Kunda v. Muhlenberg College

FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW AND ORDER

Plaintiff Connie Rae Kunda brought this action against her previous employer, Muhlenberg College, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Supp. V). In her complaint, plaintiff claimed that she had been denied promotion and a grant of tenure because of her sex. 1 We held a trial non-jury and now make the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a).

FINDINGS OF FACT

1. Plaintiff, Connie Rae Kunda, is a female citizen of the United States residing at 1151 North 28th Street, Allentown, Le-high County, Pennsylvania. She was employed by Muhlenberg College as an in *298 structor in the Department of Physical Education from September, 1966 through June, 1975. (Stipulation, ¶ 1)

2. Muhlenberg College (College) is a non-profit corporation organized and existing under the laws of the Commonwealth of Pennsylvania with principal administrative offices and places of instruction located in Allentown, Lehigh County, Pennsylvania. (Stipulation, ¶ 2)

3. John H. Morey has been President and Chief Executive Officer of Muhlenberg College since September 1, 1969. (Stipulation, ¶ 3)

4. Philip B. Secor was Dean of Muhlenberg College from July 15, 1967, until July 31, 1974. (Stipulation, ¶ 4)

College Practices and Policies

5. The following provision of the Muhlenberg College Bylaws (Bylaws), which has since at least 1966 been included in the Muhlenberg College Faculty Handbook, is the provision regarding tenure which was in effect at all times plaintiff was a member of the faculty at Muhlenberg College:

Continuous tenure shall be granted only by action of the Board of Trustees upon recommendation of the President. A faculty member shall obtain continuous tenure upon reappointment after seven years’ full-time college and university teaching at the rank of Instructor, Assistant Professor or Associate Professor, at least four of which shall have been at the College. Not more than three of the total seven years shall be served at the rank of Instructor. No persons, however, shall teach at the College for more than nine years without obtaining continuous tenure. . . . (Exhibit No. 101)

At all times relevant to this matter, President Morey interpreted that portion of the tenure statement in the Bylaws providing that “not more than three of the total seven years” be served at the rank of Instructor as requiring that a faculty member have served at least four years at a professorial rank, i. e. a rank above Instructor, prior to undertaking a tenured appointment. (This portion of the Bylaws will be hereinafter referred to as the “three-year rule.”) However, a different interpretation was given to the “three-year rule” by other faculty members. For example, Dr. Lohr, who took part in drafting the College Tenure Policy, did not believe that the three-year rule placed a limit on the ability of a faculty member who had served only as an Instructor to obtain tenure. Dr. Lohr interpreted the entire relevant clause of the College Bylaws as providing that a faculty member receives tenure automatically if he or she receives an appointment after teaching for seven years, so long as not more than three of those years were at the rank of Instructor. (Testimony of Dr. Lohr; Exhibit No. 69)

6. At all relevant times, the Board of Trustees retained the power to grant tenure to a faculty member even if the faculty member had not served for four years at a professorial rank. (Testimony of Dr. Reumann)

7. The policy of the College which was in effect at all times relevant to this action with respect to requirements for promotion was set forth in the Faculty Handbook as follows:

Promotion Requirements Promotion is awarded for meritorious service to the College. For promotion to Professor or Associate Professor, the Ph.D. or its scholarly equivalent or recognized achievement in a field shall be required. These requirements normally apply to the rank of Assistant Professor also, although this rank may be obtained without the Ph.D. if there is sufficient evidence of progress toward the completion of all requirements for the degree. (Stipulation, ¶ 5)

8. A requirement for the grant of tenure at the College, although not specifically set forth in the Faculty Handbook, was the attainment of the Ph.D. (terminal degree), or its scholarly equivalent, or recognized achievement in a field. (Testimony of Dr. Lohr, President Morey)

9. For purposes of tenure and promotion, the masters degree was recognized as *299 the terminal degree for members of the Physical Education Department. (Exhibits Nos. 43, 47)

10. The Faculty Handbook sets forth the normal pattern of promotion as follows:

Pattern of Promotion

A. To Assistant Professor:

No person may remain indefinitely at the rank of Instructor although contracts as Instructor may be renewed annually for no more than nine years.

B. To Associate Professor:

Promotion normally takes place before

six years of full-time teaching as Assistant Professor. During the third year of active teaching at the Assistant’s rank, a comprehensive review of the individual’s record shall be made and continued yearly thereafter, as necessary.

C. To Professor:

Promotion normally takes place any time after six years of full-time teaching as Assistant Professor. During the sixth year of active teaching at the Associate’s rank, a comprehensive review of the individual’s record shall be made and continued yearly thereafter, as necessary. (Stipulation, ¶ 5)

11. The Faculty Handbook sets forth the procedures followed by the College with respect to the awarding of promotion or the granting of tenure. The process is usually initiated by the Department Chairman, who prepares a recommendation in writing and forwards it to the Dean of the College. The Dean then sends to the Faculty Personnel and Policies Committee (FPPC) the personnel files and recommendations of Department Chairmen of those persons to be considered for promotion or tenure. The FPPC discusses those persons, and votes upon its recommendations for promotion or tenure; the Committee subsequently forwards a written recommendation concerning each candidate to the President. The criteria used by the FPPC in deciding whether to recommend a faculty member for promotion or tenure are those listed in the Faculty Handbook. The President reviews the recommendations of the Department Chairmen, the Dean, and the FPPC and then makes a decision as to the recommendation for promotion or tenure with respect to each candidate. The President’s recommendations are then sent to the Board of Trustees, which makes the final decision with regard to promotion and tenure.

12. Additionally, the College has a Faculty Board of Appeals (FBA), made up of seven non-administrative faculty members and three alternates elected by the faculty, which is charged with considering, on appeal, questions of promotion and tenure with regard to individual faculty members and making recommendations to the President.

13. The FPPC and the FBA are charged with the responsibility of communicating to the President the faculty’s recommendation with respect to promotion and tenure of candidates.

14. In May, 1974, the Board of Trustees approved a modification of the College’s tenure policy which provided that new faculty hired after the 1973-74 academic year would be offered only “non-tenurable” positions in departments already two-thirds or more “tenured.” That policy affected only persons initially hired in or after the 1974-75 academic year and did not affect the tenure consideration of “non-tenured” faculty members, including plaintiff, who had been on the faculty prior to 1974-75. The plaintiff was considered for promotion and tenure in accordance with the procedures and regulations which were in effect at the time she was hired.

Summary of Plaintiff’s Employment at Muhlenberg College

15. Plaintiff was initially appointed as Instructor in the Physical Education Department of the College for the 1966-67 academic year (Exhibit J.6) and was thereafter reappointed annually to serve through the 1974-75 academic year. At the time plaintiff was hired by Muhlenberg, she was not told that a masters degree was necessary for employment with or advancement at Muhlenberg. (Stipulation, ¶¶ 11, 12, 13, *300 15, 16, 18, 22, 31, 53; Testimony of Mrs. Kunda).

16. A department chairman normally initiates action with regard to promotion and tenure of a faculty member in his or her department by forwarding a written recommendation to the Dean. Raymond Whispell was the Chairman of the Physical Education department at Muhlenberg College during the entire period of plaintiff’s employment at the College. (Stipulation, ¶ 8)

17. On February 13, 1969, Professor Whispell sent a memorandum to Dean Se-cor in which he rated Mrs. Kunda’s performance as “superior” and stated that he planned to recommend her for a promotion in the near future. However, Professor Whispell did not actually recommend that plaintiff be promoted to the rank of Assistant Professor until October 14, 1971 during plaintiff’s fifth year on the Muhlenberg faculty. (Exhibit Nos. 13 and 22)

18. In response to Professor Whispell’s recommendation, plaintiff’s name was submitted by Dean Secor to the FPPC for consideration for promotion. The vote of the FPPC with respect to the promotion of Mrs. Kunda, taken at a meeting held December 14, 1971, was three (yes) to three (no). (Stipulation ¶¶ 19, 20; Exhibit No. 23) President Morey viewed this tie vote as a failure to recommend and did not recommend plaintiff for promotion. (Testimony of President Morey; Exhibit No. 95)

19. Professor Whispell appealed the denial of plaintiff’s promotion and asked the FPPC to reconsider its decision. In connection with this reconsideration, Professor Whispell appeared at a meeting of the FPPC and spoke on behalf of Mrs. Kunda. (Exhibit No. 27) At its meeting on March 15, 1972, the FPPC reviewed the additional information supplied by Professor Whispell with respect to promotion of Mrs. Kunda, discussed the matter, and voted on whether or not to recommend promotion. (Exhibit No. 30) Although Dean Secor generally absented himself from meetings of the FPPC called specifically for voting on candidates for promotion and tenure, he was present at the meeting at which the FPPC considered Mr. Whispell’s appeal. At that meeting, Dean Secor told the FPPC that the future of the Physical Education Department was in doubt and suggested that a decision to promote Mrs. Kunda should be made at a later date. (Testimony of Dr. Lohr) By a vote of four (no) to two (yes), the FPPC voted not to recommend plaintiff for promotion. (Exhibit No. 31)

20. In the late Spring of 1972, after she was denied promotion, Mrs. Kunda spoke with Professor Whispell, Dean Secor, and President Morey to ascertain the reasons for the denial. None of those persons told Mrs. Kunda that she was not promoted because she lacked a masters degree, or stated that a masters degree would be mandatory in order for her to be promoted or considered for tenure in the future. (Testimony of Mrs. Kunda, Professor Whispell; deposition of Dean Secor)

21. Plaintiff was next considered for promotion in the 1972-73 academic year. By memorandum dated October 5, 1972 to Dean Secor, Professor Whispell recommended that plaintiff be promoted to Assistant Professor in the department of Physical Education. (Exhibit No. 38) By memorandum dated December 14, 1972, Dean Secor advised the Chairman of the FPPC that, through “an egregious oversight” on his part, Professor Whispell’s recommendation that plaintiff be promoted had not been brought to the FPPC’s attention during the time it was considering other recommendations for tenure and promotion; Dean Secor requested that the Chairman bring the matter of promotion of Mrs. Kunda to the attention of the FPPC with all dispatch. (Exhibit No. 39) By December 14, 1972, Dean Secor had already forwarded his recommendations concerning promotions to President Morey, President Morey had already forwarded his recommendations for granting promotions to the Board of Trustees, and the Board of Trustees had already approved all of President Morey’s recommendations. (Exhibit Nos. 39 and 77) At the meeting of the FPPC of January 25, 1973, the FPPC unanimously *301 recommended that Mrs. Kunda be promoted.

22. The basis for the FPPC’s recommendation that Mrs. Kunda be promoted was the Committee’s belief, on the basis of Mrs. Kunda’s credentials, that she had attained the scholarly equivalent of a masters degree and recognized achievement in her field., (Testimony of Dr. Lohr and Dr. Reed)

23. President Morey did not recommend to the Board of Trustees that Mrs. Kunda be promoted to the rank of Assistant Professor. (Stipulation ¶ 30) The Board of Trustees did not grant plaintiff a promotion.

24. Pursuant to the College Bylaws and in keeping with AAUP standards, the College was required to offer plaintiff a terminal contract of employment for the 1974-75 academic year if she were not awarded tenure in the 1973-74 academic year.

25. By memorandum dated September 27, 1973 directed to Professor Whispell, Dean Secor reminded Professor Whispell that Mrs. Kunda would be considered for tenure during the current semester and requested Professor Whispell’s recommendation in this matter. (Exhibit No. 50) By memorandum dated October 2, 1973 directed to Dean Secor, Professor Whispell and all senior members of the Physical Education Department recommended plaintiff for tenure and promotion to the rank of Assistant Professor. (Exhibit No. 51) Plaintiff was among the faculty members whose promotion and/or tenure was considered by the FPPC in October and November, 1973; in connection therewith, the Committee interviewed Mrs. Kunda on October 29, 1973. (Exhibit No. 53) At the November 12,1973 meeting of the FPPC, the Committee unanimously recommended that plaintiff be granted tenure. The FPPC reported all recommendations to the President and Dean by memorandum dated November 16, 1973. (Stipulation ¶¶ 32-25; Exhibit No. 57)

26. The FPPC explained its recommendation that plaintiff be granted tenure in a memorandum dated November 16, 1973, as follows:

1) Teaching

Mrs. Kunda is regarded by her colleagues as an excellent teacher of physical education. In the area of dance — her specialty — she has developed and introduced course offerings for Muhlenberg students — both men and women — in “Ballet”, “Modern Dance”, and “Tap Dance”, among others. In addition, she had developed course offerings in physical fitness. Her deep interest in her specialty and in physical education in general is attested to by her participation in many and varied professional organizations both on and off the campus, and at the local and state levels. She is vitally interested in her students and had over the years established an excellent rapport with them as is evidenced by her success in counseling them in educational as well as personal matters.

2) Research and Creative Work

Connie has actively engaged in a variety of post-graduate courses over the past five years. Her work and study have resulted in several publications on her specialty — the dance — in various professional journals on Physical Education.

3) College and Public Service

She is also active in local women’s groups and professional organizations. She has in the past presented on local TV a series on physical education and was recently scheduled for a new TV presentation on “Fun and Fitness” with Mr. Kuntzelman, a former member of Muhlenberg’s Athletic Department faculty. 4) Religious Commitment

We think an individual’s religious commitment is a highly personal matter on which we do not feel competent to comment or judge.

It seems to us that the usual requirement for the Ph.D. does not apply in this case. We should instead measure the professional performance of Mrs. Kunda in teaching physical education at Muhlenberg, participating in professional groups as an officer or as a member, continuing her professional development by attending post-graduate courses and demon *302 strating her competence before the local audience on Channel 39 TV. (Exhibit No. 56)

27. The November 16, 1973 memorandum of the FPPC, the October 2,1973 memorandum from Professor Whispell to Dean Secor, and the testimony of Professor Whispell, Ms. Hospodar and Professor Lohr clearly show that in the opinion of the senior members of both her department and the faculty of Muhlenberg, plaintiff had satisfied all of the requirements for promotion and tenure as set forth in the Faculty Handbook.

28. Plaintiff had satisfied both alternatives to the terminal degree requirement for promotion and tenure — the scholarly equivalent of the masters degree and recognized achievement in her field — as of November 16, 1973, and continued to satisfy these requirements until the time of her tenure denial. (Testimony of Dr. Lohr, Professor Whispell, and Professor Beidleman; Exhibit No. 88)

29. By memorandum dated November 30, 1973 to President Morey, Dean Secor recommended that the President not present to the Board of Trustees the name of Mrs. Kunda for tenure appointment on the College faculty. This recommendation stressed the high quality of plaintiff’s performance at Muhlenberg and the difficulty of applying the traditional criteria in evaluating plaintiff’s performance, and concluded that “her performance justifies a permanent appointment.” However, Dean Secor did not recommend that tenure be granted because of the high percentage of tenured faculty in the Physical Education Department and the economic uncertainty about the future of the department. Dean Secor did not mention Mrs. Kunda’s lack of a terminal degree as a basis for denying her tenure. (Exhibit No. 58)

30. President Morey declined to recommend to the Board of Trustees that plaintiff be awarded tenure because of her lack of an advanced degree such as would have qualified her for promotion to the rank of Assistant Professor.

31. By letter dated June 14, 1974, President Morey advised Mrs. Kunda that she had not been recommended to the Board for tenure and that the contract tendered to her for the 1974-75 academic year was a terminal one. (Stipulation, ¶ 38; Exhibit No. 62)

32. By letter dated September 23, 1974, Mrs. Kunda advised the Chairman of the FBA that she sought to appeal the decision not to award her tenure. (Exhibit No. 63) Mrs. Kunda submitted to the Board of Appeals “an outline pertaining to my nine years at Muhlenberg College and why I am appealing to your Committee. . . .” One of her stated reasons for appealing was that she was never given any warning of a need to improve herself professionally or academically, nor was she ever told that a masters degree would be required in order for her to be promoted or granted tenure. (Exhibit No. 65). At the October 11, 1974 meeting of the FBA, Professor Whispell spoke on Mrs. Kunda’s behalf and presented to the Board a written statement concerning plaintiff’s appeal. Mrs. Kunda also appeared before the FBA on October 11, 1974 in connection with her request that the FBA consider her appeal. (Exhibit No. 68) The FBA determined “to undertake a full-scale examination of Mrs. Connie Kunda’s qualifications for tenure and to report its conclusions to the President.” (Stipulation, ¶¶ 39-41; Exhibit Nos. 68, 71)

33. The FBA made the following observations and conclusions, which we find are accurate, in their Report dated November 11, 1974:

At each of several crucial points unfortunate circumstances prevented her case from being given fair consideration. In addition, testimony indicated that the qualifications of Mrs. Kunda were such that had her case been properly presented at the proper times the eventual tenure decision might well have been different from what it was.

Dr. Secor’s oversight [in failing to forward plaintiff’s promotion recommendation at the proper time] may well have *303 materially affected the decision not to recommend her promotion to the Board of Trustees.

In this report, the FBA also noted that it “ha[d] yet to uncover any statement about [Mrs. Kunda’s] contributions to the College that was less than enthusiastic.” (Exhibit No. 77)

34. It was determined by the FBA with the agreement of President Morey, that a three member subcommittee of the FBA would review all materials pertinent to plaintiff’s appeal. The FBA appointed Professors Baldridge (Chairman), Thornburg and Weston to the said subcommittee. (Exhibit No. 82) At the request of the FBA, plaintiff submitted to it “a complete record of her professional career and her contribution to the College.” At the January 16, 1975 meeting, the report of the subcommittee was presented to the FBA. The subcommittee unanimously moved that the FBA recommend that plaintiff be awarded tenure and promoted to the rank of Assistant Professor. (Exhibit No. 86) The motion unanimously carried, and the recommendation was communicated to President Morey.

35. The Report and Recommendation of the FBA dated January 20, 1975, included the findings of that Committee that plaintiff possessed the scholarly equivalent of a terminal degree, and that the terminal degree requirement had frequently been bypassed in the physical education department. (Exhibit No. 88)

36. The conclusions and supporting reasons in both the November 11, 1974 Report and the January 20, 1975 Report of the FBA represent the considered opinions of the senior faculty of Muhlenberg College who had been designated by their peers and colleagues to consider such matters. These are the people who are most familiar with the promotion and tenure processes at Muhlenberg College and the facts of plaintiff’s case.

37. On February 19, 1975, President Morey advised Mrs. Kunda that he believed that she should be afforded an opportunity to present her case to the Committee on Educational Policies and Faculty Affairs of the Board of Trustees (Trustee Committee) and President Morey invited plaintiff to meet with the Trustee Committee. (Exhibit No. 92)

38. On February 24, 1975, President Morey provided the Trustee Committee with a memorandum purporting to contain the background of the Kunda affair. However, this memorandum in effect is a defense of President Morey’s position in refusing to support the recommendations of the FPPC and FBA that plaintiff be granted promotion and tenure. In his memorandum, President Morey stated that plaintiff was not qualified for promotion or tenure because she lacked a masters degree. He failed to mention the alternative qualifications of the scholarly equivalent of the masters degree or recognized achievement in one’s field. (Exhibit No. 95)

39. On March 13,1975, the Trustee Committee met with Mrs. Kunda, who made an oral presentation and delivered to the Committee a written statement summarizing the reasons why she merited an award of promotion and tenure. Subsequent to the Trustee Committee’s meeting with Mrs. Kunda, the Committee met with President Morey. President Morey affirmed his position that he could not recommend Mrs. Kunda for tenure because she lacked a terminal degree. On March 14,1975, the Trustee Committee voted not to grant tenure to Mrs. Kunda. At the meeting of the full Board of Trustees on March 14, 1975, the recommendation of the Trustee Committee was adopted by the Board of Trustees of Muhlenberg College.

40. The Board of Trustees in good faith believed that since plaintiff had not earned a masters degree, she was not qualified for an award of tenure.

Treatment of Male Personnel at Muhlenberg College

41. From the 1971-72 academic year through the 1974-75 academic year there were nine full-time faculty members of the Physical Education Department, three of *304 whom were women. The names and academic degrees attained by those faculty members are as follows:

Professor Raymond Whispell — Bachelor of Science in Physical Education. Professor William Flamish — Bachelor of Science in Commerce.

Professor Samuel Beidleman — Masters of Education (M.Ed.) in counselling. Professor Helene Hospodar — M.Ed. in counselling.

Professor Ken Moyer — M.Ed. in counsel-ling.

Ronald Lauchnor — B.S. in Biology.

Frank Marino — Masters of Science degree in Physical Education.

Jean Hecht — Masters of Science degree in Physical Education.

Connie Kunda — Bachelor of Science in Physical Education.

42. Ronald Lauchnor was hired to be an Instructor in the Physical Education Department in 1967. At that time and on numerous occasions thereafter, he was informed by Professor Whispell and others that obtaining a masters degree was a prerequisite for his promotion and tenure. (Testimony of Mr. Lauchnor) Mr. Lauchnor was enrolled in a masters program at one time, but discontinued his studies in 1969, after earning 24 credits towards his degree.

43. In December, 1971, the same year that plaintiff was first considered for promotion, Mr. Lauchnor was granted a promotion to the rank of Assistant Professor effective September, 1972. President Morey and Dean Secor recommended this promotion and the Board of Trustees granted it even though Mr. Lauchnor did not have a masters degree and was not enrolled in a masters degree program at that time. (Exhibit No. 105; Testimony of Mr. Lauchnor) President Morey and Dean Secor knew or should have known that Mr. Lauchnor did not have a masters degree and was not actively pursuing one. President Morey and Dean Secor failed to make an independent investigation of the status of Mr. Lauchnor’s graduate study at the time they recommended that he be promoted.

44. On June 26,1973, Dean Secor initiated a meeting with Mr. Lauchnor and specifically advised him that he ought to obtain a masters degree by the time he was considered for tenure because he would not be granted tenure without such degree. Dean Secor encouraged him to do all that he could to pursue a masters degree. (Exhibit No. 106; Testimony of Mr. Lauchnor)

45. During the academic year 1974-75, Mr. Lauchnor was recommended for an award of tenure by his department and was unanimously recommended for tenure by the FPPC. However, because Mr. Lauchnor did not hold a terminal degree, President Morey recommended that Mr. Lauchnor not be granted tenure. This recommendation was adopted by the Board of Trustees. (Exhibit Nos. 115, 116, 117)

46. Samuel Beidleman was hired to be an Instructor in the Physical Education Department in 1965. At that time, he had a Bachelor of Science degree in Math. On at least two occasions in the Fall of 1967 and Fall of 1968, he met with Dean Secor, who inquired into Mr. Beidleman’s attempts to obtain a masters degree. These meetings were initiated by Dean Secor. Dean Secor advised him that a masters degree was a prerequisite to his tenure and promotion. (Testimony of Mr. Beidleman)

47. On February 28, 1969, Mr. Beidleman was recommended for a promotion to Assistant Professor, contingent upon completing his masters degree by September 1, 1969. Mr. Beidleman completed the requirements for a masters degree and was officially promoted in the Summer of 1969.

48. Mr. Robert Bohm, a professor in the Classics Department, was considered for tenure in the 1973-74 scholastic year. Mr. Bohm did not possess the terminal degree in his field of study and had stated that he had no intention of obtaining it. Nevertheless, Dean Secor recommended that he be granted tenure. President Morey and the FPPC recommended that Mr. Bohm not be granted tenure and the Board of Trustees affirmed this decision and denied Mr. Bohm tenure in June, 1974. In a letter to Mr. *305 Bohm dated October 1,1974, President Morey stated that “a major consideration resulting in the negative tenure decision was not so much the fact that you had not obtained a Ph.D., but that, a year earlier, you specifically refused to pursue one.” President Morey further reminded Mr. Bohm that the “College suggested that a sabbatical leave might be arranged to enable you to return to full-time doctoral study,” but that Mr. Bohm declined to follow this suggestion. (Exhibit Nos. P-307 and P-306)

49. Prior to the time plaintiff was denied tenure, neither Professor Whispell nor any other members of the faculty or administration of Muhlenberg College ever counselled or advised plaintiff that she could not be promoted or granted tenure unless she obtained a masters degree. On the contrary, Professor Whispell told plaintiff that she was qualified for promotion and tenure because she had met the alternative requirement of having the scholarly equivalent of a terminal degree.

50. Plaintiff was treated less favorably than male members of her department by not being advised that the masters degree was an absolute prerequisite for promotion or tenure, nor being counselled that she should pursue a masters degree, by either her department chairman or the dean. Plaintiff reasonably believed that she could be promoted and granted tenure even though she did not possess a masters degree because she believed that she possessed the alternative qualifications listed in the Faculty Handbook, and because she was never informed that those alternative qualifications were not in fact applied. If plaintiff had been informed of the necessity to obtain a masters degree, she would have made every effort to do so because of her sincere desire to be awarded tenure. (Testimony of Mrs. Kunda)

51. The failure adequately to counsel plaintiff concerning the necessity of obtaining a masters degree constituted purposeful discrimination on the basis of sex. Dean Secor’s disparate treatment of plaintiff as compared with male members of the Physical Education Department was the result of discriminatory animus based upon sex.

52. The requirement that a faculty member possess a terminal degree in order to be promoted or granted tenure is a sex neutral criterion which is reasonably related to the legitimate needs of an educational institution such as Muhlenberg College. (Testimony of Dr. Kirkwood)

53. The requirement that a candidate for promotion in the Physical Education Department have a masters degree was not a neutral prerequisite for promotion that was uniformly applied to all members of the department, in that three male members of the department who did not have masters degrees were promoted. (Professors Whispell and Flamish, and Mr. Lauchnor) One of these persons, Ronald Lauchnor, was granted a promotion the same year that plaintiff was initially denied a promotion. Therefore, the stated reason for denying plaintiff a promotion — the lack of a terminal degree — was pretextual. Plaintiff was discriminated against on the basis of sex in the denial of a promotion.

54. The requirement that a candidate for tenure have a terminal degree was uniformly applied by the College. From December, 1970 through December, 1974, thirteen persons who were considered for tenure were not awarded tenure at Muhlenberg College. Seven of those thirteen persons lacked a terminal degree; all seven persons were not recommended for tenure by the President and were not awarded tenure by the Board of Trustees. Conversely, all seventeen persons considered for tenure during this time period who were granted tenure possessed a terminal degree.

55. During the period from December, 1970 through December, 1974, President Morey consistently applied the terminal degree requirements in making recommendations with respect to the award of tenure. During this period of time, the College consistently applied the terminal degree requirement with respect to the award of tenure. During this period of time, the alternative criteria listed in the Faculty Handbook were never in fact employed. *306 56. By requiring that plaintiff possess a terminal degree before being awarded tenure, the College did not treat plaintiff less favorably than male members of her Department or other Departments.

57. Plaintiff exercised reasonable diligence in attempting to find an employment position comparable to the one she held at Muhlenberg College. (Stipulation, ¶ 95)

DISCUSSION

Plaintiff Connie Rae Kunda has advanced several theories upon which she bases her claim of sex discrimination in employment. First, plaintiff claims that she was treated less favorably by her employer, Muhlenberg College, than were .male members of the Physical Education Department. Pursuant to this claim of disparate treatment, plaintiff asserts that she was denied promotion to the position of Assistant Professor and an award of tenure because of her sex. Plaintiff also raises a claim that the application of the terminal degree requirement for promotion and tenure had a disparate impact upon women.

Although both “disparate treatment” and “disparate impact” theories are cognizable under Title VII, methods of proving a prima facie case are different for each. The paradigm of a disparate treatment case is McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1977), where the Supreme Court set forth basic rules for the apportionment of burden of proof in an individual Title VII case. Stated briefly, the Court held that, once a prima facie case of discrimination is made by plaintiff, the burden shifts to defendant to “articulate a legitimate, nondiscriminatory” basis for its employment decision.

The Supreme Court has recently clarified the “exact scope” of a prima facie case in a disparate treatment context. In Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), the Court stated that the prima facie case is not the equivalent of an ultimate finding of discrimination, but merely “a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Id. at 577, 98 S.Ct. at 2949. The prima facie case raises the inference that the defendant’s actions, if not otherwise explained, are based upon discriminatory criterion. Upon proof of a prima facie case, 2 the defendant has the burden of “proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race.” Id.

In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), the Supreme Court noted that, in a disparate treatment case, “[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” Id. at n. 15, 97 S.Ct. at 1854. However, proof of discriminatory motive is encompassed within the prima facie case as defined by McDonnell Douglas and Fumco. The utility of the prima facie case is that it permits the inference of discriminatory animus, unless the defendant is able to prove that the employment decision was based upon legitimate, nondiscriminatory criteria. We do not believe however, that use of the prima facie case is necessarily the only way to show discriminatory motive in a disparate treatment case. International Brotherhood of Teamsters v. United States, supra at n. 15, 97 S.Ct. 1843. See also Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266-68, 97 S.Ct. 555, 50 L.Ed.2d *307 450 (1976), where the Court, in a different context, discussed several ways that discriminatory motive may be proved.

Under the “disparate impact” theory, where facially neutral employment standards are alleged to have a disproportionate impact upon a protected group, it is not necessary to show discriminatory motive. International Brotherhood of Teamsters v. United States, supra. In order to establish a prima facie case, a plaintiff need only show that the employment standards under scrutiny have a statistically significant discriminatory impact. Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1976); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

I. Disparate Treatment Theory

a. The Prima Facie Case

Before we can determine whether plaintiff has made out a prima facie case under her disparate treatment theory, we must define the exact content of the prima facie case. This may vary depending upon the factual situation involved. International Brotherhood of Teamsters v. United States, supra 431 U.S. at 358, 97 S.Ct. 1843. Since promotion and tenure decisions within a college or university environment are different in many significant ways from employment decisions elsewhere, we believe it is helpful to analyze carefully the purpose of the prima facie showing in order to identify the particular elements necessary to make such a showing in the case before us.

In McDonnell Douglas v. Green, where plaintiff alleged discrimination in hiring, the Supreme Court held that plaintiff established a prima facie case by showing "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802, 93 S.Ct. at 1824.

Under the facts of McDonnell Douglas, this initial showing was “adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under [Title VII].” International Brotherhood of Teamsters v. United States, supra 431 U.S. at 358, 97 S.Ct. at 1866.

In International Brotherhood of Teamsters v. United States, the Supreme Court noted that the McDonnell Douglas formula “does not require direct proof of discrimination.” 431 U.S. at n. 44, 97 S.Ct. at 1866. Instead, the prima facie showing requires that a Title VII plaintiff demonstrate that the employment action under scrutiny did not result from other nondiscriminatory reasons which would commonly arise. Where, as in McDonnell Douglas, a claim of discrimination in hiring is raised, the plaintiff is required to show that “his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.” Id.

The decision to grant or deny a promotion to a college faculty member is not substantially different from a similar decision in business or industry. Therefore, we conclude that a prima facie case of discrimination in promotion is established by a showing (1) that plaintiff was a member of a protected group; (2) that plaintiff was qualified for p