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COSER v. MOORE

August 3, 1983

ROSE L. COSER, et al., Plaintiff,
v.
ELIZABETH L. MOORE, et al., Defendants.



The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

PRATT, Circuit Judge (sitting by designation):

 I. INTRODUCTION.

 Thirty-four current and former female employees of the State Univeristy of New York at Stony Brook ("Stony Brook"), as individuals and as representatives of a class of teaching and non-teaching professionals employed at Stony Brook on or after February 11, 1974, and applicants for those positions, brought this sex discrimination suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 (e) et seq. ("Title VII"), seeking monetary, declaratory, injunctive, and any other appropriate relief to remedy Stoney Brook's allegedly discriminatory employment practices. Defendants are the president of Stony Brook and the chancellor of the University of the State of New York, and the members of the Board of Trustees of the state university.

 By memorandum and order dated June 22, 1977, the court granted plaintiffs' motion for class certification to the extent of certifying under FRCP 23(b)(2) a class "solely with respect to plaintiffs' claim that at Stony Brook there exists a system-wide pattern and practice of discrimination based on sex." The class certified consisted of

 all women who in the past may have been or in the future may be discriminated against on the basis of sex by defendants' practices with respect to recruiting, hiring, termination, job assignment, promotion, compensation, and other terms, privileges, and benefits of employment and who either (1) have been employed by Stony Brook as a teaching or non-teaching professional at any time on or after February 11, 1974, or (2) may be so employed by Stony Brook in the future, or (3) once unsuccessfully applied for employment as a teaching or non-teaching professional with Stony Brook at any time on or after February 11, 1974, or (4) who may apply for such employment in the future.

 Plaintiff's claim of pervasive, system-wide discrimination on the basis of sex satisfied the requirement of FRCP 23(a) (2) for a question of law or fact common to the class. After the class was certified, the parties agreed to and the court approved a bifurcated trial in which the class issue of a pattern or practice of system-wide discrimination would be tried first, it being intended that after resolution of that central issue, the parties would then work out with the court an appropriate method for resolving whatever issues remained.

 On the trial that has taken place, plaintiffs sought to prove a pattern and practice of discrimination against teaching and non-teaching professional (NTP) women with respect to virtually all terms and conditions of employment, including recruitment, hiring, initial placement, promotion, tenure, and salary. Plaintiffs also claim that women are excluded, or virtually excluded, from the highest ranks in the university, and are found in disproportionately high percentages in certain traditionally female departments and in the lowest NTP and faculty ranks.After extensive discovery that continued for over five years, the court tried, with the consent of the parties, the single class-oriented issue of whether defendants engaged in a pattern or practice of discriminating against female professionals at Stony Brook.

 The court has carefully reviewed the testimony of the witnesses who testified at trial, the exhibits admitted into evidence, and the arguments made by counsel, both at trial and in their pre-trial and post-trial briefs. This memorandum constitutes the court's decision in accordance with Fed. R. Civ. P. 52. The court concludes that plaintiffs have failed to prove that Stony Brook has a university-wide pattern or practice of unlawful sex discrimination; consequently the class action portion of this case will be dismissed.

 A. Jurisdiction and Venue

 The court has jurisdiction of this action under § 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e)-5(f) (1970). Each named plaintiff filed charges with the Equal Employment Opportunity Commission complaining of various acts of discrimination arising out of her employment at Stony Brook, and each received her "right to sue" letter pursuant to § 706(f) (1) of Title VII. Within 90 days thereafer, plaintiffs commenced this action.

 The Board of Trustees of the University of the State of New York, the chancellor of the state university system and the president of Stony Brook are employers within the meaning of § 701(b).

 Venue is proper within this district under 28 U.S.C. § 1391(b), because many of defendants' allegedly unlawful employment practices occurred at Stony Brook within this district.

 B. Theory of Action.

 Since the only issue to be tried was the class claim of a pattern or practice of sex discrimination, little evidence bearing on individual discrimination claims of named class members has been presented. By agreement, those claims were to be addressed separately after determination of plaintiffs' pattern or practice claim.

 Plaintiffs tried this case primarily on the strength of statistical evidence prepared by their expert witnesses, Drs. Killingsworth and Aboud, that was designed to show a university-wide work force imbalance and a treatment of women that was less favorable than of men with respect to specific terms and conditions of employment. Based on their statistics, plaintiffs ask the court to find that Stony Brook has certain facially neutral practices and policies that have a disparate impact on women, and from that, to infer that Stony Brook has a pattern or practice of discrimination against women. Plaintiffs also presented testimony by various Stony Brook administrators and former and present employees, in order to strengthen the inferences sought to be drawn from the statistical evidence.

 The court accepts plaintiff's statistics insofar as they show that Stony Brook's work force is "sex-stratified", in that women are distributed primarily in lower-level, and hold relatively few upper-level, teaching and administrative positions. The central issue in this case, therefore, was whether plaintiffs have shown that this sex-stratification is a result of illegal discrimination on account os sex, or that the stratification is otherwise the result of facially neutral criteria that fall disproportionately on women and that lack any business justification.

 Defendants challenged the validity of plaintiffs statistics, they questioned their underlying assumptions, they disputed the inferences plaintiffs urged the court to draw from the statistical picture, and they introduced independent statistical evidence of their own, prepared by Dr's. Welch, Lillard, and Meyer. Defendants claim that since the beginning of the liability period, February 11, 1974, Stony Brook has treated women and men equally. According to defendants, the workforce stratifications and imbalances that are shown by the raw numbers with respect to hiring, promotions, and salaries do not establish a pattern or practice of system-wide sex discrimination.

 C. Guiding Legal Principles.

 In order to prevail on a pattern and practice claim under Title VII plaintiffs must prove that sex discrimination was Stony Brook's "standard operating procedure -- the regular rather than the unusual practice." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977) (hereinafter "Teamsters"). The legislative history of Title VII makes clear that plaintiffs must prove more than "isolated sporadic incident[s]," of discrimination. Id. Plaintiffs must show a repeated, routine, or generalized pattern of sexually discriminatory policies or practices. See id., quoting 110 Cong. Rec. 14270 (1964) (remarkes of Senator Humphrey).

 In most Title VII cases plaintiffs present either a disparate treatment or disparate impact theory of discrimination. Either theory can be applied to a given set of facts. Teamsters, 431 U.S. at 335n.15. Under either theory plaintiffs have the initial burden of establishing a prima facie case of discrimination. Id. at 336; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975); McDonnell Douglas Corp. v. Green, 41 U.S. 792, 802 (1973) (disparate treatment); Guardians Association v. Civil Service Comm'n 633, F.2d 232, 239 (2d Cir. 1980), aff'd 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866, 51 U.S.L.W. 5105 June 28, 1980) (disparate impact).

 In order to prevail on a disparate treatment claim, plaintiffs must prove defendants acted with a discriminatory motive, although motive is inferable merely from differences in treatment. Teamsters, at 335 n.15. In a disparate impact case, plaintiff must demonstrate that employment practices or policies that are facially neutral in their treatment of different groups in fact fall more harshly on one group than another and cannot be justified by business necessity. Teamsters at 335 n.15; Dothard v. Rawlinson, 433 U.S. 321, 329, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977).

 It is settled that "[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination." Hazelwood School District v. United States, 433 U.S. 299, 307-08, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977); Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1015 (2d Cir. 1980), cert. denied 452 U.S. 940, 69 L. Ed. 2d 954, 101 S. Ct. 3083 (1981). The usefulness of statistics however, "depends on all the surrounding facts and circumstances." Teamsters, 431 U.S. at 340. In this circuit, it is clear that plaintiffs can establish a prima facie case in a discriminatory impact case by statistical evidence alone. Guardians Ass'n. v. Civil Service Comm'n, 630 F.2d 79, 88 (2d Cir. 1980), cert. denied, 452 U.S. 940, 69 L. Ed. 2d 954, 101 S. Ct. 3083 (1981); Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1017-18 (2d Cir. 1980), cert. denied, 452 U.S. 940, 69 L. Ed. 2d 954, 101 S. Ct. 3083 (1981).

 The Supreme Court has not defined with precision what showing of statistical disparity is required to make out a prima facie case, and has cautioned that the level is not inflexible -- "statistics are not irrefutable" and may be rebutted. Teamsters, 431 U.S. at 339-40. Courts that have applied Title VII to universities have required plaintiffs show a gross statistical disparity with respect to each allegedly discriminatory claim in order to establish a prima facie case. See Wilkins v. University of Houston, 654 F.2d 388, 398 (5th Cir. 1981).

 Once a plaintiff makes a prima facie showing of discrimination, the burden then shifts to the defendant to articulate a non-discriminatory explanation or justification for the inferences raised by plaintiff's evidence. While the precise burden that shifts to the defendant necessarily varies according to the facts and theory of the case, generally the defendant must proffer a non-discriminatory explanation to rebut the inferences raised by plaintiffs' evidence. The defendant may do so, for instance, by showing that plaintiffs' proof is inaccurate or insignificant, Teamsters, 431 U.S. at 360; or that a facially neutral criterion that has a discriminatory impact is job-related, see Griggs v. Duke Power, 401 U.S. 424, 432, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971); Dothard v. Rawlinson, 433 U.S. 321, 329, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977); or that the claimed discriminatory pattern is a product of conduct that occurred before the act applied to defendants, Teamsters, 431 U.S. at 360, or is immunized by the applicable statute of limitations, United Airlines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977).

 Should defendants succeed in rebutting plaintiff's prima facie case, the burden shifts back to the plaintiff to show that defendants' resumptively valid reasons for rejection were in fact "a coverup for a * * * discriminatory decision." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Despite this elaborate technique for structuring the trial, once all the proff is in, the ultimate burden of persuasion remains with the plaintiff. Texas Department of Community Affairs v. Burdine, 447 U.S. 920, 65 L. Ed. 2d 1112, 100 S. Ct. 3009 (1981). However, the Supreme Court recently emphasized that the prima facie case method established in McDonnell Douglas was "never intended to be rigid, mechanized, or ritualistic." United States Postal Service v. Aikens, 51 U.S.L.W. 4354, 4355 (April 5, 1983) quoting Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978), and once defendant has presented evidence in a Title VII case, the duty of a district court is to decide whether the plaintiff has met its ultimate burden of pursuading the court that defendant has discriminated in violation of Title VII United States Postal Service v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 75 L. Ed. 2d 403, 51 U.S.L.W. at 4355.

 Applied to this trial, plaintiffs' burden was to establish that after February 11, 1974 and with respect to its teaching and non-teaching professionals, Stony Brook has engaged in a pattern or practice of treating women less favorably than men, solely because they are women. To decide this question it is necessary to review and make findings concerning the structure of the university, the hiring procedures and policies, and the facts and statistical analyses pertaining to hiring, placement, promotion, tenure, and salaries.

 II. FINDINGS OF FACT.

 A. University Structure.

 1. Academic Divisions.

 The State University at Stony Brook is a state-operated university founded in 1957 and designated in 1960 as one of four university centers of the State University of New York, pursuant to Article VII of the Education Law of the State of New York. N.Y. Education Law § 352(3) (McKinney 1969 & Supp. 1982). Stony Brook is a research university that offers degrees at the undergraduate, graduate, and professional levels.

 As chief administrative officer of Stony Brook, the president is directly responsible to the chancellor and trustees of the State University. With the advice of academic and professional employees, he is primarily responsible for the appointment of members of the teaching staff, the recommendation and approval of salary increases, and the promotions in rank. During all relevant times during the liability period of this litigation John Toll was the president of Stony Brook. He has since been succeeded by John H. Marburger, III. Dr. Sheldon Ackley was special assistant to the president and assisted in many matters of personnel.

 Stony Brook is divided into a "Core Campus" and a "Health Sciences Center." The core campus includes the College of Engineering and Applied Sciences, the W. Averell Harriman College for Urban and Policy Sciences, the College of Arts and Sciences, the Marine Sciences Research Center, and the Institute for Theoretical Physics. The Health Sciences Center (HSC) includes the Schools of Medicine, Dental Medicine, Social Welfare, Allied Health Professions, Basic Health Sciences (incorporated into the School of Medicine in 1980), and Nursing.

 Each of the academic units is headed by a dean, provost, or director, who is resonsible to the academic vice president and who has primary responsibility for formulating academic policy within that unit. While the president retains primary responsibility for the policies and operation of Stony Brook, the academic vice-president has supervisory authority over all academic personnel and programs on campus.During the entire liability period, Dr. Sidney Gelber was the academic vice-president.

 2.Work Force Structure.

 The employees of Stony Brook can roughly be divided into academic employees, non-teaching professionals (NTP's), administrative personnel, and civil service personnel. Civil service and administrative personnel are not subjects of this litigation, which is brought on behalf of only academic employees (faculty) and NTP's. In some instances library employees have been dealt with by the parties separately, since they include both academic employees and NTP's, and they present some special problems. All faculty, library, and NTP employees have bee represented by collective bargaining agents since 1971.

 Academic employees are divided into five categories: professor, associate professors, assistant professors, instructors, and lecturers. A person is promoted to a full professorship after many years of distinguished university service marked by outstanding professional accomplishment. It is the highest academic rank within the university. An associate professor ranks immediately below full professor, and differs only in "the length and extent of service in academy or experience outside the university." An assistant professor is the beginning level of full academic appointment. Stony Brook hires instructors infrequently and in unusual circumstances. "Lecturer" is a catch-all category often given to newly hired teachers who have not yet completed their PhD's. After receiving their doctoral degrees, lecturers are eligible to become assistant professors. Other lecturers are hired to replace faculty on leave, or to assist a faculty member with research. From 1974 to 1977, Stony Brook hired 42 lecturers.

 People having the rank of lecturer, or an academic rank preceded by "clinical," "visiting," or "research," hold a non-tenure track, "qualified" academic rank, and normally only for short periods of time.

 Except for the qualified ranks, the academic categories are linked for purposes of salary and promotion. For example, an instructor is normally promoted to the rank of assistant professor, an assistant professor to associate professor, and an associate professor to full professor.

 The library work force is made up of faculty employees and NTP's. At the library faculty level are the director of the library and those holding titles of librarian, associate liabrarian, senior assistant librarian, and assistant librarian, all of who are eligible for tenure. As with the regular faculty, these positions are also linked.

 Prior to 1977 librarians were classified into "PR" ranks along with NTP's. They now have independent library ranks, but are still assigned to NTP ranks for salary purposes, although they have a separate salary schedule. Many of the NTP positions in the libary require specialized language training. Some upper level NTP employees are "joint appointments" to the faculty, but are also assigned a PR rank.

 The remainder of the professional service consists of NTP's. Each NTP rank consists of a wide variety of discrete jobs, each requiring different qualifications and experience. NTP positions are not linked, and while a few NTP employees are eligible for permanent appointment, most are not. Stony Brook has 146 NTP positions roughtly divided into eight "PR ranks." Each PR rank primarily establishes salary limits and is neither relevant for promotion nor, taken alone, indicative of responsibility except in the most general terms. Job applicants are interviewed for specific NTP jobs. Salary and rank are established before recruitment or interviewing begins. The highest PR rank is 8, which the president alone holds. Within a given PR rank, salaries cover a wide range, and the salary ranges of different PR ranks overlap.

 B.Affirmative Action Policies.

 Stony Brook has no official policies that explicitly operate to the disadvantage of women. On the contrary, Stony Brook's administration is firmly committed to complying with the letter and spirit of Title VII. Stony Brook has acted in good faith, even before Title VII required it to do so, to ensure that it's policies and practices have operated without discrimination based on sex.

 Equal treatment of women and minorities was a serious concern at Stony Brook throughout the 1970's. Many of the policies and actions taken by Stony Brook administrators indicate an awareness of and a sensitivity to the treatment of women at Stony Brook, although it may be true that at least in part the impetus for these actions was due to the dissatisfaction voiced by various women's groups on campus.

 In 1969, before Title VII applied to state univerisities, Stony Brook became subject to Executive Order 11246, which required it periodically to report regarding the status of women and minorities. In response, the president appointed Vera Rony to be the Affirmative Action Coordinator in the newly-created Office of Equal Opportunity, which reviewed all university affirmative action policies, prepared affirmative action reports, and processed discrimination complaints. Lee Yasamura, who was and continued to be the personnel director, replaced Rony as Affirmative Action Coodinator when Rony left that post in 1975.

 The president also created an Advisory Committee on Equal Opportunity ("president's EOC") to advise him on affirmative aciton policy within Stony Brook. He established equal opportunity committees (area EOC's) is every vice presidential department within the core campus to define and monitor their respective affirmative action policies. He also required each university department to report to area vice-presidents on affirmative action matters. The chair-people of the area EOC's were all members of the president's EOC. Women have served on these area EOC's in substantial numbers.

 In the fall of 1971, anticipating a large amount of hiring at the HSC, Dr. Edward Pellegrino, Dean of the HSC, established policies and procedures for the recruitment of women and minorities and established an area EOC on that campus to monitor those procedures. In 1972, Adacemic Vice President Gelber established similar policies for the core campus.

 Official university pronouncements also indicated that affirmative action was a continuing goal of the administration. For instance, on April 16, 1971, President Toll stated:

 In nearly all university disciplines, the representation of minority groups and of women has been disproportionately low. Hence every operating unit of the university (academic, administrative, and staff) must make real efforts to recruit candidates from minority gorups and women as replacements or occupants of new lines.

 The president termed compliance with this directive "bot a legal and a moral requirement" and urged that Stony Brook "be in the vanguard of practical response to one of the major social concerns of our day." Consistent with these policies, Stony Brook established specific directives, discussed below, regarding affirmative action in hiring and promotion.

 In December, 1973, the chairman of the Faculty Senate Executive Committee requested the president to appoint a "Salary Equity Task Force" (SETF) -- comprised of four women and two men -- to review the salaries of women and minorities at Stony Brook. The SETF recommended that the university make further studies regarding the differences of salaries between men and women. While Stony Brook published no formal study in response to this recommendation, it did conduct individual reviews of minority and women faculty whose salaries were more than one standard deviation below the expected salary, and awarded some employees retroactive salary increases.

 In 1975, Presidential Assistant Ackley prepared an affirmative action plan (1975 AAP), which found that women were "underutilized" at Stony Brook -- that is hired in fewer numbers than predicted by their representation in the appropriate labor pools -- by 8% to 9%. The 1975 AAP also presented acomprehensive university-wide program to comply with federal equal opportunity regulations.

 The president's EOC, which also issued a report making suggestions regarding affirmative action, objected to the 1975 AAP. Similarly, after the 1975 Plan was submitted to the United States Commission on Civil Rights, the commission responded that it was dissatisfied with the plan because it failed to establish a time table or goal as to how the university would comply with various federal regulations. Stony Brook never formally replied to these objections. A second affirmative action plan, however, was prepared in 1980; it is discussed at greater length infra.

 Although women's groups at Stony Brook expressed dissatisfaction with the administration's policies regarding women, the evidence, taken as a whole, does not support any claim that the university acted pretextually or in bad faith in making its official pronouncements or attempting to establish and implement policies designed to ensure the non-discriminatory treatment of women.

 C. Hiring Procedures at Stony Brook.

 1) In General.

 Stony Brook's hiring procedures are facially neutral. The president appoints those faculty, who ". . . are, in his judgment, best qualified." Although the president has nominal authority to hire faculty, NTP's, and library staff, as a practical matter the hiring process at Stony Brook is decentralized, and many people, at various levels of the university, participate in these decisions.

 Faculty hiring decisions are primarily made by department chairmen acting on the recommendation of a hiring search committee. NTP decisions are made in the same manner, but by an area vice president acting on the recommendation of a search committee. Normally, the president ratifies these decision through the appropriate vice president, and exercises only minimal and formal supervison.

 In the 1960's, Stony Brook as a new university sought to establish quickly a national reputation by hiring faculty and administrators who themselves had national reputations. For instance, Stony Brook hired C. N. Yang, a Nobel laureate in physics, in order to attract other outstanding faculty and students in the "hard" sciences. President Toll was hired from the department of physics and astronomy at the University of Maryland. H. Bentley Glass was a professor of biology at Johns Hopkins University before becoming Stony Brook's academic vice president.These appointments and other similar ones were made outside of the normal hiring procedures.Their purpose was to enable Stony Brook to recruit in competition with other national universities.

 Stony Brook has acted in good faith to establish affirmative action policies which ensure that its hiring practices comply with the letter and spirit of the civil rights laws. While plaintiffs presented evidence on some instances where these procedures were not followed, the court finds these departures to be isolated instances and primarily made for non-discriminatory reaons, such as to attract well-known faculty. The clear weight of the evidence indicates that on the whole Stony Brook has complied with its declared internal policies for hiring both faculty and NTPs.

 We turn next to an examination of these policies and to plaintiffs' claims that they are "subjective," "flexible," and operate to the disadvantage of women.

 2) Specific Hiring Directives.

 Sex is not a bonafide occupational qualification for any position at Stony Brook, and there is nothing in Stony Brook's formal hiring policies that discriminates against women on account of sex. Stony Brook has actively recruited women and minorities during the liability period.

 On October 8, 1974, President Toll aproved affirmative action policy statement P-9, which directed that:

 The university has a special obligation to take affirmative action to seek out candidates for employment from [groups that may be disadvantaged because they have not traditionally been represented in particular professional fields]. The university's personnel appointment and recruiting procedures will provide for the implementation of this policy.

 P-9 established area EOC's to monitor compliance with affirmative action directives within specific departments or areas within the university, and gave the president's EOC general supervisory authority over the actions of the area EOC's.

 P-9 required that all faculty appointments and promotions and all NTP appointments and promotions above the PR-4 level be submitted to an area EOC for advice on the extent and manner of recruitment, before actual recruitment began. This involved the area EOC's in the hiring and promotion process at the earliest possible date. Although approval by an area EOC was not necessary for faculty appointments of less than one year or for NTP appointments at a level of PR-3 or below, P-9 nevertheless directed that the appropriate area EOC be notified of the short-term appointments in a "timely manner."

 The procedures for faculty hiring, which are representative of the normal hiring procedures at Stony Brook, were announced July 21, 1975 in PR-320. The first step in recruitment is for the department or school seeking to fill vacancy to prepare a "recruitment plan," whose proposed procedures are reviewed by the appropriate area EOC prior to actual recruitment. These procedures include posting and advertising a vacancy in newspapers and professional journals. The evidence shows that no appointment could be made unless these procedures were followed, and plaintiffs presented no evidence to suggest these procedures were normally disregarded.

 PR-320 required that the person responsible for making the hiring recommendation receive authorizations to begin recruiting and to form search committees to assist in recruitment. It also required that each search committee prepare a "SUSB-68-1 EEO Affirmative Action Worksheet" for each candidate interviewed and considered. Stony Brook generaly followed these procedures.

 SUSB-68 was used in all recruitment procedures during the liability period. Form SUSB-68 required each search comittee to record affirmative action data for each proposed appointment, including information about the race and sex of all applicants, advertisements placed, and responses received. It also required that each applicant meet certain minimal qualifications.In addition, SUSB-68 required documentation of each applicant's declination information.All of this information was forwarded to the area EOC along with the name of the applicant or applicants selected for the position. After the area EOC reviewed the SUSB-68 and approved the candidate, the candidate's name was forwarded to the vice president's office who reviewed the candidate's file and notified the applicant.

 Stony Brook had similar procedures for NTP positions. P-36 governed NTP hiring, and required extensive advertising and posting for all NTP vacancies. It imposed broader advertising requirements than P-320, particularly in respect to posting vacancies at other SUNY campuses. The evidence before the court did not indicate that these procedures were disregarded for NTP or library hiring.

 Plaintiffs maintain that despite these elaborate policies to promote affirmative action and ensure non-discriminatory hiring, the procedures were flexible and frequently circumvented. Plaintiffs claim that department chairmen, most of whom are male, make all hiring decisions. Plaintiffs also claim that search committees "rubber-stamp" employment decisions made -- presumably by department chairmen -- before the selection process begins.

 The testimony of Dr. Entine and of plaintiff Miller shows that some search committees "pre-selected" candidates and then tailored recruitment to comply with procedural requirements. Plaintiff Miller admitted she had participated in three "phone" searches, each of which was to hire a full professor. She testified that two of the three searches were initially honest, but had been unsuccessful. She testified that "when it came to assistant professors, lecturers, instructors, then, of course, searches were probably much more honest."

 Defendants respond that in the few instances that committees preselected candidates, they did so to attract top candidates who had received competing offers from other universities. Defendants claim that to compete effectively, Stony Brook needed to make a firm offer for a position, and as a result, search procedures were abbreviated.

 The court is satisfied that these were isolated occasional events that usually involved searches for a full professor needed to fill a particular teaching need in a department. University personnel disapproved of such practices, and these isolated abuses, given the university's reaction, are insufficient to prove that Stony Brook had a university-wide pattern and practice of ignoring formal hiring directives, or that search committees normally operated to the disadvantage of women.

 As to searches for positions other than full professor, plaintiffs presented no credible evidence to indicate that members of the search committees were discriminatorily selected or that the search procedures themselves were discriminatory. The evidence showed that the area EOC's normally performed their supervisory responsibilities with diligence, and when necessary, refused to approve searches.

 Defendants showed, and plaintiff's witnesses conceded, that area EOC review was particularly vigorous for entry level positions such as assistant professor, but was admittedly less rigorous in searches for full professors, apparently in deference to the specialized teaching needs of particular departments. Furthermore, women -- including several of the class representatives -- regularly served on these search committees.

 The court accepted that the failure to comply with formal search guidelines in these isolated instances indicates that search procedures were flexible, but in view of the context in which the guidelines were circumvented and the infrequency of those departures, the evidence is insufficient to support an overall inference that all hiring procedures generally were "flexible" or routinely flouted. Nor do the departures support an inference that established policies and procedures were not ...


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