district court’s award of more than one half million dollars under the ADEA. That award was made — after being doubled on a finding of willfulness — on the rock bottom minimum showing that the dissent argues is sufficient to withstand (or evade) appellate scrutiny for clear error.³

In determining that age discrimination had been proven, the district court found that:

(1) Fisher made out a prima facie case by the de minimis showing that she was over 40 years of age, that she was otherwise qualified for the job, and that eight of nine other tenured professors in the Biology Department were at least nine years younger than Fisher when they were reviewed for tenure.

(2) Vassar’s articulated reason for denying tenure to Fisher was pretextual.

852 F.Supp. at 1230-31. There is nothing else. The district court noted that two other items of evidence were offered up to support the age discrimination claim, but the court rejected them, as the dissent observes. A review of the district court opinion confirms that there is no other evidence of age discrimination, period. The panel opinion concluded that Fisher had shown no more than that she was the oldest candidate in the biology department to have been considered for tenure, which was unremarkable because few candidates for tenure have had an eight year interruption in their careers. Moreover, Fisher’s evidence consisted solely of a list of eight faculty members who were younger than Fisher when considered for tenure. The sample, too small to bear statistical weight in the first place, was selected on no evident principle. The panel therefore held that Judge Motley had committed clear error in finding that the evidence presented by Fisher amounted to sufficient proof to support an ADEA claim.

The dissent would find that the panel erred; but the dissent will not contest that the evidence of age discrimination is scant. This scant showing embarrasses the dissent’s theory that a bare pretext added to a prima facie case has some special weight that evades appellate review for clear error absent a handful of barely imaginable contingencies. It is easy to see in this case that such special weight would simply be a thumb on the scale. Evidently to avoid this self-refuting application of its rule, the dissent adds to the quantum of proof a new finding to shore up its ultimate finding of age discrimination — a finding on which the district court’s ADEA ruling did not rely. Thus, the dissenters dwell on Dr. Fisher’s hiatus from teaching: “had Dr. Fisher not taken eight years off from teaching to raise her children, before joining the Vassar faculty, she would have been within the age group from which Vassar is apparently willing to select tenured professors.” 114 F.3d at 1384 (Newman).⁴

This is a circularity. Dr. Fisher was eight years older when she arrived at Vassar because she took an eight year hiatus. But she would have been eight years older than she otherwise was if she had devoted eight years to being a social worker (which is what Dr. Fisher did after being denied tenure), or running for office, or training for the Olympics, or serving in the military, or running a farm or business, or writing a book, or performing charitable work. Aging goes on pretty much whatever we are doing. The fact of the hiatus adds nothing to the prima facie case (which of course already factors in her age) except as a fancy way of saying that she was eight years older than she would have been if she had been eight years younger than she was. No wonder the district court did not consider this to be evidence of age discrimination. The dissent wouldn’t either if there were anything else.

II

The language of the dissent betrays a felt need to avoid saying just where the pretext finding does point. The word “discrimination” is used by the dissent passim without specification as to the basis of any discrimination. The dissent writes:

[T]he panel opinion is quite wrong to assert that the pretext finding made by the District Court in this case “points nowhere.” On the contrary, it starts out pointing in the same direction that all pretext findings point — toward the finding of discrimination that is inferable from the facts constituting the plaintiffs prima facie case.

114 F.3d at 1372-1373 (Newman) (emphasis added). But this still begs the question presented to the district court and the panel: discrimination on what ground? The footnote dangling from this passage concedes that the situation is “complicated by the circumstance that the plaintiff has alleged discrimination on two different grounds.” Id. at 1373 n. 8 (Newman). A further complication for the dissent is that Dr. Fisher presented a prima facie case on both grounds: age and sex-plus-marriage. But the dissent never deals with the vector of a pretext finding when — as often happens — a plaintiff alleges discrimination on three grounds, or four; where a plaintiff is actually the victim of discrimination on multiple grounds; where a plaintiff alleges two grounds of discrimination when there is no evidence that bears specifically on one more than the other; or where a plaintiff may have suffered discrimination on several grounds, some of which are not illegal. In such circumstances, the dissent offers little useful guidance for district courts in bench trials, and would require fugue-like jury charges to explain these notions to a jury.

In Dr. Fisher’s case, where indeed does the pretext point? The district court found two grounds of discrimination — three of them, if one considers the bantamweight finding of sex discrimination under the Equal Pay Act. This is an embarrassment of riches to the dissent, because (unless at least one ground of discrimination is held clear error) the pretext finding must point in multiple directions.

Different courts and judges have different ideas about where (if anywhere) the pretext points in this case. (A) The district court held that the evidence points to willful discrimination on the basis of Dr. Fisher’s age as well as on the basis of her status as a married woman⁵ (B) The dissenters agree with the district court that the pretext points decisively to discrimination against the aged and against married women. The dissenters feel, however, that the pretext points “more strongly” to sex-plus discrimination; but they conclude that it was “within the prerogative” of Judge Motley to infer discrimination from the pretext on both grounds because “marital status is not realistically incompatible with additional discrimination based on age.” 114 F.3d at 1385 (Newman). Thus, for the dissent, pretext (out of doctrinal necessity) points in as many directions as can be deemed consistent.⁶ (C) Judge Calabresi’s opinion asks whether Vassar’s assertion that Fisher spent insufficient time in the laboratory could be premised on a stereotypical view that married women with children “spend less time in the lab.” 114 F.3d at 1360 (Calabresi). It could — if there were any evidence that Vassar’s decision-makers were in the grip of such a stereotype. But marriage would seem to be beside the point; the pretext finding that Judge Calabresi posits could point as well to discrimination based on a general stereotype of women as caregivers, and directed against all working women, or (perhaps) against all working mothers. (D) Finally, the panel concluded that the district court’s pretext finding pointed nowhere.

The most that one can say about the direction of the pretext finding in this case is that, like a compass at the Pole, it wheels all over the place.

Ill

Having shown that the dissent’s deferential review of the district court’s age discrimination finding is all deference, no review, I turn to what the dissent believes is evidence that points to and supports an ultimate finding of discrimination on the basis of Dr. Fisher’s status as a married woman.

It is obvious that any employment decision reflects a preference for the candidate who gets the spot. Here, Dr. Pinina Norrod won tenure in the Biology Department the same year that Dr. Fisher lost. The district court found that:

... the senior members of the Biology Department were determined that Dr. Fisher be denied tenure and that Dr. Nor-rod be promoted and granted tenure.

852 F.Supp. at 1217 (finding #92). The dissent adopts the operating assumption that there are only two potential motives for that preference: (a) merit (“a college [is] usually regarded as a bastion of uninhibited pursuit of truth,” 114 F.3d at 1370 (Newman)), or (b) illegal discrimination. That is an invalid assumption for the creation of inferences. Accepting the district court’s finding that the tenure selection process was skewed to prefer Dr. Norrod, the question becomes: what evidence offers an explanation for that preference? Dr. Norrod had been married at the time she was hired by Vassar. T. at 2283. Although she had been divorced at the time the tenure decision was made, she was then in a long-term relationship that led to marriage soon after. T. at 2283-84; 70 F.3d at 1475. Was Vassar skewing its tenure decisions in the Biology Department, as the district court held, to get rid of Dr. Fisher because she was married in order to grant tenure to another woman because she was between marriages? In any event, does this finding command affirmance, as the dissent would hold, without further scrutiny for clear error?

The dissent, 114 F.3d at 1383 (Newman), draws confidence on this point from the district court’s finding that “the Biology Department’s senior faculty” had accepted a “stereotype and bias: that a married woman with an active and on-going family life cannot be a productive scientist and, therefore, is not one despite much evidence to the contrary.” 852 F.Supp. at 1216 (finding #87). In reading this finding, one should keep in mind that the chairman of Vassar’s Biology Department for nine years had been Dr. Patricia Johnson, a mother who raised her daughters in that time. T. at 2283. The district court dealt with that inconvenient fact by drawing the contours of the supposed prejudice so as to exclude Dr. Johnson: the operative words in finding #87 are “married” and “on-going,” which excise (the divorced) Dr. Johnson from the picture — a bit of “stereotype and bias” to the effect that a divorced mother does not have “an active and on-going family life.” For the same reason, the wording of finding #87 excludes Dr. Norrod, the woman who (between marriages) won tenure in 1985 over Dr. Fisher as well as over Dr. Edward Tucker.

The district court also limited its survey to married women in the “hard” sciences (finding # 80), and narrowed the field further still by excluding the married women who were granted tenure in the Psychology Department, on the ground that psychology is deemed to be a “soft” science (notwithstanding undisputed testimony that Vassar’s Psychology Department is considered part of the hard sciences due largely to its focus on experimental laboratory studies) (T. at 2216-18).

Finding # 87 reflects Dr. Fisher’s strategy at trial. She defined the ground of discrimination by reference to a set of characteristics that describe her, but that are so particular as to create in a small field a category of one.⁷ Following Dr. Fisher’s lead, the district court arrived at the conclusion that there is a sex-based animus at work at Vassar that denied tenure to Dr. Fisher so that preferment could be given to women who have divorced, women who have not yet married, and married female scientists who work in psychology rather than biology. The dissent would hold that this inference enjoys a special procedural insulation from ordinary clear error review.

The dissent also fixates upon a couple of specific findings made by the district court, to which I turn now.

A. Teaching Evaluations.

As to the panel’s review of the statistical evidence and anecdotal evidence in the case, the dissent “for purposes of this discussion, ... assume[s]” that the panel was right. 114 F.3d 1382 (Newman). But the dissent points to a group of findings that supposedly demonstrate “discriminatory use of student evaluations.” Id. I will review those findings as briefly as possible. After the district court found (finding #47) that Vassar students evaluate teachers on a scale of one to five, and (finding # 48) that Dr. Fisher exceeded what the Dean of Faculty called a “good statistic” of 70 fours and fives combined, the court went on to find that the tenure review committee:

reached its unfavorable conclusions as to Dr. Fisher’s teaching record by applying different standards to her than were applied to other tenure candidates. The Committee distorted the numbers by counting only fives for Dr. Fisher while counting fours and fives for the other candidates to determine student evaluation rankings. (R. at 289-99,1146.)

(finding #49 (emphasis added)). Taken at face value, this finding supports the conclusion that Vassar did not give Dr. Fisher a fair shake.⁸ The dissent points to these findings as weighty evidence of sex-plus discrimination, but they do not at all suggest that Dr. Fisher was disfavored because she had not divorced her husband; and they are entirely consistent with the Department’s preference for Dr. Norrod, a preference that could have numerous grounds, differing from one faculty member to the next.

But the dissent errs in accepting finding # 49 at face value, and in reading it (as the language lends itself to being read) to mean (1) that the tenure review committee used a numerical bench-mark — a combined score of fours and fives — to measure the relative teaching ability of tenure candidates; (2) that “other candidates” were measured by this benchmark; and (3) that Dr. Fisher was downgraded because her score — distorted by counting fives only — was lower than the teaching score of other candidates.⁹ These impressions do not survive a look at the underlying evidence.

The district court gives two record references to support finding # 49: “R. at 298-99, 1146.” 852 F.Supp. at 1209. The first record cite is to Dr. Fisher’s own testimony, testimony that says nothing about how the college used or did not use the student evaluation numbers; in that passage, Dr. Fisher testified about charts prepared for trial by her own counsel tabulating the numerical results of the student evaluation sheets for Dr. Fisher and the other specified candidates. These charts arguably support the idea that Dr. Fisher was a good teacher (hence the adequately supported finding of pretext), but they do not show how if at all the college used this data.

The second record cite (“1146”) is to the testimony of the plaintiffs expert, Dr. John Castellot, a professor of biology at Tufts University. Dr. Castellot never taught at Vassar and was not involved in the tenure review process; he conceded that he had never served on a tenure review committee anywhere. R. 1155. Indeed, his testimony was offered primarily to show that Dr. Fisher’s research in the field of biology compared favorably with the research of her colleagues. Over Vassar’s objection, Dr. Castellot testified as to the tenure review process at Vassar as follows:

In looking over the data collected on teaching, what struck me was that the tenure committee appears to only consider the percentage of fives in the top of the scale when looking at Dr. Fisher’s teaching evaluations, whereas they consistently lumped fours and fives together, which is what we do at our institution — at least what I do in my courses.

* * * * * *

It struck me that for Dr. Fisher there was frequent mention of only the fives, without including the fours together. The same standard was not applied to the other individuals that were being considered for tenure. In this case, fours and fives were lumped together.

R. 1164. In this passage, Dr. Castellot apparently was referring to two sets of documents. First, he referred to three “outside evaluations” of Dr. Fisher performed for the Biology Department by biologists at other institutions (Exhs. 12A, 12B and 12C). These evaluations do not refer to the one-to-five numerical ratings, and on the whole are favorable to Dr. Fisher.

Second, Dr. Castellot referred to the tenure assessment letters prepared by the Biology Department for Drs. Suter, Mehaffey, Hemmes, Norrod, and Fisher (Exhs. 323, 304, 292, 338, and 216). These documents do not indicate or suggest that the teaching ability of tenure candidates was measured by any single formula or benchmark. They show that, in assessing teaching ability, the tenure committee considered far more than just student evaluations, and gauged teaching ability based on various factors such as course difficulty and the introduction of new courses to the curriculum. Most important, the tenure assessment letters employ no uniform statistical method in evaluating the teaching skills of tenure candidates, and did not use any disparate method in evaluating Dr. Fisher. Sometimes — for Dr. Fisher and others — the letters consider the combined number of fours and fives; sometimes the letters consider fives only — particularly if the number of fives reflect some remarkable feature, such as all fives for a course, or none, or (as in Dr. Fisher’s case) a fall-off over time from many fives to none. The particulars from the record are set forth in the margin.¹⁰ The district court relied on finding #49 (and the related findings) chiefly to show pretext and Dr. Fisher’s qualifications for tenure. The dissent relies on these findings to show that the reason for disfavoring Dr. Fisher’s candidacy was sex-plus-marriage discrimination. These findings do not begin to support that inference. Dr. Castellot’s “opinion” — phrased in terms of “what struck me” — is unsupported by evidence of any detectable difference in treatment between Dr. Fisher and her colleagues in terms of the use of the student evaluations. And, as the dissent (barely) concedes, that weight is arguably “lessened” by finding # 55, which says and explains why “[a]ny comparison to Dr. Norrod’s teaching evaluations, which-were excellent, does not give a true picture of the situation.” 852 F.Supp. at 1210. Thus, according to the district court, the teaching evaluations of Dr. Norrod — the only successful candidate who competed head to head with Dr. Fisher for tenure in 1985 — cannot be usefully compared with Dr. Fisher’s evaluations. I cannot think why the dissent — in light of that — would place determinative weight on the teaching evaluations in order to explain why Dr. Norrod was chosen and Dr. Fisher was not.

B. Hiatus.

The dissent identifies a second set of findings as lending great support to an ultimate finding of sex-plus discrimination: the emphasis on Dr. Fisher’s hiatus from her profession. Dr. Fisher completed her postgraduate studies in 1966. From then until 1974, she devoted herself to her family full-time. From 1974 to 1977, she taught part-time at Marist College. Her first full-time employment in biology was at Vassar in 1977. In the tenure evaluation process, some faculty members mentioned — and some emphasized — that Dr. Fisher had been out of the field for ten years. The dissent characterizes these findings as part (actually, close to all) of the “strong” case of sex-plus discrimination, and chides the panel for discounting them.

The dissent argues that consideration of such a hiatus, absent an adverse impact on a person’s current attainments, unfairly burdens “working women.” 114 F.3d at 1383 (Newman). I agree. However, “working women” is a category that takes in all women in the workplace and therefore bears upon simple sex discrimination, rather than sex-plus-marriage. See Coleman v. B-G Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1203 (10th Cir.1997) (to prove sex-plus-marriage discrimination plaintiff must show that subclass of married women were treated differently than subclass of married men). As it happens, however, the district court rejected Dr. Fisher’s claim of sex discrimination as baseless. 852 F.Supp. at 1225.

The dissent is much more avid than the district court about the weight of the hiatus issue. The dissent deems the hiatus comments “further evidence” of discrimination on the basis of sex-plus-marriage. 114 F.3d at 1384 (Newman). But the district court, after noting the Biology Department’s position (expressed at a faculty committee meeting) that Dr. Fisher was “[o]ut of date — out of the field for 10 years,” found: “these statements do not establish, by themselves, direct evidence of an illegitimate factor.” 852 F.Supp. at 1231 n. 25. (As discussed above, the dissent deems the hiatus to be probative of age discrimination as well, though the district court did not.)

In any event, evidence of such a hiatus could have bearing only on a sex-based disparate impact claim. However, as the panel opinion and the district court opinion emphasize, no disparate impact claim was pleaded or mounted here. See 70 F.3d at 1443, 852 F.Supp. at 1226 n. 15. Thus, although this issue might have potential for pleading and development under a theory of disparate impact, there is no basis for considering that claim in this case.

1 . Unless otherwise indicated, all references to “the dissent” are to Chief Judge Newman's dissenting opinion.

2 . Thus, the dissent says that "clear error could occur if the record overwhelmingly established” certain circumstances of a kind referenced earlier in the dissent, 114 F.3d at 1377, 1373 (Newman), specifically, circumstances in which a pretext may mask the following motives: (i) a reluctance to accuse the employee of wrongdoing (a reluctance that would not exist at trial), (ii) the desire to protect business secrets (an objective ordinarily assured by protective orders), and (iii) the fear of disclosing the employer’s own embezzlement (an example utterly removed from common experience).

3 .Judge Motley (on the last day of trial) sua sponte suggested that plaintiff's attorney amend the complaint to add the ADEA claim despite the concession on the first day of trial that age was "not in the case.” T. at 2390.

4 . It is an unintentional irony that the dissent, which criticizes the panel as a "super fact-finder,” proceeds to rely upon evidence that the district court (as fact-finder) did not find probative of age discrimination.

5 . The district court held that the age discrimination was willful, Fisher, 852 F.Supp. at 1230-31, and entered a judgment that could not be supported solely by a Title VII violation. Id. at 1234. So everything on sesc-plus discrimination is an alternative holding and does not add one thin dime to the judgment.

6 . Had Dr. Fisher presented a prima facie showing of discrimination on the basis of religion, national origin, or sexual orientation, the finding of pretext (according to the dissent) would presumably point in these directions also.

7 . “How fascinating is that class/ Whose only member is Me!” W.H. Auden, "Islands,” 24, The Shield of Achilles (1955).

8 . The panel opinion did not dwell on these findings because other findings adequately assured that the pretext finding would survive clear error review.

9 . That sinister impression is reinforced by finding # 50, which contains a table of Dr. Fisher's fours and fives in various categories of teaching skill; but that table is drawn from a compilation prepared for trial by Fisher's counsel rather than from any Vassar document purporting to assign number scores as a summary of teaching ability. T. 1298-1300.

10 . Dr. Suter's tenure letter indicates that students gave him mixed reviews, from two to five, and that one course in particular received persistently low student evaluations. Dr. Mehaffey’s tenure letter describes his student evaluations as "excellent” because 83% of his students had ranked him in the top two categories for instructor effectiveness. Dr. Hemmes's tenure letter notes that 78-100% of his students ranked him in the top two categories for three consecutive years. Dr. Norrod’s tenure letter notes that all of her students in one course gave fives; that "the majority" of her students gave her a grade of four or five; and that she incurred an “occasional” rank of three or below.

Dr. Fisher's tenure letter, which overall offers a less than favorable assessment of her teaching ability, does not employ any different standards. The letter notes that Dr. Fisher scored "well for openness (62% in the four and five ranks), but not so well in clarity (8% in the five rank), mastery (31% in the five rank) and ability to illuminate difficult material (15% in the five rank).” The committee considered her evaluations for 1978 to 1980 "as good” because over 50% of her students ranked her in the top category. The committee characterized her scores for 1982-83 as "totally unsatisfactory” because none of her students had given her a top grade for two skills (clarity and ability to think), and only 29% and 17% of her students had given her a grade of four in those categories. The committee expressed concern that Dr. Fisher’s evaluations had declined over a period of five years, noting that the percentage of students who ranked her in the top category for clarity declined from 39% to zero, and that the percentage who ranked her in the top category for ability to illuminate declined from 52% to zero. With respect to an advanced class, the committee noted that in 1982-83 none of Dr. Fisher's students gave her a top rank and only 20% gave her a rank of four for ability to illuminate. (People who find this information insignificant have forgotten their college days.)