The opinion of the court was delivered by: BRIEANT
Before this Court for decision in this civil rights action by a faculty member against Vassar College, is a motion for summary judgment pursuant to Rule 56 Fed. R. Civ. P., heard and fully submitted for decision on December 19, 1997. This court withheld decision awaiting resolution of a Petition for Certiorari filed in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc), hereinafter Fisher II. Certiorari was denied on January 20, 1998. See, 139 L. Ed. 2d 752, 118 S. Ct. 851, 1998 U.S. LEXIS 477. Essentially, with minor variations, this case is a reprise of Fisher II.
Dr. Bickerstaff graduated from Kent State University in Kent, Ohio, where she obtained an undergraduate degree in education specializing in the field of early childhood education and child development. She obtained a Masters Degree in Education at the University of Illinois at Champagne-Urbana in 1968, and received a Doctorate at the same University in Social Sciences in 1975. Immediately upon graduating from college, she taught in the public schools of Cleveland, Ohio, and taught at Vassar College during the summers. In the summer of 1968 she took a course at San Francisco State College, and in 1971 she attended a summer workshop course at the University of North Carolina at Greensboro. Vassar College hired Dr. Bickerstaff in 1971 as a lecturer in the Africana Studies Program and as a director of the program in elementary education within the Education Department.
It was understood originally that her joint appointment was allocated two-thirds to the Department of Education and one-third to Africana Studies. Later that allocation was reversed. In 1978 Ms. Bickerstaff was promoted to the rank of Associate Professor and was granted tenure.
In declining to review Fisher II our Supreme Court let stand the much criticized yo-yo rule about the shifting burden of persuasion in employment discrimination cases, referred to more euphemistically by plaintiff's attorney as "the minuet."
First, plaintiff must prove a prima facie case of discrimination by a preponderance of the evidence. To establish a prima facie case the plaintiff must show (1) that she belongs to a protected class (2) that she was qualified for the position (3) that she was denied the position and (4) that the position was ultimately filled by a person not of the protected class. Fisher II, 114 F.3d at 1335; McDonnell Douglas Corp. v. Green, 411 U.S. 792 at 802, 93 S. Ct. 1817 at 1824, 36 L. Ed. 2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207 (1981). However, in Stern v. Trustees of Columbia University, 131 F.3d 305 (2d Cir. 1997) decided after Fisher II, the elements of a prima facie Title VII case of discrimination were listed as (1) membership in a protected class, (2) qualification for the position, (3) denial of the position and (4) the fact that the denial occurred in circumstances giving rise to an inference of discrimination on the basis of the plaintiff's membership in the protected class (citing Burdine, 450 U.S. at 253, n. 6, 101 S. Ct. at 1094; Chambers v. TRM Copy Centers Corp., 43 F.3d 29 at 37; Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991)). See also Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996).
A majority of the panel in Stern distinguished the en banc holding in Fisher II. We assume Fisher II still represents the law in this Circuit.
Once the plaintiff has established a prima facie case the burden shifts to the employer to produce evidence "that the adverse employment actions were taken 'for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993) (quoting Burdine, 450 U.S. at 254, 101 S. Ct. at 1094); Fisher II, 114 F.3d at 1335. If the defendant satisfies this burden, "the McDonnell Douglas framework-- with its presumptions and burdens-- is no longer relevant," and the plaintiff has the ultimate burden of proving that the defendant's reason was merely a pretext for discrimination. Fisher II, 114 F.3d at 1335 (quoting St. Mary's, 509 U.S. at 510, 113 S. Ct. at 2749).
This case involves promotion, rather than tenure, as in Fisher II, but like tenure decisions, faculty promotion decisions present unique employment issues, in that they are usually not directly competitive, they involve decentralized decision making and the consideration of numerous different factors, and they often result in disagreement because of the high stakes and the great number of variables. Zahorik v. Cornell University, 729 F.2d 85, 92-93 (2d Cir. 1984); see also Fisher v. Vassar College ("Fisher I"), 70 F.3d 1420, 1434-35 (2d Cir. 1995).
Our Court of Appeals has held that absent evidence showing that the decision was influenced directly by considerations such as sex or race "universities are free to establish departmental priorities, to set their own required levels of academic potential and achievement and to act upon the good faith judgments of their departmental faculties or reviewing authorities." Zahorik, 729 F.2d at 94. "The Congress that brought educational institutions within the purview of Title VII could not have contemplated that the courts would sit as 'Super-Tenure Review Committee(s).'" Lieberman v. Gant, 630 F.2d 60, 66 (2d Cir. 1980) (citing Keddie v. Pennsylvania, 412 F. Supp. 1264, 1270 (M.D.Pa. 1970)).
In the case at bar we assume Dr. Bickerstaff has met the minimal requirements of presenting a Cheshire Cat prima facie case of discrimination. She is a member of two protected classes, and she was denied the promotion for which she applied. Nothing about the denial itself raises inferences of discrimination, except that she has served so long, and sought promotion twice, unsuccessfully. The burden then shifts to Vassar to show that the decision was not a result of discrimination. Vassar states that Dr. Bickerstaff was not promoted to full professor because she:
demonstrated neither marked distinction in scholarship nor teaching and, therefore, did not meet the College's stated qualifications for promotion to full professor.
Defendant's Answer, P 23. The burden now shifts back to Dr. Bickerstaff, who must show that this proffered reason is false and a pretext for discrimination, in order to sustain her Title VII action. Fisher II, 114 F.3d at 1339 ("We have recognized again and again that a plaintiff does not necessarily satisfy the ultimate burden of showing intentional discrimination by showing pretext alone. A finding of pretext may advance the plaintiff's case, but a plaintiff cannot prevail without establishing intentional discrimination by a preponderance of the evidence."). The district court "must analyze the evidence, along with the inferences that may be reasonably drawn from it, and decide if it raises a jury question as ...