The opinion of the court was delivered by: HAIGHT
HAIGHT, Senior District Judge:
In this action, the plaintiff is a former member of the faculty of an institution of learning. She alleges that both prior to her resignation from the faculty and subsequent to it, the institution discriminated against her in manners prohibited by Federal statutes. At trial, plaintiff proposes to to prove discrimination by, inter alia, comparing her circumstances with those of other faculty members. This method of proof gives rise to the question of the identity of those other individuals with whom it is probative to compare plaintiff: what has come to be known in such cases as "the universe." Two universes must be delineated in this case: one relating to plaintiff's pre-resignation discrimination claims, and the other to her post-resignation claim. The parties raise issues in limine with respect to the proper boundaries of both universes. This opinion resolves those issues.
Adamantia Pollis, a former, tenured full-professor on the graduate faculty of the New School for Social Research (hereinafter the "New School" or "defendant") originally brought several claims against the New School alleging age and sex discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, et seq., Title VII of the Civil Rights Act of 1964 ("Title VII") 42 U.S.C. § 2000(e), et seq., the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d) et seq., and Section 296 of the New York State Human Rights Law. This original complaint was filed on May 14, 1993.
This action has been the subject of two prior opinions. The first of these opinions, issued on July 21, 1993, denied plaintiff's request for a preliminary injunction, and granted defendant's request for summary judgment dismissing plaintiff's ADEA claim. The second opinion, dated September 18, 1995, denied defendant's motion for summary judgment as to the remaining claims. Familiarity with these opinions is assumed.
Presently, plaintiff maintains three causes of action. The first of these, a Title VII claim; arises out of Pollis's forced retirement at age 70. From 1968 to 1994, the by-laws of the New School provided that all full-time faculty members must retire at age 70.
Several professors have, however, been granted exceptions to this requirement, and allowed to continue teaching either as full professors or in a more limited capacity. Pollis claims that the New School discriminated against her on the basis of gender in offering her a limited, post-age 70 position, namely, that of a part-time adjunct professor.
This action is now trial-ready, and jury selection is scheduled to begin on January 8, 1996. Pursuant to a court order, the parties have submitted in limine papers which address various evidentiary concerns, among them the appropriate universe of professors to whom plaintiff will compare herself at trial. This opinion resolves the latter issue by delineating two separate universes, one for Pollis's post-age 70 discrimination claim and one for her equal pay claims. An opinion resolving the other evidentiary disputes will be filed separately.
Standards for Admissibibility Under the Federal Rules of Evidence
"Relevant evidence" is defined in the Federal Rules of Evidence as:
Evidence having any tendency to make the existence of any fact this is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Fed.R.Evid. 401. Evidence that is not relevant is inadmissible, Fed.R.Evid. 402, as is relevant evidence the probative value of which is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
Post-Age 70 Discrimination Claim
At trial, plaintiff seeks to demonstrate that the New School discriminated against her on the basis of sex in offering her a limited, post-age 70 position by comparing offers given to her and similarly situated females at age 70 to those extended to similarly situated male professors. The general admissibility of such comparative evidence is well-established, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) (statistics as to an employer's employment policy and practice "may be helpful to a determination of whether" its treatment of a particular employee "conformed to a general pattern of discrimination."); Fisher v. Vassar College, 66 F.3d 379, 394 (2nd Cir. 1995) (rejecting proposition that "comparative proof . . . is inadmissible in a Title VII case"), and the New School does not dispute its admissibility in this particular case. It does however, dispute the appropriate "universe" for comparison, i.e. those professors who are similarly situated to plaintiff such that a comparison between the men and women in the group is relevant and not misleading. See Lieberman v. Gant, 630 F.2d 60, 68 (2nd Cir. 1980) (for comparisons to other employees to be relevant, those employees must be similarly situated). It is particularly important in this regard for the court to ensure that all professors in the universe occupied positions similar to Pollis's prior to retiring, and were offered post-retirement positions in a comparable context. And from the opposite perspective, the universe for consideration must not be gerrymandered so as to exclude certain professors who are so situated from the universe. See Fisher, 66 F.3d at 402 (reversing district court's finding of discrimination in part because plaintiff's case was "built on gerrymandered data and a series of statistical fallacies."). If the universe were not so defined, the relevance of any comparison would be suspect, and could tend to confuse the jury rather than enlighten it.
In her reply brief, plaintiff summarizes her proposed universe in the following terms:
All tenured professors employed by the New School for Social Research graduate faculty any time on or after January 1, 1974 up to December 31, 1979.
Defendant argues for a universe consisting of all tenured, graduate school professors who retired and were offered post-retirement employment between 1982 and the date Pollis retired, June 30, 1993. Alternatively, defendant argues that the start date for the universe should be 1968.
Two basic evidentiary issues emerge from these two contentions: (1) whether, as defendant says, the universe should include professors who retired at any age and sought post-retirement appointments, or, as plaintiff says, only those professors who continued in their tenured positions to 70, and sought teaching appointments upon reaching this age; and (2) the relevant starting and ending dates for the comparative universe. I will resolve these issues in turn, but first must consider an issue not in dispute.
Pollis and the New School agree that the relevant universe should only include tenured, graduate school professors. Despite this agreement, I must conduct an independent inquiry into whether this constitutes an arbitrary gerrymander of the sort decried in Fisher v. Vassar College, supra, a recent Second Circuit opinion that considers the use of statistics in a discrimination suit. The plaintiff in that case claimed, inter alia, that Vassar, in denying her tenure, had discriminated against her on the basis of her status as a married woman. See Fisher at 385. To bolster this claim, plaintiff introduced statistics tending to show that no married, female professor in the "hard" sciences at Vassar had been granted tenure during a 30-year period.
See id. at 401. The district court credited these statistics, and ultimately upheld her claim of discrimination on the basis of gender in conjunction with marital status. See id. at 401-2. The Second Circuit reversed, in part because it found that Fisher's "statistical case [was] built on gerrymandered data and a series of statistical fallacies." Id. at 402. In discussing one such gerrymander, the court held that "it was an abuse of discretion for the district court to fail to consider . . . university wide statistics. The court's decision to base its analysis solely on the statistics related to the 'hard sciences' was error." Id. at 404.
In the case at bar, the determination of both Pollis and the New School to include only graduate professors in the comparative universe is not an arbitrary gerrymander. As both parties note, only the graduate faculty at the New School grants tenure. Mandatory retirement provisions such as the one in the New School's by-laws are only relevant with respect to professors holding tenured positions, since professors employed at will can, absent discrimination, be fired without justification. Pollis's post-age 70 discrimination claim directly involves the New School's application of its mandatory retirement policy, and therefore only professors subject to that policy -- tenured, graduate school professors -- should be included in the comparative universe.
This last conclusion brings me to the first of the two issues delineated above: whether the universe should include all professors who were granted post-retirement employment at any time, or only those who continued in a tenured position to age 70, and sought post-retirement employment upon reaching that age. To resolve this dispute, it is necessary to understand the nature of plaintiff's claim.
Viewed in this light, Pollis's claim reveals the relevant universe for comparison. Only those professors who were subject to the mandatory retirement policy and sought an exemption from it were similarly situated to Pollis. Professors who sought early retirement were different from her in two fundamental ways. First, they wanted reduced responsibility. Most likely, any post-retirement position offered to them would reflect this desire, and be more akin to the limited position offered to Pollis. Second, those who chose to retire early had bargaining power that Pollis lacked: the New School could not revoke their tenure without their consent. Therefore, even if they retained a post-retirement position superior to the one offered to Pollis, this could simply be attributable to their more favorable bargaining position.
Pollis should only be compared to professors who, like her, came face to face with the mandatory retirement policy at age 70. Including professors who retired voluntarily at an earlier age could mislead the jury by skewing the result of any comparison one way or the other.
Defendant's misdirected focus on retirement rather than reaching the age of 70 leads it raise a different, equally unconvincing contention with respect to the relevant universe. This contention pertains to three male graduate school professors who were granted complete exemptions from the mandatory retirement policy and continued to teach as tenured, full professors until well after their 70th birthday. Defendant argues that only the post-retirement appointments of these professors should be considered, not their positions upon attaining the age of 70. Thus, as defendant would have it, if a professor, upon reaching the age of 70, was granted a complete exemption from the mandatory retirement policy and allowed to continue in a tenured position of full professorship, this fact should not be considered by the jury in determining the validity of plaintiff's claim. Merely stating the proposition reveals its fatal flaw. As noted above, the gravamen of plaintiff's claim is that, upon turning 70, she was forced to retire and was offered an unsatifactory post-retirement position because of her gender. Evidence tending to show that 70-year old male professors were granted complete exemptions from the mandatory retirement policy would therefore be highly relevant. Accordingly, I find that the post-age 70 positions of these professors, not merely their post-retirement positions, are appropriate subjects for comparison.
I now turn to the appropriate start and end dates for the comparative universe. As an initial matter, I reject the way in which plaintiff selected her outer parameters. Plaintiff focuses on the period between 1974 and 1979, and seeks to include only those professors who worked for the New School at some point within that six-year span. However, whether a professor worked between these years is not relevant to whether he or she was similarly situated to Pollis when offered post-age 70 employment. Rather, as the discussion above makes clear, what is relevant is the time frame in which that professor reached the age of 70. That is, the universe should only include those professors who received a postage 70 teaching appointment at a time when the policy applied to Pollis was in force.
At first glance, this inquiry would yield a start date of 1968 and an end date of 1994. These are the dates in which the mandatory retirement policy was in effect. However, plaintiff and defendant have raised arguments that call into question the ...