years. Dr. Bickerstaff twice applied for promotion to full professor, once in 1989 and again in 1994, and was denied each time. After the second denial she filed a complaint with the EEOC, and was issued a right to sue letter. She commenced this action on November 29, 1996. Dr. Bickerstaff contends that Vassar has discriminated against her because of her race and gender, and is seeking money damages under Title VII, 42 USC § 1981 and the Equal Pay Act.
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).
In declining to review Fisher II our Supreme Court also let stand a new rule in this Circuit, in which the term "prima facie case," for purposes of employment discrimination cases only, has been given a new meaning of some sort. This new meaning seems inconsistent with the idea that the proponent has presented sufficient evidence which, if believed, allows the trier of fact to find discrimination as an ultimate fact. See Fisher II, 114 F.3d at 1386 (Winter, J. dissenting). This Cheshire Cat type prima facie case can only bring confusion to our craft.
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.