847 F.2d 472 | 8th Cir. | 1988
Lead Opinion
Charlene Sennewald appeals from a final judgment entered by the District Court
The facts are not in dispute. Since 1977 Sennewald has been a part-time assistant coach of women’s softball at the University of Minnesota (University).
Sennewald brought suit alleging the violation of the consent decree entered by the University in Rajender, a sexual discrimination class action suit.
Sennewald first argues that the district court erred in determining that the University’s decision was neither a “salary” nor a “promotion” decision. Sennewald argues that because the University did not use written sex-neutral criteria in determining to deny Sennewald an increase in time percentage, the University violated the Rajen-der consent decree and Title VII. Senne-wald argues that an increase in time percentage from part-time to full-time constitutes a promotion and a salary decision because the recipient of the increase receives greater responsibility and pay. We do not agree.
The applicable standard of review on appeal is the clearly erroneous standard of Fed.R.Civ.P. 52. A finding of fact is clearly erroneous when “although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1981) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). This court has held that a “finding is clearly erroneous if it is not supported by substantial evidence, if it evolves from an erroneous conception of the applicable law, or if the reviewing court is left with the definite and firm conviction that a mistake has been made.” Danzl v. North St. Paul-Maplewood Oakdale Independent School District No. 622, 706 F.2d 813 (8th Cir.1983).
The district court found that the University’s decision to deny Sennewald full-time status as an assistant coach was a programmatic and budgetary decision.
Sennewald next argues that the district court erred in finding that the University’s reasons for the funding decisions were not pretextual. Sennewald argues the University’s articulated reason was not the true reason for the funding decision because the decision was really a promotion and salary decision. Sennewald urges this court to hold that she met her burden of proving pretext under a traditional Title VII analysis. The University argues that Sennewald did not establish pretext.
The legal analysis of the evidence under Title VII is the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (McDonnell Douglas) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981) (Burdine). Under the McDonnell Douglas/Burdine analysis, the plaintiff must establish a prima facie case of sex discrimination and, if she does so, the defendant must articulate a legitimate, nondiscriminatory reason for the employment decision. The burden of producing evidence then shifts back to the plaintiff to demonstrate that the defendant’s articulated reason was pretext. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The burden of persuasion at all times remains with the plaintiff. Id. at 256, 101 S.Ct. at 1095. The plaintiff's “ultimate burden” is to show that the defendant intentionally discriminated against her. United States Postal Service v. Aikens, 460 U.S. 711, 717-718, 103 S.Ct. 1478, 1482-1483, 75 L.Ed.2d 403 (1982) (Blackmun, J. concurring); Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
The district court held that Sennewald had established a prima facie case, that the University had articulated a legitimate, non-discriminatory reason for the funding decisions, and that Sennewald failed to show that the reasons proffered by the University were a pretext for discrimination. We agree. Sennewald did not meet her burden of showing pretext. To sustain Sennewald’s position we would have to find that the University’s decision not to grant her request to be a full-time assistant coach was a promotional and salary decision and not the result of sexual discrimination. The record shows to the contrary. The finding reached below that the University made a programmatic decision is not clearly erroneous.
Accordingly, the judgment of the district court is affirmed.
. The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.
. Assistant coaches are paid on a percentage of a fixed, “base" salary. The percentage assigned an assistant coach, the percent-time appointment,” determines the actual salary the assistant receives. The appointment reflects the University’s expectation of the percentage of a forty-hour work week that the assistant coach will devote to his or her coaching duties. Typically, the percent-time appointments range from twenty-five to seventy percent. An assistant
. Sennewald distinguishes those increases from the increase given the women’s gymnastics assistant coach on the grounds that both basketball and volleyball coaches must extensively scout opponents, while the National Collegiate Athletic Association (NCAA) does not allow softball or gymnastics to scout opponents.
. Rajender and the University adopted the consent decree to resolve the class action suit. The decree enjoined the university from discriminating against women on the basis of gender with respect to any employment decision. The consent decree provides that "each academic unit employing non-faculty employees shall develop and maintain sex-neutral procedures and criteria for hiring, salary, and promotion decisions for such persons." Rajender v. University of Minn., No. 4-73-435 (D.Minn. Aug. 13, 1980) (Rajender). For additional Rajender consent decree cases, see e.g., Rajender v. University of Minn., 730 F.2d 1110 (8th Cir.1984); Pilon v. University of Minn., 710 F.2d 466 (8th Cir.1983).
Concurrence Opinion
concurring.
I also believe that the judgment should be affirmed, but my reasons are somewhat different from those given by the Court, and I write separately to express them briefly.
Plaintiff’s first claim — that the decision in question was a “salary” or “promotion” decision for purposes of the consent decree, and therefore unlawful because not made according to written sex-neutral criteria— presents primarily an issue of interpretation of the decree. Sennewald wanted a full-time job, as opposed to a part-time one, and if she had received it, her salary would
In the academic world, “promotion” is apparently a term of art, applying, for example, to a change of status from Assistant Professor to Associate Professor. And the term “salary decision,” in the particular context of this case, is taken to mean not any decision affecting someone’s pay, but rather a decision as to pay made on the basis of an individual’s particular performance and merits, rather than on the basis of the place of that individual’s program in the overall scheme of things. An interpretation of the consent decree concurred in both by the District Court which entered it and by the special masters who have constantly construed it must be given a large measure of deference. It is for this reason that I vote to affirm the District Court’s rejection of Sennewald’s claim based on the consent decree.
She also argues that Title YII was violated, entirely apart from the decree. This claim presents a straight question of fact: was she denied the full-time position because of her sex, or for some legitimate reason? The District Court found against her on this issue, and its finding is not clearly erroneous.
Accordingly, I agree that the judgment should be affirmed.