July 3, 1984
ROSE L. COSER, RUTH S. COWAN, MARGARET DELAFIELD, HELEN J. EMMERICH, ESTELLE JAMES, RUTH MILLER, JOAN MOOS, CAROLE SCHULKIND, SALLIE SEARS, RHODA SELVIN, BETTY LOU VALENTINE, ALICE WILSON, JUDITH WISHNIA, ROSE ZIMBARDO, ORA JAMES-BOUEY, S. ELSIE CAMPBELL, DORETTA DICK, SYLVIA FIELDS, YVONNE HARMON, MARY JORDAN, ILONA KEGLER, MARION LEWIS, CAROLEE MESSI, VAUGHN NEVIN, DOROTHY POPKIN, JUANITA RIVAS, PATRICIA RIZZO, GAIL SINQUEFIELD, ROSE RICHMOND, DIANE FORTUNA, LINNETTE BRUGMANS, MAVIS PUSEY, K. ANN STROLUROW, AND MITSUKO COLLIVER, ON BEHALF OF THEMSELVES AND ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
ELISABETH L. MOORE, JAMES J. WARREN, ROBERT R. DOUGLASS, MANLY FLEISCHMAN, WILLIAM HASSETT, JR., JOHN HOLLOMAN, JR., CLIFTON PHALEN, MARGARET QUACKENBUSH, JOHN A. ROOSEVELT, GRETCHEN SIEGEL, ROGER SINNOTT, JEANNE THAYER, THOMAS VAN ARSDALE, AND DARWIN R. WALES, AS MEMBERS OF THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK, ERNEST BOYER, AS CHANCELLOR OF THE STATE UNIVERSITY OF NEW YORK, JOHN TOLL, AS PRESIDENT OF THE UNIVERSITY CENTER OF STONY BROOK OF THE STATE UNIVERSITY OF NEW YORK, DEFENDANTS-APPELLEES
Appeal from a judgment of the United States District Court for the Eastern District of New York (Pratt, Circuit Judge, sitting by designation) dismissing, after a court trial, plaintiffs' class action complaint insofar as it alleged a system-wide pattern and practice of sex discrimination at the State University of New York at Stony Brook in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et seq.
Mansfield, Pierce and Winter, Circuit Judges.
A certified class of current and former female employees of the State University of New York at Stony Brook ("Stony Brook" or "the University") appeals from a judgment entered on August 8, 1983 by Judge Pratt.*fn1 After a twelve-day bench trial, he held that Stony Brook had not engaged in a pattern and practice of sex discrimination. 587 F. Supp. 572 (E.D.N.Y. 1983).
This action was commenced under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII") by thirty-four current and former female employees of Stony Brook. They alleged, inter alia, that Stony Brook had engaged in a system-wide pattern and practice of discrimination against teaching ("faculty") and non-teaching professional ("NTP") women with respect to virtually all conditions of employment including recruitment, hiring, placement at hire, promotion, tenure, and salary.
By a memorandum and order dated June 22, 1977, the district court certified a class under Fed. R. Civ. P. 23(b)(2) "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 successfully 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. Id. at 575
After class certification, the parties and the district court agreed to a bifurcated trial in which the class issue of a pattern and practice of system-wide discrimination would be tried first, while trial of the claims of the individual plaintiffs would await final adjudication of the class claim.
The system-wide, pattern and practice claim proceeded to trial after five years of discovery. The evidence consisted largely of testimony and documents concerning the structure and efficacy of Stony Brook's affirmative action program, anecdotal testimony concerning individual cases of discrimination, and experts' reports based largely on statistical data.
Judge Pratt's decision, familiarity with which is assumed, dismissed the complaint as to the class claims and directed that judgment be entered under Fed. R. Civ. P. 54(b). Conceding that "plaintiff's statistics . . . show[ed] that Stony Brook's work force [was] "sex-stratified", in that women [were] distributed primarily in lower-level . . . teaching and administrative positions," id. at 576, he nevertheless concluded that this stratification was not the result of Stony Brook's use of gender tainted criteria or of facially neutral criteria that are not job-related and fall disproportionately upon women. Rather, he found that it was largely the result of historic and social conditions over which the defendants had no control.
Plaintiffs have appealed his judgment and have briefed their claims relative to faculty and NTP placeament at hire, faculty tenure and promotion decisions, awards of tenure to faculty at hire, and faculty and NTP salaries. They have not briefed their claims relating to hiring and recruitment or comparable worth. We consider these latter claims abandoned on appeal.
We deal here with familiar legal principles. In order to prevail on their claim of a pattern and practice of discrimination, plaintiffs had to show by a preponderance of the evidence that Stony Brook's "standard operating procedure -- the regular rather than the unusual practice" is to discriminate on the basis of sex. International Brotherhood ...
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