Ezold v. Wolf Petition for a Writ of Certiorari to the US Court of Appeals for the Third Circuit
Public Court Documents
June 17, 1993
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Brief Collection, LDF Court Filings. Ezold v. Wolf Petition for a Writ of Certiorari to the US Court of Appeals for the Third Circuit, 1993. 2d230854-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/65562a0d-9909-45f0-bc15-77502f3ec861/ezold-v-wolf-petition-for-a-writ-of-certiorari-to-the-us-court-of-appeals-for-the-third-circuit. Accessed April 27, 2025.
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J U D I T H P . V L A D E C K
S E Y M O U R M. W A L D M A N
S Y L V A N H . E L I A S
S H E L D O N E N G E L H A R D t
I R W I N B L U E S T E I N
D A N I E L E N G E L S T E I N
P a t r i c i a M c C o n n e l l
A N N E C . V L A D E C K
K A R E N H O N E Y C U T T
L A U R A S . S C H N E L L
L I N D A E . R O D D
D E B R A L. R A S K I N
J U L I A N R . B I R N B A U M
S T U A R T E . B A U C H N E R
L A R R Y C A R Y
J A M E S W A S S E R M A N
D E N N Y C H I N
VLADECK, WALDMAN, ELIAS 8 ENGELHARD, P.C.
C O U N S E L L O R S A T L A W
1 5 0 1 B r o a d w a y
N e w Y o r k , N . Y . 1 0 0 3 6
T E L 2 I 2 / 3 5 4 - 8 3 3 0
F A X 2 I 2 / 2 2 1-3 I 7 2
J E N N I F E R L. B R A U N
O W E N M. R U M E L T
I V A N D . S M I T H
H A N A N B . K O L K Q *
M I C H A E L B . R A N I S
D E N I S E M . C L A R K
J O Y C E T I C H Y
S T U A R T L. L I G H T E N
E L L E N A . H A R N I C K
J O H N A . B E R A N B A U M
f A D M t T T E D NY A N D P L
’ A D M I T T E D O H A N D Ml O N L Y
June 21, 1993
C O U N S E L
P A U L R . W A L D M A N
Charles Stephen Ralston, Esq.
NAACP Legal Defense and
Education Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
Re: Ezold v. Wolf, Block. Schorr and Solis-Cohen
Dear Steve:
Enclosed is a copy of the certiorari petition in Ezold.
We remain interested in the possibility of the Inc. Fund's signing
on to the amicus brief that is being drafted by the Womens' Law
Project in Philadelphia. Of course, Anne Vladeck and I or Linda
Wharton .at the Womens Law Project, (215) 928-9801, would be happy
to discuss the amicus brief further with you.
Sincerely,
Debra L. Raskin
DLR:paf
Enclosure
cc: Linda Wharton, Esq. (w/o enclosure)
19556 1
No.
IN THE
Supreme (Uxmrt of ilje Jlmtt'b S tates
OCTOBER TERM, 1993
NANCY O ’MARA EZOLD,
Petitioner,
WOLF, BLOCK, SCHORR and SOLIS-COHEN,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
JUDITH P. VLADECK
Counsel o f Record
ANNE C. VLADECK
DEBRA L . RASKIN
M ICHAEL B. RANIS
VLADECK, WALDMAN,
ELIAS & ENGELHARD, P.C .
1501 Broadway, Suite 800
New York, New York 10036
(212)354-8330
Attorneys for
Nancy O’ Mara Ezold
1
1. Whether, in determining whether an em ployer’s ju s ti
fication for denial of partnership is a pretext for unlawful dis
crimination in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), trial courts are required to give special
deference to subjective performance evaluations by law firms
and other employers of professionals?
2. Whether the requirement of deference to subjective per
formance evaluations of professional employees allows an
appeals court to usurp the factfinding function of the trial
court in Title VII cases?
QUESTIONS PRESENTED
11
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED.................................................. i
TABLE OF AUTHORITIES.................................................. v
OPINIONS BELOW ...................... 1
JURISDICTION...................................................................... 2
STATUTE INVOLVED ........................................................... 2
STATEMENT OF THE CASE .............. 2
A. The District Court’s F indings............................. 2
B. The Court of Appeals’ Decision ........................ 6
REASONS FOR GRANTING THE PETITIO N ............... 8
I. INTRODUCTION.......................................................... 8
II. THE COURT OF APPEALS’ DECISION CON
FLICTS WITH PRECEDENTS OF THIS COURT
AND WITH DECISIONS OF OTHER COURTS OF
APPEALS.................................................. 10
A. This Court’s Title VII Decisions Do Not Use a
Different Analysis for the Evaluation of
Subjective C rite ria ..................................... 10
B. The Court of Appeals’ Rule Conflicts With
Other Courts of Appeals’ Requirement that The
Factfinder Review Subjective Decisionmaking
With Special Caution........ ............................. 14
Ill
C. The Decision Radically Expands The Scope Of
Appellate Court Review In Discrimination
Cases Involving Subjective Employment
D ecisions............................................................... 16
III. THE DECISION BELOW PRESENTS ISSUES OF
CRITICAL IMPORTANCE BECAUSE IT SEVERE
LY LIMITS TITLE VII PROTECTION IN HIGHER
LEVEL POSITIONS FOR WOMEN AND OTHER
PAGE
UNDERREPRESENTED G R O U PS........................... 19
CONCLUSION........................................................................ 21
APPENDIX
Opinion of the United States Court of Appeals for the
Third Circuit, as amended ............................................ la
Judgment of the United States Court of Appeals for the
Third C ircuit................................ 96a
Opinions of the United States District Court, Eastern
District of Pennsylvania................................ 98a
Denial of the Petition for Rehearing In B a n c .................161a
Judgment Entered in by the United States District Court,
Eastern District of Pennsylvania................................ 163a
Excerpts from Joint Appendix Filed in the United States
Court of Appeals for the Third C ircuit.................... 164a*
Bracketed numbers (“[ ]”) on these pages refer to the page numbers in
the Joint Appendix filed in the United States Court of Appeals for the Third
Circuit.
IV
Excerpts from Proposed Findings of Fact Submitted by
PAGE
Wolf, Block, Schorr and Solis-Cohen........................164a*
Trial Testimony......................................................................176a*
Interrogatory Responses by Wolf, Block, Schorr and
Solis-Cohen.................................................................... 179a*
Excerpts from P laintiff’s Exhibit 2 0 0 .................................181a
Excerpts from Brief of Appellant and Cross-Appellee
Wolf, Block, Schorr and Solis-Cohen filed in the
United States Court of Appeals for the Third
C ircu it ..............................................................203a
Order Extending Time For Filing of Petition For a Writ
of C ertio ra ri................................. .................. ......... . 207a
* Bracketed numbers (“[ ]”) on these pages refer to the page numbers
in the Joint Appendix filed in the United States Court of Appeals for the
Third Circuit.
V
TABLE OF AUTHORITIES
Cases page
Anderson v. Bessemer City, 470 U.S. 564 (1985)....... 13, 17, 18
Bechold v. IGW Systems, Inc., 817 F.2d 1282 (7th Cir.
1987)................................................................................. 18
Bruhwiler v. University o f Tennessee, 859 F.2d 419 (6th
Cir. 1988)......................................................................... 13
Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979)............ 15
Easley v. Empire, Inc., 757 F.2d 923 (8th Cir. 1985)....... 13
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d
509 (3d Cir. 1992)......................................................passim
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 56 Fair
Employ. Prac. Cas. (BNA) 580 (E.D. Pa. 1991) . . . . 1
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 758
F. Supp. 303 (E.D. Pa. 1991)................. .....................1, 5
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 751
F. Supp. 1175 (E.D. Pa. 1990)..................................passim
Frieze v. Boatmen’s Bank o f Belton, 950 F.2d 538 (8th
Cir. 1991)......................................................................... 12
Furnco Construction Corp.v. Waters, 438 U.S. 567
(1978)................................................................................ 12
Grano v. Department o f Development o f Columbus,
699 F.2d 836 (6th Cir. 1 9 8 3 )......................................... 15
Hishon v. King & Spalding, 467 U.S. 69 (1984)... 10, 19, 20
Icicle Sea Foods, Inc. v. Worthington, 475 U.S. 709
(1986)........................................................................ 7
PAGE
Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456
U.S. 844 (1982)......................................................... .
Lilly v. Harris Teeter Supermarket, 842 F.2d 1496 (4th
Cir. 1988)............................. ...........................................
Lindsey v. Prive Corp., 61 Fair Empl. Prac. Cas. (BNA)
770 (5th Cir. 1993 )........................................................
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ........................................................................3, 1,
Mohammed v. Callaway, 698 F.2d 395 (10th Cir. 1983)__
O’Connor v. Peru State College, 781 F.2d 632 (8th Cir.
1986)..................................................................................
Patterson v. McLean Credit Union, 491 U.S. 164 (1989). 3, 8,
Price Waterhouse v. Hopkins, 490 U.S. 228
(1989)............................................................... 10, 14, 19,
Pullman-Standard v. Swint, 456 U.S. 273 (1 9 8 2 )............
Ramseur v. Chase Manhattan Bank, 865 F.2d 460 (2d
Cir. 1989).........................................................................
Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.
1972)..................................................................................
Royal v. Missouri Highway and Transportation
Commission, 655 F.2d 159 (8th Cir. 1981)...............
Sweeney v. Board o f Trustees o f Keene State College,
569 F.2d 169 (1st Cir.), vacated on other grounds,
439 U.S. 24 (1978), a ff’d, 604 F.2d 106 (1st Cir.
1979), cert, denied, 444 U.S. 1045 (1980)...............
Texas Department o f Community Affairs v. Burdine, 450
U.S. 248 (1981)...............................................................
17
15
9
12
15
11
12
20
7
16
14
15
19
11
PAGE
Tuck v. Henkel Corp., 973 F.2d 371 (4th Cir. 1992), cert,
denied, 113 S. Ct. 1276 (1993)...................... .............
Turner v. Schering-Plough Corp., 901 F.2d 335 (3d Cir.
1990).................................................................................
United States Postal Service Board o f Governors v.
Aikens, 460 U.S. 711 (1983)...................... 11, 12, 13,
United States v. City o f Black Jack, 508 F.2d 1179 (8th
Cir. 1974), cert, denied, 422 U.S. 1042 (1 9 7 5 ).......
University o f Pennsylvania v. EEOC, 493 U.S. 182
(1990)...............................................................................
Watson v. Fort Worth Bank & Trust, 487 U.S. 977
(1988)................................................................................
Zenith Radio Corp. v. Hazeltine Research, Inc. 395
U.S. 100 (1969)...............................................................
Statutes
Fed. R. Civ. P. 52 ........................................................ 16, 17,
28 U.S.C. § 1254(1) ...............................................................
28 U.S.C. § 1331 ........................................................ ...........
Age Discrimination in Employment Act § 12, 29 U.S.C.
§ 631(c)(1).......................................................................
Glass Ceiling Act of 1991, Pub. L. No. 102-166, tit. II,
105 Stat. 1081, note following 42 U.S.C.A. § 2000e
(West Supp. 1993)..........................................................
16
12
17
16
20
10
17
18
2
3
20
19
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2000e-17.................... ......... ................... passim
IN THE
Jiupremc Court of i\\z Jitutps
Oc t o b e r Te r m , 1993
No.
N a n c y O ’M a r a E z o l d ,
Petitioner,
W o l f , B l o c k , Sc h o r r and S o l is -C o h e n ,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nancy O’Mara Ezold (“Ezold” or “petitioner”) respectfully
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Third Circuit in this
case.
OPINIONS BELOW
The opinion of the Court of Appeals as amended (Appendix
l a ^ a ) , 1 is reported at 983 F.2d 509 (3d Cir. 1992). The opin
ion of the District Court (Kelly, D.J.) on liability (App. 98a-
132a), is reported at 751 F. Supp. 1175 (E.D. Pa. 1990) and two
opinions of the District Court concerning damages (App. 133a-
51a and App. 152a-60a) are reported at 758 F. Supp. 303 (E.D.
Pa. 1991) and 56 Fair Employ. Prac. Cas. (BNA) 580 (E.D. Pa.
1991).
Pages in the Appendix are cited as “App.____a.’’l
2
JURISDICTION
The judgment of the Court of Appeals was entered on
December 30, 1992 (App. 96a-97a), and a petition for rehear
ing with suggestion of rehearing in banc was denied on Febru
ary 3, 1993. (App. 161a-62a). On April 2, 1993, Associate
Justice Souter extended the time for filing this petition to June
18, 1993. (App. 207a). The jurisdiction of the Court is invoked
under 28 U.S.C. § 1254(1).
STATUTE INVOLVED
Section 703(2)(a) of Title VII, 42 U.S.C. § 2000e-2(a) pro
vides:
It shall be an unlawful employment practice for an
employer —
(1) to fail or refuse to hire or to discharge any individ
ual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, reli
gion, sex, or national origin.
STATEMENT OF THE CASE
A. The District Court’s Findings
Petitioner Nancy O ’Mara Ezold was denied partnership at
respondent law firm Wolf, Block, Schorr and Solis-Cohen
(“Wolf, Block”) in 1988. Ezold commenced this action alleg
ing that Wolf, Block, in violation of Title VII, had discrimi
3
nated against her on the basis of her sex.2 Jurisdiction was
premised upon 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f).
During a thirteen day trial of Ezold’s claim, the District
Court heard seventeen witnesses and reviewed thousands of
pages of exhibits. The District Court applied well-established
equal employment law analysis, Patterson v. McLean Credit
Union, 491 U.S. 164, 187-88 (1989); McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804 (1973), and compared the
evaluations of Ezold with the evaluations of the male associates
who had been admitted to partnership in the year of her can
didacy and in the preceding and following years.
Members of the firm ’s governing committees testified that
there had never been “one single, solitary factor that turns a
[partnership] decision,” (App. 177a) and that partnership was
determined on the basis of all twenty factors listed on the eval
uation forms each partner completed annually for each asso
ciate. (App. 106a-107a, 176a). Ezold did not challenge the
standards articulated by Wolf, Block. Focusing on the area of
legal analysis which Wolf, Block emphasized as a reason for
rejecting Ezold (App. 125a), the District Court found nothing
in the extensive record that justified the firm ’s differential
treatment of Ezold. The District Court found the application of
that criterion to Ezold to have been biased because the firm
promoted men having “evaluations substantially the same or
inferior to the plaintiff’s, and indeed promoted male associates
who the defendant claimed had precisely the lack of analytical
or writing ability upon which Wolf, Block purportedly based its
decision concerning the plaintiff.” (App. 130a).
In the contemporaneous memorandum summarizing the part
ners’ evaluations of her in legal analysis in the year of the part
nership determination (App. 108a-109a), Ezold was graded
“good” in legal analysis, precisely the same grade that seven of
the men promoted that year and in the preceding and following
Wolf, Block was then a firm with 107 partners, only five of
whom were women. (App. 80a).
4
years received for legal analysis when they were considered for
partnership. (App. 114a, 117a, 121a, 122a, 181a-83a, 184a-86a,
187a-89a, 190a-92a, 193a-95a, 196a-97a, 198a-202a).3 The
District Court found: “In the period up to and including 1988,
Ms. Ezold received strongly positive evaluations from almost
all of the partners for whom she had done any substantial
work.” (App. 110a). After evaluating the testimony of partners
called as witnesses, the District Court concluded: “The mis
takes of the plaintiff were not of greater magnitude or type than
those of male associates who made partner.” (App. 114a).
When Ezold was denied partnership in 1988, she was told
that if she abandoned her areas of specialization, white collar
criminal defense and commercial litigation and agreed to head
the firm’s domestic relations practice, she would be promoted
the following year. The District Court found that “the addi
tional year was not for purposes of giving any additional train
ing or experience.” (App. 125a). Accordingly, the trial court
concluded that Wolf, Block “was satisfied that in 1988 [Ezold]
had all the requisites to be a member of the Firm at that time.”
{Id.)
The District Court did not rely solely on the evaluations
which reflected Ezold’s comparability to the successful male
associates. Rather, the record contained other direct evidence
of Wolf, Block’s discriminatory attitudes toward women. For
example, as the District Court found, Seymour Kurland (“Kur
land”), the chair of Wolf, Block’s litigation department, told
Ezold when she was hired as a litigation associate in 1983, that
“it would not be easy for her at Wolf, Block because she did
not fit the Wolf, Block mold since she was a woman,” among
other things. (App. 101a). Moreover, although he sometimes
delegated the duty, Kurland was “responsible for assignment of
work to associates in the Litigation Department” (App. 101a);
Wolf, B lock’s evaluation form defines the grade of “good” as
characterizing an area in which the associate “ [d isp lays particular merit
on a consistent basis; effective work product and performance; able; tal
ented .” (App. 122a).
5
when Ezold complained to a senior litigation partner of dis
crimination in assignments, she was told: “ [D]on’t say that
around here. They don’t want to hear it.” (App. 123a).
The District Court credited substantial evidence of the bias
of the evaluators, and those findings were interwoven with the
trial court’s determination that the subjective standards were
discriminatorily applied to plaintiff. The District Court’s
description of Wolf, Block’s evaluation process showed it to be
a ready receptacle for sex-bias: the process was wholly sub
jective and standardless,4 resulted in decisions based on third
or fourth hand information, and relied on evaluations infected
with sex stereotyping. (App. 122a, 124a-25a).
The District Court determined that Wolf, Block had treated
Ezold in a discriminatory manner prior to the promotion deci
sion, including the presumption against her “because she was
a woman,” and the informal assignment process yielding infe
rior work opportunities for her. (App. 102a-106a). The District
Court found that Wolf, Block was both critical of Ezold for
raising, and unreceptive to resolving, issues regarding the
firm’s treatment of its women employees. (App. 103a, 123a-
24a, 131a). Indeed, the District Court concluded that “the
adverse partnership decision . . . represented a culmination of
numerous elements of discriminatory treatment she had
received throughout her years at the Firm.” (App. 149a).
Against this background the District Court found pretextual
Wolf, Block’s partners’ explanation for the rejection as a part
ner of a woman so many of them had evaluated favorably, par
The D istrict Court found that partners were asked to evaluate
associates “on the basis of what you expect of an Associate at this Asso
c ia te’s level of experience,” (App. 107a) (emphasis in original) and
“regardless of the extent of the partner’s familiarity with the associate’s
work.” (App. 106a). W hile the Wolf, Block partners had on-going
debates regarding the firm ’s “standards” for partnership (App. 114a-15a,
117a, 119a-20a), all twenty of the factors listed on the firm ’s evaluation
forms were subjective, including such criteria as “growth potential,”
“attitude,” and “dedication.” (App. 106a-107a).
6
ticularly those who had worked most closely with her. The trial
court entered judgment for Ezold.
B. The Court of Appeals’ Decision
The Court of Appeals reversed. The appellate court found
that the principal flaw in the finding of discrimination was the
District Court’s failure to give special deference to the sub
jective judgments made by Wolf, Block in its evaluation of
Ezold. In an analysis that the Court of Appeals described as
“inform[ed]” by “cautions” against “ ‘unwarranted invasion or
intrusion’ into matters involving professional judgments about
an employee’s qualifications for promotion within a profes
sion” (App. 42a), the Court of Appeals created a new standard
that largely insulates employers of professionals who use sub
jective evaluations from traditional factfinding applicable to
other employers under the equal opportunity laws.
Were the factors Wolf considered in deciding which asso
ciates should be admitted to the partnership objective, as
opposed to subjective, the conflicts in various partners’
views about Ezold’s legal analytic ability that this record
shows might amount to no more than a conflict in the evi
dence that the district court as factfinder had fu ll power
to resolve.
(App. 47a) (emphasis supplied). So saying, the Court of
Appeals discarded, without reference, a long line of authority
recognizing the ease with which employers can manipulate
subjective standards to mask discrimination and the concomi
tant need to scrutinize the application of such standards more
closely. The Court of Appeals then created a new standard, one
far more difficult, if not impossible, for victims of discrimi
nation to meet: special deference to the decisionmakers in pro
fessional employment.
Having announced the new standard, the appellate court
launched into a 93-page de novo review of the record, reject
ing even those of the District Court’s findings which were
7
based on the firm’s admissions, and, without benefit of having
heard the witnesses, accepting testimony contrary to the trial
court’s explicit findings.5 Although the evaluation of such evi
dence is a task this Court reserves for the factfinder, Pullman-
Standard. v. Swint, 456 U.S. 273, 291 (1982), the Court of
Appeals relied on discredited evaluations of Ezold by partners
whose actions or comments were found by the District Court to
evince sex-bias. (Partner Kurland (App. 18a, 101a, 103a); part
ner Schwartz (App. 14a-15a, 16a-17a, 19a-20a, 123a-24a,
131a); partner Arbittier (App. 14a, 15a, 21a, 102a-103a)).6
The Court of Appeals also established a new rule requiring
that evaluations of partnership candidates be examined in a
vacuum. The appellate court held that, to be given any weight,
the non-comparative evidence had to be sufficient standing
alone to prove pretext without regard to the evaluations.
(App. 72a-74a). The Court of Appeals thus segregated from its
consideration of Ezold’s and the male associates’ evaluations,
evidence of discrimination by various partners and of Wolf,
Block’s negative reaction to Ezold’s complaints concerning
bias. See McDonnell Douglas, 411 U.S. at 804 (“Other evi
dence that may be relevant to any showing of pretext includes
facts as to . . . [the employer’s] reaction . . . to [the
employee’s] legitimate civil rights activities.”)
The Court of Appeals held relevant only that evidence which
concerned “the qualification the employer [allegedly] found
lacking in determining whether non-members of the protected
For example, the Court of Appeals discounted partner M agar-
ity ’s high ratings of Ezold’s analytic ability and credited Wolf, B lock’s
description of him as an “easy grader” (App. 58a n.26), even though the
D istrict Court expressly relied upon M agarity’s admissions concerning
Ezold’s skills. (App. 103a-104a, 106a). The Court of Appeals did not find
M agarity too “easy” a marker of male candidates. (App. 58a).
6 Cf. Icicle Sea Foods, Inc. v. Worthington, 475 U.S. 709, 714
(1986) (The court of appeals “should not simply have made factual find
ings on its own,” but should have remanded to the district court for find
ings under the legal standard the appellate court articulated.)
8
class were treated more favorably” (App. 43a-44a), even
though Wolf, Block had admitted that no one factor ever was
dispositive, and the District Court had, indeed, focused its
attention on the qualification the firm had described as its pri
mary criterion, legal analysis. The Court of Appeals thus rel
egated to irrelevancy unrebutted evidence of the successful
male candidates’ failings, like disappearing for days without
warning or alienating major clients, shortcomings in areas that
Wolf, Block conceded were also important to partnership
admission and which the District Court had weighed in finding
pretext. Cf. Patterson, 491 U.S. at 187 (“to demonstrate that
respondent’s proffered reasons for its decision were not its true
reasons . . . petitioner is not limited to presenting evidence of
a certain type”).
REASONS FOR GRANTING THE PETITION
I. INTRODUCTION
Review of this case is vitally important to the enforcement of
the nation’s anti-discrimination laws. As the Court of Appeals
stated, its decision, the first appellate review of a trial court
finding of discrimination in law firm partnership admission,
presents “important issues that cut across the spectrum of dis
crimination law.” (App. 4a). Among those issues are the ques
tions of whether the trial court must pay special deference to
employers’ application of subjective standards in evaluating
professional employees. Also raised by the decision is the
question of whether the trial court must surgically separate par
ticular types of evidence in such cases, even though proof of
pretext is typically considered in the totality of the workplace
environment. The Court of Appeals responded to those ques
tions by requiring virtually unreviewable deference to the deci
sionmakers in such cases, and by creating new evidentiary
rules for professional employment decisions challenged as dis
criminatory.
9
The new standards articulated by the Court of Appeals per
mitted it to comb the extensive record to locate pieces of proof
purportedly supporting the law firm ’s determination, and to
reverse a judgment based upon the District Court’s one hundred
and fifty-one detailed factual findings reached after thirteen
trial days, consideration of the testimony and demeanor of sev
enteen witnesses, and a review of thousands of pages of
exhibits.
The tests devised by the Court of Appeals effectively guar
antee that the employer will prevail in any discrimination case
involving professional employees. Although the appellate court
states that direct proof of bias is not required (App. 32a), the
wide latitude given to employers to apply subjective standards,
with only deferential review by the courts (and with even that
review fitted into new evidentiary constraints), makes it almost
impossible to envision a discrimination case in which a plain
tiff employed in an upper level job could win without “smok
ing gun” proof.
It has long been recognized that it would be impossible to
enforce the equal opportunity laws if employers could avoid
liability by citing sufficiently amorphous criteria and pointing
to differences of opinion concerning the plaintiff’s performance
under those standards. Accordingly, courts have held that
because subjective criteria can be easily used to mask dis
crimination, application of such criteria is subject to more care
ful scrutiny by the fact finder. See, e.g., Lindsey v. Prive Corp.,
61 Fair Empl. Prac. Cas. (BNA) 770, 772 (5th Cir. 1993) (“We
have recognized the potential of subjective criteria to provide
cover for unlawful discrimination.”) The Court of Appeals’
decision here turns discrimination law on its head; instead of
examining with greater scrutiny the application of subjective
criteria, the decision requires the factfinder to accord greater
deference to the employer who says it relies only on such
criteria.
10
The Court of Appeals thus has set aside long standing equal
employment law, creating a standard that collides with this
Court’s holdings in Hishon v. King & Spalding, 467 U.S. 69
(1984) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
that those laws guarantee the right to non-biased consideration
for upper echelon jobs. The profound consequences of the
Court of Appeals’ new standard for discrimination litigation
involving upper level job opportunities warrant this Court’s
review.
II. THE COURT OF APPEALS’ DECISION CON
FLICTS WITH PRECEDENTS OF THIS COURT
AND WITH DECISIONS OF OTHER COURTS OF
APPEALS.
A. This Court’s Title VII Decisions Do Not Use a Differ
ent Analysis for the Evaluation of Subjective Criteria.
This Court has recognized the difficulty inherent in “dis-
tinguish[ing] ‘subjective’ from ‘objective’ criteria,” and how
differential standards based on that purported dichotomy can
“allowf ] employers so easily to insulate themselves from lia
bility. . . .” Watson v. Fort Worth Bank & Trust, 487 U.S. 977,
989-90 (1988). As a consequence, the Court has “consistently
used conventional disparate treatment theory . . . to review
hiring and promotion decisions that were based on the exercise
of personal judgment or the application of inherently subjective
criteria.” Id. at 988.
Yet, the Court of Appeals created a standard of substantial
deference to an employer’s subjective decisionmaking which
contravenes this Court’s conclusion that the equal opportunity
laws accord no special treatment to employment decisions
based on non-objective reasons. Because the criteria at issue
were “subjective” as opposed to “objective” (App. 47a), the
Court of Appeals concluded that the District Court’s authority
to resolve the issues of fact presented by the evaluations of the
plaintiff was restricted by the newly announced rule of special
deference.
11
Under the reasoning of the Court of Appeals, unless all eval
uations ranked the female candidate higher than the successful
males, the District Court could conclude only that the employer
“may have been wrong in its perception” of the female candi
date’s skills (App. 57a), but would be stripped of the ability to
infer discrimination specifically accorded to the factfinder by
this Court. “ [Tjhat a court may think that the employer mis
judged the qualifications of the applicants does not in itself
expose him to Title VII liability, although this may be proba
tive o f whether the employer’s reasons are pretexts fo r dis
crimination.” Texas Department o f Community Affairs v.
Burdine, 450 U.S. 248, 259 (1981) (emphasis supplied).7
Despite evidence that Wolf, Block deliberately rejected
Ezold, who had the same summary “grade” in legal analysis as
the successful men and better grades on other listed criteria and
that the firm offered her a delayed promotion to partner in the
domestic relations area without further training, the Court of
Appeals suggested that Wolf, Block’s decision about Ezold
may have been, at worst, a “mistake.” (App. 57a). On this
basis, the Court of Appeals reversed the finding of discrimi
nation, and required deference to the dissenting evaluations of
partners whose testimony the District Court had rejected as
tainted by bias.
The new requirement of deference is not the only way in
which the Court of Appeals restricted proof of discrimination
in cases involving lawyers and other professional employees.
The Court of Appeals placed inflexible and unprecedented lim
itations on the ability of lawyer plaintiffs and other profes
sionals to establish pretext. As this Court has directed, the
method of proving discrimination “was ‘never intended to be
rigid, mechanized, or ritualistic.’ ” United States Postal Service 1
1 See O’Connor v. Peru State College, 781 F.2d 632, 637 (8th Cir.
1986) (“An em ployer’s misjudgment of an employee’s qualifications and
misconceptions as to the facts surrounding her job performance may be
probative of whether the reasons articulated for an employment decision
are merely pretexts for discrim ination.”)
12
Board o f Governors v. Aikens, 460 U.S. 711, 715 (1983) (quot
ing Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978)). The Court of Appeals nevertheless required that all
evidence of bias on the part of the evaluators of such profes
sionals be considered separately from the evidence of the com
parisons between the ratings of the plaintiffs in such cases and
those of the successful male or non-minority candidates.
(App. 72a-74a).
Effectively creating a new rule for district courts examining
allegations of pretext, the Court of Appeals strictly limited con
sideration of evidence showing the environment in which the
challenged decision was made. The trial court had found direct
evidence of biased comments and practices; the Court of
Appeals rejected such proof. (App. 74a-80a, 82a-93a). Instead,
the appellate court, in contravention of this Court’s repeated
emphasis that the factfinder must have wide latitude in deter
mining pretext, see Patterson, 491 U.S. at 187-88; McDonnell
Douglas, 411 U.S. at 804-805; Furnco Construction Corp., 438
U.S. at 577; Aikens, 460 U.S. at 714 n.3., held that the evidence
of the discriminatory context in which the challenged decision
was made must, standing alone, be sufficient to establish dis
crimination. (App. 72a-74a, 93a).
In addition, the Court of Appeals held that: “A plaintiff does
not establish pretext. . . by pointing to criticisms of members
of the non-protected class, or commendation of the plaintiff, in
categories the defendant says it did not rely upon in denying
promotion to a member of the protected class.” (App. 51a).8
8 The Court of Appeals cites no case in which such a rule has
been adopted. The authority on which the Court of Appeals relies (App.
44a, 52a) holds that general positive reviews do not establish pretext
where an employer has relied upon a “specific, substantial and undis
puted” perform ance deficiency. Turner v. Schering-Plough Corp., 901
F.2d 335, 344 (3d Cir. 1990); see, e.g., Frieze v. Boatmen’s Bank o f Bel
ton, 950 F.2d 538, 540 (8th Cir. 1991) (admittedly “unprofessional” act
of insubordination). Here, of course, the purported deficiency was not
only disputed, but E zold’s summary grade in that area was the same as
those of the males promoted.
13
The trial court, however, had before it Wolf, Block’s con
tentions that no one factor was ever dispositive in a partnership
determination and that there were twenty relevant criteria. Nev
ertheless, the appellate court held irrelevant as a matter of law
extensive findings that Ezold scored significantly higher on the
other criteria the firm claimed were important, and that the firm
had promoted males with grievous inadequacies in those areas
that it had acknowledged to be essential while Ezold had none
of those deficiencies.9
Even if Wolf, Block had not acknowledged that other qual
ifications were relevant to its decisionmaking, the Court of
Appeals’ new rule limiting the factors to be considered by dis
trict courts in cases involving professional employees, is con
trary to this Court’s repeated warnings against rigidity in
evaluating proof of discrimination. See Aikens, 460 U.S. at 715;
Anderson v. Bessemer City, 470 U.S. 564, 576-77 (1985).10
Other Courts of Appeals have affirmed trial court rulings find
ing pretext based, at least in part, on comparative qualifications
in areas other than those allegedly relied upon by the defendant
employers. Bruhwiler v. University o f Tennessee, 859 F.2d 419,
420 (6th Cir. 1988); Easley v. Empire, Inc., 757 F.2d 923, 930-
31 (8th Cir. 1985). The Court of Appeals’ contrary rule dictates
that where, for example, tardiness is alleged as the basis for not
promoting a woman professional, the district court, as a mat
9 Such evidence included Wolf, B lock’s prom otion of men the
partners said were “ ‘[n]ot real sm art,’ ” who disappeared unannounced
for days at a time or who put the firm at risk of losing a m illion dollars
in billings. (App. 116a-17a).
10 This Court in Anderson found that the district court did not err
when it inferred pretext from job candidates’ qualifications in areas in
addition to those allegedly relied upon by the employer. 470 U.S. at 576-
77. The p lain tiff in Anderson undisputedly lacked the degree that the
defendant asserted as the reason for hiring a male applicant. This Court,
however, held that the Fourth Circuit improperly had reversed the trial
court’s “determ ination] that pe titioner’s more varied educational and
employment background . . . left her better qualified to implement such
a rounded [recreational] program than” the successful male candidate. Id.
at 576.
14
ter of law, could not consider as proof of pretext evidence that
male employees who habitually picked fights with co-workers
or who had committed malpractice were promoted. This
Court’s holdings do not require blind deference to any
employer’s decisionmakers, nor do they permit such constric
tion of the trial court’s ability to find pretext in professional
employment.
Finally, the Court of Appeals applied a standard that comes
perilously close to the “clear and convincing evidence” stan
dard this Court rejected for Title VII cases in Price Waterhouse
v. Hopkins, 490 U.S. 228, 253 (1989).11 The appellate court
stated that: “In a comparison of subjective factors such as legal
ability, it must be obvious or manifest that the subjective stan
dard was unequally applied before a court can find pretext.”
(App. 60a) (emphasis supplied). Even assuming that “obvious
or manifest” proof was necessary and that this requirement was
not contrary to Hopkins, the evidence of bias here was obvious
and manifest—different treatment despite identical summary
grades, Kurland’s explicit comments, and other stark evidence
of discrimination. If Ezold’s proof is insufficient, no female or
minority professional employee could ever pierce the protec
tive wall the Court of Appeals has erected around law firms
and other employers of professionals.
B. The Court of Appeals’ Rule Conflicts With Other Courts
of Appeals’ Requirement that The Factfinder Review
Subjective Decisionmaking With Special Caution.
In contrast to the deferential standard and the limitations on
the ability to show pretext established by the Court of Appeals,
a line of authority dating back more than twenty years, see,
e.g., Rowe v. General Motors Corp., 457 F. 2d 348, 359 (5th
Cir. 1972), and adopted by many Courts of Appeals, analyzes * VII
“Conventional rules of civil litigation generally apply in Title
VII cases . . . and one of these rules is that parties . . . need only prove
their case by a preponderance of the evidence.” 490 U.S. at 253.
15
subjective decisionmaking in a fashion consistent with Title
VII. Thus in Royal v. Missouri Highway and Transportation
Commission, 655 F.2d 159, 164 (1981) (emphasis supplied), the
Eighth Circuit held: “When the evaluation is in any degree sub
jective and when the evaluators themselves are not members of
the protected minority, the legitimacy and nondiscriminatory
basis of the articulated reason for the decision should be sub
ject to particularly close scrutiny by the trial judge."11
The cases adopting this reasoning are legion. Lilly v. Harris
Teeter Supermarket, 842 F.2d 1496, 1506 (4th Cir. 1988) (“The
evidence further revealed well-settled indicia of an employ
ment environment where race discrimination could flourish);
the employer] considered only subjective criteria. . . .);
Grano v. Department o f Development o f Columbus, 699 F.2d
836, 837 (6th Cir. 1983) (“Courts have frequently noted that
subjective evaluation processes intended to recognize merit
provide ready mechanisms for discrimination. [Citations omit
ted], Moreover, the legitimacy of the articulated reason for the
employment decision is subject to particularly close scrutiny
where the evaluation is subjective and the evaluators
themselves are not members of the protected minority.”);
Mohammed v. Callaway, 698 F.2d 395, 399 (10th Cir. 1983)
(“Evidence relevant to such a showing [of pretext] includes
• ■ • the use of subjective criteria. . . .”); Davis v. Califano,
613 F.2d 957, 965 (D.C. Cir. 1979) (“No objective criteria were
established to guide the promotion decisions of supervisors,
branch chiefs and ad hoc promotion panels, who were pre
dominantly male. . . . Appellee’s promotion procedures are 12
12 Only five of more than one hundred partners completing annual
associate evaluations were female. (App. 80a). Only one woman sat on
the ten member Associates Committee and no woman was a member of
the five man Executive Committee that had the final say on Ezold’s part
nership admission. (App. 178a-79a). Contrary to another erroneous “fact”
found by the Court of Appeals (App. 49a), the partnership as a whole did
not vote on Ezold’s candidacy; her candidacy was rejected by the Exec
utive Committee and therefore was never submitted for a vote of the full
partnership. (App. 110a).
16
highly suspect and must be closely scrutinized because of their
capacity for masking unlawful bias.”)
This case strikingly illustrates the dangers recognized by
other circuits: that employers can flexibly define subjective
standards to effect discriminatory results and that “clever men
may easily conceal their motivations.” United States v. City o f
Blackjack, 508 F.2d 1179, 1185 (8th Cir. 1974), cert, denied,
422 U.S. 1042 (1975) (quoted in Ramseur v. Chase Manhattan
Bank, 865 F.2d 460, 465 (2d Cir. 1989)). One of the many def
initions Wolf, Block’s partner/witnesses gave to “legal analy
sis” sufficient for entry level partnership was the ability to
handle on one’s own “any case that the firm gets, no matter
how complex. . . .” (App. 177a) (emphasis supplied). Because
the firm conceded that no junior partner was ever assigned
such responsibility, the District Court found that applying this
standard to Ezold for admission as a junior partner, was evi
dence of pretext. (App. 122a-23a). By articulating qualifica
tions not required by the firm, Wolf, Block acted in a manner
supporting an inference of discrimination. Tuck v. Henkel
Corp., 973 F.2d 371, 376 (4th Cir. 1992), cert, denied, 113
S.Ct. 1276 (1993).
C. The Decision Radically Expands The Scope Of Appel
late Court Review In Discrimination Cases Involving
Subjective Employment Decisions.
The Court of Appeals changed not only the rules that
factfinders are to apply in evaluating subjective employment
determinations challenged as discriminatory; the decision also
established a new standard for appellate consideration of a trial
court’s findings in such cases. While citing Fed. R. Civ. P. 52
(App. 37a-38a), the decision created an impermissible dis
tinction between findings concerning “objective” performance
measures and those concerning “subjective” measures. In dis
crimination cases, where the central issues are intent and cred
ibility, deference to the trial court’s findings of fact must be
17
dispositive.13 An employer’s use of subjective criteria does
not justify deference to the employer’s decisionmakers or per
mit a reviewing court to consider the record de novo.
The Court of Appeals here permitted itself to sift through the
record de novo as if Rule 52 did not apply, because the per
formance standards in issue were subjective. It credited certain
evaluations and rejected the credibility of others, a function
reserved for the trial court. As this Court has held: “The
reviewing court oversteps the bounds of its duty under Rule
52(a) if it undertakes to duplicate the role of the lower court
. . . . ‘[Its] function is not to decide factual issues de novo.’ ”
Anderson, 470 U.S. at 573 (quoting Zenith Radio Corp. v.
Hazeltine Research, Inc., 395 U.S. 100, 123 (1969)); see
Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S.
844, 856 (1982).
Such appellate factfinding is particularly ill-suited to the
evaluation of claims of discrimination, which are quintessen-
tially fact specific. Sidestepping the deference that must be
accorded to credibility determinations, the Court of Appeals
stated: “the district court never made a finding that the critical
evaluations were themselves incredible or a pretext for dis
crimination.” (App. 53a). The District Court’s findings and
conclusions, however, were that the firm ’s partners were not
credible. (App. 101a, 114a-15a, 122a-25a, 130a-31a).
The District Court rejected Wolf, Block’s proposed findings
concerning its partners’ testimony as to whether Ezold actually
13 This Court in Aikens recognized the centrality of factual deter
minations to employment discrim ination cases:
All courts have recognized that the question facing triers of fact
in discrimination cases is both sensitive and difficult. . . . There
will seldom be “eyewitness” testimony as to the em ployer’s m en
tal processes. But none of this means that trial courts or reviewing
courts should treat discrim ination differently from other ultimate
questions of fact.
460 U.S. at 716.
18
had committed the “analytic” errors with which she was
charged. (App. 164a-75a). Weighing the conflicting evidence,
and rejecting the law firm ’s version, is a credibility determi
nation. In instances where there were two versions of what hap
pened, the District Court adopted findings proposed by Ezold,
each of which was supported by record citations to documents,
testimony, or admissions (App. 101a, 114a, 115a-24a), and
rejected the counter-proposals made by Wolf, Block on the
same issue. As this Court has held:
Where there are two permissible views of the evidence the
factfinder’s choice between them cannot be clearly erro
neous. . . . [W]hen a trial judge’s finding is based on his
decision to credit the testimony of one of two or more wit
nesses, each of whom has told a coherent and facially
plausible story that is not contradicted by extrinsic evi
dence, that finding, if not internally inconsistent, can vir
tually never be clear error.
Anderson, 470 U.S. at 574-75.
The District Court’s findings were based on credibility; the
trial court was not obliged to label them as such. Bechold v.
IGW Systems, Inc., 817 F.2d 1282, 1285 n.2 (7th Cir. 1987)
(“Where it is clear that the district court made a credibility
determination in arriving at its findings of fact, we have treated
such findings as tantamount to credibility determinations. We
will not require a specific incantation when the basis of a find
ing is otherwise clear.”)14 Review by this Court therefore is
necessary to prevent the wholesale repeal of Rule 52 for cases
involving subjective employment decisions affecting lawyers
and other professional employees.
In fact, Wolf, Block complained to the Court of Appeals (App.
205a n.29) that the trial court adopted Ezold’s proposed findings on crit
ical issues as to which Wolf, Block also had submitted proposed findings,
and thereby admitted that the D istrict Court had rejected the credibility
of the firm ’s witnesses.
19
III. THE DECISION BELOW PRESENTS ISSUES OF
CRITICAL IMPORTANCE BECAUSE IT SEVERELY
LIMITS TITLE VII PROTECTION IN HIGHER
LEVEL POSITIONS FOR WOMEN AND OTHER
UNDERREPRESENTED GROUPS.
The new rules that the Court of Appeals announced threaten
to read out of the law the Court’s holdings in Hishon v. King &
Spalding, 467 U.S. 69 (1984) and Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), that Title VII’s guarantee of equal oppor
tunity is fully applicable to employment decisions involving
admission to professional partnership. If a finder of fact can
not infer discrimination where, as here, the employer’s admis
sions and other evidence of bias require the conclusion that
subjective tests were differentially applied, the equal employ
ment laws will be a dead letter for any jobs where performance
is not measured solely by quantitative standards. See Sweeney
v. Board o f Trustees o f Keene State College, 569 F.2d 169, 176
(1st Cir.), vacated on other grounds, 439 U.S. 24 (1978), a ff’d,
604 F. 2d 106 (1st Cir. 1979), cert, denied, 444 U.S. 1045
(1980).
Indeed, the Panel’s decision is wholly contrary to Congress’s
public policy pronouncement in the Glass Ceiling Act of 1991,
Pub. L. No. 102-166, tit. II, 105 Stat. 1081, note following 42
U.S.C.A. § 2000e (West Supp. 1993), which was designed to
encourage the removal of artificial barriers to the advancement
of women and minorities in the professions. In enacting that
statute, Congress found that “despite a dramatically growing
presence in the workplace, women and minorities remain
underrepresented in management and decisionmaking positions
in business.” Glass Ceiling Act § 202(a)(1). Because admission
to virtually all such positions is determined by subjective cri
teria, resolution of the question presented here will be central
to employment issues Congress has recognized as critical.
When Congress wished to exempt higher level positions
from the equal opportunity statutes, it did so specifically. See
20
former Section 702 of Title VII, Pub. L. No. 88-352, 78 Stat.
255 (1964) (exemption for individuals engaged in educational
activities which was repealed in 1972 by Pub. L. No. 92-261,
86 Stat. 103 (1972)) (codified as amended at 42 U.S.C.
§ 2000e-l); the Age Discrimination in Employment Act § 12,
29 U.S.C. § 631(c)(1) (mandatory retirement at age 65 not pro
hibited for an individual in a “bona fide executive or a high
policymaking position”).
By depriving the District Court of its factfinding powers, the
Court of Appeals, in effect, has enacted an exemption to the
equal employment laws for lawyers and other professionals.
Under the new standards of deference, it would be a rare
employer indeed who could not disguise biased motives by
claiming deficiencies in characteristics measured by subjective
standards. Such judicial activism is contrary to statute and to
this Court’s holdings in Hishon and Hopkins,15 and cannot
stand.
15 See University o f Pennsylvania v. EEOC, 493 U.S. 182, 190
(1990) (1972 amendments making Title VII applicable to universities
“expose[d] tenure determinations to the same enforcem ent procedures
applicable to other employment decisions.”)
21
CONCLUSION
Consideration of the case by this Court is warranted by the
importance of the issues raised concerning the application of
the equal opportunity statutes to lawyers and other professional
employees and by the conflict between other courts of appeals’
decisions and the decision below. For the foregoing reasons,
this Court should grant the petition and issue a writ of certio
rari to the United States Court of Appeals for the Third Circuit.
Dated: New York, New York
June 17, 1993
Respectfully submitted,
V l a d e c k , W a l d m a n , E l ia s &
E n g l e h a r d , RC.
/s/ J u d it h R V l a d e c k ____________
Judith P. Vladeck
Counsel o f Record
Anne C. Vladeck
Debra L. Raskin
Michael B. Ranis
1501 Broadway, Suite 800
New York, New York 10036
(212)354-8330
Attorneys for
Nancy O’ Mara Ezold
APPENDIX
la
Filed December 30, 1992
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 91-1741 & 91-1780
NANCY O’MARA EZOLD,
Appellant a t No. 91-1780
v.
WOLF, BLOCK, SCHORR AND SOLIS-COHEN,
Appellant a t No. 91-1741
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Docket No. 90-00002)
Argued: May 21, 1992
PRESENT: HUTCHINSON, COWEN and SEITZ,
Circuit Judges
(Opinion Filed: December 30, 1992)
Jud ith P. Vladeck, Esquire (Argued)
Vladeck, Waldman, Elias & Engelhard, P.C.
Suite 800
1501 Broadway
New York, NY 10036
Attorney for Nancy O’Mara Ezold
Arlin M. Adams, Esquire (Argued)
Schnader, Harrison, Segal & Lewis
2a
Suite 3600
1600 Market Street
Philadelphia, PA 19103
and
Mark S. Dichter, Esquire
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
Attorneys for Wolf, Block, Schorr and
Solis-Cohen
Linda J . Wharton, Esquire
Carol E. Tracy, Esquire
Jud ith L. Riddle, Esquire
Women’s Law Project
Suite 401
125 South Ninth Street
Philadelphia, PA 19107
and
Pamela L. Perry, Esquire
Rutgers School of Law
Fifth and Penn Streets
Camden, NJ 08102
Attorneys for Amici Curiae Women’s Law
Project; National Bar Association, Women
Lawyers Division, Philadelphia Chapter;
National Association of Black Women
Attorneys; Hispanic Bar Association of
Pennsylvania; New Jersey Women Lawyers
Association; San Francisco Women Lawyers'
Alliance; Pennsylvania National
Organization for Women; Women’s Alliance
for Job Equity; American Association of
University Women, Pennsylvania Division;
American Association of University Women;
3a
AAUW Legal Advocacy Fund; Business and
Professional Women/USA; Center for
Women Policy Studies; National Association
of Commissions for Women; National
Association of Female Executives; National
Organization for Women; National Women's
Law Center; NOW Legal Defense and
Education Fund; Women Employed;
Women’s Legal Defense Fund: Employment
Law Center; California Women's Law Center;
Equal Rights Advocates, Inc.; Northeast
Women's Law Center; and Women and
Employment, Inc.
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
Wolf, Block, Schorr and Solis-Cohen (Wolf)
appeals from a judgm ent of the United States
District Court for the Eastern District of
Pennsylvania granting relief in favor of Nancy
O’Mara Ezold (Ezold) on her claim that Wolf
intentionally discriminated against her on the
basis of her sex in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e
to 2000e-17 (West 1981 & Supp. 1992), when it
decided not to admit her to the Arm's partnership
effective February 1, 1989. At trial Wolf contended
that it denied Ezold admission to the partnership
because her skills in the category of legal analysis
did not meet the firm's standards. The district
court disagreed and found that this articulated
reason was a pretext contrived to m ask sex
discrimination. Wolf argues on appeal that the
4a
district court improperly analyzed the evidence
before it and tha t the evidence, properly analyzed,
does not support the district court’s ultimate
finding of pretext.
This case raises important issues tha t cut across
the spectrum of discrimination law. It is also the
first in which allegations of discrimination arising
from a law firm partnership admission decision
require appellate review after tria l.1 Accordingly,
we have given it our closest attention and, after
an exhaustive examination of the record and
analysis of the applicable law, have concluded that
the district court made two related errors whose
combined effect require us to reverse the Judgment
in favor of Ezold. The district court first
impermissibly substituted its own subjective
judgm ent for that of Wolf in determining that Ezold
met the firm’s partnership standards. Then, with
its view improperly influenced by its own judgm ent
of what Wolf should have done, it failed to see
tha t the evidence could not support a finding that
Wolfs decision to deny Ezold admission to the
partnership was based upon a sexually
discriminatory motive rather than the firm's
assessm ent of her legal qualifications. Accordingly,
we hold not only tha t the district court analyzed
the evidence improperly and that its resulting
finding of pretext is clearly erroneous, bu t also
tha t the evidence, properly analyzed, is insufficient
to support tha t finding and therefore its ultimate 1
1. Price W aterhouse v. H opkins, 490 U.S. 228 (1989), Involved
a n acco u n tin g firm 's denial of p a rtn e rsh ip to a fem ale
a c co u n tan t. T h a t case did proceed to tria l b u t th e appella te
decisions provide gu idance only on th e p a rtie s ' b u rd en s of
proof In a m ixed m otives case. T his case w as no t tried on th a t
theory.
5a
conclusion of discrimination cannot stand. We will
therefore reverse and remand for entry of judgment
in favor of Wolf. This disposition makes it
unnecessary to address the issues raised in Wolfs
appeal concerning the remedy the district court
awarded to Ezold or those in Ezold’s cross-appeal
concerning her claim of constructive discharge.
I.
Ezold sued Wolf under Title VII alleging that
Wolf Intentionally discriminated against her
because of her sex when it decided not to admit
her to the firm’s partnership. She further alleged
that she was constructively discharged by reason
of the adverse partnership decision. The court
bifurcated the issues of liability and damages.
After a lengthy bench trial the district court
rendered its Findings of Fact and Conclusions of
Law on November 29, 1990. See Ezold v. Wolf,
Block, Schorr and Solis- Cohen, 751 F. Supp. 1175
(E.D. Pa. 1990) (Ezold I). It entered judgm ent in
favor of Ezold on her claim for intentional
discrimination and against her on her claim for
constructive discharge.
The district court held tha t the
nondiscriminatory reason articulated by Wolf for
its rejection of Ezold’s candidacy—that her legal
analytical ability failed to meet the firm’s
partnership s tandard—was a pretext. It stated:
Ms. Ezold has established that the defendant’s
purported reasons for its conduct are pretextual.
The defendant promoted to partnership men
having evaluations substantially the same or
inferior to the plaintiffs, and indeed promoted
male associates who the defendant claimed had
6a
precisely the lack of analytical or writing ability
upon which Wolf, Block purportedly based its
decision concerning the plaintiff. . . . Such
differential treatm ent establishes that the
defendant’s reasons were a pretext for
discrimination.
Id. a t 1191-92 (Conclusion of Law (COL) 11). The
district court also held that four instances of
conduct by Wolf supported its finding of pretext:
(1) Ezold was evaluated negatively for being too
involved with women's issues in the firm; (2) a male
associate’s sexual harassm ent of female employees
a t the firm was seen as “insignificant’’ and not
mentioned to the Associates Committee prior to the
partnership decision; (3) Ezold was evaluated
negatively for being very demanding, while male
associates were evaluated negatively for lacking
assertiveness; and (4) Ezold “was the target of
several comments demonstrating [Wolf s]
differential treatm ent of her because she is a
woman.” Id. at 1192 (COL 12).
In holding tha t Ezold had failed to establish that
she was constructively discharged, the district
court stated:
A reasonable person in Ms. Ezold’s position
would not have deemed her working conditions
to be so intolerable as to feel compelled to resign.
Id. (COL 16). This holding became relevant to the
issue of damages. By way of relief, Ezold sought
backpay as well as instatem ent in the firm as a
partner, and if such instatem ent was impractical,
front pay. Wolf argued to the district court that its
holding that Ezold was not constructively
discharged limited her relief to back pay covering
7a
the period from her unlawful denial of admission
to the partnership, effective February 1, 1989, until
the date of her voluntary resignation from the firm
on June 7, 1989. On March 15, 1991, the district
court decided that its holding against Ezold on her
constructive discharge claim did not preclude her
from obtaining relief for the period following her
voluntary resignation. See Ezold v. Wolf, Block,
Schorr and Solis Cohen, 758 F. Supp. 303 (E.D. Pa.
1991) (Ezold II).
The parties then briefed the issue of whether
Ezold properly mitigated her damages as required
by section 706(g)(1) of Title VII, 42 U.S.C.A.
§ 2000e-5(g)(l). On Ju ly 23, 1991, the district
court issued its final memorandum and order. It
ruled that Ezold had properly mitigated her
damages and that her rejection of Wolfs offer to
admit her as a partner as of February 1, 1990 if
she accepted responsibility for its domestic
relations practice did not toll Wolfs liability for
back pay. The court then awarded Ezold back pay
in the am ount of $131,784.00 for the period from
her resignation on Ju n e 7, 1989 to Januaiy 31,
1991. The parties agreed that if the court's
November 27, 1990 and March 15, 1991 orders
were affirmed on appeal, Ezold would be instated
as a partner.2 The court incorporated this
agreement into its orders. The district court also
awarded Ezold attorney's fees and costs. Wolf
timely appealed from the district court’s orders.
Ezold filed a protective cross-appeal from the
2. The d is tric t co u rt 's o rd er also s ta ted th a t if its p rio r o rders
were affirm ed on appeal, it w ould the rea fte r determ ine back
pay for th e period from F ebruary 1, 1991 to the date of Ezold's
in sta tem en t a s a p artn e r.
8a
district court’s denial of her constructive discharge
claim.
II.
Ezold was hired by Wolf as an associate on a
partnership track in Ju ly 1983. She had graduated
in the top third of her class from the Villanova
University School of Law in 1980 and then worked
a t two small law firms in Philadelphia. Before
entering law school, Ezold had accumulated
thirteen years of administrative and legislative
experience, first as an assistan t to Senator
Edmund Muskie, then as contract adm inistrator
for the Model Cities Program in Philadelphia, and
finally as Administrator of the Office of a Special
Prosecutor of the Pennsylvania Department of
Justice.
Ezold was hired at Wolf by Seymour Kurland,
then chairm an of the litigation department. The
district court found tha t Kurland told Ezold during
an interview tha t it would not be easy for her at
Wolf because “she was a woman, had not attended
an Ivy League law school, and had not been on
law review.” Ezold I, 751 F. Supp. a t 1177 (Finding
of Fact (FOF) 18). Subsequent to this meeting, but
prior to accepting Wolfs offer of employment, Ezold
had lunch with Roberta Liebenberg and Barry
Schwartz, both members of the litigation
department. She did not ask them anything about
the firm's treatm ent of women.
Ezold was assigned to the firm's litigation
department. From 1983-87, Kurland was
responsible for the assignm ent of work to
associates in the department. He often delegated
this responsibility to partner Steven Arbittier. As
Ezold acknowledged, many partners bypassed the
9a
formal assignm ent procedure and directly assigned
m atters to associates. The district court found that
Arbittier assigned Ezold to actions that were
“small" by Wolf standards. Id. a t 1178 (FOF 24).
Ezold's performance was reviewed regularly
throughout her tenure pursuan t to Wolfs
evaluation process, which operates as follows: The
Associates Committee, consisting of ten partners
representing each of the firm’s departments, first
reviews the performance of all the firm’s associates
and makes recommendations to the firm's
five-member Executive Committee as to which
associates should be admitted to the partnership.
The Executive Committee then reviews the
partnership recommendations of the Associates
Committee and makes its own recommendations
to the full partnership. The firm's voting partners
consider only those persons whom the Executive
Committee recommends for admission to the
partnership.
Senior associates within two years of partnership
consideration are evaluated annually; non-senior
associates are evaluated semi-annually. The firm's
partners are asked to subm it written evaluations
on standardized forms.3 The partner is asked the
degree of contact he has had with the associate
during the evaluation period. Partners were
instructed tha t the evaluations were to be
completed regardless of the extent of the
evaluating partner's contact or familiarity with the
associate’s work. Ten criteria of legal performance
3. T here w as little change beyond fo rm at In th e evaluation
form s u sed th ro u g h o u t Ezold’s ten u re . We will describe the
evaluation form s in effect in 1987 an d 1988, th e years Ezold
w as a sen io r a sso c ia te being evaluated for adm ission to the
p a rtn e rsh ip .
10a
are listed on the forms in the following order: legal
analysis, legal writing and drafting, research skills,
formal speech, informal speech, judgment,
creativity, negotiating and advocacy, prom ptness
and efficiency. Ten personal characteristics are
also listed: reliability, taking and managing
responsibility, flexibility, growth potential, attitude,
client relationship, client servicing and
development, ability under pressure, ability to
work independently, and dedication. As stated by
Ian Strogatz,4 Chairman of the Associates
Committee: “The normal standards for partnership
include as factors for consideration all of the ones
. . . th a t are contained [on] our evaluation forms."
Jo in t Appendix (App.) a t 1170.
Despite format changes, legal analysis was
always listed as the first criterion to be evaluated.
This criterion was defined on the evaluation forms
used in 1987 and 1988 as the “ability to analyze
legal issues; grasp problems; collect, organize and
understand complex factual issues." Id. a t 3728.
Partners provide grades as well as written
comments on these criteria. The evaluation forms
describe the grades as follows:
-DISTINGUISHED: Outstanding, exceptional;
consistently demonstrates extraordinary
adeptness and quality; star.
-GOOD: Displays particular merit on a consistent
basis; effective work product and performance;
able; talented.
4. At all re levan t tim es, S trogatz served a s ch a irm an of the
A ssociates C om m ittee.
11a
-ACCEPTABLE: Satisfactory: adequate; displays
neither particular merit nor any serious defects
or omissions; dependable.
-MARGINAL: Inconsistent work product and
performance; sometim es below the level of what
you expect from Associates who are acceptable
at this level.
-UNACCEPTABLE: Fails to meet minimum
standard of quality expected by you of an
associate a t this level; frequently below level of
what you expect.
Id. a t 3464 (emphasis in original).
The form asks the evaluating partner to describe
any particular strengths or weaknesses of an
associate. Partners are also asked to indicate their
views on the admission of each senior associate to
the partnership. The evaluation lists five possible
responses: “with enthusiasm ,” “with favor,” "with
mixed emotions,” “with negative feelings" or “no
opinion." Partners are also asked to respond “yes”
or “no” to the following question: “I would feel
comfortable turning over to this Associate to
handle on h is /h e r own a significant m atter for one
of my clients.” Id. a t 3467. Given the num ber of
reviewing partners, the evaluations often contain
a wide range of divergent views.
These evaluations are then compiled and
summarized by the Arm's administrative staff and
organized in books for review by the Associates
Committee. Ezold I, 751 F. Supp. at 1181 (FOF
52). Each member of the Associates Committee is
asked to make an initial assessm ent of the
evaluations pertaining to one of the associates or
candidates for partnership. That committee
12a
member prepares a form entitled “Committee
Member’s Associate Evaluation Summary"
summarizing his or her personal view of each
associate's evaluations. This form is colloquially
referred to as the “bottom line" memo. As found
by the district court, the bottom line memo “is
intended to be [the Associates Committee
member’s] own personal view of what he has
gleaned from the evaluations submitted a t the time
by the partners who submitted evaluation forms,
plus anything in addition that [the Associates
Committee member] has gleaned from any
interviews that he has conducted w ith respect to
those evaluations ." Id. a t 1181 (EOF 53) (emphasis
in original). The bottom line memo also contains
a “grid” reflecting the Associates Committee
member’s summary of the evaluated associate's
grades in legal and personal skills.
The bottom line memo also assesses a senior
associate's prospects for regular partnership
(Category VI) under the following ratings: “more
likely than not," “unclear," “less likely than not"
or “unlikely.” In 1987 and 1988, similar rankings
were used to determine the associate’s potential
for special partnership (Category VII). The Category
VII partnership then in existence conferred a
non-equity “partnership" sta tus upon associates
who fell below the normal standard for admission
as equity partners bu t whose work nevertheless
was making a valuable contribution to the firm.
See id. a t 1177 (FOF 15).
Each member of the Associates Committee
receives copies of the bottom line memo for all
associates before meeting formally to discuss
evaluations. The bottom line memo serves as a
starting point for the Associates Committee's
13a
discussion of each candidate. The Committee
members, using both the bottom line memo and
the administrative sum m aries of the grades and
comments, engage in a process of weighing and
comparing each associate's legal skills and
personal characteristics. The Committee also
conducts interviews of those partners who failed
to subm it written evaluations of an associate
during an evaluation period, submitted an
evaluation tha t requires clarification or asked for
an opportunity to supplem ent the written
evaluation in an interview.5 Strogatz testified that
the Committee has no formal voting procedure. Id.
at 1181 (FOF 57). It ultimately reaches its own
consensus as to each senior associate s
partnership potential and as to each associate’s
performance. It also formulates a performance
review th a t will be given to each associate and
senior associate by a member of the Committee.
The firm’s partners evaluated Ezold twice a year
as an associate and once a year as a senior
associate from October 1983 until the Associates
Committee determined that it would not
recommend her for partnership in September
1988. The district court found that "[i]n the period
up to and including 1988, Ms. Ezold received
strongly positive evaluations from almost all of the
partners for whom she had done any substantial
work.” Id. a t 1182 (FOF 60).6 In making this
finding the district court relied on the evaluations
5. The evaluation form a sk s th e reviewing p a rtn e r w heth er he
or she w ould like to “su p p lem en t a n d /o r explain [the] w ritten
evaluation in a n oral interview w ith a m em ber of the
A ssociates C om m ittee." See, e.g., App. a t 3889, 6467.
6, The d is tric t co u rt quo ted Ezold's evaluations in FOF 61-71.
14a
of Wolf partners Seymour Kurland, Robert Boote,
Steve Goodman, Barry Schwartz, Alan Davis and
Raymond Bradley. Ezold’s overall score in legal
skills in the 1988 bottom line memorandum before
the Associates Committee was a “G" for good. It
was noted tha t “overall" tha t year she received
“stronger grades in intellectual skills than last
time." Id. a t 1183 (FOF 71).
Evaluations in Ezold’s file not mentioned by the
district court show that concerns over Ezold's legal
analytical ability arose early during her tenure at
the firm. In an evaluation covering the period from
November 1984 through April 1985, Arbittier
wrote:
I have discussed legal issues with Nancy in
connection with [two cases], I found her analysis
to be rather superficial and unfocused. I am
beginning to doubt that she has sufficient legal
analytical ability to make it with the firm. . . .
She makes a good impression with people, has
common sense, and can handle routine m atters
well. However these traits will take you ju s t so
far in our firm. I think that due to the nature
of our practice Nancy’s future here is limited.
App. at 3392. That same year Schwartz wrote:
I have worked a great deal with Nancy since my
last evaluation. . . . Both cases are complex,
multifaceted m atters tha t have presented novel
issues to us. While her enthusiasm never wanes
and she keeps plugging away—I’m often left with
a product that demonstrates uncertainty in the
analysis of a problem. After extensive discussions
with me, the analysis becomes a little more
focused, although sometimes I get the sense that
15a
Nancy feels adrift and is Just marching as best
she can to my analytical tune. . . . In my view
her energy, enthusiasm and fearlessness make
her a valuable asset to us. While she may not
be as bright as some of our best associates, her
talents will continue to serve us well.
Id. a t 3392. Also in 1985, partner Donald Joseph
rated Ezold's legal analytical ability as marginal
and wrote “[i]ts [sic] too early to tell but I have
been disappointed on her grasp of the problem, let
alone performance.” Id.
During her next evaluation period from April
through November 1985, Ezold received similar
negative evaluations. Arbittier, Robert Fiebach and
Joseph rated her legal analytical abilities as
marginal. Arbittier wrote:
She took a long time getting [a summary
judgment brief] done and I found it to be stilted
and unimaginative. One of the main
issues —dealing with the issue of notice— she
missed completely and did not grasp our position
. . . . Also, in considering whether to file a
defensive motion . . . she failed to cite me to a
clause in the agreement tha t was highly relevant
leaving me with the impression tha t the motion
could not succeed. I think Nancy tries hard and
can handle relatively straight-forward matters
with a degree of m aturity and judgment, but
when she gets into more complicated areas she
lacks real analytical skill and Just does what she
is told in a mechanical way. She is not up to
our minimal Wolf, Block standards.
16a
Id. a t 3376. Boote made the following report on his
performance review with Ezold after this evaluation
period:
Nancy appeared to accept the judgment, albeit a
little grudgingly, that her analytical, research and
writing ability was not up to our standards and
tha t she should focus on the types of m atters
tha t she can handle effectively. . . . We made it
veiy clear to Nancy that if she pursues general
civil litigation work she is not on track toward
partnership and that her only realistic chance for
partnership in our opinion is to develop a good
reputation for herself in one of the specialized
areas of practice.
Id. a t 3375.
In the evaluation period covering November 1985
to April 1986, Boote wrote the following to the
Associates Committee:
Nancy continues to get mixed reviews. Her pluses
are that she is mature, courageous, pretty good
on her feet and has the capacity to inspire
confidence in clients. Her m inuses are that there
is doubt about her analytic and writing
ability. . . . In considering Nancy’s prospects for
the long range, I think we should bear in mind
that we have made mistakes in the past in letting
people go to other firms who really could have
filled a valuable niche here. Whether Nancy is
such a person, of course, remains to be seen.
Id. a t 3365.
A sum m ary of Ezold’s performance review from
October 1986 prepared by Schwartz stated:
17a
Nancy was advised that several of the lawyers
feel she has made very positive progress as a
lawyer, Sy [Kurland] being one of them. However,
he told her that other lawyers had strong
negative sentiments about her capabilities and
they feel she has a num ber of shortcomings in
the way of complicated analysis of legal problems
and in being able to handle the big complicated
corporate litigation, and therefore, does not meet
the standard for partnership at Wolf, Block. . . .
Both Sy and I urged Nancy to seriously consider
looking for employment elsewhere as she may not
be able to tu rn the tide.
Id. a t 3364.
Although several partners saw improvement in
Ezold’s work, negative comments about her
analytical ability continued up until, and through,
her 1988 senior associate evaluation, the year she
was considered for partnership. A summary of her
evaluations for 1987 and 1988, focusing on the
grades and comments she received in the category
of legal analysis, follows:7
1987 Evaluations
7. B ecause th e reaso n Wolf a rticu la ted for denying Ezold
partn ersh ip w as lack of legal analy tic ability, th is sum m ary
includes n e ith e r positive eva lua tions in o th e r categories upon
which the d is tr ic t co u rt m ade findings n o r evaluations in
w hich th ere w as n e ith e r grade n o r com m ent in the category
of legal analysis . M any of Ezold 's evaluations in o ther
categories were highly com plim en tary an d com pared quite
favorably to th e p a r tn e rs ' evaluations of m ale can d id a tes for
partn ersh ip in th e sam e categories. The d is tric t co u rt's use of
these o th e r favorable evaluations in th e com parative analysis
in su p p o rt of its u ltim ate finding of p re tex t is d iscussed in
Part VII of th is opinion, infra.
18a
Partner Grade (Legal
Name Analysts) Comments
Promislo M “I had minimal contact with
Kurland
Nancy, but I thought she did not
generate ideas . . . or pull the
facts together well and exercise
the best lawyerly judgement. She
seemed somewhat over her head,
but I don’t think she should have
been." Recommended partnership
with “negative feelings.” Id. a t
3854-57.
“[T]here seems to be serious
question as to whether she has
the legal ability to take on large
m atters and handle them on her
own. We have been over this
many times and there is nothing
I can add to what I’ve already said
about Nancy. What I envisioned
about her when I hired her as a
“good, stand-up effective
courtroom lawyer" remains to be
true and I think she has proven
her case. Apparently she has not
proved to the satisfaction of the
firm the other qualities considered
necessary to rise to the top of the
firm.” Recommended partnership
“with mixed emotions.” Id. at
3878-81.8
8. The d is tr ic t co u rt om itted from its findings th is portion of
K u rland 's evaluation concern ing Ezold's legal analy tica l ability.
19a
Alderman A
Boote A
Slight contact. Recommended
partnership with "negative
feelings.” Id. a t 3886-89.
“Nancy has avoided demonstrating
ability in th[e] area [of legal
analysis] because I believe she
lacks it. On the other hand, in
Nancy's case, other qualities
redeem her. . . . I would not want
her in charge of a large legally
complex case, the traditional
measure of a Wolf Block partner."
Recommended partnership “with
favor." Id. a t 3894-97.9
Flaherty A Slight contact. Recommended
partnership with “mixed
emotions.” Id. a t 3918-21.
Joseph
Schwartz G
“I have been singularly
unimpressed with the level of her
ability. . . . She may be fine to
keep for certain smaller matters,
bu t I don’t see her skills as being
those for our sophisticated
practice.” Id. a t 3930-33.
Recommended partnership with
“negative feelings." Id. a t 3933.
“She is excellent in court and
loves to be in that arena. . . . She
remains a little weak in her initial
9. The d is tr ic t c o u rt om itted th is po rtion of Boote's evaluation
from its finding.
20a
analysis of complex legal issues.”
Id. a t 3954-56.10
Dubrow A ”[I]n my one experience we lost a
client, bu t I think Nancy
performed satisfactorily." No
opinion as to partnership
admission. Id. a t 3990-93.
Roberts G Slight contact. Recommended
partnership “with favor." Id. a t
4052-55.
Spitzer G “Little contact, most favorable
impression." Recommended
partnership “with favor.” Id. a t
4060-63.
During the 1987 evaluation period, two partners
viewed Ezold’s eventual admission to the
partnership “with enthusiasm ," sixteen “with
favor,” eight “with mixed emotions” and seven with
“negative feelings.” Id. a t 3346. The Associates
Committee formed a consensus tha t Ezold’s
analytical ability fell below the firm’s standards. It
predicted her partnership chances as “unclear”
and if she was made a partner it would most likely
be a Category VII partner because there was
substantial doubt as to her legal ability. Id. a t
3349. At trial Ezold acknowledged tha t during her
evaluation meeting for this period she was told
tha t “there were partners who criticized [her]
writing ability and questioned [her] ability to
handle complex litigation, perhaps criticized or
10. The d is tr ic t co u rt om itted th is com m ent on legal analysis
from its finding.
21a
questioned [her] ability in the area of legal
analysis.” Id. a t 666.
1988 Evaluations
Partner Grade (Legal
Name Analysis) Comments
Rosenblum A
Temin
Davis
Arbittier
“On a very complicated matter
primarily involving financial
analysis, I am not sure whether
or not [Ezold] grasped analysis
fully. (I am not sure that others
working on project did either
.).” Recommended
partnership with “mixed
emotions." Id. a t 3488-91.
Slight contact. Recommended
partnership “with mixed
emotions." Id. a t 3508-11.
“She will never be a legal
scholar—but we have plenty of
support in that area."
Recommended partnership with
“enthusiasm." Id. a t 3512-15.
“Barely adequate legal skills";
“Her abilities are limited. She
makes a good impression but she
lacks real legal analytical ability."
Recommended partnership with
“mixed emotions." Id. a t 3520-23.
Fiebach M “Nancy has certain strengths
. . . . If directed, she will do a
good job —except that she has
22a
Goldberger
Joseph
Poul G
Simon
limitations with respect to
complex legal issues. However,
when left on her own she does not
do what has to be done until [the]
case is in crisis and she does a
poor job in keeping [the] client
informed." Recommended
partnership with “negative
feelings." Id. a t 3544-47.
Would feel comfortable turning
over a significant m atter for one
of his clients “if not too complex."
“Nancy reputedly can handle
many of our m atters on her own.
If so and reliable others bear
these rumors out, partnership
may be in the cards."
Recommended partnership with
“mixed emotions.” Id. a t 3552-55.
“[H]er abilities to grasp legal
issues from the little I observed
was insufficient to trust her in
major litigation on her own."
Recommended partnership with
“negative feelings.” IdL a t 3560-63.
Slight contact. Recommended
partnership “with favor." Id. a t
3580-83.
“Probably ancient history—but I
do recall my perception that she
does not write well and lacks
intellectual sophistication."
Recommended partnership with
23a
“negative feelings." Id. at 3596-99.
Fala
Roberts
G “Nancy handled a moderate sized
lawsuit for a client of mine. Job
was done well and responsibly.
Result was good." Id. at 3656.
G Slight contact; recommended
partnership with “mixed
emotions." Id. a t 3688-91.
Garber “Experience with her years ago
was unsatisfactory." No opinion
on partnership recommendation.
Id. a t 3756-59.
Berriman G Slight contact; recommended
partnership “with enthusiasm .” Id.
at 3776-79.
Kaplinsky A “She has done a very nice job on
the Home Unity shareholder
litigation. . . . I am probably not
as complimentary as Alan [Davis]
might be. I was never convinced
that she had a complete grasp of
the accounting issues in the
case.” Recommended partnership
“with favor.” Id. a t 3452-55.
McConomy G “Only worked on one m atter for
me. She is doing a super Job."
Recommended partnership “with
favor.” Id. a t 3464-67.
In 1988, ninety-one partners submitted
evaluations of Ezold. Thirty-two, a little more than
one-third, made recommendations with varying
24a
degrees of confidence, for Ezold's admission to
partnership. Seven of those partners recommended
tha t Ezold be made a partner “with enthusiasm,"
fourteen “with favor," six with “mixed emotions,"
four with “negative feelings,” and one with “mixed
emotions/negative feelings.” Id. a t 3318. Three of
the four partners who voted for partnership with
negative feelings were members of Ezold's
department. After reviewing Ezold’s evaluations
and conducting interviews, the Associates
Committee voted 9-1 not to recommend Ezold for
Category VI partnership .11
In a discussion initiated by Davis, the Associates
Committee also debated modifying the partnership
standard as a m atter of general policy or specially
in Ezold’s case because of her other positive
attributes. Davis believed:
although [Ezold] was not up to par on her legal
analytical ability, . . . deficiencies in a particular
area, even though it was a traditional area where
we required a certain superior level, could be
overlooked or relaxed to where there were
sufficiently compensating skills in other areas,
because I felt as chairman that in staffing a case,
I could pu t together the right skills, and we had
enough business where we could fit everybody in
usefully and productively.
Id. a t 1665, 1686. He thought the firm “ju s t ought
to come off [its] standards and be a little more
creative in melding different abilities tha t different 11
11. R oberta Liebenberg, a fem ale litigation p a rtn e r, voted
a g a in s t Ezold 's adm ission . The only A ssociates C om m ittee
m em ber voting in favor of Ezold w as h e r form er neighbor,
R onald W einer.
25a
people might bring." Id. a t 1685. The other
Committee members ultimately rejected this
suggestion.
The Associates Committee told Ezold that she
would not be recommended for admission as a
“Group VI" regular partner effective February 1,
1989 because “too many partners did not believe
she had sufficient legal analytical ability to handle
complex legal issues." Ezold I, 751 F. Supp. at
1189 (FOF 136). It did vote, however, to
recommend her for the sta tus of “Group VH"
special partner that the firm had heretofore made
available to associates who are valuable but fall
below the firm's high standards for full
partnership.12 The continuing existence of that
category was, however, then under review by the
firm’s Executive Committee. It was in fact later
eliminated.
Out of a total of eight candidates in Ezold's
class, five male associates and one female
associate were recommended for regular
partnership. One male associate, Associate X, was
not recommended for either regular or special
partnership.
The Executive Committee decided to review the
Associates Committee's negative recommendation
of Ezold and also to conduct an independent
review of the negative recommendation of Associate
X.13 William Rosoff, former chairman of the
12. “Special p a rtn e rs ," in c o n tra s t to regu lar p a rtn e rs , do not
have the righ t to vote, do no t have any equity in the
partnersh ip an d m ay be rem oved by th e Executive Com m ittee.
In addition, th e benefits provided are inferior to those of
regular p a rtn e rs . Ezold I, 751 F. S upp. a t 1177 (FOF 15).
13. It is no t c lear from the record w heth er su c h an inquiry
26a
Executive Committee, conducted the inquiry.
Rosoff reviewed Ezold's evaluation documents and
interviewed four litigation departm ent partners:
Schwartz, Boote, Arbittier and Fiebach. Rosoff had
learned of the policy disagreement among some of
the firm's partners as to whether the partnership
standard should be relaxed in light of Ezold's other
attributes. He reported to the Executive Committee
tha t it should not recommend Ezold's admission
unless it was prepared to reduce the firm's
partnership standards. The 5-member Executive
Committee voted unanimously not to recommend
Ezold's admission as a regular partner.
On November 16, 1988 Executive Committee
Chairman Charles Kopp met with Ezold and
informed her of the decision. He also told her that
two domestic relations partners had informed the
Committee several days earlier that they were
leaving the firm and that this immediate vacuum
presented an opportunity for her. Id. a t 1189 (FOF
137). He promised that if she agreed to work in
this department, she would be made a regular
partner in one year. Other associates passed over
for partnership in the past had sometimes agreed
to specialize in a certain area where the need arose
and had later made partner. Although Kopp had
little contact with Ezold, he believed that Ezold
could handle the work because of the positive
evaluations of her skills with clients and in the
courtroom and because the practice area did not
require the same complex analysis as the firm's
commercial litigation practice. See id. a t 1189
is a m a tte r of co u rse in connection w ith negative p a rtn e rsh ip
reco m m en d a tio n s.
27a
(FOF 137-38).14 Ezold declined the offer. Kopp told
Ezold tha t the firm nevertheless wanted her to stay
and she could stay on as a litigation associate as
long as she wanted. Id. a t 1189 (FOF 139).
Ezold also met with Rosoff concerning the
domestic relations offer. The district court found
that Rosoff “told her tha t although he could not
assure her of a partnership in the future if she
declined the domestic relations partnership offer,
she would be considered for partnership in the
future.” Id. a t 1190 (FOF 142). He also told her
that she would receive a substantial pay raise the
following Ju ly when sem i-annual raises are given
to associates, but she would not receive the pay
raise being given to the other members of her class
who were recommended for partnership .15
Ezold remained a t the firm, none of her cases
were taken away from her, and Davis, then chair
of the Litigation Department and one of Ezold's
supporters, continued to assign her new cases. On
January 25, 1989, one day after the firm's
14. Ezold testified th a t Kopp told h e r th a t she could learn
the area of th e law in a week. Ezold con tended th a t the offer
of a position in dom estic re la tions, a position w ith allegedly
less esteem in th e firm, is also evidence of d iscrim ination . The
district cou rt found th is d ep artm en t w as form erly headed by
a male, and is cu rren tly h eaded by two m ale sen io r p a rtn e rs .
Ezold /, 751 F. S upp . a t 1190 {FOF 143). We believe th is
abrogates the in ference of d iscrim ination Ezold would have us
draw.
15. After th e A ssociates C om m ittee determ ined th a t it would
not be recom m ending Ezold for p a rtn e rsh ip , it w as decided
not to give h e r th e S ep tem ber 1988 ra ise given to those in
her class who w ere prom oted. Ezold 's sa la ry as a senior
associate w as $ 7 3 ,000 .00 . The low est level regu lar p a rtn e r
earns betw een $1 2 5 ,0 0 0 .0 0 an d $1 4 0 ,0 0 0 .0 0 a year.
28a
partners voted on the admission of new partners,
Ezold began looking for other employment. She
ultimately signed a one-year contract as president
of an environmental consulting firm, a former
client of Wolf, and also took an “of counsel"
position with a suburban law firm. Ezold resigned
from the firm on Ju n e 7, 1989.
III.
The district court had subject m atter jurisdiction
under 28 U.S.C.A. § 1331 (West Supp. 1992) and
42 U.S.C.A. § 2000e-5(f)(3) (West 1981). We have
Jurisdiction over the final orders of the district
court pu rsuan t to 28 U.S.C.A. § 1291 (West Supp.
1992).
IV.
Ezold claims Wolf intentionally discriminated
against her because of her sex. Intentional
discrimination in employment cases fall within one
of two categories: “pretext” cases and
“mixed-motives” cases. See Price W aterhouse v.
Hopkins, 490 U.S. 228, 247 n.12 (1989) (plurality).
In pretext cases, the familiar McDonnell
Doug la s/B u r dine analysis applies. In a mixed
motives case the McDonnell Doug las/B urdine
analysis does not apply, and the plaintiff has the
burden of showing by direct evidence that an
illegitimate factor had a “motivating" or
“substantial” role in the employment decision. Id.
a t 258. This theory has been codified in the Civil
Rights Act of 1991. See 42 U.S.C.A. § 2000e-2(m)
(West Supp. 1992). If the plaintiff makes such a
showing, the burden shifts to the employer to
prove by a preponderance of the evidence “that it
would have reached the same [employment]
29a
decision . . . even in the absence o r the
impermissible factor. Hopkins, 490 U.S. at 244-45.
There is some uncertainty in the law about the
sort of direct evidence a plaintiff m ust show to
shift the burden to an employer in a mixed motives
case, see Tyler v. Bethlehem Steel Corp., 958 F.2d
1176, 1183 (2d Cir.), cert, denied, 60 U.S.L.W.
3860 (U.S. Oct. 5, 1992) (No. 91-1975), but we
need not address that issue here as Ezold
proceeded only under the McDonnell
Douglas/Burdine framework. See Transcript of Oral
Argument, a t 46-47 (“Your Honor . . . I intended
to say that this case followed standard McDonnell
Douglas and Burdine. . . . This is a pretext
case.”). This is not a mixed-motive case. The issue
in this case is “whether illegal or legal motives,
but not both, were the ‘true' motives behind the
[partnership] decision." Lockhart v. W estinghouse
Credit Corp., 879 F.2d 43, 49 (3d Cir. 1989); see
also Price W aterhouse, 490 U.S. a t 260 (White, J.,
concurring).
Therefore, before considering Wolfs contentions,
we think it wise to revisit the alternating burdens
of proof in a Title VII discrimination case under
the now familiar process set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
and Texas Dep’t o f Community Affairs u. Burdine,
450 U.S. 248, 252-56 (1981). See, e.g., Bennun v.
Rutgers State Univ., 941 F.2d 154, 170 (3d Cir.
1991), cert, denied, 112 S. Ct. 956 (1992); Roebuck
u. Drexel Univ., 852 F.2d 715, 726-27 (3d Cir.
1988). Ezold relied on this particular method of
circumstantial proof of discrimination at trial. The
plaintiff m ust first establish by a preponderance
of the evidence a prima facie case of
discrimination. Burdine, 450 U.S. a t 252;
30a
Bellissimo u. W estinghouse Elec. Corp., 764 F.2d
175, 179 (3d Cir. 1985), cert, denied, 475 U.S.
1035 (1986), abrogated on other grounds. Price
W aterhouse u. Hopkins, 490 U.S. 228 (1989). The
plaintiff can establish a prima facie case by
showing tha t she is a member of a protected class;
that she was qualified for and rejected for the
position; and th a t non-members of the protected
class were treated more favorably. Roebuck, 852
F.2d at 726 (citing McDonnell Douglas, 411 U.S.
a t 802); see Burdine, 450 U.S. a t 252-53. After the
plaintiff has established a prima facie case, the
burden shifts to the defendant to produce evidence
of a legitimate, nondiscriminatory reason for the
employee's rejection. Burdine, 450 U.S. a t 252;
Bellissimo, 764 F.2d a t 179. If the defendant’s
evidence creates a genuine issue of fact, the
presum ption of discrimination drops from the case.
Burdine, 450 U.S. a t 254-55; Bellissimo, 764 F.2d
a t 179. Then, the plaintiff, since she retains the
ultimate burden of persuasion, m ust prove, by a
preponderance of the evidence, that the
defendant’s proffered reasons were a pretext for
discrimination. Burdine, 450 U.S. a t 257; Chipollini
u. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.)
(in banc), cert, denied, 483 U.S. 1052 (1987);
Bellissimo, 764 F.2d at 180.
The parties do not dispute the district court's
conclusion of law that Ezold demonstrated a prima
facie case, in particular tha t she was “qualified”
for admission to the partnership. While “more than
a denial of promotion as a result of a dispute over
qualifications” m ust be shown to prove pretext, see
Molthan v. Temple Univ., 778 F.2d 955, 962 (3d
Cir. 1985), such a dispute will satisfy the plaintiffs
prima facie hurdle of establishing qualification as
31a
long as the plaintiff dem onstrates that “[s|he was
sufficiently qualified to be among those persons
from whom a selection, to some extent
discretionary, would be made." Bennun, 941 F.2d
at 171 (quoting Roebuck, 852 F.2d at 726). In Title
VII cases involving a dispute over “subjective"
qualifications, we have recognized that the
qualification issue should often be resolved in the
second and third stages of the McDonnell
Doug las/B ur dine analysis, to avoid putting too
onerous a burden on the plaintiff in establishing
a prima facie case, but we have refused to adopt
a blanket rule. Fowle v. C & C Cola, 868 F.2d 59,
64 (3d Cir. 1989). Because the prima facie case is
easily made out, it is rarely the focus of the
ultimate disagreement. Healy v. New York Life Ins.
Co., 860 F.2d 1209, 1214 n .l (3d Cir. 1988), cert,
denied, 490 U.S. 1098 (1989). We agree with the
district court's conclusion tha t favorable
evaluations from partners with whom Ezold
worked, and a score of “G” on her 1988 bottom
line memo, demonstrate that she was qualified for
partnership consideration. See Ezold I, 751 F.
Supp. at 1191 (COL 6).
The defendant may rebut the presumption of
discrimination arising out of the plaintiffs prima
facie case by producing evidence that there was a
“legitimate, nondiscriminatory reason" why the
plaintiff was rejected. Burdine, 450 U.S. at 254;
McDonnell Douglas, 411 U.S. a t 802. The Supreme
Court in Burdine said:
[T]he defendant m ust clearly set forth, through
the introduction of admissible evidence, the
reasons for the plaintiff s rejection. The
explanation provided m ust be legally sufficient to
32a
justify a judgm ent for the defendant. If the
defendant carries this burden of production, the
presumption raised by the prima facie case is
rebutted, and the factual inquiry proceeds to a
new level of specificity. Placing this burden of
production on the defendant thus serves
simultaneously to meet the plaintiffs prima facie
case by presenting a legitimate reason for the
action and to frame the factual issue with
sufficient clarity so that the plaintiff will have a
full and fair opportunity to demonstrate
pretext. . . .
450 U.S. a t 255-56.
The burden then shifts to the plaintiff to show
tha t the defendant’s articulated reasons are
pretextual. Id. a t 256. This burden merges into the
plaintiffs ultimate burden of persuading the court
tha t she has been the victim of intentional
discrimination. Id. The plaintiff m ust demonstrate
“by competent evidence that the presumptively
valid reason]] for [the alleged unlawful employment
action] [was] in fact a coverup for a . . .
discriminatory decision.” McDonnell Douglas, 411
U.S. a t 805. Explicit evidence of
discrimination — i.e., the “smoking gun” —is not
required. See Bennun, 941 F.2d a t 171; Lockhart
v. W estinghouse Credit Corp., 879 F.2d 43, 48 (3d
Cir. 1989). A plaintiff can establish pretext in one
of two ways: “either directly by persuading the
court tha t a discriminatory reason more likely
motivated the employer or indirectly by showing
that the employer’s proffered reason is unworthy
of credence.” Burdine, 450 U.S. a t 256.
In proving tha t the employer's motive was more
likely than not the product of a discriminatory
33a
reason instead of the articulated legitimate reason,
sufficiently strong evidence of an employer's past
treatment of the plaintiff may suffice. See Patterson
v. McLean Credit Union, 491 U.S. 164, 188
(1989);16 McDonnell Douglas, 411 U.S. at 804. The
employer's “general policy and practice with
respect to minority employment" may also be
relevant. McDonnell Douglas, 411 U.S. a t 804-05.
Alternately, if a plaintiff produces credible evidence
that it is more likely than not that “the employer
did not act for its proffered reason, then the
employer's decision remains unexplained and the
inferences from the evidence produced by the
plaintiff may be sufficient to prove the ultimate
fact of discriminatory intent.” Chipollini, 814 F.2d
at 899.
Wolfs articulated nondiscriminatory reason for
denying Ezold's admission to the partnership was
that she did not possess sufficient legal analytical
skills to handle the responsibilities of partner in
the firm's complex litigation practice. Ezold
attempted to prove tha t Wolf s proffered
explanation was “unworthy of credence" by
showing she was at least equal to, if not more
qualified than, similarly situated males promoted
to partnership. She also contended that her past 16
16. This s ta tem en t in Patterson is in conform ity w ith the law
th a t pre-existed Patterson a n d is n o t affected by the Civil
Rights Act of 1991. See R u sh v. M cDonald’s Corp., 966 F.2d
1104, 1119-20 (7th Cir. 1992) (section 101 of Civil Rights Act
of 1991 o v ertu rns portion of Patterson holding th a t
proscription of racial d iscrim ination in m ak ing of con trac t
under 42 U.S.C.A. § 1981 applies only to refusa ls to hire and
promotions rising to level of o pportun ity for “new and d istinc t
relation" betw een em ployer an d employee) (quoting Patterson,
491 U.S. a t 185)).
34a
treatm ent at the firm showed Wolfs decision was
based on a discriminatory motive rather than the
legitimate reason of deficiency in legal analytical
ability th a t the firm had articulated.
V.
From this overview of the law, we turn to the
specifics of the district court’s analysis, its
findings and the parties’ contentions concerning
them. The district court compared Ezold to eight
successful male partnership candidates, Associates
A-H. It found:
The test that was put to the plaintiff by the
Associates Committee that she have outstanding
academic credentials and that before she could
be admitted to the most junior of partnerships,
she m ust demonstrate that she had the
analytical ability to handle the most complex
litigation was not the test required of male
associates.
Ezold /, 761 F. Supp. at 1183 (FOF 73). The district
court then concluded:
Ms. Ezold has established that the defendant’s
purported reasons for its conduct are pretextual.
The defendant promoted to partnership men
having evaluations substantially the same or
inferior to the plaintiffs, and indeed promoted
male associates who the defendant claimed had
precisely the lack of analytical or writing ability
upon which Wolf, Block purportedly based its
decision concerning the plaintiff. The defendant
is not entitled to apply its standards in a more
“severe’’ fashion to female associates. . . . Such
differential treatm ent establishes that the
35a
defendant's reasons were a pretext for
discrimination.
Id.. at 1191-92 (COL 11) (citations omitted).
Wolf says this finding of pretext is wrong.
Analyzing its contentions, we perceive two reasons
why this is so. First, the district court's finding
that Ezold was required to have outstanding
academic credentials before she could be admitted
to partnership is without factual support in the
record. The only evidence in the record that Wolf
considered Ezold’s academic record is limited to
the original decision to hire Ezold and to
assignments given to Ezold early in her
employment with Wolf, issues we consider in Part
IX, infra. Second, in its analysis, the district court
did not focus on Wolfs articulated reason for
denying Ezold partnership —lack of analytic ability
to handle complex litigation. Instead, the district
court first substituted its own general standard for
the qualities Wolf believed were essential to law
firm partnership. Then, applying its own incorrect
standard of comparison, the district court did not
realize that a comparison of Ezold's legal analytic
ability with that of the successful males could not
support a finding of pretext. Overall, Ezold's
evaluations in that category were not as good as
that of even the least capable male associate who
was offered a partnership position.
VI.
Wolf contends tha t in all aspects of its analysis
the district court improperly substituted its own
subjective judgm ent—not only concerning what the
firm’s partnership standard should be —but also
concerning whether Ezold met this standard.
36a
Specifically, it alleges that the district court
ignored the negative evaluations concerning
Ezold's legal analytical ability that are in the
record; looked beyond the criterion of legal
analysis, Wolfs articulated nondiscriminatory
reason, in comparing Ezold to male associates
admitted to the partnership; failed to make
findings concerning male associates denied
admission to the partnership based on their
deficient legal analytical ability; and excluded from
evidence the evaluation files of female associates
admitted to the partnership who received
criticisms similar to male associates admitted to
the partnership in areas other than legal analysis.
Initially, Wolf argues our review of these issues is
plenary.
Wolf relies on Logue v. International
Rehabilitation Associates, Inc., 837 F.2d 150 (3d
Cir. 1988), for the proposition that we exercise
plenary review over the district court's
determinations on these questions. Ezold responds
tha t Wolf is trying to obtain plenary review by
couching a challenge to the sufficiency of the
evidence as legal error in the selection of the
appropriate standards for determining
discrimination. In Logue the defendant asserted on
appeal th a t the district court incorrectly applied
the legal standard for sex discrimination by failing
to address and make findings of fact on all of the
legitimate, nondiscriminatory reasons it offered in
support of its termination of the plaintiffs
employment. Id. a t 153. We held that by failing to
address all of the defendant's proffered reasons the
district court erred as a m atter of law, misapplied
the legal standard governing sex discrimination
37a
and deprived the defendant of the full trial process
contemplated by Burdtne. Id. a t 154.
This case is distinguishable from Logue. Here,
the district court did consider Wolfs articulated
nondiscriminatory reason and did make findings
upon it. Wolf contends the district court’s findings
are incomplete and that those it did make do not
support its ultimate finding of pretext. Plenary
review is appropriate in order to determine the
extent to which essential findings are missing. The
district court's refusal to credit or make findings
concerning all of Wolfs proffered evidence,
however, does not subject its express findings to
plenary review. Those findings cannot be set aside
unless they are clearly erroneous. A finding
becomes clearly erroneous “when although there is
evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed."
Anderson v. City o f B essem er City, 470 U.S. 564,
573 (1985) (quoting United S ta tes v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)). When
there are two permissible views of the evidence,
the district court’s choice of one view cannot be
clearly erroneous. Id. a t 574.
The district court’s resolution of the ultimate
issue whether Wolfs reason for denying Ezold's
admission to the partnership was a pretext is a
finding of fact subject to the clearly erroneous
standard set forth in Federal Rule of Civil
Procedure 52(a). See id. a t 573; Bellissimo, 764
F.2d at 179. We may reverse the district court on
this finding of fact only if the evidence is
insufficient to permit a rational factfinder to infer
that Wolfs assertion tha t Ezold was wanting in
38a
legal analytic ability was a m ask for unlawful sex
discrimination.
Wolfs disagreement with the method of analysis
the district court employed leads naturally to its
challenge to the sufficiency of the evidence to
support the district court’s finding of pretext and
its ultimate conclusion of unlawful discrimination.
Thus, Wolf contended at oral argum ent before this
Court: ”[t]here is no proof, in this case, of a
gender-driven result." Transcript a t 59. In
considering a challenge to the sufficiency of the
evidence, we m ust determine based on our own
“comprehensive review of the entire record”
whether Ezold has satisfied her ultimate burden
of proving intentional sex discrimination. Bennun,
941 F.2d at 170; Bellissimo, 764 F.2d a t 178-79.
In doing so, we view the evidence in the light most
favorable to Ezold. See Roebuck, 852 F.2d at
727-28 (citing Dreyer v. Arco Chem. Co., 801 F.2d
651, 654 (3d Cir. 1986), cert, denied, 480 U.S. 906
(1987)). We again defer to the district court's
factual findings, including once more its ultimate
finding, and we cannot reverse any of them unless
they are clearly erroneous. Bellissimo, 764 F.2d at
178-79.
VII.
Wolfs articulated reason for refusing to offer
Ezold a partnership was its belief, based on a
subtle and subjective consensus among the
partners, that she did not possess sufficient legal
analytic ability to handle complex litigation. Wolf
never contended that Ezold was not a good
courtroom lawyer, dedicated to her practice, and
good with clients. Instead, many partners felt,
because of the level of her legal analytical ability,
39a
that she could not handle partnership
responsibilities in the firm's complex litigation
practice. Absent evidence to show that legal
analytic ability was not a necessary precondition
for partnership at Wolf, the district court's opinion
about Ezold's comparative strengths in the other
categories on the evaluation form is immaterial.
A.
The record does not show that anyone was taken
into the partnership without serious consideration
of their strength in the category of legal analytic
ability.17 The evaluations specifically asked each
partner whether he or she would feel comfortable
turning over to the partnership candidate “to
handle on h is /h er own a significant m atter for one
of my clients.” See App. at 3423. Several of the
partners' responses to this question on Ezold's
evaluations show clear concern about the depth of
her legal analytical capabilities. See, e.g., App. at
3348 (“I would not want her in charge of a large
legally complex case, the traditional measure of a
Wolf, Block partner."). This same question,
reflecting a requirement that an applicant exhibit
analytical abilities sufficient to meet Wolfs
perception of the firm's standard, was considered
throughout the firm's evaluations of the male
associates with whom Ezold was competing. See,
e.g., App. at 4257 (“I Just am concerned if he could
‘first chair’ a case.”); App. at 4823 (“He [Associate
H] can handle the m ost complex litigation we
17. Though th e record ind ica tes th a t perceived legal analytic
ability is a n ecessa ry condition for p a rtn e rsh ip a t Wolf, it, in
and of itself, is no t a n ecessary an d sufficient condition.
Otherwise, the rem ain ing categories on the evaluation form
would be superfluous.
40a
have."); App. at 4532 (“Based on [Associate C’s]
ability to analyze a legal problem I could feel
comfortable in turning over my best client to him
for a significant matter."); App. a t 5044 (“[There
are] questions about his intellectual strength, his
ability to manage complex transactions and his
level of attention to detail"); App. at 4696 (“[H]e
ju s t doesn't have the high level of intelligence we
need to handle complex legal questions."). Ezold
herself acknowledged at trial that because of the
nature of Wolfs litigation practice, its litigators
devote m uch more time to legal analysis than
in-court trial work.
Davis, a member of the Associates Committee
who favored partnership for Ezold, testified that he
recognized her shortcomings in the area of legal
analytic ability. Thus, he advocated a relaxation of
the partnership standard to accommodate her
because he believed th a t her other skills
“outweighed whatever deficiencies she had in the
legal ability area." App. a t 1684. The Associates
Committee and the Executive Committee ultimately
refused to relax the firm’s standards. Such a
refusal to relax standards, however, is not evidence
of discrimination.
Wolf reserves for itself the power to decide, by
consensus, whether an associate possesses
sufficient analytical ability to handle complex
m atters independently after becoming a partner. It
is Wolfs prerogative to utilize such a standard. In
Billet v. CIGNA Corp., 940 F.2d 812 (3d Cir. 1991),
an age discrimination case, we stated that
“[bjarring discrimination, a company has the right
to make business judgm ents on employee status,
particularly when the decision involves subjective
factors deemed essential to certain positions.” Id.
41a
at 825. We stated again that “[a] plaintiff has the
burden of casting doubt on an employer's
articulated reasons for an employment decision.
Without some evidence to cast this doubt, this
Court will not interfere in an otherwise valid
management decision." Id. at 828 (citing Lucas v.
Dover Corp., 857 F.2d 1397, 1403-04 (10th Cir.
1988) (a court will not second guess business
decisions made by employers, in the absence of
some evidence of impermissible motives)); see Loeb
v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir.
1979) (“While an employer's judgm ent or course of
action may seem poor or erroneous to outsiders,
the relevant question is simply whether the given
reason was a pretext for illegal discrimination.").
The partnership evaluation process at Wolf,
though formalized, is based on judgment, like most
decisions in hum an institutions. A consensus as
to that judgm ent is the end result of Wolfs formal
process. In that process, the Associates Committee
has the role of collecting and weighing hundreds
of evaluations by partners with diverse views
before reaching its consensus as to a particular
associate's abilities. The consensus the Associates
Committee reaches is then passed on to the
Executive Committee. After its review and, at least
in Ezold's case, additional independent
investigation, the Executive Committee subm its its
final recommendation to the partners for a vote.
The differing evaluations the partners first
submit to the Associates Committee are often
based on hearsay or reputation. No precise
theorem or specific objective criterion is employed.
C/. Bennun, 941 F.2d at 179 (not "unwarranted
invasion" of college's tenure process for district
court “to determine tha t [professor] was held to
42a
higher standards in objective terms, Le. num ber of
publications") (emphasis added). We have
cautioned courts on several occasions to avoid
unnecessary intrusion into subjective promotion
decisions in the analogous context of academic
tenure. While such decisions are not insulated
from judicial review for unlawful discrimination,
it is clear that courts m ust be vigilant not to
intrude into that determination, and should not
substitute their judgm ent for that of the college
with respect to the qualifications of faculty
members for promotion and tenure.
Determinations about such m atters as teaching
ability, research scholarship, and professional
stature are subjective, and unless they can be
shown to have been used as the mechanism to
obscure discrimination, they m ust be left for
evaluation by the professionals . . . .
Id. a t 181 (Sloviter, C.J., dissenting from denial of
petition for rehearing) (quoting Kunda v.
Muhlenberg College, 621 F.2d 532, 548 (3d Cir.
1980)). These cautions against “unwarranted
invasion or intrusion" into m atters involving
professional Judgments about an employee’s
qualifications for promotion within a profession
inform the remainder of our analysis.
B.
In Ezold's case, the district court correctly
recognized the legal premise that should have
governed its result: Title VII prohibits only
“discrimination." Therefore, “consideration of the
practices of the [firm] toward the plaintiff m ust be
evaluated in light of its practices toward the
43a
allegedly more favored group, in this case males."
Kunda, 621 F.2d at 538.
The district court, however, failed to apply this
legal premise to the evidence before it. It disagreed
not only with Wolfs assessm ent of Ezold's ability
to meet Wolfs standards, but also with Wolfs
partnership standards themselves. For example, it
found:
In the magnitude of its complexity, a case may
have a senior partner, a younger partner, and an
associate(s) assigned to a case. Accordingly,
requiring the plaintiff to have the ability to
handle on her own any complex litigation within
the firm before she was eligible to be a partner
was a pretext.
Ezold I, 751 F. Supp. at 1188 (FOF 121). The
district court disagreed with Wolfs decision not to
overlook Ezold's deficiency in legal analysis because
of her other skills and attributes, but the court is
not a member of Wolfs Associates Committee or
Executive Committee. Its belief that Wolfs high
standard of analytical ability was unwise in light
of the staffing of senior partners on complex cases
does not make Wolfs standard a pretext for
discrimination.
The evaluations that the district court did rely
upon in making its finding of pretext praised Ezold
for skills other than legal analysis, such as client
relations and ability in court, tha t Wolf never
disputed she possessed. Where an employer
produces evidence th a t the plaintiff was not
promoted because of its view that the plaintiff
lacked a particular qualification the employer
deemed essential to the position sought, a district
court should focus on the qualification the
44a
employer found lacking in determining whether
non-members of the protected class were treated
more favorably. W ithout such a limitation, district
courts would be routinely called upon to act as
members of an employer’s promotion board or
committee. It would subjectively consider and
weigh all the factors the employer uses in reaching
a decision on promotion and then make its own
decision without the intimate knowledge of the
history of the employer and its standards that the
firm's decisionmakers use in judging the degree to
which a candidate exhibits a particular
qualification tha t the employer has decided is of
significance or primary importance in its
promotion process. Pretext is not established by
virtue of the fact that an employee has received
some favorable comments in some categories or
has, in the past, received some good evaluations.
See, e.g., Billet, 940 F.2d at 826: Turner u.
Schering-Plough Corp., 901 F.2d 335, 343-44 (3d
Cir. 1990); Healy, 860 F.2d a t 1215; see also
Frieze v. Boatm en’s Bank, 950 F.2d 538, 541 (8th
Cir. 1991) (“An employer rating an employee as
competent discredits the employer's stated reason
for discharging the employee, however, only when
the employer's stated reason is the employee's
general incompetence.") (emphasis added). It was
not for the district court to determine tha t Ezold's
skills in areas other than legal analysis made her
sufficiently qualified for admission to the
partnership.
The district court's method of comparing Ezold
to “similarly situated” male associates admitted to
the partnership points up this initial flaw in its
analysis. It engaged in a “pick and choose"
selection of various comments concerning the male
45a
associates' personalities, work habits, and other
criteria besides legal analysis, conducted its own
subjective weighing process and then found that
“(m]ale associates who received evaluations no
better than [Ezold] and sometimes less favorable
than [her] were made partners.” Ezold I, 751 F.
Supp. at 1184 (FOF 75). In doing so, the district
court made no reference to the many favorable
evaluations of the analytical ability of these male
associates.
Hopkins v. Price Waterhouse, 618 F. Supp. 1109
(D.D.C. 1985), a j fd in relevant part, 825 F.2d 458
(D.C. Cir. 1987), rev'd on other grounds, 490 U.S.
228 (1989) (plurality), is instructive. There the
dispute centered in part on whether Price
W aterhouse’s concern about the plaintiffs
interpersonal skills was a legitimate,
nondiscriminatoiy reason to deny her partnership,
or whether it was unworthy of credence. The
district court held tha t ”[i]t is clear tha t the
complaints about the plaintiffs interpersonal skills
were not fabricated as a pretext for
discrimination." 618 F. Supp. at 1114.
Contemporaneous evaluations “conducted well
before the plaintiff was proposed for partnership”
reflected num erous criticisms of her interpersonal
skills, and “[e]ven partners who strongly supported
her partnership candidacy acknowledged these
deficiencies." Id. The plaintiff in Hopkins had
contended tha t men with problems in
interpersonal skills were invariably admitted to the
partnership. The district court disagreed, stating:
[T]he plaintiff has identified two male candidates
who were criticized for their interpersonal skills
because they were perceived as being aggressive,
46a
overbearing, abrasive or crude, but were
recommended by the Policy Board and elected
partner. Price Waterhouse points out tha t in both
cases the Policy Board expressed substantial
reservations about the candidates' interpersonal
skills bu t ultimately made a "business decision"
to admit the candidates because they had skills
which the firm had a specific, special need [for]
and the firm feared tha t their talents might be
lost if they were pu t on hold. . . . In addition,
these candidates received fewer evaluations from
partners recommending that they be denied
partnership and the negative comments on these
candidates were less intense than those directed
at the plaintiff.
Id. a t 1115.18
The district court's comparison of Ezold with the
successful male candidates in categories other
than legal analytic ability does not lend support
to its ultimate finding of pretext. The district court
could not overturn Wolfs judgm ent that Ezold did
not meet its standards for legal analytic ability
without finding that Wolfs conclusions as to
Ezold’s legal analytic ability were pretextual. That
finding, in order to stand, has to be based on
evidence showing either tha t Wolfs asserted
reason for denying Ezold a partnership position
was not credible —either through comparison of her
ability in that category, as Wolf perceived it, with
18. We recognize th a t th e conclusions In th e s ta te m e n t we
quo te from H opkins w ere m ade by th e factfinder. N evertheless,
we th in k th e quo ted language, correctly se ttin g forth the basis
on w hich com parison m u s t be m ade, reflects th e legal s ta n d a rd
th a t th e d is tric t co u rt w as requ ired to apply to the evidence
before it in Ezold 's case.
47a
the successful male associates, or by evidence
showing tha t Wolfs decision not to admit Ezold to
the partnership was more likely motivated by a
discriminatory reason than by her shortcomings in
legal analytic ability.
C.
Were the factors Wolf considered in deciding
which associates should be admitted to the
partnership objective, as opposed to subjective, the
conflicts in various partners' views about Ezold’s
legal analytical ability that this record shows might
amount to no more than a conflict in the evidence
that the district court as factfinder had full power
to resolve. The principles governing valid
comparisons between members of a protected
minority and those fortunate enough to be part of
a favored majority reveal an obvious difficulty
plaintiffs m ust face in an unlawful discrimination
case involving promotions that are dependent on
an employer’s balanced evaluation of various
subjective criteria. This difficulty is the lack of an
objective qualification or factor that a plaintiff can
use as a yardstick to compare herself with
similarly situated employees. In Bennun, the
reason Rutgers assigned for denying Bennun's
promotion to the position of tenured professor was
the "poor quality and insufficient quantity of his
research.” Berman, 941 F.2d at 177. Because
Bennun's research product could be measured
against the judgm ent of his academic peers and,
by that judgment, objectively compared with the
research of a successful candidate for professor,
Bennun was able to show the reason the
University advanced for denying him the rank of
professor was incredible. He did so by proving that
48a
he had published a higher num ber of articles than
the similarly situated non-hispanic member of the
faculty who had been granted professorial rank
and tha t his articles had received more favorable
reviews from internationally known scholars. Id.
By objectively comparing Bennun's published
research with tha t of the favored candidate, the
district court rationally found tha t Bennun was
held to higher standards than a non-Hispanic.
This Court held tha t this finding was not clearly
erroneous and thus laid a proper foundation for
the district court’s circum stantial inference that
Rutgers’ articulated reason for denying Bennun
promotion was a pretext. Id. a t 179-80.
Similarly, in K unda , the district court held that
Muhlenberg’s asserted reason for not promoting
Kunda, lack of a m aster’s degree, “was pretextual
in view of its promotion of male members of the
departm ent who did not have m asters’ degrees.”
621 F.2d at 539. We affirmed, stating:
Muhlenberg’s attem pt to explain and distinguish
each of the three situations [in which male
members without m aster’s degrees were
promoted] raised a factual issue which the trier
of fact decided against it. We cannot say tha t the
record is barren of any evidence to support the
trial court’s findings, and therefore will affirm its
ultimate conclusion tha t plaintiff was
discriminated against on the basis of sex in the
denial of a promotion.
Id. a t 545.
The record shows a 9-1 consensus among the
members of the Associates Committee tha t Ezold’s
admission to the partnership was “unlikely"
because of their overall assessm ent of her legal
49a
analytical ability. It was followed by the
unanimous negative vote of the Executive
Committee and the entire partnership. The positive
evaluations of some partners concerning Ezold's
skills in areas other than legal analysis do not
show the reason Wolf advanced for denying
partnership to Ezold was incredible and so a
pretext for discrimination.
Ezold, unlike the plaintiffs in Bennun and
Kunda, is not able to point to an objectively
quantifiable factor by which Wolf compared her
qualifications against those of the male associates
considered for partnership. Wolfs articulated
reason, lack of legal analytic ability to handle
complex litigation, like all its other criteria,
involves subjective assessm ent of an associate's
manifested behavior and performance.19
D.
Here, the district court not only based its finding
of pretext on invalid comparisons, but it also
ignored evidence Wolf produced to compare Ezold’s
shortcomings with the strengths of the successful
male candidates in the category of legal analytic
ability.
Thus, Wolf also argues the district court ignored
significant evidence by focusing only on the
positive evaluations in Ezold’s files and turning a
blind eye to the many negative criticisms
concerning her analytic ability. Compare Ezold I,
751 F. Supp. a t 1183 with Typescript, supra at
19. Among th e factors o th e r th a n legal analy tic ability th a t
Wolf considered a re “creativity," "negotiating an d advocacy,"
attitude," “ability u n d e r p ressu re" an d “dedication." See
typescript supra a t 10 (listing crite ria of legal perform ance and
personal ch a rac te ris tic s app earin g on evaluation form).
50a
14-22. Wolfs attack in this respect is even more
serious in its consequence than its attack on the
court's use of comparisons between Ezold and the
successful male candidates in categories other
than legal analytic ability. The court's improper
comparison of Ezold and the successful males in
categories other than legal analytic ability would
merely require a rem and for appropriate
comparison. If, however, Ezold is unable to show
tha t she compared favorably in the category of
legal analytic ability with at least one of the
successful male candidates, she will have failed to
show th a t Wolf did not pass her over for the
legitimate reason it asserted. If she fails in that
respect, she loses the benefit of the inference of
unlawful discrimination tha t arises when the
employer's legitimate articulated reason is shown
not to be the real reason for the employer's
discriminatory action. Absent tha t inference, Ezold
cannot prevail on her McDonnell D ouglas/Burdine
theory unless she has produced direct evidence
independently sufficient to show discriminatory
anim us, an issue we consider in Part IX, infra. See
Burdine, 450 U.S. a t 254-56. Compare McDonnell
Douglas, 411 U.S. a t 801 (The broad, overriding
interest, shared by employer, employee, and
consumer, is efficient and trustworthy
workmanship assured through fair and . . .
neutral employment and personnel decisions.")
with Burdine, 450 U.S. a t 259 (Title VII, however,
does not demand that an employer give
preferential treatm ent to minorities or women.")
(citing 42 U.S.C.A. § 2000e-2(J)).
We are not unmindful of the difficult task a
plaintiff faces in proving discrimination in the
application of subjective factors. It arises from an
51a
inherent tension between the goal of all
discrimination law and our society's commitment
to free decisionmaking by the private sector in
economic affairs.
The fact tha t Wolf s articulated reason for
rejecting Ezold, lack of legal analytical ability,
involves subjective and not objective factors
subject to easy m easurem ent does not, therefore,
insulate the partnership decision from all review.
When an employer relies on its subjective
evaluation of the plaintiffs qualifications as the
reason for denying promotion, the plaintiff can
prove the articulated reason is unworthy of
credence by presenting persuasive comparative
evidence that non-members of the protected class
were evaluated more favorably, i.e., their
deficiencies in the same qualification category as
the plaintiffs were overlooked for no apparent
reason when they were promoted to partner.20
A plaintiff does not establish pretext, however,
by pointing to criticisms of members of the
non-protected class, or commendation of the
plaintiff, in categories the defendant says it did
not rely upon in denying promotion to a member
of the protected class. Such comments may raise
doubts about the fairness of the employer’s
decision. “The fact that a court may think that the
employer misjudged the qualifications of the
applicant does not in itself expose him to Title VII
liability, although this may be probative of whether
the employer’s reasons are pretexts for
20. As d iscu ssed infra, the p lain tiff can also prove th a t
despite the em ployer's a rticu la ted reason , a d iscrim inatory
reason "more likely" m otivated the em ployer's decision.
Burdine, 450 U.S. a t 256.
52a
discrim ination.” Burdine, 450 U.S. a t 259; see also
Billet, 940 F.2d a t 825. It does not, however,
always prove the employer's reason is “unworthy
of credence" in and of itself. See McDonnell
Douglas, 411 U.S. a t 804-05. Evidence establishing
such incredibility m ust show that the standard or
criterion the employer relied on was "obviously
weak or implausible."21 Villanueva v. Wellesley
College, 930 F.2d 124, 131 (1st Cir.), cert, denied,
112 S. Ct. 181 (1991). Ezold’s evidence does not
make this showing.
On this issue of sufficiency, it is necessary to
consider preliminarily Ezold’s contention that the
district court correctly refused to credit many of
the negative evaluations of her analytical ability
because they were by persons for whom she had
never done “substantial" work. Since the district
court relied on favorable evaluations of Ezold from
partners who likewise had insubstantial contact
with her, Ezold’s argum ent would improperly allow
the district court to apply a double standard in
the use of positive, as opposed to negative,
comments. For example, the district court relied
on a favorable evaluation of Ezold by Bradley
although he had never worked directly with her on
a case. Similarly, an evaluation Robert Wolf, a
retired partner in the corporate department, had
written before the district court’s dismissal of the
complaint Ezold filed in tha t case, expressed his
satisfaction with her handling of the client in the
Union League m atter. See Firestone & Parson, Inc.
v. Union League, 672 F. Supp. 819 (E.D. Pa. 1987),
21. The d e fen d an t is n o t requ ired to prove th a t those
prom oted a re "better qualified" th a n the plaintiff. S ee Burdine,
450 U.S. a t 258.
53a
a jf d mem . , 833 F.2d 304 (3d Cir. 1987). In fact,
seventeen of the twenty-one partners who viewed
Ezold's admission “with favor" or “with
enthusiasm" had only “slight contact" or “no
contact" with her during the evaluation period and
based their vote solely on reputation or minimal
contact.
The district court's failure to consider the
negative evaluations of Ezold's legal analytic ability
because the partners making them had little
contact with Ezold cannot be excused in the face
of the credence the district court gave to positive
comments about Ezold’s ability from those who
likewise had little or no contact with her. While a
factfinder can accept some evidence and reject
other evidence on the basis of credibility, it should
not base its credibility determination on a
conflicting double standard.
Moreover, the district court never made a finding
that the critical evaluations were themselves
incredible or a pretext for discrimination. There is
no evidence tha t Wolfs practice of giving weight
to negative votes and comments of partners who
had little contact and perhaps knew nothing about
an associate beyond the associate's general
reputation was not applied equally to female and
male associates. Cf. H opkins, 618 F. Supp. at 1116
(“Regardless of its wisdom, the firm’s practice of
giving ‘no’ votes [by partners who had only limited
contact with the candidate] great weight treated
male and female candidates in the same way.").
Ezold's preliminary contention that the district
court did not have to consider these negative
comments lacks merit. We turn therefore to an
examination of the evidence comparing Ezold and
54a
the successful male candidates in the category of
legal analytic ability.
A sampling of comments from the negative
evaluations of Ezold’s legal analytic ability reveals
the extent to which the district court's refusal to
consider them flawed its analysis. For example,
Fiebach was one of those with negative comments
about Ezold's legal analytic ability. He consistently
rated Ezold's analytical skills as “m arg inar long
before a 1988 disagreement in the Carpenter
m atter.22 See App. at 3190-91, 3025. Fiebach had
experienced “substantial" contact with Ezold
during her final two years as an associate. He
recommended Ezold for partnership, with
professed “negative feelings." See App. at 3544-47.
Fiebach was not alone in his negative comments
about Ezold's legal analytic ability. Arbittier also
strongly and consistently criticized Ezold in the
category of legal analysis.23 Arbittier had opposed
22. Ezold a rg u es th e d is tric t co u rt app ro p ria te ly declined to
co n sid e r F ieb ach ’s ob jections b ecau se they w ere gender-based .
Ezold refers to an April 1988 d isag reem en t over case stra tegy
in th e C arp en te r case. The d is tr ic t co u rt m ade a general
finding th a t Ezold
w as criticized for being “very dem anding" an d was
expected by som e m em bers of th e Firm to be
n o n asse rtiv e an d acq u iescen t to th e predom inan tly
m ale p a rtn e rsh ip . H er fa ilu re to accep t th is role was
a fac to r w hich resu lted in h e r n o t being p rom oted to
p a rtn e r .
Ezold I, 751 F. S upp. a t 1189 (FOF 132). T his g enera l finding
does n o t perm it th e co u rt to ignore F iebach 's a sse ssm e n t. It
does, however, illu s tra te again th a t th e co u rt did n o t consider
th e whole record re la ting to W olfs a rticu la ted reaso n for
denying Ezold a p a r tn e rsh ip position .
23. The record show s th a t A rb ittier w as a tough critic of m any
55a
hiring Ezold in the first instance because he did
not think she had the academic credentials to
make it a t the firm. See App. at 3414 f‘[p]oor
academic record —well below our standards"). In a
1984 evaluation Arbittier wrote “she is doing much
better than I thought she would . . . ,"24 App. at
3397. Ezold later did work for Arbittier, and his
contemporaneous evaluations indicate he was not
impressed by her performance. See id. a t 1488-89,
3380 (her brief was “stilted and unimaginative";
“she failed to cite me to a clause in the agreement
that was highly relevant"; “she missed [the main
issue] completely"). He ultimately recommended
Ezold’s admission to the partnership “with mixed
emotions."
Even Ezold's strongest supporters acknowledged
the shortcomings in her legal analytical ability.
See, e.g., App. at 3894 (Boote) (“I would not want
her in charge of a large legally complex case, the
traditional m easure of a Wolf, Block partner."); id.
at 3878 (Kurland) (“Nancy is an exceptionally good
courtroom lawyer . . . except there seems to be
serious question as to whether she has the legal
ability to take on large m atters and handle them
on her own."); id. a t 3512 (Schwartz) (“Nancy is
adequate in [legal analysis], but is not a legal
scholar."); id. at 3956 (Davis) (“She remains a little
weak in her initial analysis of complex legal
issues."). These contemporaneous criticisms
support Wolfs contention that the final consensus
associates, m ale an d fem ale, w hen he felt they did not
m easure up to W olfs s ta n d a rd s on analy tic ability.
24. The m ost dam ning m otive th a t th ese com m ents reveal is
lack of confidence b ased on academ ic creden tia ls. This is a
far cry from sex d iscrim ination .
56a
among its partners that Ezold did not, in the
perception of the firm, possess the legal analytical
capacity requisite to becoming a partner, and not
her sex, was the reason for denying her a
partnership position.
VIII.
The district court's error in failing to consider
the m any negative evaluations of Ezold's legal
analytic ability, like its error in comparing Ezold’s
strengths in other categories with the successful
male candidates, is not dispositive of Wolfs
argum ent th a t Ezold failed to produce evidence
sufficient to show she was manifestly as good as
the least capable of the favored males. The failure
to consider these negative comments would not be
fatal to Ezold's case if there were evidence in the
record tha t could rationally support a finding of
unequal treatm ent by Wolf in applying its
articulated reason for the screening of candidates
for partnership. Thus, it remains necessary for us
to examine the record in tha t respect.
We note a t once tha t it shows the evaluation
process at Wolf is demanding. Cf. W atson v. Fort
Worth B ank and Trust, 487 U.S. 977, 991-92
(1988) (“[ojpinions often differ when m anagers and
supervisors are evaluated, and the same can be
said for many jobs tha t involve . . . complex and
subtle tasks like the provision of professional
services . . . ."); Zahorik v. Cornell Unlv., 729 F.2d
85, 93 (2d Cir. 1984) (“Where a broad spectrum
of views is sought . . . a file composed of
irreconcilable evaluations is not unusual. . . .
[TJenure files typically contain positive as well as
negative evaluations, often in extravagant terms,
sufficient to support either a grant or denial of
57a
tenure."). The firm may have been wrong in its
perception of Ezold's legal analytic ability and, if
so, its decision to pass over Ezold would be unfair,
but that is not for us to judge. Absent a showing
that Wolfs articulated reason of lack of ability in
legal analysis was used as a tool to discriminate
on the basis of sex, Ezold cannot prevail. See
Billet, 940 F.2d at 828; Hopkins. 618 F. Supp. at
1116; cf. Hlshon u. King & Spalding, 467 U.S. 69,
81 (1984) (Powell, J ., concurring) (“The qualities of
mind, capacity to reason logically . . . and the like
are unrelated to race or sex.").
A.
Always having in mind tha t the issue before us
is whether the firm passed over Ezold because she
is a woman, we begin our specific comparative
analysis with male Associate A.
Associate A worked in Wolfs litigation
department. He was recommended for partnership
by the Associates Committee in the fall of 1988.
He is closest to Ezold in the category of legal
analysis, and, like her, received some negative
evaluations over the years.25 In its findings
concerning A s evaluations, however, the district
court failed to point out tha t no partner actually
rated A lower than Ezold in the criterion of legal
analysis. No partner had expressed serious
problems with A’s analytical ability as of 1988, the
year he was up for partnership, as in Ezold's case.
In fact, no partner gave A a grade below
acceptable/marginal in the category of legal
analysis during his final evaluation period.
25. The d is tric t co u rt 's findings recited these com m ents. See
FOF 76-86.
58a
Associate A received a t least one and sometimes
several m arks of “distinguished” in this category
during each evaluation period from April 1984
through 1988. Gregory Magarity, Ezold's most
ardent advocate, rated A as “distinguished" in legal
analysis in 1987 and 1988, higher than the grade
of “good” he gave Ezold in those years. He wrote:
[Associate A] did a magnificent job in the
preparation and trial of [a case] in Indianapolis,
Indiana. His written product was excellent; his
support and legal analysis were likewise excellent
. . . . You can assign [Associate A] to any of my
cases.
App. at 5127. Barry Schwartz, David Doret, Donald
Joseph and Donald Bean also consistently rated A
as distinguished. Boote, a supporter of Ezold, also
rated A higher than Ezold in this category. The
record is replete with positive comments from many
partners about Associate A that the district court
did not refer to. In 1987 and 1988, not one partner
ever gave Ezold an unqualified rating of
“distinguished” in the category of legal analysis.26
Although Fiebach rated A as ju s t “acceptable" in
legal analysis in 1988 (App. a t 6385), the district
26. Ezold did receive one “d is tin g u ish ed /g o o d " from Stephen
G oodm an, w ho h ad su b s ta n tia l co n tac t w ith her, in May 1987.
In add ition , sh e received a “d istingu ished" in legal an a lysis in
1983 a n d 1984 from B ean an d in 1985 from M agarity. Wolf
con tended th a t one of th e factors tak en in to acco u n t by the
A ssociates C om m ittee w as w h e th e r a p a r tn e r h a d a repu ta tion
a s an especially h a rd or easy g rader. T here is s tro n g evidence
su p p o rtin g W olfs co n ten tio n th a t M agarity w as a n “easy
grader". The record is full of glowing m em os th a t he w rote on
b eh a lf of m ale a sso c ia tes , inc lud ing A ssociates A an d B. See
App. a t 5126, 5128.
59a
court incorrectly compared his single rating to
Ezold’s “bottom line" rating of “good" which was
prepared not by Fiebach, but by Associates
Committee member Arthur Block based on Block's
own shorthand summary of a large num ber of
individual evaluations of Ezold's analytic ability.27
See Ezold I, 751 F. Supp. a t 1184 (FOF 77). That
same year Fiebach gave Ezold a rating of
“marginal," lower than the acceptable rating he
gave A in that criterion.
Strogatz had also made a critical evaluation of
A in 1987, the year prior to his admission to the
partnership, but Strogatz viewed A’s admission to
the partnership “with favor" in 1988. He wrote that
“[A] is over the line," App. at 4354, and graded
him as “good/acceptable" in the category of legal
skills. Strogatz did not grade Ezold in this category
in 1987 or 1988 because of no contact with her
other than administratively. He did state, however,
that “[m]y impression from others is tha t her legal
skills are at best average and more probably
marginal.” App. at 3975.
Finally, in 1988, eight partners viewed A's
admission to the partnership “with enthusiasm,"
one “with enthusiasm /favor," thirty-two “with
favor," six “with mixed emotions," one “with
negative feelings" and the rest had no opinion.
Davis was the only partner in the firm to vote for
A’s admission to the partnership with a negative
Hew. He gave A the same grade as Ezold. however,
in the category of legal analysis. In 1988, seven
partners viewed Ezold’s admission “with
27. The 1988 bottom line m em os on Ezold and A were both
prepared by Block. His su m m ary of bo th of th e ir legal analysis
grades was “good."
60a
enthusiasm ," fourteen “with favor," six “with mixed
emotions," four “with negative feelings” and one
“with mixed emotions/negative feelings.” As
analytical skills, while criticized by various
partners, were never as consistently questioned as
Ezold's. The criticisms of A, found among the
comments of the partners evaluating Ezold and A,
do not support a finding tha t Wolfs legitimate
non-discriminatory reason for refusing a
partnership position to Ezold was incredible. In a
comparison of subjective factors such as legal
ability, it m ust be obvious or m anifest that the
subjective standard was unequally applied before
a court can find pretext. See typescript supra at
37-39; Villanueva, 930 F.2d a t 131. Unequal
application of the criterion of legal ability is not
m anifest between Ezold and Associate A on this
record.28 It does not contain evidence sufficient to
show that Ezold was held up to a higher standard
than Associate A because she was a woman.
Ezold's ability in legal analysis suffers even more
in the partners' eyes when compared with the
individual evaluations of the other successful male
candidates. All of the other males tha t Wolf
accepted for partnership in 1988 received many
28. The record also show s th a t A h ad s tro n g e r su p p o rt from
th e p a r tn e rs w ith in th e litigation d e p a rtm e n t th a n Ezold did.
In 1988, of th e tw enty-eigh t p a r tn e rs In th e . litigation
d ep a rtm en t, th irte en p a r tn e rs viewed A's ad m issio n “with
favor" an d th ree “w ith en th u siasm "; only two p a r tn e rs had
m ixed em otions an d only one viewed h is ad m ission negatively.
Ezold, on the o th e r h an d , h ad m u ch less su p p o rt from the
litigation d e p a rtm e n t p a rtn e rs . Only five p a r tn e rs viewed
Ezold 's ad m issio n “w ith favor" a n d only th ree “with
en th u siasm "; four p a r tn e rs h ad m ixed em otions an d three
viewed h e r ad m ission negatively.
61a
scores of distinguished in the category of legal
analysis, and none of them ever received a grade
of marginal in this category during his Anal
evaluation period prior to admission to the
partnership. We summarize them as follows.29
The Associates Committee recommended Male
Associate B, an associate in the litigation
department, for partnership in July 1989. The
critical comments upon which the district court
relied with respect to Associate B have nothing to
do with B's legal analytical skills but focus instead
upon his work habits. B's legal analysis, on the
other hand, was often rated as distinguished. See,
e.g., App. at 4724 (Poul) (“[H]e does a remarkable
job. I expect him to take over the client some
day."); id. a t 4249-51, 4268, 4280. In his last
evaluation as a senior associate, six partners rated
B as "distinguished” in legal analysis, and not one
partner rated him below “acceptable" in this
category. Davis and Magarity, Ezold’s strongest
supporters, graded B higher than Ezold in the
category of legal analysis, recognizing his ability
as “distinguished.” Davis wrote on B's final
evaluation that “he has produced elegantly written
legal work." App. at 4281. Several partners, even
those criticizing B’s work habits, characterized him
as “very bright." Not one partner viewed B's
admission to the partnership with negative
feelings.
Associate C, an associate in the real estate
department, was recommended by the Associates
Committee in 1987 and became a partner in
29. The d istric t co u rt 's findings concern ing the evaluations of
the o ther a sso c ia tes w ith w hom it com pared Ezold are found
In FOF 87-118.
62a
February 1988. With respect to Associate C, the
district court made one finding:
94. . . . In the 1987 Associates Committee
bottom line memo, he received an overall grade
of “G,” the same as that which Ms. Ezold had
received. The summary of evaluations used by
the Associates Committee noted that Henry
Miller, a partner in the Real Estate Department,
had changed Associate C's legal analysis score
to [“acceptable”] and suggested that an “adequate
[score] may well be sufficient in his mind for
regular partnership."
Ezold I, 751 F. Supp. at 1186.
Contrary to this single limited finding by the
district court, C's legal analysis was uniformly
rated as “good" or “distinguished." The district
court ignored the consensus in C's department
tha t he had a high level of legal analytical ability.
See App. a t 4542; id. a t 4532 (Weintraub) (“Based
on his ability to analyze a legal problem, I could
feel comfortable in turning over my best client to
him for a significant matter.") In citing Miller's
grade of “acceptable" in 1987, the district court
fails to point out Miller’s comments tha t any
problems with B were based on earlier work and
tha t he had improved from tha t time. Twelve
partners viewed C's admission “with enthusiasm ,”
twenty-six “with favor," eight “with mixed
emotions" and one “with negative feelings.”
Associate D, an associate in the corporate
department, was recommended for partner by the
Associates Committee in 1988. In addition to other
comments unrelated to D’s legal analytical ability,
the district court relied on the fact tha t in 1988
three partners said D needed help with his writing
63a
skills. Ezold I, 751 F. Supp. a t 1186 (FOF 96). The
district court failed to note that the partners who
said D needed help with writing did so on the
basis tha t English is not D's native language, as
he was born and raised in a foreign country. One
of the partners criticizing D’s writing ability also
wrote: “I'd want a close look a t his drafting
skills —and perhaps we should make a special
effort to cultivate them —in view of the language
issue.” App. a t 4460. Very few partners ever
questioned D's legal analytical ability and he
received several m arks of “distinguished" during
his evaluations from 1986-88. The following
comments from D's file are typical: “Can handle
very confusing complex structural and strategic
issues. . . . Is a superb strategist on corporate
acquisition matters." Id. a t 4503; “[D] is unusually
smart and has an instinctive grasp of business. I
believe he is a sta r.” Id. a t 4481. Eight partners
voted for his admission “with enthusiasm,"
twenty-seven "with favor," twelve “with mixed
emotions," one “with favor/mixed emotions" and
one “with negative feelings."
Associate E, an associate in the estates
department, was admitted to the partnership in
1987. The district court made one finding
concerning Associate E:
101. Mr. Strogatz stated that Associate E was
not a star and that an associate did not need to
be a star to be a partner. He also wrote that he
thought of Associate E “as a guy ju s t to do
work."
Ezold I, 751 F. Supp. at 1186. Strogatz made this
comment based on “no contact" with E. See Id.
Strogatz wrote: "Although not a star, [E] meets our
64a
standards." App. a t 4438. The district court points
to no criticism of E’s legal analysis because there
is none in the record and, in fact, E's ability was
often rated as distinguished. See, e.g., App. a t 4417
(Glyn) (“His analytic abilities are exceptional."); id.
a t 4414 (Kamens (“[E] exhibits a willingness to
understand certain legal problems and analyzes
them quite well."). The district court's reliance on
Strogatz’s evaluation in finding pretext further
demonstrates the inconsistency with which it
compared evaluations in this case, relying only on
positive evaluations by partners Ezold had done
“substantial" work for, while relying on negative
evaluations of male associates based on no contact.
The following findings of the district court
concerning Associate F, an associate in the
corporate department, related to his legal
analytical ability:
103. The grid on Associate F's bottom line memo
in 1988, the year before his consideration for
partnership, reflected a composite grade of “G-"
for legal analysis.
107. The prior year Donald Joseph, a partner in
the Litigation Department, had rated Associate
F's legal skills as acceptable, noting "a
shoddiness in clear thinking or maybe lack of
full experience.”
108. At the same time, Michael Temin, a partner
in the Corporate Department, recommended that
Associate F receive help in his writing and
drafting skills.
65a
110. In 1986, William Rosoff evaluated Associate
F:
[Hje is sometimes too fast or flip or not
attentive enough. In one matter, he failed to
collect on a letter of credit on the grounds
that he supposed Al Braslow would handle
that part of the matter, when it was an
inappropriate assum ption to make especially
without talking to Al. In another matter, the
time for answering a complaint expired.
While he might have thought someone else
was seeing to it, he should have double
checked.
Ezold I, 751 F. Supp. a t 1186-87.
In fact, Joseph’s full comment about “a
shoddiness in clear thinking” stated:
Acceptable —I have used . . . [acceptable] in the
old [Wolf, Block] terms; a good lawyer, practical
and valuable. I can’t describe precisely my
hesitancy—perhaps a shoddiness in clear
thinking or maybe lack of full experience. . . .
App. at 4606. In F's final evaluation period, Joseph
recommended F’s admission “with favor." Id. at
4611. While Temin wrote that F needed help with
writing skills in 1988, he gave him a grade of
“good” in legal and professional skills. With respect
to Rosoff s 1986 criticism, the district court omitted
the following statem ent by Rosoff in the same
evaluation: ”[F] seems to be fine substantively. . . .
I don't cite these as experiences which mean he
cannot make the grade here, but he does have to
make a more careful and expansive view of his role
and responsibilities.” Id. a t 4602. Associate F s
legal analytical ability was never called into
66a
question. In addition, F received a “distinguished,"
num erous “goods," and no “marginals" on his final
review. Five partners viewed his admission to the
partnership “with enthusiasm ,” twenty-two “with
favor," four “with mixed emotions" and three “with
negative feelings." While the num ber of negative
votes is close to the four Ezold received, the record
shows that F had greater overall support from the
partners in his department than Ezold did in
hers.30
The district court cited the following comments
regarding the legal analytical ability of Associate
G, an associate in the corporate department
admitted to the partnership in February 1988:
112. In the bottom line memorandum on
Associate G for 1987, the year before he became
partner in the Corporate Department, his grid
reflected no composite score higher than “G." In
four of the legal skills, including legal research
and promptness, Associate G was rated only
“acceptable.”
113. In his 1987 evaluation Associate G was
rated “acceptable" in legal analysis by Alan
Molod, a partner in the Corporate Department.
Mr. Molod added that Associate G was “Not a
S tar” and was “Sloppy at times and [showed]
occasional lapses in judgm ent.”
Ezold /, 751 F. Supp. a t 1187.
The district court did not credit or consider the
many favorable evaluations of G, such as, “[G] is
one of the brightest lawyers in our firm.” App. at
30. Of th e tw en ty -eigh t p a r tn e rs in th e co rpo ra te departm ent,
n ine p a r tn e rs viewed F 's ad m ission “w ith favor," two “with
en th u sia sm ," an d one negatively.
6 7 a
4676. While Molod rated G as only acceptable in
legal analysis in 1987, this score should be viewed
against the many “good" and “distinguished"
grades he received in this category. Molod's full
comments stated: “Good solid lawyer. Not a star.
Very hard worker. Sloppy at times and occasional
lapses in judgment." Id. a t 4677. Despite rating G
as only “acceptable" in legal analysis in 1987,
Molod recommended G's admission to the
partnership “with favor.” Overall, thirteen partners
viewed G's admission to the partnership “with
enthusiasm," thirty “with favor," six “with mixed
emotions” and two "with negative feelings."
The district court relied on one partner’s
criticisms of Associate H in concluding that Wolf
applied its standards in a more severe fashion to
Ezold. It found:
116. Mr. Arbittier wrote in his 1987 evaluation
of Associate H:
(Associate H] has really let me down in his
handling of a case for General Electric
Pension Trust. He missed the crux of the
case in the beginning and dragged his feet
terribly in getting it back on track. . . .
[Associate H] works very hard, but hard work
alone is not enough. I have my doubts that
he will ever be anything but a helper who
does what he is told adequately but with no
spark.
Mr. Arbittier wrote tha t Associate H was trying
“to change my view of him and I am giving him
a second chance. He [has] brains. Maybe he can
change." Mr. Arbittier also called Associate H
“phlegmatic, diffident, nonassertive and
68a
unimaginative,” and in 1988 wrote that he was
“[not] real strong in legal analysis or in focusing
on the key issues (dividing the wheat from the
chaff)."
117. In 1989, Mr. Arbittier concluded that
Associate H was a “nice guy” who had made
improvement; he supported Associate H for
partnership. Mr. Arbittier explained Associate H’s
“redemption”; Associate H told Mr. Arbittier how
he had been overworked.
Ezold 1, 751 F. Supp. a t 1187.
While the district court credited Arbittier’s
criticism of H, it chose to ignore Arbittier's
continuing criticism of Ezold on the same grounds
between 1984 and 1988. See typescript supra at
14-15, 20. The district court also ignored the fact
tha t in H's final two evaluations, Arbittier viewed
his admission to the partnership wdth favor and
wrote the following comments: “[significant
improvement”; “A good lawyer. . . . In the past I
had some problems with [H]. He seems to have
overcome them. . . .” App. a t 4845, 4858. This
change in viewpoint was based on H's handling of
a specific case for Arbittier. Goldberger specifically
wrote in his evaluation of H tha t Arbittier's critical
evaluation was “aberrational . . . [H] is a talented,
hard-working lawyer who deserves to make it.” Id.
a t 4828. Moreover, the district court failed to
acknowledge H’s grades of “distinguished" in legal
analysis throughout his tenure a t the firm. Twelve
partners viewed his admission to the partnership
“with enthusiasm ,” seventeen “with favor," one
“wdth mixed emotions” and zero “with negative
feelings.”
6 9 a
Finally, we note tha t three of the four partners
who expressed “negative feelings" towards Ezold's
candidacy were members of her own department,
while none of the eight male associates was viewed
with “negative feelings’* by more than one member
of their department.
The district court's finding tha t Wolf applied its
partnership standards in a more “severe" fashion
to female associates is clearly erroneous. The
comparative evidence of more favorable treatm ent
for male employees contained in this record does
not support that finding. See Belltssimo, 764 F.2d
at 180 (holding pretext “clearly erroneous because
[plaintiff] failed to make any showing of disparate
treatment and because [defendant] proved that
male attorneys were treated the same as she in
the disputed areas."). Our review of the entire
evaluation files of the eight male associates
discloses that, unlike Ezold, whose staunchest
supporters persistently expressed doubts about
her ability to meet the firm's criterion of legal
analysis, Associates A to H faced no comparable
degree of criticism about their legal analytical
skills. The snippets of comments critical of these
male associates culled from dozens of evaluation
forms do not show tha t Wolfs articulated reason
for declining to recommend Ezold for partnership
was “obviously weak or implausible" or that the
standards were "manifestly unequally applied."
Villanueva, 930 F.2d a t 131 (citations omitted).
B.
Despite Wolfs request, the district court failed
to make findings concerning other male associates
who, like Ezold, were passed over for partnership.
7 0 a
The evidence concerning their evaluations adds
support to our conclusion th a t the district court's
finding that Wolfs asserted legitimate reason for
denying Ezold a partnership position was a sham
cannot be supported on a theory of discriminatory
application.
Male Associates 1 and 2, who were comparable
to Ezold in the category of legal analysis, were also
rejected for regular partnership. Again, we
recognize that the district court, as factfinder, “can
accept some parts of a party's evidence and reject
o thers.” Bennun, 941 F.2d at 179. But when the
evidence sheds light on whether the employer
treated similarly situated males and females alike,
it should not be ignored. See Bellisstmo, 764 F.2d
a t 181 (comparison of whether male attorneys
treated same as discharged female attorney in
disputed categories).
Male Associates 1 and 2 were highly rated by a
num ber of partners, but, as with Ezold, the
Associates Committee determined their ability in
legal analysis fell below the firm’s standards. The
Associates Committee expressed its views on Male
Associates 1 and 2 in a letter to the Executive
Committee stating that, although they were
“valuable associates,” they nevertheless fell below
the firm’s “historically accepted standards for
admission to the partnership .” App. at 2586. The
partners’ comments about Male Associates 1 and
2 were very similar to those criticizing Ezold. This
is illustrated by the following sampling of
comments about Male Associate 1: “[He] has good
talents although he is not as capable in legal
analysis as others,” id. a t 4632 (Brantz); "[His] best
skills are in client relations and desire to please,
7 1 a
rather than legal analysis or Intellectual genius,"
id. at 4630 (Schneider); “[H]e has great difficulty
analyzing and drafting complex business
transactions,” id. a t 4642 (Wiener); “(There are]
questions about his intellectual strength, his
ability to manage complex transactions and his
level of attention to detail," id. a t 5044 (Baer). The
partners’ comments with regard to Male Associate
2 are also similar to those the partners made
about Ezold; “(H]e lacks the minimum level of
analytic ability which is required to succeed at
WB,” id. a t 4696 (Chanin); “(His legal analysis is]
just fair. Came up with little in the way of new
ideas. . . . Seemed to miss key points at times,"
id. at 4695 (Arbittier); “[Legal analysis is] [n]ot
penetrating or focused. I do not feel comfortable
relying on his legal judgment," id. a t 4697
(Arbittier); “]H]e ju s t doesn't have the high level of
intelligence we need to handle complex legal
questions," id. a t 4696 (Arbittier); “[He] is an
enigma to me. His writing ability is substandard,
and I have no confidence in his analytic skill. On
the other hand, my client]] likes him very much,"
id. at 4725 (Brantz).
If the district court had employed the
appropriate comparative analysis by focusing on
whether Wolfs articulated reason of legal analysis
was a pretext, it should have reached a different
result. Our review of the whole record leaves us
with a “definite and firm conviction that a mistake
has been committed” by the district court in its
comparative analysis. United States Gypsum Co..
333 U.S. at 395. The record does not show that
Wolf applied its partnership admission standards
unequally to male and female associates, nor that
diminished ability in the area of legal analysis was
7 2 a
an improper reason for denying admission.31 We
sympathize with Ezold's situation and the long
hours and efforts she pu t toward her partnership
goal. On the record before us, however, we cannot
affirm the district court’s finding tha t Wolfs
asserted reason for denying Ezold’s admission to
the partnership was unworthy of credence based
on her theory tha t its standard of legal analytic
ability was applied to her in an unlawfully
discriminatory manner.
Because the evaluation files contain insufficient
evidence to show that Ezold was evaluated more
severely than the male associates, Ezold has not
shown th a t Wolfs proffered reason for failing to
promote her was “unworthy of credence." We
therefore hold th a t the district court’s ultimate
finding of pretext cannot be sustained on this
basis.
IX.
We m ust, however, still consider certain
additional evidence which Ezold says direcdy
establishes that Wolfs articulated reason was a
pretext by showing that a discriminatory reason
more likely motivated its decision not to admit her
to the partnership.
31. Wolf co n ten d s add itionally th a t th e d is tric t co u rt erred in
its p o s t-tria l decision to exclude from evidence th e evaluation
files of th ree su ccessfu l fem ale p a rtn e rsh ip .
A ssum ing, w ith o u t deciding, th a t th e se files w ere relevant,
we no te th e d is tr ic t co u rt did n o t exclude them on grounds
of relevancy. R ather, w hen they w ere offered on redirect, it
ru led they w ere "beyond th e scope” th a t could have been
a n tic ip a ted on d irec t exam ina tion an d w ere n o t proper
red irect. In an y event, in view of o u r d isposition we need not
resolve th is issu e .
7 3 a
As stated at the outset of our pretext analysis,
sufficiently strong evidence of an employer's past
treatm ent of a plaintiff may prove pretext. See
Patterson, 491 U.S. a t 188; McDonnell Douglas,
411 U.S. at 804. An employer's general policy and
practice with regard to minority employment may
also establish pretext. McDonnell Douglas, 411 U.S.
at 804-05. The district court held that four
instances of conduct "supported” the finding of
pretext tha t it otherwise based on its comparison
of Ezold with Associates A-H. The four instances
of conduct by Wolf that the district court held
supported its finding of pretext were: (1) Ezold was
evaluated negatively for being too involved with
women's issues in the firm; (2) a male associate's
sexual harassm ent of female employees at the firm
was seen as “insignificant"; (3) Ezold was
evaluated negatively for being very demanding
while male associates were evaluated negatively for
lacking assertiveness; and (4) Ezold “was the target
of several comments demonstrating [Wolfs]
differential treatm ent of her because she is a
woman." Ezold I, 751 F. Supp. at 1192 (COL 12).
They are discussed in Part IX C. Infra. In addition,
it made findings of fact concerning Wolfs
assignment process tha t Ezold claims support its
finding of pretext. We discuss that contention in
Part IX A. Ezold's contention tha t the ratio of male
to female partners at Wolf shows a pattern of
illegal discrimination is the subject of Part IX B.
Finally, Ezold points to other evidence in the
record, upon which the district court made no
findings, as evidence tha t shows Wolfs asserted
reason for passing her over was pretextual. She
contends that this evidence, considered as a
whole, would entitle the district court to find that
7 4 a
Wolf “more likely" denied her admission to the
partnership because of her sex than because of
Wolfs asserted legitimate non-discriminatory
reason. See Burdine, 450 U.S. a t 256. That
evidence is the subject of discussion in Part IX D.
In order to succeed on this theory, Ezold must
show th a t it is more likely tha t the firm denied
her a partnership position because of her sex than
because of its perceptions of her legal analytic
ability. With this causal requirement in mind, we
will analyze each of the incidents or practices at
Wolf which Ezold alleges shows directly that Wolf
passed her over because she is a woman rather
than because of any deficiency Wolf might have
perceived in her legal ability.
A.
Ezold contends illegal discriminatory treatment
based on sex deprived her of equal opportunities
to work on significant cases or with a wide variety
of partners and that this unequal treatm ent is
evidence of gender discrimination. From 1983 to
1987, Kurland was responsible for the assignment
of work to associates in the litigation department.
He often delegated this responsibility to Arbittier.
Though Ezold acknowledges th a t many partners
bypassed the formal assignm ent procedure and
directly assigned m atters to associates, the district
court found tha t Arbittier assigned Ezold to
actions that were “small" by Wolf standards. Ezold
I, 751 F. Supp. at 1178 (FOF 24).32 Ezold
complained to Kurland and others about the
32. The d is tric t c o u rt’s com plete findings concern ing Wolfs
a ss ig n m en t p rocess as it re la ted to Ezold are found in FOF
21-40.
7 5 a
quality of her assignments and that she had
opportunities to work only with a limited num ber
of partners.
This Court has recognized that when an
employer discriminatorily denies training and
support, the employer may not then disfavor the
plaintiff because her performance is affected by the
lack of opportunity. Jackson v. University o f
Pittsburgh, 826 F.2d 230, 235 (3d Cir. 1987), cert,
denied, 484 U.S. 1020 (1988); EEOC v. Hay
Assocs., 545 F. Supp. 1064, 1072 (E.D. Pa. 1982).
Even if we assum e that Ezold received “small”
cases at the beginning of her tenure at Wolf,
however, there is no evidence this was the result
of sex discrimination. Her evaluations indicate,
rather, tha t it may have been her academic
credentials that contributed to her receipt of less
complex assignments. For example, Davis stated
that ”[t]he Home Unity case was the first really
fair test for Nancy. I believe that her background
relegated her to . . . m atters (where she got
virtually no testing by Wolf, Block standards) and
small m atters.” App. at 3514. It is undisputed that
Arbittier opposed hiring Ezold because of her
academic history and lack of law review
experience. In one of Ezold’s early evaluations,
Kurland wrote: “She has not, in my view, been
getting sufficiently difficult m atters to handle
because she is not the Harvard Law Review
type. . . . We m ust make an effort to give her
more difficult m atters to handle.” Id. a t 3400. He
also stated: "I envisioned . . . her when I hired
her as a ‘good, stand-up, effective courtroom
lawyer.’” Id. a t 3348. In urging the Executive
Committee to reconsider Ezold’s candidacy
Magarity wrote:
7 6 a
[The] perception [that she is not able to handle
complex cases] appears to be a product of how
Sy Kurland viewed Nancy's role when she was
initially hired. For the first few years Sy would
only assign Nancy to non-complex matters, yet,
a t evaluation time, Sy, and some other partners,
would qualify their evaluations by saying that
Nancy does not work on complex m atters. Nancy
was literally trapped in a Catch 22. The
Chairman of the Litigation Department would not
assign her to complex cases, yet she received
negative evaluations for not working on complex
m atters.
IcL a t 5576-77.33
While it would be unfortunate if these academic
and intellectual biases were perpetuated after the
decision was made to hire Ezold, academic or
intellectual bias is not evidence of sex
discrimination. The district court made no finding
tha t Ezold was given small assignm ents because
of her sex. In fact, its findings contradict unlawful
discrimination in tha t respect. It found:
She worked for partners in the Litigation
Department on criminal m atters, insurance
cases, general commercial litigation and other
areas, and also did work for some partners in
other departments. She handled m atters at all
stages of litigation, and was called upon by
partners to go to court on an emergency basis.
Ezold /, 751 F. Supp. at 1178 (FOF 22). At trial
Ezold characterized m any of the cases she w o rk e d
33. M agarlty a lso testified th a t he saw n o th in g in Ezold s
eva lu a tio n s in d ica tin g an y b ias a g a in s t h e r b ecau se of her
gender.
7 7 a
on as “complex” by either her standards or Wolf
standards. In advocating Ezold for partner,
Magarity stated that “from 1986 through the
present, Nancy has worked on numerous
significant complex cases." App. a t 5577.
The district court found th a t when Ezold
suggested to Schwartz in her early years at Wolf
that an unfairness in case assignm ents may have
occurred because she was a woman, Schwartz
replied: “Nancy, don’t say that around here. They
don't want to hear it. J u s t do your Job and do
well." Ezold I, 751 F. Supp. a t 1188 (FOF 127);
App. at 657. This statem ent, made years before
the 1988 decision to deny Ezold partnership, does
not show that Wolfs evaluation of her legal ability
was pretextual. Ezold’s testimony that she “didn't
know of any other reason" than gender for Wolfs
treatment of her in the assignm ent process adds
little.
Ezold also points to a preliminary injunction
matter early in her career tha t was reassigned to
a man after she had been the sole volunteer. The
district court found tha t Arbittier reassigned the
injunction to a m an “without explanation." See 751
E. Supp. a t 1178 (FOF 29). Arbittier, however,
testified that he realized the case needed a more
senior associate and so reassigned it. This too
occurred early in Ezold's employment at Wolf and
there is nothing in the record to show tha t it had
any connection with Ezold’s failure to attain
partnership. The district court’s finding does not
support a conclusion tha t Wolfs reason for
denying Ezold admission to the partnership is
Pretextual.
7 8 a
The district court also found tha t when Ezold
first got to the firm in 1983, she and a male
associate not on partnership track were assigned
to sort out a large group of minor cases previously
handled by an associate who had left the firm.
This finding fails to support the district court's
ultim ate finding of pretext. The assignm ent was
made on an as-needed basis to fill the void created
when the associate working on the m atters had
left. Additionally, the district court failed to
recognize that Arbittier gave Ezold full authority to
reassign the m atters to other male associates and
adm inister the whole affair. The small bankruptcy
m atters to which the district court refers were later
reassigned by Kurland a t Ezold's request. Kurland
testified th a t he did this “both to free Nancy up a
little and to give some demonstration that we
[were] making an effort to change the nature of
her assignments." App. at 3375.
Concerns about associates being exposed only to
“small" m atters were not unique to Ezold. In fact,
num erous partners expressed similar concerns
about exposure to partners and assignment to
complex cases with respect to male Associates A
and B. See App. a t 4920 (“The Department should
try to give A some assignm ents as second man on
a large case. . . . If we fail to do this, [A] will
continue to slip along operating independently on
cases and we will have to confront, too late, the
question of whether or not he meets partnership
standards.”); id. a t 4324 (“[A] has not been tested
on large m atters because of early perceptions that
he was cavalier."); id. a t 4928 (B m ust get broader
exposure); id. a t 4926 (“somehow [B] must get
broader exposure — even his Dep’t. C h a i r m a n
knows nothing about him."). Ezold's assignment to
7 9 a
a disproportionate num ber of small m atters may
have reflected academic or intellectual bias.
Beyond her own perceptions, however, Ezold
offered no evidence showing th a t she was treated
differently from male associates in getting
assignments or exposure. The findings of the
district court concerning Wolf s assignment
process are in fact gender-neutral and do not
support its ultimate finding of pretext.
With respect to the district court’s finding that
the firm prevented Ezold from gaining wide
exposure to partners, the record shows that
sixty-five partners expressed “no opinion” on the
admission of Associate B, a litigator, which was
more than the fifty-nine “no opinion” votes Ezold
received. Fifty-nine partners also expressed “no
opinion" on the admission of Associate H.
The district court's finding tha t Ezold did not
work for more than five hundred hours in any year
on any one m atter, while “virtually all the male
associates in the department" worked for six
hundred hours on a single m atter, is belied by the
record. Ezold I, 751 F. Supp. a t 1178 (FOF 27).
The record shows tha t Ezold billed 701.2 hours on
a major litigation m atter in 1985 and that a
majority of male associates in the litigation
department did not bill six hundred hours or more
on any single m atter.
Finally, the district court found tha t by allowing
partners to bypass the formal assignm ent system,
Kurland and Arbittler “prevented the plaintiff from
securing improved assignm ents . . . [and]
impaired her opportunity to be fairly evaluated for
partnership." Ezold I, 751 F. Supp. a t 1179 (FOF
38, 40). The fact that Wolfs formal assignment
process was often bypassed does not support the
8 0 a
district court’s finding of pretext.34 Title VII
requires employers to avoid certain prohibited
types of invidious discrimination, including sex
discrimination. It does not require employers to
trea t all employees fairly, closely monitor their
progress and insure them every opportunity for
advancement. “[Ojur task is not to assess the
overall fairness of [Wolfs] actions.” Logue, 837
F.2d a t 155 n.5. It is a sad fact of life in the
working world tha t employees of ability are
sometimes overlooked for promotion. Large law
firms are not immune from unfairness in this
imperfect world. The law limits its protection
against tha t unfairness to cases of invidious illegal
discrimination. This record contains no evidence
th a t Wolfs assignm ent process was tainted by a
discriminatory motive.
B.
Ezold also tries to reinforce her claim of pretext
by pointing to the small num ber of women
admitted to the partnership throughout the firm's
history. The record shows tha t in 1989, only five
of Wolfs 107 partners were women and there was
only one woman among the twenty-eight partners
in the litigation departm ent in which Ezold had
sought partnership. The district court made no
finding based upon these num bers.35
Statistical evidence of an employer's pattern and
practice with respect to minority employment may
34. Ezold did no t com plain w hen sh e benefitted from the
Inform al a ss ig n m en t p rocess.
35. The d is tr ic t co u rt failed to do so d esp ite Ezold 's proposed
finding on th e issue .
8 1 a
be relevant to a showing of pretext. See McDonnell
Douglas, 411 U.S. a t 805. Ezold's raw numerical
comparisons, however, are not accompanied by
any analysis of either the qualified applicant pool
or the flow of qualified candidates over a relevant
time period. The district court in Hopkins
recognized the weakness of this type of evidence:
[Plaintiffs] proof lacked sufficient data on the
number of qualified women available for
partnership and failed to take into account that
the present pool of partners have been selected
over a long span of years during which the pool
of available qualified women has changed.
Women have only recently entered the
accounting and related fields in large numbers
and there is evidence that many potential women
partners were hired away from Price Waterhouse
by clients and rival accounting firms.
Hopkins, 618 F. Supp. at 1116; cf. Wards Cove
Packing Co. v. Antonio, 490 U.S. 642, 650-51
(1989) (in disparate impact case, proper
comparison is between racial composition of
at-issue jobs and racial composition of qualified
population in relevant job market).
Because no conclusion can be drawn from
Ezold's raw num bers on underrepresentation, they
are not probative of Wolfs alleged discriminatory
motive. See Villanueva, 930 F.2d at 131 (statistics
showing small percentage of minority faculty
members inadequate absent some other indication
of relevance); Molthan, 778 F.2d at 963 (“Because
the considerations affecting promotion decisions
may differ greatly from one departm ent to another,
statistical evidence of a general
underrepresentation of women in the position of
8 2 a
full professor adds little to a disparate treatm ent
claim"). We, like the district court, do not consider
them material to Ezold’s Title VII claim.
C.
Finally, the district court held tha t the four
specific instances of conduct mentioned on
typescript supra a t 75 evidenced a discriminatory
anim us and supported its finding of pretext. See
Ezold I, 751 F. Supp. a t 1192 (COL 12). It did not
hold th a t these instances of conduct provided an
independent or alternative basis for its finding, but
viewed them only as support therefor.
1 .
The first instance of conduct on which the
district court relied was that Ezold “was evaluated
negatively for being too involved with women's
issues . . . specifically her concern about the
[firm's] treatm ent of paralegals,” while Fiebach was
not reproached for raising the “women’s issue” of
part-tim e employment. Id. Ezold's perception was
tha t the firm m istreated its paralegals by
overworking and underpaying them and that
treatm ent would not have occurred bu t for the fact
th a t they were predominantly women. The court’s
finding on this m atter refers to a 1986 evaluation
subm itted by Schwartz, one of Ezold’s partnership
supporters, in which he wrote: “Judgm ent is
better, although it still can be clouded by
over-sensitivity to what she misperceives as
‘womens’ [sic] issues.” App. a t 3366. Schwartz
testified, however, tha t he was not criticizing Ezold
for raising the issue of the firm’s treatm ent of
paralegals, bu t for her misperception tha t this was
a “women's issue.” Id. a t 1585-86. Moreover, the
8 3 a
fact tha t Fiebach, a male partner, was not
criticized for encouraging discussion of part-time
employment is not probative of whether the
partnership decision concerning Ezold was
gender-based. This evidence is of marginal value
in supporting the district court's finding of pretext.
2 .
The second instance of conduct on which the
district court relied was “the fact that a male
associate[’s] sexual harassm ent of female
employees at the Firm was seen as insignificant
and not worthy of mention to the Associates
Committee in its consideration of that male
associate for partnership." Ezold I, 751 F. Supp.
at 1192 (COL 12). While it is undisputed that the
male associate, Associate X, engaged in some form
of harassm ent of female employees, the district
court's finding about Wolfs attitude towards it is
unsupported by the evidence and thus clearly
erroneous. The record shows tha t Strogatz, then
Chairman of the Associates Committee, met with
Associate X concerning these incidents, and that
a memorandum was placed in his personnel file.
There was testimony that the incident was
reported to the associate's departm ent chairman
and to the Associates Committee. The record also
indicates tha t the incident occurred after the
Associates Committee decided it was unlikely to
recommend Associate X for partnership in any
event. There is no evidence Wolf viewed the
incident as “insignificant." This incident is not
evidence tha t the firm harbored a discriminatory
animus against either women generally or Ezold
specifically. It lends no support to the district
court's finding of pretext.
8 4 a
The district court found tha t Ezold was
“evaluated negatively for being ‘very demanding,'
while several male associates who were made
partners were evaluated negatively for lacking
sufficient assertiveness in their demeanors." Ezold
I, 751 F. Supp. at 1192 (COL 12) (emphasis in
original). The criticisms of Ezold's assertiveness
related to the way in which she handled
administrative m atters such as office and
secretarial space, and not legal m atters. See App.
at 2206-11 (“Very difficult to deal with on
administrative m atters. Very demanding."); see
also id. a t 3365, 3389. In particular, David
Hofstein’s evaluation of Ezold in 1984 stated:
My one negative experience did not involve legal
work. When my group moved to the south end
of the 21st floor, Nancy had a fit because she
had to move. As I. Strogatz and our [Office
Manager] know, Nancy's behavior was
inappropriate and I think affected everyone’s
perception of her. Dealing with administrative
m atters professionally is almost as important as
dealing with legal m atters competently, and at
least in tha t instance, Nancy blew it.
App. at 3393.
The district court refers to criticisms of male
associates for lacking assertiveness, bu t in
connection with their handling of legal matters.
The district court was comparing apples and
oranges. The record shows that male associates
were also criticized for their improper handling of
administrative problems. See App. at 3388 (“He
has had a series of run ins with administration
3 .
8 5 a
. . . .”); id. a t 5099 (associate not admitted to
partnership criticized for “lack of tact, being
arrogant or undiplomatic or unconciliatory); id. at
4778 (“[h]e is quarrelsome”). The district court also
quotes an evaluation of Ezold as a “prima donna"
on administrative m atters, but leaves out the full
context of the statem ent which compares her to a
male associate: “Reminds me of [a male
associate]—very demanding, prima donna-ish, not
a team player." Id. a t 3209.36
The district court’s finding tha t this evidence
supports its conclusion tha t Ezold was treated
differently because of her gender is clearly
erroneous. An "unfortunate and destructive
conflict of personalities does not establish sexual
discrimination.” Bellissimo, 764 F.2d 175, 182 (3d
Cir. 1985). Further, by the time of Ezold’s final
evaluation in 1988, there was no mention of her
attitude on administrative matters. Rosoff testified
that in independently reviewing the Associate
Committee's decision not to recommend Ezold for
partnership, he disregarded the criticisms of her
handling of administrative m atters from earlier
years as “ancient history.” App. at 2410. There is
36. The d is tric t c o u rt m ade no finding concern ing an o th e r
incident involving Ezold. In th a t respec t, the record ind icates
that Ezold w as ch as tised for h e r h an d ling of a req u est to
reassign a case. K urland h ad told Ezold th a t sh e shou ld no t
handle any m ore sm all cases so sh e could free herse lf up for
more su b s ta n tia l m a tte rs . He sa id th a t if sh e w as assigned
small cases sh e shou ld com e to him a b o u t reassignm en t.
When A rbittier se n t h e r th e file in a sim ple b an k ru p tcy case
she sen t it b ack w ith a no te ask in g th a t it be reassigned . The
record ind ica tes th a t Ezold w as criticized for Ju s t send ing the
file back w ith a no te in s tead of ta lk ing to som eone first. There
is, however, no m en tion of th is inc id en t in any of Ezold's
evaluations.
86a
again no evidence tha t this incident played any
role in Wolfs decision to deny Ezold's admission
to the partnership.
4.
Finally, the district court found tha t Ezold was
the target of several comments dem onstrating the
firm's differential treatm ent of women. The district
court found the following:
During the selection process . . . Mr. Kurland
told Ms. Ezold that it would not be easy for her
a t Wolf, Block because she did not fit the Wolf,
Block mold since she was a woman, had not
attended an Ivy League law school, and had not
been on law review. Mr. Kurland and Ms. Ezold
stated that a t one of the meetings with Ms.
Ezold, only Ms. Ezold and he were present.
See Ezold I, 751 F. Supp. a t 1177 (FOF 18). Ezold
did not raise this reference a t a subsequent lunch
with associate Liebenberg, a woman, and Schwartz,
nor did she express concern over Wolfs treatment
of women. Although Kurland denied making the
statem ent, the district court resolved this
credibility issue in Ezold's favor and we will not
disturb it.
Wolf argues that this comment made in 1983
before Ezold accepted the job is not probative on
whether its partnership decision five years later
was gender-based. In Roebuck v. Drexel University,
852 F.2d at 733, the plaintiff alleged racial
discrimination in the denial of tenure and we
considered the probative value of evidence of a
discriminatory attitude on the part of a key
decisionmaker. There, the president of the
university exercised a significant influence on the
8 7 a
decisionmakers and had made the final tenure
decision. He had also made two statem ents
reflecting racial bias. Id. We held, although the
“statements standing alone, occurring as they did
over five years before the final denial of tenure,
could not suffice to uphold a finding [of
discrimination], they do add support, in
combination with the other evidence, to the
ultimate conclusion.” Id.; see Jackson v. Harvard
Untv., 721 F. Supp. 1397, 1431 n.24 (D. Mass.
1989) (alleged derogatory comments made to
plaintiff by dean before she began teaching “were
made well before the plaintiffs tenure review
process began and are manifestly too remote from
the tenure decision-making process to have any
relevance in this action”), af f d , 900 F.2d 464 (1st
Cir.), cert, denied, 111 S. Ct. 137 (1990). Here,
however, as we have painstakingly pointed out,
other evidence of sex discrimination is lacking. In
any event, Kurland made this comment before
Ezold began her employment at Wolf, five years
before the partnership decision. The comment’s
temporal distance from the decision Ezold says
was discriminatory convinces us it is too remote
and isolated to show independently tha t unlawful
discrimination, rather than Wolfs asserted reason,
more likely caused the firm to deny Ezold the
partnership she sought in 1988.
Kurland himself had left the firm in January
1988, before Ezold’s 1988 evaluation and before
the Associates Committee and the Executive
Committee denied her admission to the
partnership. Thus, he did not take part in the final
decision to deny Ezold's admission to the
partnership, although he had consistently
supported her candidacy despite his recognition of
88a
other partners’ perceptions about her legal
analytical ability. See Ezold I, 751 F. Supp. at
1182 (FOF 62) (“I think she has proven her case.").
Stray rem arks by non-decisionmakers or by
decisionmakers unrelated to the decision process
are rarely given great weight, particularly if they
were made temporally remote from the date of
decision. See Hopkins, 490 U.S. a t 277 (O'Connor,
J ., concurring); Frieze, 950 F.2d at 541; Guthrie
v. Tifco Indus., 941 F.2d 374, 378-79 (5th Cir.
1991), cert, denied, 112 S. Ct. 1267 (1992). We
decline to depart from this principle in the present
case.
D.
In her brief on appeal, Ezold points to several
other alleged sexist comments by Kurland to which
she testified at trial bu t upon which the district
court made no findings. Thus, the remaining issue
on sufficiency is whether all of the sexist
comments Ezold attributes to Kurland, taken
together, are enough to establish pretext. Ezold
testified th a t a t the close of a litigation department
dinner, Kurland singled her out for interrogation
on the issue of sex discrimination a t the firm.
Kurland testified th a t he addressed the topic to
the entire group because he was Vice Chancellor
of the Philadelphia Bar Association and everyone
was discussing the issue at the time. Ezold also
testified and Kurland did not deny tha t Kurland
would give her instructions in the hallway to
“smile" and crudely ask whether she had any
romantic encounters the night before. She also
testified tha t a t a litigation associates’ breakfast
Kurland recounted a judge's comments about a
8 9 a
murder case involving the rape of a corpse.
Kurland testified:
I looked around a t the young people and a t the
time I was in the middle of a m urder trial and
I thought, my God, my young people here, have
such a narrow fragmented aspect of what law is
today, interrogatories and depositions in Federal
Court, dealing in money m atters and they don't
really have a comprehension of what happens in
law, that we have a whole state court system
and criminal system, tha t they do not even come
in contact with and I thought it would be
beneficial for them to broaden their horizon to
give them some exposure to hear firsthand from
me what it was like to be involved in an actual
murder trial . . . [and that] the judge was telling
me about other cases he had . . . and he told
me about this one case and I talked about a case
that a m an had killed a woman and had sex
with her afterwards.
App. at 1756-57.
Ezold additionally testified tha t Kurland told her
not to refer a talented female attorney to the firm
for employment because he did not want the
problems caused by another female attorney
working in the litigation department. Kurland did
not recall Ezold talking to him about hiring anyone
but denied making the statem ent about women
associates. Finally, Ezold points to an alleged
statement by Kurland cautioning female attorneys
with children from traveling on business. Kurland
denied making this statem ent and in fact often
assigned Liebenberg, a female partner who had
small children, to cases requiring extensive travel.
9 0 a
Although the district court made no findings
th a t these statem ents were actually made or whose
version of the facts it believed, we m ust consider
them on the sufficiency issue in the light most
favorable to Ezold. In doing so, we recognize that
proof of a discriminatory atm osphere may be
relevant in proving pretext since such evidence
“does tend to add ‘color' to the employer’s
decisionmaking processes and to the influences
behind the actions taken with respect to the
individual plaintiff." Conway u. Electro Switch
Corp., 825 F.2d 593, 597 (1st Cir. 1987). We must
therefore decide whether these six alleged
comments by Kurland over a period of five years
are sufficient to sustain the district court’s finding
th a t Wolfs reason for denying Ezold admission to
the partnership — her legal analytical ability—was
ju s t a pretext to cover up sex discrimination.
In Lockhart v. W estlnghouse Credit Corp., we
considered the relevance in an age discrimination
case of a statem ent made by a corporate
vice-president after the plaintiffs termination. The
vice-president stated: “[This company] was a
seniority driven company with old management
and th a t’s going to change, ‘I’m going to change
th a t.’" 879 F.2d a t 54. We said:
When a major company executive speaks,
“everybody listens” in the corporate hierarchy,
and when an executive’s comments prove to be
disadvantageous to a company’s subsequent
litigation posture, it can not compartmentalize
this executive as if he had nothing more to do
with company policy than the janitor or
watchman.
9 1 a
Id. This case is superficially similar to Lockhart in
that Kurland, as the chairman of the litigation
department, was a company executive until he left
the firm in 1987. It is distinguishable, however, in
several material respects. The other evidence
supporting the verdict in favor of the plaintiffs in
Lockhart, unlike the evidence in the present case,
was substantial.37 In addition, though Kurland was
at one time a decisionmaker and eventually
supported Ezold’s admission to the partnership, he
took no part in the final votes or evaluations
concerning Ezold because he had by that time left
the firm.
Though Kurland's comments, if made, were
crude and unprofessional, we do not believe they
are sufficient in and of themselves to sustain the
district court's judgm ent in favor of Ezold. They
37. In Lockhart, th e re w as sufficient Ind irect evidence to
support th e Ju ry 's verd ict th a t age w as the determ inative factor
in L ockhart's d ischarge. This evidence included: (1) L ockhart
had received sa tisfac to ry perfo rm ance evaluations an d m erit
salary in c reases in each year over h is tw enty-tw o year career
with the com pany: (2) he h ad never received a rep rim and or
demotion; (3) th e alleged reaso n for h is d ischarge w as
discrepancies found in a n a u d it of h is office, however, he w as
never given a n opportu n ity to explain th ese d iscrepancies prior
to his te rm ination ; (4) h is im m ediate superv iso r testified th a t
he was a good an d dependab le w orker an d th a t th e s ta n d a rd
company policy w as to proceed th ro u g h a series of rep rim ands
before a n em ployee would be d ism issed ; (5) th e second person
responsible for h is te rm in a tio n also testified th a t Lockhart w as
never in su b o rd in a te an d never deliberately violated com pany
policy; an d (6) th e re w as evidence th a t th e com pany had
decided to u n d e rta k e a m ajor re s tru c tu r in g w hich resu lted in
the consolidation of several locations an d th e filling of new
m anagem ent positions by m uch younger and inexperienced
individuals. 879 F .2d a t 49-50.
9 2 a
may reflect unfavorably on Kurland's personality
or his views, bu t they are not sufficient to show
th a t there was such a pervasive hostility toward
women a t Wolf sufficient to show tha t Ezold’s
partnership decision was more likely the result of
discriminatory bias than Wolfs perception38 of
Ezold’s legal ability. Ezold has made no claim that
Kurland’s comments created a hostile working
environment. See Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 64 (1986).39 If we were to
hold tha t several stray rem arks by a
nondecisionmaker over a period of five years, while
inappropriate, were sufficient to prove tha t Wolfs
associate evaluation and partnership admission
process were so infected with discriminatory bias
tha t such bias more likely motivated Wolfs
promotion decision than its articulated legitimate
38. It b ea rs repea ting in th is final stage of d iscu ssio n that
W olfs im p ressio n of E zo ld s legal analy tic ability, inform ed but
a t th e sam e tim e subjective, is th e focal po in t in th is case and
th a t Wolf is en titled to form its own subjective Judgm ent on
th a t factor. W olf is a lso en titled to be w rong in its judgm ent
so long a s it does no t b ase its in co rrec t decision on unlawful
sex d isc rim ina tion or stereo type.
39 . For hostile env ironm en t to be ac tionab le u n d e r Meritor, It
m u s t be sufficiently severe or pervasive to a lte r th e conditions
of [the p la in tiffs] em ploym ent an d c rea te a n abusive working
environm ent." IcL a t 67 (quotation om itted); see also Rogers u.
EEOC, 454 F .2d 234 , 238 (5th Cir. 1971) (“m ere u tterance of
a n e th n ic or rac ia l ep ith e t w hich en genders offensive feelings
in a n employee" w ould n o t sufficiently affect conditions of
em ploym ent to violate Title VII), cert, den ted , 406 U.S. 957
(1972); Fox v. R avinta Club, Inc., 761 F. S upp . 797, 801 (N.D.
Ga. 1991) (evidence of c a su a l a tm o sp h ere an d loose
conversa tion th a t som etim es h ad sex u a l conno ta tions or
im plica tions insuffic ien t to prove hostile w orking environment).
9 3 a
reason, we would spill across the limits of Title
VII. See Hopkins, 109 S. Ct. a t 1785 (Title VII
strikes a balance between protecting employees
from unlawful discrimination and preserving for
employers their remaining freedom of choice.).
X.
We have reviewed the evidence carefully and
hold tha t it is insufficient to show pretext. Despite
Ezold’s disagreement with the firm’s evaluations of
her abilities, and her perception tha t she was
treated unfairly, there is no evidence of sex
discrimination here. The district court's finding
that Wolfs legitimate non-discrlminatory reason
was incredible because Ezold was evaluated more
severely than male associates because of her
gender, as well as its finding tha t Wolfs
requirement tha t she possess analytical skills
sufficient to handle complex litigation was a
pretext for discrimination, are clearly erroneous
and find no support in the evidence. Finally, this
record also lacks sufficient direct evidence of
discriminatory anim us to sustain a finding that
Wolf more likely had a discriminatory motive in
denying Ezold’s admission to the partnership.
XI.
Accordingly, we will reverse the judgm ent of the
district court in favor of Ezold and remand for
entry of Judgment in favor of Wolf.
A True Copy:
Teste:
Clerk o f the United S ta tes Court o f Appeals
fo r the Third Circuit
9 4 a
UNITED STATES COURT OF APPEALS
F o r t h e T h i r d C i r c u i t
Nos. 91-1741 & 91-1780
Filed February 1, 1993
N a n c y O ’M a r a E z o l d ,
Appellant at No. 91-1780,
—v.—
W o l f , B l o c k , S c h o r r a n d S o l i s - C o h e n ,
Appellant at No. 91-1741.
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Docket No. 90-00002)
Argued: May 21, 1992
P r e s e n t : H u t c h i n s o n , C o w e n and S e i t z ,
Circuit Judges.
ORDER AMENDING SLIP OPINION
I t i s H e r e b y O r d e r e d that the slip opinion in the above
case, filed December 30, 1992, be amended as follows:
Page 28, Part IV., line 11—delete “direct evidence” and
insert “evidence tied to a discriminatory animus.”
Page 29, line 4—delete the word “direct.”
9 5 a
Page 93, Part X., line 15—delete the word “direct.”
BY THE COURT,
/s/ William D. Hutchinson
Circuit Judge
Dated: February 1, 1993
A True Copy:
Teste:
Clerk o f the United States Court o f Appeals
fo r the Third Circuit
9 6 a
UNITED STATES COURT OF APPEALS
F o r t h e T h i r d C i r c u i t
Nos. 91-1741 & 91-1780
N a n c y O ’M a r a E z o l d ,
Appellant at No. 91-1780
W o l f , B l o c k , S c h o r r a n d S o l i s - C o h e n ,
Appellant at No. 91-1741
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Docket No. 90-00002)
Present: Hutchinson, Cowen and Seitz, Circuit Judges.
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the Eastern District of
Pennsylvania and was argued by counsel May 21, 1992.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said District
Court entered July 23, 1991 as amended by the order entered
August 5, 1991, be, and the same is hereby reversed and the
cause remanded to the said District Court with direction to
9 7 a
enter judgment in favor of Wolf, Block, Schorr and Solis-
Cohen. Costs taxed against Ms. Ezold. All of the above in
accordance with the opinion of this Court.
At t e s t :
[ILLEGIBLE]
Clerk
Dated: December 30, 1992
Costs taxed in favor of Wolf, Block, Schorr & Solis-Cohen
as follows:
B rie f ........................... $4,000.44
Appendix................................3,555.14
Reply Brief............................ 4,021.64
Amended Appendix............. 1,133.03
Docketing Fee........................... 100.00
TO TA L.............................. $12,810.25
Certified as a true copy and issued in lieu
of a formal mandate on February 11, 1993
Teste: P. Douglas Sisk
Clerk, United States Court of Appeals
for the Third Circuit
COPY
98a
UNITED STATES DISTRICT COURT
E.D. P e n n s y l v a n i a
Civ. A. No. 90-0002
Nov. 29, 1990
N a n c y O ’M a r a E z o l d ,
W o l f , B l o c k , S c h o r r a n d S o l i s - C o h e n ,
AMENDED MEMORANDUM
J a m e s M c G i r r K e l l y , District Judge.
The court has now considered the testimony that has been
presented in this case and is prepared to make its Findings of
Fact and Conclusions of Law and decision.
FINDINGS OF FACT
1. Plaintiff Nancy Ezold has alleged that Wolf, Block,
Schorr and Solis-Cohen (“Wolf, Block” or “the Firm”) dis
criminated against her on the basis of her sex in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, et seq., when it decided not to admit her to the
partnership. Ms. Ezold also alleged that she was constructively
discharged by Wolf, Block on account of her sex by reason of
the adverse partnership decision. In addition, Ms. Ezold alleged
a claim under the Equal Pay Act, 29 U.S.C. § 206(d), of the
Fair Labor Standards Act, 29 U.S.C. § 201, et seq. The Court
99a
has jurisdiction over this action pursuant to 42 U.S.C.
§ 2000e-5(f)(3).
2. Prior to trial, with the agreement of the parties, the Court
bifurcated the issues of liability and damages.
3. In addition, the Court severed Ms. Ezold’s claim under
the Equal Pay Act pursuant to Fed.R.Civ.P. 42(b).
4. Ms. Ezold graduated from Villanova Law School in 1980.
She graduated 61st out of a class of 194, and was not a mem
ber of the Villanova Law Review.
5. Subsequent to her graduation from law school, Ms. Ezold
worked at the law firm of Kirschner, Walters & Willig from
1980 to 1981. She was involved primarily in the representation
of union members through their union legal services plan in
personal matters such as workers’ compensation, domestic rela
tions and real estate settlements.
6. From 1981 to July, 1983, Ms. Ezold worked at the law
firm of Phillips and Phelan. This firm had two attorneys
besides the plaintiff.
7. The defendant Firm hires associates on one of two cate
gories—partnership track and non-partnership track. The plain
tiff was hired by the defendant as an associate on a partnership
track basis in 1983.
8. The defendant Firm was fully aware of the plaintiff’s
background when it hired her. There were no objections by any
one on the defendant Firm’s hiring committee to the plaintiff s
hiring or placing her on a partnership track.
9. Wolf, Block is a law firm based in Philadelphia which, as
of 1989, was comprised of 249 attorneys, approximately one-
half of whom were partners. Wolf, Block has a number of
departments, including real estate, corporate, litigation, taxa
tion, estates and labor. During the time Ms. Ezold worked at
Wolf, Block, the Litigation Department grew from 36 to 55
attorneys.
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10. Wolf, Block is governed by a 5-member Executive
Committee which is responsible for establishing policy for the
Firm and for operating the Firm on a day-to-day basis. The
Executive Committee’s members are elected by the Firm’s vot
ing partners.
11. Wolf, Block has a 10-member Associates Committee
which includes partners from each of the Firm’s departments.
The members of the Associates Committee are appointed by the
Executive Committee.
12. The Associates Committee is responsible for, inter alia,
reviewing the performance and evaluations of all of the Firm's
associates and making recommendations to the Firm’s
Executive Committee as to salary and as to which associates
should be admitted to the partnership.
13. The Executive Committee reviews the partnership rec
ommendations of the Associates Committee and, in turn, exer
cises its own discretion in making partnership recommenda
tions to the entire partnership. Only those persons who have
been recommended for partnership by the Executive Committee
are considered for admission to the partnership by the Firm’s
voting partners, upon whom rests the sole and ultimate respon
sibility for determining who is elected to the partnership.
14. The defendant Firm hires many associates immediately
after their graduation from law school or completion of a judi
cial clerkship (referred to as “non-laterals”). Non-laterals are
considered for partnership approximately 71/, years after their
graduation from law school. Other associates, referred to as
“laterals,” are hired after they have had experience working at
other law firms or in other post-law school employment, and
are generally subject to a five-year rule for partnership con
sideration.
15. Until 1989, certain associates of an experience level to
be admitted to a partnership were accorded “special partner”
status. Such individuals, in contrast to other partners (referred
to as “regular” partners), do not have the right to vote or
to receive any equity share in the partnership, are subject to
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removal by the Executive Committee, and have benefits which
are inferior to those provided to regular partners.
16. In the Spring of 1983, Ms. Ezold applied for employ
ment at Wolf, Block. She met initially with Seymour Kurland,
who was then the chairman of the Litigation Department.
17. From 1983 until 1987, Mr. Kurland was the chair of the
Litigation Department. Thereafter Alan Davis served as chair
of the Litigation Department.
18. In 1983, Ms. Ezold was offered a position as an asso
ciate in Wolf, Block’s Litigation Department. During the selec
tion process, she had meetings and telephone conversations
with Mr. Kurland, who said that her prior work experience
helped make her an attractive candidate to do litigation for
Wolf, Block. Mr. Kurland told Ms. Ezold that it would not be
easy for her at Wolf, Block because she did not fit the Wolf,
Block mold since she was a woman, had not attended an Ivy
League law school, and had not been on law review. Mr.
Kurland and Ms. Ezold stated that at one of the meetings with
Ms. Ezold, only Ms. Ezold and he were present.
19. Subsequent to the aforementioned meeting, but before
accepting Wolf, Block’s offer of employment, Ms. Ezold had
lunch with Roberta Liebenberg and Barry Schwartz, who were
both members of the Litigation Department. Ms. Ezold admit
ted she did not mention to them the statement by Mr. Kurland
that she would have a difficult time at Wolf, Block because she
is a woman, did not ask them any questions about the treatment
of women at Wolf, Block, and did not express to them any con
cern over the Firm's treatment of women.
20. Ms. Ezold began working at Wolf, Block in July, 1983
and was assigned to the Firm ’s Litigation Department.
21. From 1983 until 1987 Mr. Kurland was responsible for
assignment of work to associates in the Litigation Department,
a duty he delegated in part to partner Steven Arbittier.
Thereafter Mr. Davis assumed primary responsibility for dis
tribution of work to associates in the Department.
1 0 2 a
22. Ms. Ezold handled various matters for the defendant
during her tenure at Wolf, Block. She worked for partners in
the Litigation Department on criminal matters, insurance cases,
general commercial litigation and other areas, and also did
work for some partners in other departments. She handled mat
ters at all stages of litigation, and was called upon by partners
to go to court on an emergency basis.
23. Ms. Ezold routinely researched and drafted briefs and
pleadings on the matters on which she worked, and during the
last two years of her employment at Wolf, Block, supervised
junior associates in their preparation of briefs and pleadings.
24. Mr. Arbittier primarily assigned the plaintiff to civil
actions that were small cases by Wolf, Block standards, and a
variety of criminal matters.
25. For example, in 1983, Mr. Arbittier assigned the plain
tiff, together with an associate, Mr. McCullough, responsibil
ity for a large group of minor cases previously handled by
Steve Levin, an associate who had worked on such matters and
had left the Firm.
26. Thereafter, the plaintiff was given responsibility for ten
to fifteen bankruptcy matters involving collections of $400 or
less. 27 28 29
27. Ms. Ezold did not work for more than 500 hours on any
one matter in any year according to the defendant’s computer-
maintained time records. In contrast, virtually all the male asso
ciates in the department worked on major matters for which
they logged at least 600 hours per year.
28. The plaintiff attended regular assignment meetings in
the Litigation Department where she had the opportunity to
observe the assignments being given to male associates. She
learned at such meetings of the informal procedure by which
partners spoke directly to certain associates to assign them
responsibilities bypassing the formal assignment procedure.
29. During one such meeting, Mr. Arbittier asked for a vol
unteer to work on a preliminary injunction. Although Ms.
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Ezold was the only associate to volunteer, and was initially
assigned the case, within an hour Mr. Arbittier, without expla
nation, had reassigned it to a male associate.
30. The plaintiff complained about the quality of her assign
ments in civil matters to the Litigation Department partners
who assigned cases to associates. The plaintiff also objected to
being assigned to work with only a very limited number of
partners. Mr. Kurland acknowledged that most of the work
opportunities given to the plaintiff were inferior and promised
that the problem would be corrected.
31. Part of the negative impression concerning the plaintiffs
performance was an impression that she was “not a team
player,” “institutionally disloyal,” and that she “bad-mouthed”
the Firm to young associates. The only basis of this criticism
advanced by the defendant Firm was the plaintiff’s perceived
concern about women's issues, such as the Firm’s treatment of
paralegals, who were virtually all female and the Firm’s treat
ment of part-time attorneys who were all female.
32. The defendant claimed that the plaintiff lacked the intel
lectual capacity required for partnership at the Firm. In a mem
orandum regarding the plaintiff dated June 19, 1984, Robert
Boote, a Litigation Department partner, wrote on behalf of the
Associates Committee:
The doubts about whether someone has a depth of intel
lectual ability [are] a classic concern here, which some
times turns out to be self-perpetuating and fulfilling.
Nancy is a confident lawyer who is doing well at her
level. She should be given every opportunity to display
her intellectual ability.
33. In a 1988 memorandum to the Executive Committee
urging Ms. Ezold’s admission to partnership, Greg Magarity, a
Litigation Department partner who had worked extensively
with her, described the “Catch-22” of the perception that Ms.
Ezold could not handle complex cases. He wrote:
104a
[T]he perception that she is not able to grasp complex
issues or handle complex cases . . . appears to be a prod
uct of how Sy Kurland viewed Nancy's role when she was
initially hired. For the first few years Sy would only
assign Nancy to non-complex matters, yet, at evaluation
time, Sy, and some other partners would qualify their
evaluations by saying that Nancy does not work on com
plex matters. Nancy was literally trapped in a Catch-22.
The Chairman of the Litigation Department would not
assign her to complex cases, yet she received negative
evaluations for not working on complex cases.
34. In a memorandum after his meeting on behalf of the
Associates Committee with the plaintiff concerning her eval
uation, Mr. Boote wrote in March 1985:
[Kurland] told her that he was going to see to it that the
nature of her assignments was changed so that she would
have the opportunity to work with various partners in the
Department and so that they would have the opportunity
to evaluate her.
* * *
We told her that we did not view it as her fault that she
hadn’t had the opportunity to demonstrate these [techni
cal] abilities yet, since her work was in large measure a
product of the assignments she got.
35. During that meeting, Mr. Boote and Mr. Kurland made
a commitment to the plaintiff that she would be assigned an
appropriate mix of cases, reporting to a wider group of part
ners. Ms. Ezold was told that she could not be properly eval
uated because she had not had the opportunity to show her
skills.
36. Mr. Kurland told Ms. Ezold to let him know if partners
tried to assign smaller matters to her directly. Nevertheless,
although he was head of the department, Mr. Kurland never
assigned her to work on a matter for which he was responsible,
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except for one case in which Wolf, Block's participation as one
of five firms representing plaintiffs was minimal, and on even
that case she had virtually no contact with Mr. Kurland.
37. In a February 1986 memorandum, Mr. Boote noted that
Ms. Ezold was handling a number of small matters for Mitchell
Panzer. Mr. Boote and Mr. Kurland wanted to reassign these
matters “both to free Nancy up a little and to give some demon
stration that we are making an effort to change the nature of her
assignments.” Mr. Boote and Mr. Kurland also told Ms. Ezold
that “we would make the effort to try to give her the assign
ments that will enable her to attempt to build a place for her
self.”
38. Many partners bypassed both Mr. Kurland and Mr.
Arbittier in selecting associates to work on their cases. Mr.
Kurland, in permitting this activity to happen, prevented the
plaintiff from securing improved assignments.
39. The plaintiff worked with a limited number of partners
in and out of the Litigation Department.
40. The plaintiffs lack of opportunity to work with a sig
nificant number of partners seriously impaired her opportunity
to be fairly evaluated for partnership. As Charles Kopp wrote
in late 1985 to Ian Strogatz:
I have filled out the [evaluation] forms as requested. I
have had virtually no contact with any of the senior asso
ciates listed. Accordingly, it is difficult to give an opinion
as to whether I would feel comfortable in turning over a
significant matter for one of my clients or whether I would
be in favor of admitting the associate to the firm. When
faced with no information, I must answer ‘No’ to ques
tions like admission to partnership.
41. In Ms. Ezold’s 1986 evaluation meeting, Mr. Kurland
and Mr. Boote suggested that working in a specialty area would
enhance her possibilities for partnership. The partners
described continuing and developing her work in white collar
106a
crime as a good niche, but one that should not preclude her
from taking on general civil work.
42. In his April, 1986 evaluation of Ms. Ezold, Mr. Boote
wrote: “Nancy is good. Very good. Doing certain kinds of
work. Let’s try to let her make a place for herself.”
43. Mr. Kurland also stated that he felt Ms. Ezold could spe
cialize in “trial work” and be valuable to the Firm. If Ms. Ezold
specialized in “trial work,” and if she became “very valuable to
the firm, because it was an area where we really needed some
body and she excelled at that, then that would be a way that she
could still perhaps be a partner in the trial department.”
44. The plaintiff handled many white collar criminal matters
under the supervision of Mr. Magarity, who headed the Firm's
white collar crime group.
45. In March, 1987, Mr. Magarity wrote a memorandum
thanking Mr. Kurland and Mr. Arbittier for permitting Ms.
Ezold to work on his matters. In a 1988 memorandum to the
Executive Committee in which he urged Ms. Ezold’s admission
to partnership, Mr. Ezold wrote:
Virtually every other criminal defendant these days is a
corporation. Nancy has shown considerable ability to han
dle these type[s] of important complex cases. The demand
for capable litigators with Nancy’s skills in this area is
abundant but the supply is sparse. I would be more than
willing to have Nancy, as a partner, work full-time in this
expanding and lucrative area.
(emphasis added).
46. Each year at Wolf, Block all partners submit written
evaluations of all associates. The evaluations are to be com
pleted regardless of the extent of the partner’s familiarity with
the associate’s work.
47. The evaluation forms are explicit in describing infor
mation which is sought about the associate. Ten characteristics
of legal performance are listed: legal analysis, legal writing and
107a
drafting, research skills, formal speech, informal speech, judg
ment, creativity, negotiating and advocacy, promptness, and
efficiency. Ten personal characteristics are also listed; relia
bility, taking and managing responsibility, flexibility, growth
potential, attitude, client relationship, client servicing and
development, ability under pressure, ability to work indepen
dently, and dedication.
48. The evaluation forms in use for the years 1987 and 1988
describe for the evaluator what each grade means. The grades
are described as follows:
Distinguished—Outstanding, exceptional; consistently
demonstrates extraordinary adeptness and quality; star.
Good—Displays particular merit on a consistent basis;
effective work product and performance; able; talented.
Acceptable—Satisfactory; adequate; displays neither par
ticular merit nor any serious defects or omissions; depend
able.
Marginal—Inconsistent work product and performance;
sometimes below the level of what you would expect from
Associates who are acceptable at this level.
Unacceptable—Fails to meet minimum standard of qual
ity expected by you of an Associate at this level; fre
quently below the level of what you expect.
49. The instructions on the form direct the evaluator to
describe the partner’s experience with the associate in the eval
uation period. The instructions read as follows:
In order to obtain a full evaluation of this Associate, you
are urged to observe the following principles: Ratings
should be applied on the basis of what you expect of an
Associate at this Associate’s level of experience. Each
item should be answered by selecting the appropriate
objective answer with some brief comment, or “NO.” (Not
Observed). “NO.” should be reserved only for those cases
where not even a slight observation has been made, as
108a
there may be small observations by more than one evalu
ator which will cumulatively indicate a subtle talent,
potential or problem that should be brought out to help the
Associate in his/her development. Most valuable to us
are your w ritten comments. Attach an additional sheet
if necessary to express yourself completely.
(emphasis in original; bold type supplied).
50. Mr. Strogatz described the process by which associates
are evaluated for partnership. Senior associates are lateral asso
ciates who have completed their second or third years of
employment, or non-lateral hires who have completed five
years of employment. Senior associates are typically reviewed
once a year. Generally, non-senior associates are evaluated
twice a year, although that varies somewhat from year to year.
51. The evaluations reflect letter or number grades of an
associate’s performance in the listed legal and personal skills.
Partners are also asked to indicate how they would regard the
admission of each senior associate to partnership. The five pos
sible answers for that question are: “with enthusiasm,” “with
favor,” “with mixed emotions,” “with negative feeling,” or “no
opinion.”
52. The completed evaluation forms are sent to Eileen
McMahon, an administrative employee. Ms. McMahon and her
staff collect this information and “ [compile] it and they sum
marize it into standard forms that we use for the [A]ssociate[s]
[C]ommittee[’]s purposes. . . . The summarizations are sup
posed to be verbatim with what the form says. . . .” Once the
evaluations are summarized, the summaries are put in books
that are sent to members of the Associates Committee so that
each person on the committee gets the information that has
been collated and summarized.
53. Each member of the Associates Committee is assigned
the responsibility of reading the original evaluation forms in
addition to the summaries for certain associates. That com
mittee member drafts a memorandum concerning each of those
associates assigned to him or her for this purpose. The mem
109a
orandum is distributed to the other members of the Associates
Committee, usually the day before the meeting of the com
mittee. This memorandum is called the “bottom line memo.”
The bottom line memo:
. . . is intended to be [the Associates Committee mem
ber’s] own personal view of what he has gleaned from the
evaluations submitted at the time by the partners who sub
mitted evaluation forms, plus anything in addition that
[the Associate Committee member] has gleaned from any
interviews that he has conducted with respect to those
evaluations.
(emphasis added).
54. The bottom line memo becomes part of the package that
each Associates Committee member has before him or her at
the Associates Committee meeting.
55. In the years 1987, 1988, and 1989, the bottom line
memos contained a “grid,” reflecting the Associates Committee
member's summary of that associate’s letter grades in legal and
personal skills for the preceding evaluation period.
56. Committee members do not receive the original indi
vidual evaluations as part of their packets. Mr. Strogatz
explained that those documents would take too much time for
the Associates Committee members to review. The members
receive the bottom line memo with its grid as a starting point
before the Associates Committee meets. They also receive the
summary of evaluations compiled by Ms. McMahon, and
reflected on standardized forms.
57. Mr. Strogatz testified that the Associates Committee has
no formal voting procedures, but that sometimes the members
poll themselves. The committee also formulates a performance
review that will be given to each associate and the Associates
Committee member who is responsible for giving that review
is told at the meeting by the committee what the reviewer
should say.
110a
58. Since 1987, the judgment of the Associates Committee
concerning a senior associate’s prospects for partnership has
been reflected on a form. The form lists as possible ratings for
the associate’s promotion to regular partnership as: “More
likely than not,” “unclear,” “less likely than not,” or “unlikely.”
Similar rankings are used for the likelihood of the associate’s
promotion to special partnership. That form is given to the
associate at the oral review by the responsible Associates
Committee member. At the oral review, the consensus of the
Associates Committee regarding that candidate is communi
cated to the candidate by the responsible Associates Committee
member.
59. The Chairman of the Associates Committee reports the
recommendation of the committee to the Executive Committee,
which has the ultimate authority for recommending to the full
partnership the election of candidates to partnership. The full
partnership does not vote on candidates not recommended.
60. In the period up to and including 1988, Ms. Ezold
received strongly positive evaluations from almost all of the
partners for whom she had done any substantial work. In 1987
and 1988, the process of evaluating the plaintiff’s candidacy
for partnership as a senior associate occurred, and written eval
uations from all of the firm’s partners were solicited.
61. In December 1986, Robert B. Wolf, a senior partner in
the Corporate Department, wrote to Mr. Kurland:
Just a note to express my great satisfaction with the
manner in which Nancy Ezold has handled a claim against
the Union League, which was forwarded to me by a class
mate of mine in Boston.
I like everything about the way Nancy has taken hold,
including her research, her meeting with all opposing
counsel and her handling of her clients.
Nancy really is top notch.
1 1 1 a
62. Prior to his leaving Wolf, Block in 1987, Mr. Kurland
believed that Ms. Ezold should be admitted to partnership. He
wrote in his 1987 evaluation:
Nancy is an exceptionally good courtroom lawyer,
instills confidence in clients, gets things done, is unafraid
and has all the qualifications for partnership. . . . What I
envisioned about her when I hired her was a ‘good, stand-
up, effective courtroom lawyer’ remains to be true and I
think she has proven her case. . . .
63. In his 1987 evaluation of Ms. Ezold, Mr. Boote write
that Ms. Ezold “is a valuable asset to the firm.” He also wrote:
[C]riminal, negligence, commercial contract cases are all
well within her ability. Moreover, in these areas she pre
sents herself to the court and clients as an effective rep
resentative of the firm. I would trust her to handle many
significant [matters] on her own.
Mr. Boote voted with favor for partnership for Ms. Ezold in
1987 and 1988.
64. In 1988, Mr. Boote rated Ms. Ezold’s legal analysis as
“good.” He had rated her as “acceptable” in that category in
1987.
65. In 1987, Steve Goodman, a partner in the Corporate
Department and a member of the Executive Committee who
had had substantial contact with Ms. Ezold, rated her overall
legal skills and her legal analysis and legal writing abilities
between "distinguished" and “good.” He wrote:
She worked very closely with Greg [Magarity] on an
important matter for me and I was very favorably
impressed with her work. She also successfully handled a
matter that required much legal analysis and client hand
holding.
* * *
She is one of the first people I call to handle any liti
gation matter. She has always justified my high confi
112a
dence in her. . . . I sense some old perceptions—bag
gage—which should be revisited.
Mr. Goodman suggested that Ms. Ezold needed “Better p.r.
[public relations].” (emphasis added).
66. Mr. Goodman wrote in his June 1988 evaluation of Ms.
Ezold:
I think she handles herself extremely well in both formal
and informal settings. . . . She craves and reaches out
for more responsibility. . . . Has shown industriousness,
dedication, good judgment and client skills in several mat
ters. I get the sense she should have [the] opportunity for
greater independent responsibility.
67. In 1987, the last year in which he evaluated Ms. Ezold's
legal analysis and writing ability, Mr. Schwartz, a Litigation
Department partner, rated her in those areas as “good.” He
wrote: “Nancy has made tremendous progress over the years.
As her confidence has grown from front line experience her
abilities have expanded. She is a top-flight associate.” He
added Ms. Ezold “will make a fine partner.” In 1988, he rated
Ms. Ezold distinguished in all personal qualities, a grade he
also gave to her informal speech skills and negotiating skills.
68. Mr. Davis, the Chairman of the Litigation Department at
the time, wrote in his June, 1988 evaluation of Ms. Ezold:
Last year I assigned Nancy to assist me in the Home Unity
Securities Litigation and a related SEC investigation.
Complex civil litigation was new to her. She had to learn
about pretrial orders, class certification, responses on
objections to lengthy sets of interrogatories and all of the
other sophisticated phases of such litigation. With the help
of forms from other cases, she produced first class docu
ments. She also managed two complex document pro
ductions, including inspection, developing a privilege list,
both stamping and putting out the daily brush fires
between counsel. Her ability to become so useful and
effective in so short a time was truly amazing. Opponents
113a
respect her. The Home Unity Officers and Directors are
crazy about her, and have said so. Nancy is another one of
those people who is here weekends and nights—she has
difficult family responsibilities. She never complains
about workload and is always available. She is one of two
or three people who will march into court and handle a
preliminary injunction on an hour’s notice. The Home
Unity case was the first really fair test for Nancy. I believe
that her background relegated her to . . . matters (where
she got virtually no testing by Wolf, Block standards) and
small matters. She is much, much better than that. I could
handle any case with Nancy and she will soon be able to
handle major cases independently—she can do so now, in
my opinion, in consultation with an experienced partner.
Moreover, she can try cases because of her guts and matu
rity. This is not true of all of our litigators.
69. Mr. Davis stated that when he wrote his evaluation of
Ms. Ezold in 1988, he believed “that it had been established
that Nancy had excellent skills in various areas of litigation,
including case management, document management, witness
preparation, dealing with opponents, professionalism, maturity,
aggressiveness and a whole series of other traits that I con
sidered to be extremely useful to the department.” He believed
she could make a valuable contribution as a junior partner in
the Litigation Department.
70. Raymond Bradley, a senior litigation partner, wrote in
his June, 1988 evaluation of Ezold:
Although my contacts with Nancy have not been exten
sive, I have had the opportunity to review several briefs
that she wrote and to discuss with her problems on which
she was working. I have been impressed by her ability to
grasp issues and to think and write about them creatively.
She has a good sense of what can and cannot be accom
plished. . . . I think Nancy is a very hard worker who is
enthusiastic about her assignments and committed to the
interests of the firm and its clients. . . . She gets things
done. Writes very well. Has a good eye for the practical.
114a
71. Ms. Ezold’s overall score in legal skills in the 1988 bot
tom line memorandum presented to the Associates Committee
was a “G” for good. It was noted that “overall” she received
that year “stronger grades in intellectual skills than last time.”
72. The plaintiff, as an associate, needed supervision and
guidance from partners, as do most, if not all, associates. The
mistakes of the plaintiff were not of a greater magnitude or type
than were those of male associates who made partner.
73. The test that was put to the plaintiff by the Associates
Committee that she have outstanding academic credentials and
that before she could be admitted to the most junior of part
nerships, she must demonstrate that she had the analytical abil
ity to handle the most complex litigation was not the test
required of male associates.
74. Mr. Davis, Chairman of the Litigation Department of the
Firm, testified regarding the erosion of the standards of the
associate pool at the Firm:
At the time we were required to work three nights a
week and, if you were smart, you would work four, and
you would work on Saturdays. We were always having
lunch together, dinner together. The discussion would
always be about the law. We would write briefs. We would
spend hours on a sentence. We would turn out product that
was worthy of General Motors for Sam's Gas Station,
because that’s who we represented.
The place was indescribably brilliant. And it just isn’t
that way today. With all deference to some of my young
partners who are sitting out there, and they are very, very
good, you can’t even imagine the way it was in the 1960s.
And as time went by, instead of getting the top offers from
law officers of Law Review, we began to get people who
didn’t make officer at Law Review, and then we started to
go off Law Reviews and then started going deeper into
classes, and thankfully, because discrimination started to
relax and erode, we began competing in the market with
everybody else. And as a result, the pool of people we had
115a
to choose from was the same pool of people everybody
else had to choose from, and there were good people and
bad people and mediocre people and medium people.
75. Male associates who received evaluations no better than
the plaintiff and sometimes less favorable than the plaintiff
were made partners.
(1) Male Associate A
76. Associate A, an associate in the Litigation Department,
was recommended by the Associates Committee in 1988.
Robert Fiebach, who stated that he had had “substantial con
tact” with Associate A’s work, wrote in his 1986 evaluation of
him:
I really don’t think [Associate A] should become a part
ner. In fact, if he is made a partner, I will never again sub
mit an evaluation on any associate. I don’t know how he
has lasted this long in the firm.
77. Mr. Fiebach testified that his 1987 evaluation showed
that Associate A had made “substantial improvement.” In Mr.
Fiebach’s 1988 evaluation of Associate A, Mr. Fiebach did not
mark Associate A as distinguished in any category, but he
“found enough skills in the good and acceptable category to be
comfortable recommending him for partner.” He marked
Associate A’s legal analysis “acceptable.” Thus, according to
Mr. Fiebach, Associate A had substantially improved to the
level of “acceptable” in legal analysis, a rating lower than the
overall rating in that area that Ms. Ezold received in her bottom
line memo.
78. Barry Klayman, a partner in the Litigation Department,
wrote in his fall 1986 evaluation that he “could not rely on
[Associate A] to back [him] up in the office while [Klayman]
was in court. [Associate A’s] writing is dense and mediocre. He
missed target dates for completing projects and then hurriedly
slapped together something when I complained.”
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79. Mr. Davis wrote in his 1985 evaluation of Associate A:
At first glance his work looks adequate, if uninspired.
However, if you dig under the surface you find a lack of
professionalism, both in terms of legal analysis and
research. The case on which I worked most deeply with
Associate A was a preliminary injunction action in
Federal Court. He alleged jurisdiction under the wrong
statute and missed a pertinent Supreme Court case that
would have shot out at him from rudimentary shepardiz-
ing of cases he did cite. The complaint was drafted with
bare bones adequacy and the memorandum was superficial
and uninspired. The client did not feel that [Associate A]
was terribly interested in his case and mentioned his con
cerns to me. [Associate A] must be useful in our woefully
understaffed department because he will take on matters
and does get the paper out. However, his work product
should be below our minimum standards and I believe his
intellectual laziness will someday embarrass us.
80. Mr. Davis wrote in his 1988 evaluation of Associate A:
[Associate A] is strictly average. I think he would fade
into the background in a group of adversaries representing
multiple interests in a complex matter. He does not have
or give the appearance of having a winning attitude. I do
not believe he will ever attract significant business. His
principal strength seems to be that he has not seriously
offended anyone important and is useful as a utility man. In
my opinion, we have enough partners like [Associate A].
81. In his 1988 evaluation of Associate A, David Kaufman,
a partner in the Estates Department, ranked Associate A’s writ
ing skills as “unacceptable.” David Glyn, another partner in the
Estates Department, rated Associate A’s abilities in those areas
as “marginal,” and concurred in Kaufman’s view that Associate
A “should receive help with writing skills.”
82. In 1988 the year in which he was recommended for part
nership, Associate A had legal skills that were characterized by
117a
Mr. Arbittier as: “Acceptable—Barely adequate.” Mr. Arbittier
also described him as “[n]ot real smart.”
83. In 1988, Anthony Minisi, a litigation partner, evaluated
Associate A as follows: “[Associate A] worked on a major mat
ter for me and was not responsible. He was extremely slow in
responding.”
84. In 1986, Mr. Strogatz wrote that “the partnership issue
for [Associate A] depends upon what our standard is going to
be.”
85. In 1987, Mr. Strogatz wrote: “ [Associate A] is pretty
good overall, but not quite good enough.” Mr. Strogatz wrote
that he was concerned that Associate A “may not be bright
enough.”
86. Associate A’s bottom line grid for 1988 summarized his
legal analysis grades as “good” and his writing and research as
between “acceptable” and “good.” His overall ratings thus were
lower than those of Ezold.
(2) Male Associate B
87. The Associates Committee recommended Associate B,
a litigation associate, for partner in the fall of 1989.
88. In May 1989, David Simon, a litigation partner who
described his experience with Associate B as “extremely exten
sive,” stated in a memorandum to the Associates Committee:
“There has been a recurrent problem where he simply disap
pears without notice, sometimes for a couple of days, and
sometimes on extended vacations.” Mr. Simon also described
Associate B’s “lack of judgment in dealing with a major client”
that almost resulted in the defendant’s losing a million dollars
a year in billing.
89. Mr. Arbittier wrote of Associate B in 1989:
He just creates the impression that he is bright, but I really
don’t know for sure. If others like him, I would be happy
to see him admitted. He seems like a nice guy who would
favorably impress clients.
118a
The 1989 evaluation form shows that Mr. Arbittier’s contact
with Associate B in the prior year was “none.”
90. In 1988, Mr. Arbittier had described his “impression” of
Associate B:
Seems bright, but he is a bit of a con man. Not as smart as
he seems or thinks he is. Nevertheless, I think he has
potential. More sizzle than steak.
91. Mr. Schwartz wrote of Associate B in 1988, the year
before his admission to partnership: “He’s just too slick to
instill . . . that degree of comfort.” Norman Goldberger,
another litigation partner, wrote:
. . . I ’m beginning to think he doesn’t want to work hard
or on difficult matters. Maybe he has trouble juggling but
I ’m beginning to believe he doesn’t go the entire mile.
92. In the same year, Ms. Liebenberg wrote:
I think [Associate B] is very lazy and when an assignment
or case does not interest him, he only gives the matter
minimal attention. I have been very disappointed in the
work he has done for me to date. . . . The client has
been very unhappy with [Associate B’s] performance. He
was late in completing the assignment and did not follow
through with the client’s problem.
Ken Warren, a litigation department partner, also wrote of
Associate B in 1988:
[He] needs to apply himself diligently to learn more.
He does not seem willing to do this . . . . [He] is too
anxious to give his work to others. He needs to take a task
from start to finish. He appears to work to avoid respon
sibility.
93. Associate B became a partner in February 1990.
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(3) Male Associate C
94. Associate C, an associate in the Real Estate Department,
was recommended by the Associates Committee in 1987. In the
1987 Associates Committee bottom line memo, he received an
overall grade of “G,” the same as that which Ms. Ezold had
received. The summary of evaluations used by the Associates
Committee noted that Henry Miller, a partner in the Real Estate
Department, had changed Associate C’s legal analysis score to
[“acceptable”] and suggested that an “adequate [score] may
well be sufficient in his mind for regular partnership.”
95. Associate C became a partner in February 1988.
(4) Male Associate D
96. Associate D, an associate in the corporate department,
was recommended for partner by the Associates Committee in
1988. In the 1988 evaluation summary sheet reviewed by the
Associates Committee, three partners said that Associate D
needed help with his writing skills.
97. In 1987, Mr. Strogatz described Associate D as “not
institutionally dedicated.” He also said that Associate D was
“not particularly able” in “client servicing and development.”
The prior year Mr. Strogatz had written that Associate D had
“not applied himself in such a way as to develop into a first-
rate lawyer . . . I a m not impressed.”
98. In 1988, J. Goldberg, a partner in the Corporate Depart
ment, wrote in his evaluation that Associate D “[t]ends to shoot
from the hip. Leaves me with a feeling of uncertainty . . . .”
99. At the same time, Joseph Manko, a partner in the envi
ronmental law department, wrote that Associate D was “less
than ‘tactful.’ ”
100. Associate D became a partner in February 1989.
(5) Male Associate E
101. Mr. Strogatz stated that Associate E was not a star and
that an associate did not need to be a star to be a partner. He
1 2 0 a
also wrote that he thought of Associate E “as a guy just to do
work.”
102. Associate E, who was in the Estates Department, was
made partner in 1987.
(6) Male Associate F
103. The grid on Associate F ’s bottom line memo in 1988,
the year before his consideration for partnership, reflected a
composite grade of “G -” for legal analysis.
104. Associate F had graduated from Villanova Law School
and had not been on Law Review.
105. In 1989, the year in which he was recommended for
partnership, Associate F was described by Alan Kaplinsky, a
partner in the Corporate Department, as having as a weakness:
“His outrageous personality. He offended terribly my father-in-
law in connection with work which he did for him a year or so
ago. My father-in-law changed law firms as a result.”
106. John Schapiro, then a partner in the Tax Department
wrote of Associate F: “A little superficial and hipshooting.”
107. The prior year Donald Joseph, a partner in the
Litigation Department, had rated Associate F ’s legal skills as
acceptable, noting “a shoddiness in clear thinking or maybe
lack of full experience.”
108. At the same time, Michael Temin, a partner in the
Corporate Department, recommended that Associate F receive
help in his writing and drafting skills.
109. Norman Goldberger in 1987, described inappropriate
conduct by Associate F:
[Associate F] was supposed to be handling a matter for
Henry Miller’s client, Hart. I was asked to step in and help
supervise. [Associate F] immediately abandoned ship. He
failed to follow up with local counsel, call me, provide me
with papers or do anything related to the case. Indeed,
1 2 1 a
when called upon by my secretary to provide information,
his response was that the case was my case and not his.
110. In 1986, William Rosoff evaluated Associate F:
[H]e is sometimes too fast or flip or not attentive enough.
In one matter, he failed to collect on a letter of credit on
the grounds that he supposed A1 Braslow would handle
that part of the matter, when it was an inappropriate
assumption to make especially without talking to Al. In
another matter, the time for answering a complaint
expired. While he might have thought someone else was
seeing to it, he should have double checked.
111. Associate F became a partner in February 1990.
(7) Male Associate G
112. In the bottom line memorandum on Associate G for
1987, the year before he became partner in the Corporate
Department, his grid reflected no composite score higher than
“G.” In four of the legal skills, including legal research and
promptness, Associate G was rated only “acceptable.”
113. In his 1987 evaluation Associate G was rated “accept
able” in legal analysis by Alan Molod, a partner in the
Corporate Department. Mr. Molod added that Associate G was
“Not a Star” and was “Sloppy at times and [showed] occasional
lapses in judgment.”
114. Ronald Wiener, a partner in the Tax Department, wrote
in his 1987 evaluation that Associate G “is sometimes too
wish-washy and immature; at other times he takes a very
extreme ‘hard-nosed’ and confrontational approach. He needs
to be more consistently firm and businesslike and in control.”
115. Associate G was admitted to partnership in February
1988.
1 2 2 a
(8) Male Associate H
116. Mr. Arbittier wrote in his 1987 evaluation of Associate
H:
[Associate H] has really let me down in his handling of a
case for General Electric Pension Trust. He missed the
crux of the case in the beginning and dragged his feet ter
ribly in getting it back on track. . . . [Associate H]
works very hard, but hard work alone is not enough. I
have my doubts that he will ever be anything but a helper
who does what he is told adequately but with no spark.
Mr. Arbittier wrote that Associate H was trying “to change my
view of him and I am giving him a second chance. He [has]
brains. Maybe he can change.” Mr. Arbittier also called
Associate H “phlegmatic, diffident, nonassertive and unimag
inative,” and in 1988 wrote that he was “[not] real strong in
legal analysis or in focusing on the key issues (dividing the
wheat from the chaff).”
117. In 1989, Mr. Arbittier concluded that Associate H was
a “nice guy” who had made improvement: he supported
Associate H for partnership. Mr. Arbittier explained Associate
H s redemption”; Associate H told Mr. Arbittier how he had
been overworked.
118. Associate H became a partner in February 1990.
119. The plaintiff’s analytic skills were assessed in the bot
tom line memo in her final year as the second highest potential
rank, good, ’ which, according to Wolf, Block standards
means: Displays particular merit on a consistent basis; effec
tive work product and performance; able; talented.”
120. The plaintiff was criticized by her supervisors for not
being politic” when she pressed for some matter relating to her
personally. Some male associates were criticized on their eval
uations for not being assertive.
121. In the magnitude of its complexity, a case may have a
senior partner, a younger partner, and an associate(s) assigned
123a
to a case. Accordingly, requiring the plaintiff to have the abil
ity to handle on her own any complex litigation within the firm
before she was eligible to be a partner was a pretext.
122. Mr. Strogatz, Chairman of the Associates Committee,
recalls a discussion, possibly at an Associates Committee meet
ing, that Ms. Ezold “sees things . . . as being in discrimination
terms.”
123. Mr. Strogatz testified about a memorandum memori
alizing complaints against Associate X of sexual harassment.
Secretaries and paralegals said Associate X had touched them
or pestered them. The memorandum states that Mr. Strogatz
had arranged to have Arden Resnick, an administrative
employee in the personnel department, talk to Associate X in
a “low-key manner” about those past incidents, and the mem
orandum recounted a more recent incident where Associate X
had touched and flirted in an unwelcome fashion with a sec
retary. Mr. Strogatz’ memo described the secretary as “afraid.”
124. Mr. Strogatz testified that his job was not to determine
the truth of the allegations against Associate X; he wrote that
he did not believe Associate X’s story concerning the incident.
125. Mr. Strogatz also stated that he did not feel that the
incident concerning Associate X was relevant to considerations
of whether or not the candidate was an acceptable candidate for
partnership, and he did not report it to the Associates
Committee in its deliberations.
126. Although the plaintiff received consistently outstand
ing compliments for her relationship with clients, Mr. Strogatz
explained his marginal rating of Ms. Ezold on this aspect was
not based on any facts, but was based on his view that a “prima
donna” such as Ms. Ezold would probably not be very good
with dealing with clients.
127. In the plaintiff’s early years at Wolf, Block, she sug
gested to Mr. Schwartz that an unfairness in case assignment
may have occurred because she was female. Mr. Schwartz
replied: “Nancy, don’t say that around here. They don’t want to
hear it.”
124a
128. The plaintiff was identified as too involved in women’s
issues by Mr. Schwartz, who wrote in his 1986 evaluation of
her that “her judgment can be clouded by over sensitivity to
what she misperceives as women’s issues.” That evaluation was
submitted in the ordinary course to the Associates Committee
and was discussed by the Associates Committee. Mr. Rosoff
testified that he reviewed Mr. Schwartz’ evaluation during his
review of the Associates Committee’s decision on Ms. Ezold,
and noted that comment concerning women’s issues as he
reviewed her file.
129. Mr. Schwartz recalled Ms. Ezold’s expression of con
cern for paralegals employed by the defendant as a “women’s
issue.” The plaintiff had discussed with Mr. Schwartz com
plaints by paralegals that they were not paid for overtime
hours, for work at night or on weekends. Virtually all of the lit
igation paralegal staff was female.
130. The defendant asserted that Ms. Ezold had misper-
ceived the problems of the virtually all female paralegal staff
as a “women’s issue.” Mr. Fiebach, however, stated that he
brought up the issue of attorneys working part-time at Wolf,
Block, which was “well known to be a women’s issue.” Mr.
Strogatz stated that Mr. Fiebach was not using bad judgment in
raising that question as a women’s issue. Ms. Ezold’s charac
terization of matters affecting largely female groups as
“women’s issues” was evaluated differently.
131. The fact that a male associate had engaged in sexual
harassment of female employees at the Firm was seen as
insignificant, not worthy of mention to the Associates
Committee in its consideration of the male associate for part
nership. This despite the fact that “integrity” is a minimal
requirement for partnership at the Firm according to the testi
mony of members of the Associates Committee.
132. The plaintiff was criticized for being “very demanding”
and was expected by some members of the Firm to be non-
assertive and acquiescent to the predominately male partner
ship. Her failure to accept this role was a factor which resulted
in her not being promoted to partner. However several male
125a
associates who had been evaluated negatively for lacking suf
ficient assertiveness in their demeanor were made partners.
133. Mr. Kopp, Chairman of the Executive Committee,
offered Ms. Ezold a partnership in one year if she took over the
Domestic Relations Division of the Litigation Department. It
was the history of the Firm that the recommendation of the
Executive Committee of an associate for admission to part
nership was followed without exception.
134. Before Ms. Ezold could be admitted to partnership, she
would have to serve an additional year as an associate. The
additional year was not for purposes of giving any additional
training or experience. Accordingly, the Chairman of the
Executive Committee was satisfied that in 1988 the plaintiff
had all the requisites to be a member of the Firm at that time.
135. Gender was a determining factor in the failure of the
Firm to promote the plaintiff to partnership in 1989.
CONSTRUCTIVE DISCHARGE
136. On October 18, 1988, the Chairman of the Litigation
Department, Mr. Davis, and two members of the Associates
Committee, Arthur Block and Norman Goldberger, met with
Ms. Ezold and advised her that she would not be recommended
for admission as a regular partner effective February 1, 1989.
She was told that too many partners did not believe she had
sufficient legal analytical ability to handle complex legal
issues. However, they also emphasized to her that the Firm very-
much wanted her to stay.
137. On November 16, 1988, Ms. Ezold met with Mr. Kopp,
Chairman of the Executive Committee, who told her that the
Executive Committee would not be recommending to the part
nership that she be admitted as a partner effective February 1,
1989. However, Mr. Kopp told her that the two partners who
had handled the Firm’s domestic relations work (David
Hofstein and Judith Widman) had announced their decision to
leave the Firm several days earlier, and the immediate staffing
126a
need in this practice created by their impending departure
enabled him to offer her a position which had not been antici
pated previously. He told Ms. Ezold that, in light of the par
ticular skills that the Executive Committee had been told that
she possessed, he believed she would be well-suited and well-
qualified to head up the Firm’s domestic relations practice
(which was part of the Litigation Department), and if she
agreed to do so, he promised that she would be made a regular
partner in one year.
138. In deciding to make the domestic relations partnership
offer to Ms. Ezold, Mr. Kopp took into consideration the fact
that he believed the legal issues which arise in the domestic
relations matters handled by Wolf, Block are generally not as
complex as those which arise in commercial litigation matters.
He also took into consideration the fact that Wolf, Block had an
immediate and pressing need to fill the vacuum which would
soon be created by the impending departure of Mr. Hofstein
and Ms. Widman.
139. Ms. Ezold told Mr. Kopp that her reaction to the
domestic relations partnership offer was negative. Mr. Kopp
told her that even if she did not accept that offer, the Firm nev
ertheless wanted her to stay, and she could continue doing the
same type of general litigation work she had done in the past
and would receive a substantial increase in salary.
140. Subsequent to her meeting with Mr. Kopp, Ms. Ezold
did speak with Mr. Magarity, Mr. Schwartz and Mr. Davis con
cerning the domestic relations partnership offer, and none of
them told her that they believed that this offer was inappro
priate or that acceptance of it would be harmful to her career.
141- Shortly after her meeting with Mr. Kopp, Ms. Ezold
had a couple of meetings with Mr. Rosoff to discuss the domes
tic relations partnership offer and her future prospects for part
nership if she declined that offer. Mr. Rosoff told her that Wolf,
Block operates on a consensus basis with respect to partnership
admission decisions, and a number of partners did not believe
that she had sufficient legal analytical ability to handle com
plex legal issues. He urged her to accept the domestic relations
127a
partnership offer and told her that acceptance of that offer
would not preclude her from also handling general litigation
matters. Ms. Ezold rejected the domestic relations offer, but
told Mr. Rosoff she would be willing to head up the domestic
relations practice for up to one year. However, Mr. Rosoff told
her the Firm was not interested in having her head up the
domestic relations practice merely on a short-term basis.
142. Mr. Rosoff reiterated to Ms. Ezold that the Firm
wanted her to stay and told her she “could stay as long as she
wanted.” He told her that although he could not assure her of a
partnership in the future if she declined the domestic relations
partnership offer, she would be considered for partnership in
the future. He also told her that she would receive substantial
pay increases beginning in the following July, when semi
annual raises are customarily given to the Firm’s associates, but
would not give her a pay raise that was then being given to the
other members of her class.
143. The domestic relations practice at Wolf, Block was for
merly headed by a male (Mr. Hofstein), and a number of dif
ferent male partners handled domestic relations matters prior to
the time Mr. Hofstein came to the Firm. Domestic relations
matters are now handled by two of Wolf, Block’s senior male
partners (Gerald McConomy and Anthony Minisi).
144. The domestic relations practice at Wolf, Block is part
of the Litigation Department, and Ms. Ezold admitted that the
Firm’s domestic relations lawyers “went into court probably the
same or a little more” than the other lawyers in the Litigation
Department.
145. Ms. Ezold admitted that she did not consider her work
ing conditions at Wolf, Block to be “intolerable” prior to the
January 24, 1989 partnership vote.
146. No partner at Wolf, Block told Ms. Ezold that the Firm
wanted her to leave.
147. Ms. Ezold was not harassed, belittled or otherwise
pressured to leave Wolf, Block.
128a
148. None of the cases that Ms. Ezold was working on at the
time of the January, 1989 partnership vote were taken away
from her or re-assigned, and Mr. Davis continued to assign her
new cases. Ms. Ezold admitted that she remained “busy” and
“fully occupied” after the partnership decision.
149. Ms. Ezold tendered her resignation in May, 1989 after
she had secured higher-paying employment as President of BES
Environmental Specialists (a Wolf, Block client) and an “Of
Counsel” position with the law firm of Rosenthal and Ganister
because she reasoned that her advancement at the Firm had
reached a plateau.
150. Ms. Ezold quit working at Wolf, Block on June 7,
1989.
151. Ms. Ezold’s working conditions at Wolf, Block were
not intolerable, and a reasonable person in her position would
not have felt compelled to leave.
CONCLUSIONS OF LAW
L The plaintiff has fully complied with the administrative
prerequisites for Title VII litigation. 42 U.S.C. § 2000e-5.
2. Under Title VII, the burdens and order of proof are as fol
lows:
First, the plaintiff has the burden of proving by the pre
ponderance of the evidence a prima facie case of dis
crimination. Second, if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for
the employee’s rejection. Third, should the defendant
carry this burden, the plaintiff must then have an oppor
tunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for discrimination.
Chipollini v. Spencer Gifts, 814 F.2d 893, 897 (3d Cir. 1987)
(quoting Texas Department o f Community Affairs v. Burdine,
129a
450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d
207 (1981)); see also Roebuck v. Drexel University, 852 F.2d
715, 731 (3d Cir.1988).
3. Therefore, a plaintiff in a sex discrimination case can
establish a prima facie showing of promotion discrimination by
demonstrating that she is a member of the protected class, that
she was qualified for the position, that she was not promoted
into a job for which she was qualified, and that the position
was given to a male. See Dillon v. Coles, 35 FEP Cases 1239,
1242 (E.D.Pa.1983), a ff’d, 746 F.2d 998 (3d Cir. 1984).
4. A plaintiff’s burden of proof at the prima facie stage is
easily met. See Bhaya v. Westinghouse Electric Corporation,
832 F.2d 258, 260 (3d Cir. 1987), cert, denied, 488 U.S. 1004,
109 S.Ct. 782, 102 L.Ed.2d 774 (1989), citing Massarsky v.
General Motors Corp., 706 F.2d 111 (3d Cir. 1983).
5. A plaintiff need not demonstrate on her prima facie case
of promotion discrimination that she was the most qualified,
but only that she fell in the general range of those considered
by a defendant for promotion. See Easley v. Empire, Inc., 757
F.2d 923, 930 n. 8 (8th Cir. 1985).
6. The plaintiff here has made a prima facie showing of pro
motion discrimination. Her evaluations by the partners who
worked most closely with her, and the bottom line memo which
summarized her reviews, establish her qualification for part
nership at Wolf, Block. Several male associates with lesser
evaluations were made partners.
7. After a plaintiff has established a prima facie case, the
burden of going forward then shifts to the defendant “to dispel
the adverse inference by articulating ‘some legitimate, nondis-
criminatory reason for the employee’s rejection.’ ” Duffy v.
Wheeling Pittsburgh Steel, 738 F.2ed 1393, 1395 (3d Cir.),
cert, denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702
(1984), quoting Texas Department o f Community Affairs v.
Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d
207 (1981).
130a
8. A Title VII defendant’s articulated reasons for the adverse
employment decisions must be reasonably clear and specific if
the defendant is to succeed in rebutting plaintiff’s prima facie
showing of discrimination. See Burdine, 450 U.S. at 255-56,
101 S.Ct. at 1094-95.
9. If the defendant succeeds in articulating a legitimate
nondiscriminatory reason for its decisions, the plaintiff then
“must have the opportunity to demonstrate that the proffered
reason was not the true reason for the employment decision
. . . [she] may succeed in this either directly by persuading the
[trier of fact] that a discriminatory reason more likely moti
vated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.”
Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (citations omitted).
10. “A showing that a proffered justification is pretextual is
itself equivalent to a finding that the employer intentionally
discriminated.” Duffy v. Wheeling Pittsburgh Steel Corp., 738
F.2d 1393, 1396 (3d Cir.), cert, denied, 469 U.S. 1087, 105
S.Ct. 592, 83 L.Ed.2d 702 (1984), citing McDonnell-Douglas
v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d
668 (1973); see also Chipollini, 814 F.2d at 900. Pretext may
be shown through the presentation of indirect or circumstantial
evidence, or evidence that demonstrates inconsistencies or
implausibilities in the employer’s proffered reasons for its
employment action. See Chipollini, 814 F.2d at 899-900.
11. Ms. Ezold has established that the defendant’s purported
reasons for its conduct are pretextual. The defendant promoted
to partnership men having evaluations substantially the same or
inferior to the plaintiff’s, and indeed promoted male associates
who the defendant claimed had precisely the lack of analytical
or writing ability upon which Wolf, Block purportedly based its
decision concerning the plaintiff. The defendant is not entitled
to apply its standards in a more “severe” fashion to female
associates. See Green v. United States Steel Corp., 481 F.Supp.
295, 313 (E.D.Pa.1979) (policy of rejecting applicants for
“material misrepresentations” must be applied alike to all
races); Walker v. Robbins Hose Co., 465 F.Supp. 1023, 1035
131a
(D.Del. 1979). Such differential treatment establishes that
the defendant’s reasons were a pretext for discrimination.
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273,
282-83, 96 S.Ct. 2574, 2579-80, 49 L.Ed.2d 493 (1976).
12. Other instances of conduct by the defendant Firm toward
Ms. Ezold support the conclusion that the plaintiff was treated
differently because of her gender. Ms. Ezold was evaluated
negatively for being too involved with women’s issues in the
Firm, specifically her concern about the treatment of para
legals. Mr. Fiebach, a member of the Firm, was not reproached
for raising the issue of part-time attorneys, which he himself
characterized as a “women’s issue.” In addition, the fact that a
male associate had engaged in sexual harassment of female
employees at the Firm was seen as insignificant and not wor
thy of mention to the Associates Committee in its consideration
of that male associate for partnership. Ms. Ezold was also eval
uated negatively for being “very demanding,” while several
male associates who were made partners were evaluated neg
atively for lacking sufficient assertiveness in their demeanors.
Finally, Ms. Ezold was the target of several comments demon
strating the defendant’s differential treatment of her because
she is a woman.
CONSTRUCTIVE DISCHARGE
13. In order to establish constructive discharge, the plaintiff
must establish that the employer knowingly permitted condi
tions of discrimination so intolerable that a reasonable person
would feel compelled to resign. See Spangle v. Valley Forge
Sewer Authority, 839 F.2d 171, 173 (3d Cir.1988), citing Goss
v. Exxon Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1985).
14. Constructive discharge cannot be based upon the
employee’s subjective preference for one position over another.
See Jett v. Dallas Independent School Dist., 798 F.2d 748, 755
(5th Cir. 1986), a ff’d in part, remanded in part, 491 U.S. 701,
109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Kelleher v. Flown,
132a
761 F.2d 1079 (5th Cir. 1985); Neale v. Dillon, 534 F.Supp.
1381, 1390 (E.D.N.Y.), aff’d, 714 F.2d 116 (2d Cir. 1982).
15. A denial of promotion, even if discriminatory, does not
alone suffice to establish constructive discharge. See Nobler v.
Beth Israel Medical Center, 702 F.Supp. 1023, 1031 (S.D.N.Y.
1988).
16. A reasonable person in Ms. Ezold’s position would not
have deemed her working conditions to be so intolerable as to
feel compelled to resign.
ORDER
And Now, this 27th day of November, 1990, in accordance
with the foregoing findings of fact and conclusions of law, it is
hereby Ordered:
(1) As to the Plaintiff’s claim that the Defendant refused to
promote the Plaintiff to partner on the basis of her gender, in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., judgment is entered in
favor of the Plaintiff, Nancy O’Mara Ezold, and against the
Defendant, Wolf, Block, Schorr and Solis-Cohen;
(2) As to the Plaintiff’s claim that the Defendant construc
tively discharged the Plaintiff by creating intolerable working
conditions that compelled the Plaintiff to resign, judgment is
entered in favor of the Defendant, Wolf, Block, Schorr and
Solis-Cohen, and against the Plaintiff, Nancy O’Mara Ezold.
133a
UNITED STATES DISTRICT COURT
E.D, Pennsylvania
Civ. A. No. 90-0002
March 15, 1991
Nancy O’Mara EZOLD
WOLF, BLOCK, SCHORR AND
SOLIS-COHEN
MEMORANDUM AND ORDER
James McGirr Kelly, District Judge.
On November 27, 1990, this court held that the defendant
law firm, Wolf, Block, Schorr and Solis-Cohen, had violated
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, et seq., by considering the gender of the plain
tiff, Nancy Ezold, in its decision not to admit her to the part
nership. 751 F.Supp. 1175. This court also held however that
Ms. Ezold was not constructively discharged by virtue of the
adverse partnership decision. As the parties had agreed prior to
trial to bifurcate the issues of liability and damages, the issue
of appropriate damages is now before the court.
In compliance with the court’s request, the parties have sub
mitted memoranda as well as replies addressing the scope of
relief available to Ms. Ezold in light of her having prevailed on
the Title VII liability issue. Ms. Ezold asserts that she is enti
tled to backpay as well as instatement as a partner in the firm.
In the event that instatement as a member of the firm were
deemed impractical, Ms. Ezold asserts that front pay is appro
priate. In response Wolf, Block asserts that because the court
held that Ms. Ezold was not constructively discharged by virtue
of the defendant’s adverse partnership decision, her relief for
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the Title VII violation is limited to back pay covering the
period between the date her unlawfully denied partnership
would have become effective, February 1, 1989, and the date
she resigned her associate position with the Firm on June 7,
1989.
For reasons stated more fully below, I will not limit the scope
of damages to back pay only up to the date of the plaintiff’s
resignation from the defendant firm. The appropriate relief
within the scope of Title VII here may include back pay up the
date of judgment and instatement as a member of the firm or,
alternatively, front pay. Trial before this court on the issue of
damages should thus address those remedies as well as the
plaintiff’s duty of mitigation under Title VII.
SUMMARY OF FACTS
A brief review of the facts of this case is appropriate. The
plaintiff, Nancy Ezold, was hired by the defendant law firm,
Wolf, Block, as an associate on partnership track basis in 1983
and was assigned to the Firm’s Litigation Department. Ms.
Ezold had previously worked as an associate with small law
firms for a period of three years. Wolf, Block is a Philadelphia-
based firm comprised of approximately 250 attorneys, approx
imately half of whom are partners. Throughout Ms. Ezold’s
nearly six-year tenure as an associate at the Firm, which ended
with her resignation on June 7, 1989, she became aware of
signs that the Firm was treating her in a gender-discriminatory
manner.
During her 1983 hiring interviews, Ms. Ezold was told by the
then Chairman of the Litigation Department, Mr. Kurland, that
it would not be easy for her at Wolf, Block because she was a
woman, was not from an Ivy League law school (Ms. Ezold is
a graduate of Villanova Law School), and was not on Law
Review. During her time as an associate at the Firm, Ms. Ezold
worked for partners in the Litigation Department on criminal
matters, insurance cases, general commercial litigation and
other areas. Ms. Ezold was primarily assigned cases that were
small by Wolf, Block standards. Ms. Ezold did not work for
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more than 500 hours on any one matter in any year, whereas
virtually all the male associates in the department worked on
major matters for which they logged at least 600 hours per year.
Ms. Ezold complained about the quality of her assignments and
the limited number of partners she was assigned to work with.
The Litigation Department Chairman acknowledged the infe
riority of Ms. Ezold’s work opportunities and promised to cor
rect them.
During the last two years of her employment at Wolf, Block,
Ms. Ezold’s work at the Firm included supervising junior asso
ciates in their preparation of briefs and pleadings. In 1988 the
Chairman of the Litigation Department, Mr. Davis, gave Ms.
Ezold an outstanding review for her work on a complex matter.
At trial on the liability portion of this case, Mr. Davis stated
that when he evaluated Ms. Ezold he believed it had been
established that she had excellent skills in various areas of lit
igation, including case management, witness preparation, deal
ing with opponents, professionalism, maturity, aggressiveness
and a whole series of other traits he considered to be extremely
useful to the Department. Mr. Davis’ evaluation of Ms. Ezold
is consistent with virtually all of the evaluations of Ms. Ezold
by partners with whom she worked. Those partners who eval
uated Ms. Ezold neutrally or critically cited the lack of com
plexity in her assignments or their lack of sufficient contact
with her necessary to make a meaningful evaluation.
In October of 1988 Ms. Ezold was informed that she would
not be recommended for partnership because too many partners
did not believe she had sufficient analytical ability to handle
complex legal issues. The test that the Firm applied to the
plaintiff for purposes of determining whether to recommend her
for partnership was that she must demonstrate the analytical
ability to handle the most complex litigation. This standard was
stricter than that applied to male associates who were candi
dates for partnership along with Ms. Ezold. Many of the male
associates who were admitted as partners effective February 1,
1989, had received numerous evaluations severely critical of
their work.
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In November of 1988, the Chairman of the Firm’s Executive
Committee, Mr. Kopp, confirmed to Ms. Ezold that she would
not be recommended for admittance to the partnership. Mr.
Kopp offered Ms. Ezold partnership in the Firm’s Domestic
Relations Department if she would remain an associate for one
more year. After trial in this matter, I determined that the Firm
had considered Ms. Ezold’s gender in its 1988 decision not to
promote her to partner in violation of Title VII of the Civil
Rights Act of 1964.
DISCUSSION OF AVAILABLE RELIEF
I. Remedial Authority o f the Federal Courts under Title VII
The remedial scope of Title VII, as first enunciated in section
706(g) of the Civil Rights Act of 1964, is broad:
If the court finds that the respondent has intentionally
engaged in . . .an unlawful employment practice . . . the
court may enjoin the respondent from engaging in such
unlawful employment practice, and order such affirmative
action as may be appropriate, which may include, but is
not limited to, reinstatement or hiring of employees, with
or without backpay . . . or any other equitable relief as
the court deems appropriate.
42 U.S.C. § 2000e-5(g) (1988).
This language may be read as a mandate for the exercise of
broad discretion in crafting effective remedies for employment
discrimination. The broad remedial power of the courts under
Title VII to remedy unlawful employment discrimination was
embellished by the legislative history to the 1972 amendments
to the Civil Rights Acts in which Congress revised section
706(g):
The provisions of this subsection are intended to give
the courts wide discretion exercising their equitable pow
ers to fashion the most complete relief possible . . . [T]he
scope of relief . . . is intended to make the victims of
unlawful discrimination whole . . . so far as possible, [to
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return them] to a position where they would have been
were it not for the unlawful discrimination.
118 Cong. Rec. 7168 (1972).
The Supreme Court has interpreted this statutory language to
mean that “federal courts are empowered to fashion such relief
as the particular circumstances of a case may require to effect
restitution, making whole insofar as possible the victims of
. . . [employment discrimination].” Franks v. Bowman
Transportation Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47
L.Ed.2d 444 (1976) (footnote omitted). That the courts were
given broad equitable powers by Congress confirms the pur
pose of Title VII to make whole victims of discrimination in
the workplace. See Albemarle Paper Co. v. Moody, 422 U.S.
405. 420-21, 95 S.Ct. 2362, 2372-73, 45 L.Ed.2d 280 (1975).
Such a statutory purpose will only be accomplished if the reme
dial structure of Title VII is flexible, thus enabling the courts
“to put a victim of discrimination in the position that she or he
would have been in but for the unlawful discrimination.”
Hopkins v. Price Waterhouse, 920 F.2d 967, 976 (D.C.Cir.
1990).
The flexible “make whole” approach to Title VII remedies
authorized by Congress does not absolve a district court of the
responsibility to measure possible remedies alongside the pur
poses of Title VII carefully. Broad equitable discretion must be
complemented with ’’the principled application of standards
consistent with those purposes . . . ” Albemarle Paper, 422
U.S. at 417, 95 S.Ct. at 2371. In determining what standards of
application would be consistent with Title VII, it is noteworthy
that one of the specific congressional concerns motivating the
1972 amendments to Title VII was “the need to tear down dis
criminatory barriers in the top echelons of the job market that
continued to prevent women and minorities from ‘ascendfing]
the higher rungs in professional life.’ ” Hopkins, 920 F.2d at
977.
The language of section 706(g) specifically provides for
backpay as an appropriate Title VII remedy. As an incentive for
employers to eliminate discriminatory practices, back pay has
a direct connection with Title VII’s primary objective of
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achieving “equality of employment opportunities and [remov
ing] barriers that have operated in the past. . . Griggs v.
Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 853, 28
L.Ed.2d 158 (1971). Reinstatement, or alternatively front pay,
may also be appropriate Title VII remedies for returning a vic
tim of discrimination to the position he or she would have
occupied absent the discrimination. Several circuits have
approved front pay as a means of making plaintiffs whole for
losses caused by discrimination. See Thompson v. Sawyer, 678
F.2d 257 (D.C.Cir.1982), citing United States v. Lee Way Motor
Freight, Inc., 625 F.2d 918, 932 (10th Cir. 1979).1 The order
ing of reinstatement in the form of admission to a partnership
is also within a district court’s remedial authority under Title
VII. See Hopkins, 920 F.2d at 979, citing Hishon v. King &
Spaulding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
Such equitable relief is consistent with the general goal of mak
ing the remedy “equal to the injury.” Albemarle Paper, 422
U.S. at 418, 95 S.Ct. at 2372.
Additionally, the Supreme Court has instructed that a com
plete remedy “should be denied only for reasons which, if
applied generally, would not frustrate the central statutory pur
poses of eradicating discrimination throughout the economy
and making persons whole for injuries suffered through past
discrimination.” Albemarle Paper, 422 U.S. at 421, 95 S.Ct. at
2373. This instruction is particularly significant here since
Wolf, Block now asserts that this court’s finding of no con
structive discharge operates to limit the scope of remedies
available to Ms. Ezold, a standard which, if applied by this
court, could deny her a complete remedy.
1 See also James v. Stockham Valves & Fitting Co., 559 F.2d 310, 358
(5th Cir. 1977), cert, denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781
(1978); Equal Employment Opportunity Comm'n v. Enterprise Association
Steamfitters, Local 638, 542 F.2d 579 (2d Cir. 1976), cert, denied, 430 U.S.
911, 97 S.Ct. 1186, 51 L.Ed.2d 588 (1977); Patterson v. American Tobacco
Co., 535 F.2d 257, 269 (4th Cir.), cert, denied, 429 U.S. 920, 97 S.Ct. 314, 50
L.Ed.2d 286 (1976).
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II. Constructive Discharge as a Limit to Title VII Relief
Had Wolf, Block recommended Ms. Ezold for admittance to
the Firm in the fall of 1988, her status as a partner would have
been effective February 1, 1989 in accordance with Firm pol
icy. Ms. Ezold remained employed as an associate at the Firm
until her resignation June 7, 1989. Wolf, Block contends that
the only remedy available to Ms. Ezold is back pay covering
the four-month period between the date her unlawfully denied
partnership would have become effective and the date of her
resignation. As a basis for that argument Wolf, Block asserts
that the circuit courts have been nearly unanimous in their
application of the constructive discharge rule, whereby victo
rious Title VII plaintiffs who have left their employment with
the defendant but who were not constructively discharged by
the defendant are only entitled to a remedy covering the period
during which the discrimination occurred up to the date of res
ignation. In response, the plaintiff asserts that other circuits
have properly declined to apply the constructive discharge rule
as harshly, deeming it to be relevant only to the question of
mitigation.
The Third Circuit has held that a constructive discharge
occurs when an employer “knowingly permitted conditions of
discrimination in employment so intolerable that a reasonable
person subject to them would would resign.” Goss v. Exxon
Office Systems Company, 747 F.2d 885 (1984). As the Third
Circuit has yet to address the issue of how constructive dis
charge doctrine affects the scope of Title VII relief however,
the rationales behind the application or non-application of the
constructive discharge rule by the Circuits should be examined
in light of the facts of this case. Analysis of the cases dis
cussing this issue reveals that the rigid application of the con
structive discharge rule to the plaintiff here would defeat the
goals and purposes underlying Title VII.
Several circuits have applied the general rule that employees
are entitled to awards such as back pay past the date of resig
nation and reinstatement only if they were actually or con
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structively discharged from their employment.2 3 The rationale
behind application of the rule has most often been that “soci
ety and the policies underlying Title VII will be best served if,
wherever possible, unlawful discrimination is attacked within
the context of existing employment relationships,” a rationale
first stated by the Fifth Circuit in Bourque v. Powell Electrical
Manufacturing Co., 617 F.2d 61 (1980). The Ninth Circuit
expanded on that principle in Thorne v. City o f El Segundo, 802
F.2d 1131 (1986), emphasizing that an employee “should not
quit at the first sign of institutional discrimination.” Id. at 1134.
The Thorne court also stated that restricting backpay awards
“encourages the employee to work with supervisors within the
existing job setting and employment relationship in an effort to
overcome resistance within that workplace and to eradicate the
discrimination.” Id?
A simpler rationale behind the constructive discharge rule
was enunciated in Derr v. Gulf Oil Corp., 796 F.2d 340 (10th
Cir. 1986). At trial the district court determined that though no
constructive discharge took place, an employee had acted rea
sonably in quitting her job after being denied a promotion, and
that therefore back pay would not be limited to the date of res
ignation. The Tenth Circuit overruled and applied the con
structive discharge rule to limit back pay, stating that it was
inconsistent for the trial court to have found that the employee
acted reasonably in quitting where no constructive discharge
had occurred. Id. at 343.
2 Jurgens v. Equal Employment Opportunity Commission, 903 F.2d 386
(5th Cir. 1990); Morrison v. Genuine Parts Co., 82 8 F.2d 708, n. 1 (11th Cir.
1987); Maney v. Brinkley Municipal Waterworks and Sewer Department, 802
F.2d 1073 (8th Cir. 1986); Derr v. Gulf Oil Corporation, 796 F.2d 340 (10th
Cir. 1986); Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984); Clark v. Marsh,
665 F.2d 1168 (D.C.Cir. 1981).
3 The Ninth Circuit did not adopt the constructive discharge rule in
Thorne, refusing to apply it to a Police Department employee who resigned
from her clerk-typist position after the Department discriminatorily refused to
hire her as a police officer. The court only recognized the “valid policy reason
for limiting backpay awards in promotion cases.” Thorne, 802 F.2d at 1134.
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The Third Circuit has not taken a position on the issue of
constructive discharge as a strict limit on Title VII relief, stat
ing only that “[classifying a termination as a constructive dis
charge rather than a voluntary quit has significant ramifications
with respect to the scope of relief.” Goss, 747 F.2d 885 (1984).
Goss, a married woman, was a successful sales representative
who became a victim of gender discrimination at the hands of
her employer after she admitted to her supervisor that she
intended to have both a family as well as a career. After
repeated verbal abuse and intimidation questioning her ability
to handle the dual responsibilities of a career and motherhood,
Goss resigned her employment. The Third Circuit affirmed the
district court’s finding that a constructive discharge had
occurred, holding that no specific intent on the part of the
employer to bring about a discharge is required. Thus Goss was
entitled to a remedy not only for the pre-discharge gender dis
crimination, but also for the wrongful termination of her
employment. Goss, 747 F.2d at 889.
Where a plaintiff resigns after having been discriminatorily
denied the one significant promotion available within the arena
of his or her employment however, a more appropriate standard
for determining the entitlement to relief past the date of res
ignation is one of reasonableness. In denial of promotion set
tings, the application of the constructive discharge rule is
almost illogical because the employer is acting discriminato
rily with the effect of keeping the plaintiff in his or her current
position. Over and above the humiliation inflicted upon plain
tiffs like Goss, a plaintiff who is discriminatorily denied a sig
nificant promotion, such as partnership in a professional firm,
is burdened by the knowledge that she has been denied the job
title and compensation commensurate with the success she has
achieved in the performance of her work over the course of sev
eral years; were it not for her gender she would have been pro
moted to the significantly superior employment position she
deserves.
Strict application of the constructive discharge rule in denial
of promotion cases would mean that no matter how severe an
employer’s discrimination is with respect to the denial of a pro
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motion, an employee would be forced to remain in the inferior
employment position so long as the employer does not permit
the working conditions of the inferior employment position to
become intolerable. If the employee instead resigns the inferior
position, her entitlement to a remedy for the discriminatory
denial of the superior position would cease at the date of res
ignation. Such a rule flouts the Supreme Court’s instruction that
a complete Title VII remedy “should only be denied for reasons
which, if applied generally, would not frustrate the central
statutory purposes of eradicating discrimination throughout the
economy and making persons whole for the injuries suffered
through past discrimination.” Albemarle Paper, 422 U.S. at
421, 95 S.Ct. at 2373.
Following Goss, the Third Circuit indicated in Waddell v.
Small Tube Products, Inc., 799 F.2d 69 (1986), that the equi
table back pay remedy should not be denied when a plaintiff
acts reasonably under the circumstances. In Waddell, an
employee had delayed in pursuing his religious discrimination
charge, leaving it dormant at the Equal Employment
Opportunity Commission for some four-and-one-half years
while he continued his employment with the defendant, Small
Tube. The district court found that in light of the equitable
nature of the backpay remedy, it would have been unjust for
Small Tube to bear the financial responsibility for the delay
period. The Third Circuit remanded the case to the district
court for purposes of determining whether the employee’s con
duct had been excusable or not, instructing that “[t]he statutory
purposes articulated in Albemarle would patently be frustrated
by a reduction of backpay when the p lain tiff’s delay was not
found to be unreasonable.” Waddell, 799 F.2d at 79.
This district has recognized that the efficacy of Title VII
would be similarly diminished were its remedies to be reduced
to merely back pay up to the date of resignation whenever no
constructive discharge is found in denial of promotion cases. In
Helbling v. Unclaimed Salvage and Freight Co., Inc., 489
F.Supp. 956 (E.D.Pa. 1980), a female employee was denied
promotion to store manager and resigned her employment.
Finding that she had been discriminatorily denied the promo
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tion on the basis of her gender, the court rejected any notion
that her back pay award should terminate on the date of her res
ignation. Referring to her reasons for leaving—disagreement
with the male employee promoted instead—the court held that
“[t]he back pay award, therefore, must be based on the period
running from the date she should have been promoted to man
ager to the date the store closed—the period it can be assumed
she would have held the job to which she was entitled.” Id. at
963.
Other courts have similarly found the rigid application of the
constructive discharge rule to be inconsistent with Title VII’s
remedial objectives. The Fourth Circuit, in Wells v. North
Carolina Board o f Alcoholic Control, 714 F.2d 340 (1983),
held that back pay would appropriately extend to the date of
judgment where the defendant employer’s discriminatory denial
of promotion was causally related to the plaintiff’s resignation
of employment. The court limited the constructive discharge
issue to bear only on the issue of mitigation, i.e., the amount of
the damages award.
In Wells the aggravation of the plaintiff’s back injury
occurred after his employer discriminatorily denied him a pro
motion which would have enabled him to avoid heavy lifting.
Thus the plaintiff’s subsequent resignation was said to have
been causally related to the discriminatory denial of promotion.
Wolf, Block attempts to distinguish Wells on the basis that the
relationship between the employer’s discriminatory action and
the employee’s resignation in Wells was much more direct than
it is here. However the Fourth Circuit’s treatment in Wells of
the constructive discharge issue in the context of a Title VII
case is most consistent with the “make whole” purposes of the
statute, and is instructive here, where the plaintiff was not sim
ply subjected to a one-time isolated discriminatory decision but
instead endured a pattern of discriminatory treatment by Wolf,
Block during her entire career at the Firm, culminating with the
partnership denial. To require the causal relationship between
an employer’s illegal conduct and an employee’s resignation to
meet the standards imposed in constructive discharge cases in
order for a Title VII plaintiff to be awarded relief past the date
144a
of resignation would severely frustrate those same purposes by
“limiting the remedy awarded to a plaintiff who has succeeded
in establishing [a] defendant’s unlawful conduct, and ‘reward
ing’ prior illegal conduct by the same defendant.” Richardson
v. Restaurant Marketing Associates, Inc., 527 F.Supp. 690
(N.D. Cal. 1981).4
Indeed even those circuits who have applied the constructive
discharge rule in such a limiting fashion have not clearly
defined the place occupied by the constructive discharge rule
in the realm of Title VII. The Fifth Circuit’s Jurgens opinion
appears to express uneasiness with the ramifications of a strict
constructive discharge rule limitation on Title VII relief, char
acterizing the rule as only part of the employee’s duty to mit
igate.5 However that characterization of the constructive
discharge rule, as merely a standard for reviewing a Title VII
plaintiff’s mitigative action, infringes somewhat on the
Supreme Court’s treatment of the mitigation duty in Ford
Motor Co. v. E.E.O.C., 458 U.S. 219, 231-2, 102 S.Ct. 3057,
3065-6, 73 L.Ed.2d 721 (1982), where the Court stated:
An unemployed or underemployed claimant, like all other
Title VII claimants, is subject to the statutory duty to min
imize damages set out in § 706(g). This duty, rooted in an
4 In Richardson, a restaurant employee who had decided to resign effec
tive two days after she filed an employment discrimination complaint was fired
the day she filed it. Upon being found to have engaged in unlawful discrimi
nation, the restaurant argued that backpay should be limited to the two days
between the firing and the date of intended resignation. The district court dis
agreed, reasoning that the restriction of relief past the date of resignation should
only occur where an employee leaves her employment for reasons unrelated to
the discrimination suffered. See id. at 696.
5 The Fifth Circuit’s opinion in Jurgens, 903 F.2d at 389, states:
We find no inconsistency in determining entitlement to such back
pay, in some cases, by whether the employee properly mitigated dam
ages after his retirement or resignation, and in other cases, involving
denial of promotion, by whether the employee was constructively dis
charged. We simply hold, as we did in Bourque, that where an
employer discriminatorily denies promotion to an employee, that
employee s duty to mitigate damages encompasses remaining on the
job. (emphasis added).
145a
ancient principle of law, requires the claimant to use rea
sonable diligence in finding other suitable employment.
Although the unemployed or underemployed claimant
need not go into another line of work . . . or take a
demeaning position, he forfeits his right to backpay if he
refuses a job substantially equivalent to the one he was
denied.
In footnote 4 to its Jurgens opinion, the Fifth Circuit interprets
that mitigation standard as applicable only to those employees
no longer maintaining an employment relationship with the
defendant employer. According to the Fifth Circuit then, those
employees who are victims of unlawful discrimination but who
have not been fired, must remain on the job or else forfeit the
right to an award of damages past the date of resignation if no
constructive discharge occurs.
In light of above-discussed decisions, and in light of the
wide variation among the facts of any given Title VII case, the
constructive discharge doctrine should not operate within the
context of Title VII as the severe limitation on Title VII relief
advocated by Wolf, Block. From the extreme harshness of a
discriminatory firing or the denial of a long-awaited career
making promotion, through the demoralizing stagnation of a
discriminatory demotion, to the more subtle discrimination
contained in subjection to different working conditions, Title
VII encompasses a great range of unlawful behavior by
employers in their relationships with employees.
“In tailoring a Title VII remedy a court ‘has not merely the
power but the duty to render a decree which will so far as pos
sible eliminate the discriminatory effects of the past as well as
bar like discrimination in the future.’ ” Ford Motor Co., 458
U.S. 219, 233, n. 20, 102 S.Ct. 3057, 3066, n. 20, 73 L.Ed.2d
721 (quoting Albemarle Paper Co., 422 U.S. at 418, 95 S.Ct. at
2372). Wholesale application of the constructive discharge rule
prevents fulfillment of that responsibility. The elimination of
the availability of relief past the date of a Title VII plaintiff’s
resignation would conflict with the remedial duty specified
above in that the plaintiff could neither be compensated for his
or her injury, nor would a defendant be deterred from further
146a
discrimination. In addition such a restriction would discourage
a plaintiff from mitigating damages by accepting a position at
another employer where he or she would be permitted to
advance without discrimination. Harrison v. Dole, 643 F.Supp.
794 (D.D.C. 1986).6
III. Application of the Constructive Discharge Rule to
Eliminate Relief Beyond the Date o f Ms. Ezold’s
Resignation
The application of the constructive discharge rule here,
where the plaintiff was discriminatorily denied the one sig
nificant promotion available to an attorney practicing in a pri
vate firm setting, would be contrary to the most basic
principles of equity underlying Title VII. Not only would a
complete remedy be withheld from the plaintiff, but she would
also be robbed of the freedom, once her promotion was denied,
to seek out, both as a mitigative measure as well as for per-
sonal/professional advancement, employment opportunities that
approach the position which the plaintiff was discriminatorily
denied and that are superior to the position which the employer
discriminatorily forced the plaintiff to remain.
Having practiced law for approximately eight years, the
plaintiff had completed her fifth year as a litigation associate
at the defendant Firm when she became eligible for partnership
consideration in the fall of 1988. For an attorney practicing in
a private firm, “coming up for partner” is what an associate
strives for in the years preceding. Unlike the structure in many
businesses, corporations, and government organizations, where
often there exist many step-by-step, small scale promotions, the
partnership decision is often a make-or-break event for an asso
ciate who has persevered long enough to be considered for admit
tance to the partnership. In denying Ms. Ezold that partnership,
6 In Harrison, several black women employees of the United States
Maritime Administration resigned after being denied promotions on the basis
of their race. The district court permitted back pay past the date of resignation
as well as reinstatement, stating that the restriction of Title VII relief past the
date of resignation is “supported neither by the cases cited in [the defendant’s]
brief, nor by reason.” Id. at 796.
147a
Wolf, Block was not withholding an incremental benefit from the
plaintiff. Instead the defendant Firm had denied Ms. Ezold what is
by far the single most significant promotion achievable in the
arena of private law firms, and it had done so, at least in part, on
the basis of her gender.
Wolf, Block asserts that the constructive discharge rule should
limit Ms. Ezold’s relief to back pay covering the period between
the date her partnership would have become effective (February 1,
1989) and the date she resigned (June 7, 1989), a period of just
over four months. The cases cited by Wolf, Block for that argu
ment7 premise the rule’s application upon the desire to encourage
employees to stay at the place of employment in order to give the
employer a chance to remedy the discrimination; an employee
should not quit at the first sign of discrimination. In Thorne,
supra, the Ninth Circuit supplied an important qualification to that
policy however:
“Where, as here, an employee has no such opportunity [to
overcome resistance in that workplace and to eradicate
discrimination there], then these incentives have no rel
evance and back pay restrictions are inapplicable.”
802 F.2d at 1134. Indeed, “the policy of encouraging solutions
within the context of the working relationship makes sense only
when a possible solution exists.” Nobler v. Beth Israel Medical
Center, 715 F.Supp. 570, 572 (S.D.N.Y. 1989). Where such a pos
sibility can no longer be said to exist, back pay should not be
restricted where the motivation for resignation is the very dis
crimination suffered and not some unrelated reason, even where no
constructive discharge took place. Id. at 572-3. Wolf, Block
attempts to distinguish Nobler on the grounds that in Nobler there
was no opportunity for the plaintiff to solve the problem of dis
crimination from within because the plaintiff was denied a posi
tion for which only one space existed, whereas space in the Firm’s
Partnership is not so limited. This stance conflicts with evidence
presented at trial that in the eyes of Wolf, Block, it was unlikely
that Ms. Ezold would ever become a partner.
7 See note 2, supra.
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More than many employees would, Ms. Ezold can be said to
have followed the directions of those circuits who would
instruct her to battle the discrimination from within. She can
hardly be accused of quitting at the first sign of discrimination.
Having been told at the start that as a female it would be more
difficult for her at Wolf, Block, Ms. Ezold nonetheless
embarked on a career at Wolf, Block as a litigation associate.
In spite of receiving admittedly inferior work assignments and
a less than normal exposure to Wolf, Block’s partners, she pro
ceeded to build a reputation as a dependable, talented lawyer,
resourceful in the courtroom and popular with the clients on
whose matters she worked. But whereas those previous signs of
discrimination had been theretofore surmountable in that they
did not prevent her from achieving the successes that merited
admittance to the Partnership, Wolf, Block’s denial of part
nership to Ms. Ezold in the fall of 1988 was a blow she could
not sit back and endure with the same willingness to return to
the grindstone as she had for the previous five years. Eight
months after being informed of the partnership denial, Ms.
Ezold resigned in order to accept a position as president of one
of Wolf, Block’s clients.
Wolf, Block has maintained that it wanted Ms. Ezold to stay
with the Firm. One partner, a member of the Firm’s Executive
Committee (which is responsible for making the final part
nership recommendation to the entire Partnership for vote)
indicated to Ms. Ezold that she could become a partner in
charge of the Domestic Relations Department if she would
remain another year as an associate, yet refused to grant her an
annual salary increase typically granted to associates. It is rea
sonable to conclude that in light of the evidence presented, the
opportunity for Ms. Ezold to overcome and eradicate the dis
crimination she had suffered by remaining at the Firm had
finally been foreclosed.
That Ms. Ezold chose to leave Wolf, Block in an attempt to
replenish and continue her career was not a knee-jerk reaction
to a one-time discriminatory act by Wolf, Block. As it is for
any senior associate in large law firm, the partnership decision
regarding Ms. Ezold was a culmination of her entire career
149a
theretofore at the firm, most likely encompassing 10,000 or
more hours billed on Wolf, Block client matters. In Ms. Ezold’s
case however, the adverse partnership decision also represented
a culmination of the numerous elements of discriminatory treat
ment she had received throughout her years at the Firm. When
Wolf, Block unlawfully permitted gender to enter into its con
sideration of Ms. Ezold for partner, she understandably came to
the conclusion that her career at the Firm would be limited to
a much greater extent than she could reasonably accept.
The statutory purposes of Title VII enunciated in Albemarle
Paper, 422 U.S. at 421, 95 S.Ct. at 2373, would be severely
frustrated were Ms. Ezold’s back pay to be limited strictly to
the four-month period between the date on which the adverse
partnership decision took effect and the date of her resignation,
when her conduct in leaving the firm was not unreasonable.
Application of the constructive discharge rule here would give
employers a free hand to engage in a careful campaign of sub
tle discrimination against an employee—such as inferior work
assignments, etc.—which so long as it does not rise to the level
of making working conditions intolerable, would not make the
employer responsible for its unlawful actions past the date at
which the victimized employee surrenders by resigning.
Although Wolf, Block argues that to refrain from applying
the constructive discharge rule here would render that doctrine
meaningless, to apply it rotely to the plaintiff, an attorney who
was subjected to a pattern of discriminatory treatment by her
employer over a five-year period, punctuated by a denial of
partnership, would be inconsistent with even the plainest view
of the purposes of Title VII. Title VII is no less empowered to
eradicate those discriminatory acts which are subtly disguised
and carefully implemented as it is with respect to those acts of
blatant discrimination which make working conditions intol
erable; it was enacted to eradicate any unlawful discrimination
and to make employees whole for the injuries they have suf
fered as a result of their employers’ consideration of certain
discriminatory elements, such as gender, in the context of the
employer-employee relationship.
150a
Constructive discharge doctrine meanwhile, developed under
the National Labor Relations Act, has also taken an important
place in the context of employer-employee relations, enabling
the courts to go beyond the simple query as to whether the
employee was “fired” and to scrutinize more equitably an
employee’s decision to leave his or her employment. The two
doctrines— Title VII and constructive discharge—are bom of
different necessity and each holds a defendant to a different
standard for purposes of determining liability. As constructive
discharge doctrine addresses only the “tolerability” of the con
ditions in which an employee must work, be they motivated by
lawful or unlawful considerations, Title VII’s scrutiny includes
the lawfulness of the bases upon which an employer sets those
conditions. Such a distinction suggests that constructive dis
charge doctrine is not a perfect measure of the severity of a
Title VII claim for purposes of determining the appropriate
scope of relief, just as the application of a different standard of
liability for each doctrine suggests that one is not a perfect
barometer of the legal merit of the other.
The constructive discharge inquiry as to the tolerability of
Ms. Ezold’s working conditions at Wolf, Block is not rendered
meaningless by an inquiry as to whether her decision to resign
was reasonable under the circumstances for purposes of deter
mining the appropriate Title VII relief for the period after her
resignation. The constructive discharge inquiry may be infor
mative for purposes of determining whether Ms. Ezold properly
mitigated her damages, but it is not appropriately applied as a
strict limitation on the scope of Title VII relief available to her
here. An appropriate order follows.
ORDER
And Now, this 15th day of March, 1991, in consideration of
the memoranda of law submitted by the plaintiff, Nancy
O’Mara Ezold, and the defendant, Wolf, Block, Schorr and
Solis-Cohen, as well as the replies thereto, on the matter of the
available scope of relief under Title VII in light of this court’s
prior finding upon trial that the defendant had violated Title
151a
VII by considering the plaintiff’s gender in its decision to deny
her partnership, it is Ordered that trial upon the matter of
damages should proceed with respect to the following issues:
(1) backpay;
(2) the instatement of the plaintiff, Nancy O’Mara Ezold as
a Partner within the defendant Firm, Wolf, Block, Schorr and
Solis-Cohen, or in the alternative, front pay;
and (3) proper mitigation of damages by the plaintiff.
152a
UNITED STATES DISTRICT COURT
Eastern District of Pennsylvania
No. 90-0002
July 23, 1991
Ezold,
-V.-
Wolf, Block, Schorr, and Solis-Cohen:
James M. Kelly, District Judge:
On November 29, 1990, this court found that the defendant
law firm had considered the Plaintiff’s gender in its decision
not to promote her to partnership, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”). Plaintiff’s claim of constructive discharge under Title
VII was denied. On March, 15, 1991, this court determined that
Plaintiff’s failure to prove constructive discharge would not
restrict Plaintiff’s remedies for the gender discrimination
beyond the date of her resignation from the firm.
Presently before the court are the parties’ memoranda of law
addressing the issue of whether Plaintiff properly mitigated her
damages. For the reasons stated more fully below, this court
finds that Plaintiff properly complied with her statutory duty to
mitigate damages imposed by section 706(g) of Title VII.
The facts of this case which are relevant to the present issue
are as follows. In the [sic] October 1988, the defendant firm
informed Plaintiff, then in her sixth year as an associate in the
firm’s litigation department, that she would not be promoted to
partner, which partnership would have been effective February
1, 1989. At trial, Plaintiff proved that her gender played a part
in the defendant firm’s decision not to promote her to partner.
In November, 1988, the chairman of the firm’s executive com
153a
mittee, Mr. Charles Kopp, offered Plaintiff partnership in the
firm’s domestic relations department if she would remain as an
associate for another year. Plaintiff was also informed that she
would not receive the semi-annual raise customarily accorded
to associates at that time, however she would receive a raise in
July, 1989. Plaintiff then decided not to accept the offer rep
resented by Mr. Kopp.
Plaintiff remained at the firm until June 7, 1989, upon which
date she resigned her association with the defendant. At the
time of her resignation, Plaintiff was receiving an annual salary
of $73,000. Prior to resigning, Plaintiff had secured a one year
contract as president and chief counsel of BES Environmental
Specialists (“BES”), an environmental consulting company.
Plaintiff’s total compensation under her one-year contract with
BES was $93,000, including a $20,000 bonus. Upon the expi
ration of Plaintiff’s one-year contract with BES, Plaintiff
secured employment with the firm of Rosenthal and Ganister,
where she currently earns an annual salary of $60,000.
Plaintiff now asserts that the above facts establish that she
acted reasonably to mitigate her damages by rejecting the offer
of domestic relations partnership in one year represented to her
by the chairman of the firm’s executive committee, and leaving
her employment as an associate at the defendant firm. Plaintiff
argues that this court’s March 15, 1991 determination that her
Title VII relief would not be restricted past the date of her res
ignation even though no constructive discharge occurred effec
tively resolves the mitigation issue because it was determined
that Plaintiff acted reasonably in resigning her employment at
the defendant firm. Plaintiff further argues that she had no duty
to accept the offer of a domestic relations partnership in one
year as that position was not equivalent to the litigation part
nership that she was discriminatorily denied.
In response, the defendant submits that Plaintiff’s statutory
duty to mitigate, and relevant caselaw interpreting that duty,
require that she should have remained in her employment at the
defendant firm, and accepted the offer of a domestic relations
partnership in one year’s time. Defendant argues that Plaintiff’s
acceptance of the one-year contract with BES was a temporary
154a
position which only allowed her to earn more than she would
have at the defendant firm for the 7!/2 months between mid-
June, 1989 and February 1, 1990, when her domestic relations
partnership would have been effective. In support of that posi
tion, the defendant notes that since her contract with BES
expired, Plaintiff has been earning less than she had been when
she left the defendant firm, and less than half of what she
would have received had she accepted the domestic relations
partnership offer.
Section 706(g) of Title VII establishes that backpay awarded
to a victim of unlawful discriminatory employment practices is
to be reduced as follows:
. . . . Interim earnings or amounts eamable with reason
able diligence by the person or persons discriminated
against shall operate to reduce the backpay otherwise
allowable.
Under Section 706(g) then, the amount of backpay a discrim
inatory employer is required to pay a victorious Title VII plain
tiff is to be offset and reduced by whatever the plaintiff earned
in the interim period between the discriminatory action and the
judgment. If it is determined that the plaintiff did not exercise
reasonable diligence in securing interim employment, a deter
mination of what amounts were eamable with reasonable dili
gence is to be made, and the backpay award is to be reduced by
that amount.
In Ford Motor Co. v. E.E.O.C., 458 U.S. 219 [29 FEP Cases
121] (1982), the Supreme Court examined the Title VII miti
gation duty in the context of an employer’s discriminatory
refusal to hire and subsequent offer of the job previously
denied, which offer did not provide seniority retroactive to the
date of the discriminatory refusal. The Court held that “absent
special circumstances, the rejection of an employer’s uncon
ditional job offer ends the accrual of potential backpay liabil
ity.” Id. at 241. In so holding, the Court stated the following in
reference to the duty of all Title VII claimants to mitigate
damages:
155a
This duty, rooted in an ancient principle of law, requires
the claimant to use reasonable diligence in finding other
suitable employment. Although the unemployed or under
employed claimant need not go into another line of work,
accept a demotion or take a demeaning position, he for
feits his right to backpay if he refuses a job substantially
equivalent to the one he was denied. Consequently, an
employer charged with unlawful discrimination often can
toll the accrual of backpay liability by unconditionally
offering the claimant the job he sought, and thereby offer
ing him an opportunity to minimize damages.
Ford Motor Co., supra, 458 U.S. at 231-32 (emphasis added).
Plaintiff’s refusal of the domestic relations partnership offer
was not per se violative of her statutory duty to mitigate
because the offer was conditioned upon her remaining an asso
ciate for an additional year, and required her to forfeit one of
the two semi-annual raises customarily accorded to associates
by the defendant firm. In addition, although the delayed part
nership offer had been extended by the firm’s executive com
mittee chairman, Plaintiff had no guarantee that in one year’s
time she would definitely receive the necessary approving vote
from the firm’s full voting partnership, which vote is required
to make partner.1
All of the circumstances surrounding the offer must be con
sidered in determining whether Plaintiff’s rejection of it was
unreasonable.1 2 3 In light of the above facts, Plaintiff acted with
reasonable diligence in obtaining alternative employment,
albeit guaranteed for only one year, at an annual rate of com
pensation $20,000 greater than the associate’s salary she com
manded at the time she left the defendant firm. In Huegel,
supra, n. 1, the Postal Service denied the plaintiff employment
and thereafter offered the plaintiff the “next available position.”
Huegel, 683 F.Supp. at 124-26. The court noted that the “next
1 See Finding of Fact #13, Memorandum accompanying Nov. 27, 1990
Order, p. 3.
2 See Huegel v. Tisch, 683 F.Supp. 123, 126 [49 FEP Cases 742] (W.D.
Pa. 1987), citing Blomstrom v. Bethlehem Steel Corp., No. 87-1472 slip op. at
3 [47 FEP Cases 1261] (E.D. Pa. Nov. 19, 1987) [available on WESTLAW,
1987 WL 20235],
156a
available position might not have been available fo r a year,”
Id. at 127 (emphasis added) as a basis for refusing to restrict
backpay after the date of the plaintiff’s refusal of the offer.
Defendant argues further that this court’s trial finding of no
constructive discharge is rendered legally meaningless by the
conclusion that Plaintiff’s resignation neither bars post-resig
nation relief, nor violates the statutory duty of mitigation.
Defendant’s argument overlooks at least two relevant aspects
of the constructive discharge ruling however.
First, the litigation of constructive discharge claims in Title
VII cases is not merely for the purpose of determining appli
cable limits on relief, but for determining actual liability. A
Title VII plaintiff who is denied a promotion, as was Plaintiff
here, can seek Title VII relief on alternative grounds, i.e. that
either the employer unlawfully discriminated in the refusal to
promote, or that the employer unlawfully discriminated against
the plaintiff such that he or she was forced to quit the job in
which he or she remained. In cases where there is no denial of
promotion issue, the plaintiff claiming to have merely been dis-
criminatorily forced out of his or her job, constructive dis
charge is the sole means of determining liability. Here a denial
of promotion was at issue, hence Plaintiff sought relief on alter
native grounds.
A second aspect of the constructive discharge finding’s rel
evance to the present issue involves the determination of the
scope of “reasonable diligence.” This court’s March 15, 1991
holding that Plaintiff’s Title VII relief would not be cut off at
the date of her resignation merely effected this court’s deter
mination that the application of a general ruling eliminating
Title VII relief after the date of resignation from a lesser job
when a superior position has been discriminatorily denied
would not be consistent with the equitable purposes of Title VII
in view of the facts of this case. That Plaintiff’s relief would
not be restricted to the period prior to her resignation does not
absolve Plaintiff of her duty to mitigate damages however.
In the context of the mitigation issue the trial finding of no
constructive discharge is thus relevant in determining whether
Plaintiff acted with reasonable diligence in giving up her asso
ciate position and accepting the one-year contract as president
157a
and general counsel for BES. Here, the “reasonable diligence
of Plaintiff’s actions is not to be considered in light of any
equitable duty to battle the discrimination from within, etc., as
was relevant to the analysis underlying this court’s March 15,
1991 holding, but instead simply in terms of whether the dol
lar amounts earnable are such that she should have continued
in that position. The relevance of the constructive discharge
finding is thus made apparent: As Plaintiff was not construc
tively discharged from her associate position, the $73,000 she
was earning in it is not eliminated from the scope of possible
mitigative efforts, and this court must consider whether proper
mitigation of the damages suffered as a result of being denied
partnership encompassed remaining in the associate position.
Considering all of the facts and circumstances surrounding
the original denial of a partnership, the subsequent offer of a
domestic relations partnership in one year, and Plaintiff’s deci
sion to leave the defendant firm for alternative employment,
Plaintiff acted with reasonable diligence in accepting the one-
year contract with BES, satisfying her statutory duty to miti
gate damages under Title VII. At the time of her decision to
accept BES’s offer, Plaintiff was assured of earning $20,000
more with BES during that year than she would have as an
associate with the defendant. Plaintiff reasonably could have
anticipated that as president and general counsel for BES, there
was a significant possibility of future earnings at or above that
level. Thus Plaintiff was not required to accept the domestic
relations partnership offer and/or remain in her position as an
associate at the defendant firm in order to satisfactorily miti
gate her damages.
As Plaintiff and Defendant have each submitted an alterna
tive proposed order detailing in specific dollar amounts the
backpay award appropriate to a determination that Plaintiff
either did or did not properly mitigate damages, respectively,
I will adopt Plaintiff’s version in light of my conclusion today.
That appropriate order follows.
158a
Order
A n d N o w , this 23rd day of July, 1991, for the reasons set
forth in the foregoing Memorandum, it is O r d e r e d that:
A. An Amended Memorandum having been rendered by the
Court on November 29, 1990 in favor of Plaintiff on her claim
of sex discrimination in promotion to partnership in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (Title VII) and against Plaintiff on her claim of con
struction [sic] discharge in violation of Title VII;
B. A Memorandum and Order having been rendered by the
court on March 15, 1991 that trial should proceed with respect
to the issues of backpay, instatement or, in the alternative, front
pay, and mitigation of damages by Plaintiff;
C. The Court having been advised that Plaintiff seeks the
remedy of instatement as a partner with defendants and that
defendant does not oppose the remedy of instatement should
the Court’s November 29, 1990 and March 15, 1991 Orders be
affirmed on appeal;
D. The Court having been advised that the parties have
agreed to the amount of back pay; and
E. The Court having been advised that the parties’ agree
ments set forth in paragraph (D) and (E) above are subject to
the rights of the parties to appellate review of the Court’s prior
Orders and this Judgment;
Pursuant to the Court’s prior Orders and the agreements of
the parties set forth above, it is F u r t h e r O r d e r e d a n d
A d j u d g e d that:
I. INSTATEMENT
A. In the event the Court’s November 29, 1990 and March
15, 1991 Orders and this Judgment of instatement are affirmed
in relevant part, Plaintiff shall be instated as a partner at defen
dant in its Litigation Department with the full rights and duties
of all such individuals admitted to partnership by defendant
159a
effective February 1, 1989, such instatement to occur within 30
days of such affirmance and the exhaustion of all appeals or the
expiration of all time periods for seeking appellant review,
B. Neither party waives its rights to seek modification by
this Court, including its rights to seek any otherwise permis
sible discovery in connection with any such requested modi
fication, of this Judgment ordering instatement. Such a request
for modification may be based only upon subsequent events
occurring during the period following entry of this Judgment
and ending upon the later of the exhaustion of all appeals or the
expiration of all time periods for seeking appellate review. If
the Court determines that modification of this Judgment of
instatement is appropriate, the Court shall conduct such addi
tional procedures as may be necessary to determine the appro
priate relief to which Plaintiff may be entitled.
II. BACK PAY
A. Plaintiff shall be awarded back pay in the amount of
$131,784 for the period from the date of her resignation
through January 31, 1991. Of this sum, $90,516 is to be paid to
Plaintiff, with full pre-judgment interest to be calculated on a
monthly, cash-flow basis. If and when Plaintiff is instated as a
partner, the remaining sum of $41,268 shall be deemed to have
been contributed by Plaintiff to Defendant’s capital and shall
be maintained by Defendant with respect to Plaintiff in the
same manner and under the same rules as are applicable to the
capital contributions of those individuals admitted to partner
ship in February, 1989.
B. If this Court’s prior Orders and this Judgment are
affirmed in relevant part, this Court shall thereafter determine
back pay for the period from February 1, 1991 to the date of
Plaintiff’s instatement as a partner, with full pre-judgment
interest to be calculated on a monthly, cash-flow basis for the
period prior to the entry of this Judgment and post-judgment
interest thereafter.
160a
III. ATTORNEYS’ FEES AND COSTS
The Court finds further that Plaintiff is a prevailing party
within the meaning of Title VII and therefore is entitled to
attorneys’ fees and costs. The Court will determine the amount
of Plaintiff’s attorneys’ fees and costs if and when a judgment
in Plaintiff’s favor is affirmed and after the exhaustion of all
appeals or the expiration of all time periods for seeking appel
late review.
161a
UNITED STATES COURT OF APPEALS
F o r t h e T h ir d C ir c u it
Nos. 91-1741 & 91-1780
Filed February 3, 1993
N a n c y O ’M a r a E z o l d ,
Appellant at No. 91-1780,
—v.—
W o l f , B l o c k , S c h o r r a n d S o l i s -C o h e n ,
Appellant at No. 91-1741.
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Docket No. 90-00002)
S u r P e t it io n f o r R e h e a r in g
P r e s e n t : S l o v it e r , Chief Judge, B e c k e r , St a p l e t o n ,
M a n s m a n n , G r e e n b e r g , H u t c h in s o n , Sc i r i c a ,
C o w e n , N y g a a r d , A l it o , R o t h , L e w is and
Se it z *, Circuit Judges.
The petitioner for rehearing filed by Nancy O’Mara Ezold in
the above captioned matter having been submitted to the judges
who participated in the decision of this court and to all the
* Hon. Collins J. Seitz, Senior Circuit Judge of the United States Court
of Appeals for the Third Circuit, was limited to voting for panel rehear
ing.
162a
other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of the
circuit in regular active service not having voted for rehearing
by the court in banc, the petition for rehearing is denied.
By the Court,
/s/ William D. Hutchinson
Circuit Judge
Dated: February 3, 1993
163a
IN THE UNITED STATES DISTRICT COURT
For the Eastern District of Pennsylvania
Civil Action No. 90-0002
Filed March 13, 1993
Nancy O’Mara Ezold,
Wolf, Block, Schorr and Solis-Cohen
ORDER
And Now, this 3rd day of March, 1993, in consideration of
the Opinion and Order of the United States Court of Appeals
for the Third Circuit filed December 30, 1992, judgment is
Entered in favor defendant, Wolf, Block, Schorr, and Solis-
Cohen, and against plaintiff, Nancy O’Mara Ezold.
By the Court,
[$l Tames McGirr Kelly
James McGirr Kelly, / .
Entered: March 4, 1993
Clerk of Court
164a
Proposed Findings of Fact Submitted by
Wolf, Block, Schorr and Solis-Cohen
[277a] 76. Ms. Ezold admitted that she was not the subject
of any sexual harassment while she was employed by Wolf,
Block. (Ezold, Day 13, p. 55).
77. Mr. Kurland was not a member of either the Associates
Committee or the Executive Committee during the time that
Ms. Ezold worked at Wolf, Block. Mr. Kurland left Wolf, Block
to become Philadelphia’s City Solicitor in January, 1988, many
months before the Associates Committee and Executive
Committee decided not to recommend Ms. Ezold for admission
to the partnership. (Kurland, Day 9, pp. 19, 87).
78. The alleged remarks by Mr. Kurland about which
Ms. Ezold has testified do not demonstrate that Mr. Kurland
discriminated against her on account of her gender. Also, none
of the other alleged statements and actions by various other
partners about which Ms. Ezold testified at trial demonstrate
that Ms. Ezold was discriminated against on account of her
gender.
IX. None of Ms. Ezold’s Evaluations
Was Based Upon or Influenced By Her Gender
79. The written evaluation documents relating to Ms.
Ezold’s job performance reflect criticisms of and concern over
her intellectual and legal analytical ability by various partners
beginning shortly after she started working at Wolf, Block and
continuing throughout her employment there. (See e.g., Def.
Ex. No. 80 at Bates Nos. 002657-58; 002935-36; 002822-23;
003174-77; Def. Ex. Nos. 47, 48, 271,273, 274, 275, 280, 281,
295, 296, 301,302, 303, 305, 306, 308, 333, 336).
[278a] 80. By 1985, there were growing concerns over Ms.
Ezold’s abilities and progress at the Firm, particularly with
respect to her legal analytical ability and ability to analyze
complex legal issues, and these concerns were repeatedly
expressed to Ms. Ezold during her evaluation meetings. As
reflected in Mr. Boote’s contemporaneous memorandum, Ms.
Ezold was told in her March 4, 1985 evaluation meeting with
Mr. Kurland and Mr. Boote that her evaluations were “trou
165a
blesome” inasmuch as she had not yet demonstrated the ability
“to deal with complicated legal issues, perform research and
write significant briefs”. (Ezold, Day 2, pp. 46, 49; Day 4,
p. 119); (Def. Ex. No. 47); (Boote, Day 9, pp. 122-126);
(Kurland, Day 9, pp. 36-37); (Def. Ex. No. 271).
81. During the March, 1985 evaluation meeting, Mr.
Kurland told Ms. Ezold that an effort would be made to have
her work with a number of different partners in the Litigation
Department. (Kurland, Day 8, pp. 33-37); (Def. Ex. No. 47).
82. Pursuant to the foregoing commitment, Ms. Ezold was
assigned to work with a number of different partners in the
Litigation Department subsequent to the March, 1985 evalua
tion meeting. However, her evaluations continued to reflect sig
nificant concerns on the part of various Litigation Department
partners with respect to her ability to perform complex legal
analysis, research and writing. (Arbittier evaluation dated June
19, 1985, Def. Ex. No. 301); (Schwartz evaluation dated July
1, 1985, Def. Ex. No. 280); (Arbittier, [279a] Boote, Fiebach,
Joseph and Simon evaluations for evaluation period of April,
1985-October 31, 1985, Def. Ex. No. 80 at pp. 2792-5; 2822-
3; 2826-7; 2838-9); (Kurland, Arbittier, Schwartz, Fiebach
evaluations for evaluation period of November, 1985-April,
1986, Def. Ex. No. 80 at pp. 2593-4, 2643-4, 2657-8, 2677-8,
2749-50); (Def. Ex. No. 303).
83. By early 1986, the Associates Committee had deter
mined, based on Ms. Ezold’s evaluations, that her legal ana
lytical ability was not up to Wolf, Block’s normal standards and
therefore she was not “on track” for regular partnership. (Def.
Ex. No. 303); (Boote, Day 9, pp. 135-136); (Strogatz, Day 11,
pp. 4-5).
84. Mr. Boote’s February 5, 1986 memorandum reflects his
conclusion that “Nancy has not demonstrated an ability to
research or write creatively and effectively. She lacks analyt
ical ability . . . Nancy is not going to make it on the regular
track toward partnership . . .” (Def. Ex. No. 303); (Boote, Day
9, pp. 134-135); (Strogatz, Day 11, pp. 4-5).
166a
85. Mr. Boote’s conclusions with respect to Ms. Ezold’s
legal analytical ability were discussed at the Associates
Committee’s February, 1986 meeting. A consensus was reached
by the Committee at that meeting that Ms. Ezold was not “on
track” for partnership because her legal analytical ability was
below the level which the Firm consistently required for admis
sion to the partnership. As set forth in Mr. Boote’s contempo
raneous memorandum concerning the evaluation he and [280a]
Mr. Kurland gave to Ms. Ezold on February 24, 1986, she was
apprised of the following conclusions of the Committee:
Nancy appeared to accept the judgment, albeit a little
grudgingly, that her analytical, research and writing abil
ity was not up to our standards. . . We made it very clear
to Nancy that if she pursues general civil litigation work
she is not on track toward partnership. . . .
(Def. Ex. No. 48); (Ezold, Day 4, pp. 120, 128); (Boote, Day 9,
pp. 136-139); (Kurland, Day 8, pp. 40-44).
86. Mr. Boote reported to the Associates Committee in his
June 26, 1986 memorandum that “[h]er minuses are that there
is doubt about her analytic and writing ability” and “[i]n her
last review, Nancy was informed that there was great doubt
about whether she could become a partner here in the regular
course”. (Def. Ex. No. 306) (Boote, Day 9, pp. 140-142).
87. In her October 1, 1986 evaluation meeting with Mr.
Kurland and Mr. Schwartz, Ms. Ezold was once again told that
a number of partners had serious reservations concerning her
legal analytical ability and that it was unlikely she would
become a partner at Wolf, Block. As set forth in Mr. Schwartz’
contemporaneous memorandum concerning this evaluation
meeting, Ms. Ezold was told as follows:
[Sy] told her that other lawyers had strong negative sen
timents about her capabilities and they feel she has a num
ber of shortcomings in the way of complicated analysis of
legal problems and in being able to handle the big com
167a
plicated corporate litigation, and therefore does not meet
the standard for partnership at Wolf, Block.
* * *
[281a] Both Sy and I urged Nancy to seriously consider
looking for employment elsewhere as she may not be able
to turn the tide.
(Def. Ex. No. 49); (Schwartz, Day 8, pp. 55-59); (Ezold, Day
4, pp. 127-8); (Kurland, Day 9, pp. 47-49); (Boote, Day 9,
p. 144).
88. Ms. Ezold admitted that during her 1987 annual “senior”
associate evaluation meeting, she was told that various partners
“criticized my writing ability and questioned my ability to han
dle complex litigation” and also “criticized or questioned my
ability in the area of legal analysis”. (Ezold, Day 2, p. 72). At
that meeting, she received a “Partnership Potential” form which
stated that the Associates Committee then viewed her prospects
of attaining “regular” entry-level partnership the following year
as “unclear”. (Def. Ex. No. 50); (Ezold, Day 2, pp. 46-47);
(Strogatz, Day 11, pp. 23-25).
X. The Decision By the Associates Committee Not to
Recommend Ms. Ezold For Regular Partnership Was Not
Based Upon Her Gender
89. Pursuant to the “5 year rule” generally applicable to lat
eral associates, Ms. Ezold and the other members of the class
of 1981 were first eligible to be admitted to the partnership
effective February 1, 1989. (Def. Ex. No. 18); (Ezold, Day 1,
p. 35); (Strogatz, Day 10, pp. 199-200).
90. There were eight associates who were first eligible for
admission to the partnership effective February 1, 1989: Ms.
Ezold, Roma Young, Andrew Chirls, David Gitlin, John [282a]
Schapiro, Robert Silverman, Alan Singer, and James Wiles.
(Def. Ex. No. 18).
168a
91. The Associates Committee met in September, 1988 to
consider which of the foregoing associates would be recom
mended by it to the Executive Committee for admission to the
partnership effective February 1, 1989. (Strogatz, Day 11,
p. 76).
92. In making its decision as to whether or not it would rec
ommend Ms. Ezold for partnership, the Associates Committee
took into consideration the views expressed by all of the Firm’s
partners, including those partners who supported Ms. Ezold for
partnership. However, a number of these supporters had
acknowledged, either explicitly or implicitly by their actions,
that they believed that Ms. Ezold was deficient in her legal ana
lytical ability. (Schwartz, Day 8, pp. 46, 68); (Boote, Day 9,
pp. 146-147); (Davis, Day 8, pp. 129, 140).
93. Despite the fact that certain of Ms. Ezold’s supporters
believed that she did not have the level of legal analytical abil
ity which Wolf, Block had consistently required of all of its
associates being considered for partnership, they advocated
relaxation of this partnership standard in order to admit Ms.
Ezold to the partnership standard in order to admit Ms. Ezold
to the partnership. Mr. Davis stated that the traditional Wolf,
Block partnership admission standard “was always applied
across the board to males and females” and “had not been less
ened for males.” (Davis, Day 8, pp. 148-151); (Boote, Day 9,
pp. 146-147); (Kurland, Day 9, pp. 50-51).
[283a] 94. Although Mr. Davis supported Ms. Ezold for
partnership, his 1988 evaluation of her stated several different
times that “She will never be a legal scholar”, and he noted this
criticism in response to the section of the evaluation form
which requests the evaluator to describe “any particular weak
nesses” in the associate. (Def. Ex. No. 291). Indeed, Mr. Davis’
lowest grades of her were in the areas of “legal analysis” and
“creativity”. (Def. Ex.No. 291). He testified that Ms. Ezold
“was not up to par on her legal analytical ability” and “I
wouldn’t turn over to her matters which involved complex legal
theories, creative lawyering in the sense of legal matters and
169a
certainly not things which involved a lot of heavy brief writ
ing”. (Davis, Day 8, pp. 129, 140).
95. Despite the fact that Ms. Ezold had been assigned to
assist Mr. Davis in the Home Unity litigation, he assigned a
first year associate, not Ms. Ezold, to prepare a complicated
brief challenging a Department of Banking decision because
“she would not, in my view, have the legal creativity or imag
ination or writing ability or research ability to produce that
kind of brief.” (Davis, Day 8, pp. 135-136). Moreover, in a dif
ferent case Mr. Davis criticized Ms. Ezold for failing to ade
quately research and analyze in a Third Circuit brief an issue
arising under the Uniform Commercial Code, and he told her
that her analysis “was unacceptable.” He later conveyed that
criticism of Ms. Ezold to the Chairman of the Associates
Committee. (Davis, Day 8, pp. 122-124); (Strogatz, Day 11, pp.
30-32).
[284a] 96. Similarly, although Mr. Schwartz supported Ms.
Ezold for partnership, his evaluations of her over the years had
consistently reflected his belief that legal analysis was her
weakest area. (Def. Ex. Nos. 280, 281, 282); (Schwartz, Day 8,
pp. 45-59; 63-64, 69). For instance, his 1985 evaluation stated,
inter alia, that “I ’m often left with a product that demonstrates
uncertainty in the analysis of a problem. . . sometimes I get
the sense that Nancy feels adrift and is just marching as best
she can to my analytical tune.” (Def. Ex. No. 280). His 1986
evaluation noted that her analytical ability was her “weakest”
aspect, and indeed Mr. Schwartz’ lowest grades of her in both
his 1985 and 1986 evaluations were in the areas of “legal anal
ysis” and “writing ability.” (Def. Ex. Nos. 280, 281); (Ezold,
Day 4, p. 132). Mr. Schwartz criticized Ms. Ezold’s “analysis
of complex legal issues” once again in his 1987 evaluation in
response to the section of the evaluation form requesting a
description of the associate’s weaknesses, and he supplemented
that evaluation with an oral interview with members of the
Associates Committee during which he again reported that
deficiency. (Def. Ex. No. 282); (Schwartz, Day 8, pp. 63-64);
(Strogatz, Day 11, pp. 18-19). Also, although Ms. Ezold had
170a
been working for Mr. Schwartz on the Jesko case, he asked Mr.
Arbittier to assign Mr. Matusky (an associate with less senior
ity than Ms. Ezold) to assist him in a project analyzing the new
sentencing and parole guidelines, rather than Ms. Ezold,
because he “wanted to be absolutely certain that it was done
[285a] correctly the first time.” (Schwartz, Day 8, pp. 60-61);
(Arbittier, Day 7, pp. 127-129).
97. Mr. Boote, another partner who supported Ms. Ezold for
partnership, also expressed concerns with respect to Ms.
Ezold’s legal analytical ability in a number of evaluation doc
uments that he prepared. (Def. Ex. Nos. 47, 48, 295, 296, 297,
298, 299, 300, 302, 303, 305, 306, 308). For instance, in his
1987 evaluation of Ms. Ezold, Mr. Boote wrote; “I would not
want her in charge of a large, legally complex case, the tradi
tional measure of a Wolf, Block partner.” (Def. Ex. No. 308);
(Boote, Day 9, pp. 145-147).
98. The Associates Committee had been apprised that Mr.
Magarity, who was Ms. Ezold’s most ardent supporter, had
declined the opportunity to have her assigned to work full-time
on his matters. (Fiebach, Day 6, pp. 126-129); (Arbittier, Day
7, pp. 129-133); (Boote, Day 9, pp. 142-143); (Strogatz, Day
11, pp. 5-6). Mr. Magarity’s 1987 and 1988 “senior” associate
evaluations rated Mr. Chirls higher than Ms. Ezold in the areas
of legal analysis and legal writing and drafting. (Magarity, Day
4, p. 164-170). Mr. Magarity rated Mr. Chirls “distinguished”
in the categories of legal analysis and legal writing because he
had done “an excellent job” independently analyzing and
researching a number of legal issues and drafting various
pleadings and briefs without any editing by Mr. Magarity.
(Magarity, Day 4, p. 168). Unlike the case with Mr. Chirls, the
customary practice utilized by Mr. Magarity with Ms. Ezold
and other associates was to direct the associate [286a] as to the
legal issues and analysis and also to edit the associate’s writ
ten product. (Magarity, Day 4, p. 168).
99. Although there was a good-faith disagreement among
various Wolf, Block partners with respect to whether the Firm
should relax its traditional partnership admission standards and
171a
there was also disagreement as to whether Ms. Ezold should be
admitted to the partnership, there was an overall consensus
within the Firm, including Ms. Ezold's supporters, as to the
level of her legal analytical ability. As noted in Mr. Fiebach’s
1988 evaluation of Ms. Ezold, “I think my views on Nancy are
identical to Alan Davis with whom I have discussed her
although we may differ on the bottom line. . . [S]he has lim
itations [with] respect to complex legal issues.” (Def. Ex. No.
80 at p. 003177). The consensus of the Firm’s partners was that
Ms. Ezold was deficient in the area of legal analysis, and even
her supporters recognized that this was her weakest area.
100. After a careful and thorough review of Ms. Ezold’s job
performance and evaluations, extensive discussions among
Associates Committee members, and discussions with various
partners in the Litigation Department, the Associates
Committee reached a consensus that it would not recommend
Ms. Ezold for “regular” partnership, since it believed that she
did not have the requisite legal analytical ability to be a general
litigation partner. Nine Committee members believed that Ms.
Ezold should not be recommended by the Committee for reg
ular partnership, while one Committee [287a] member (Mr.
Wiener, a friend and neighbor of Ms. Ezold) was in favor of
recommending her for regular partnership. The Committee also
decided that it would recommend Ms. Ezold for “Group VII”
partnership if the Executive Committee retained that category
of special partnership. (Def. Ex. No. 18); (Strogatz, Day 11,
pp. 45-46); (Liebenberg, Day 10, pp. 64, 66).
101. Although Ms. Ezold had received some criticisms of
her attitude and the manner in which she had raised certain
administrative complaints in earlier years, the partners who
expressed those criticisms did not do so because of Ms. Ezold's
gender. None of the evaluations of Ms. Ezold submitted by the
Firm’s partners in 1988 contain any criticism of Ms. Ezold’s
attitude, and the criticisms of her attitude in prior years did not
play any role in either the Associates Committee’s 1988 deci
sion not to recommend Ms. Ezold for partnership or Mr.
Rosoff’s subsequent decision to recommend to the Executive
172a
Committee that it adopt the Associate Committee’s recom
mendation. (Def. Ex. No. 313); (Strogatz, Day 12, p. 25);
(Liebenberg, Day 10, pp. 97-98); (Rosoff, Day 12, p. 80; Day
13, pp. 12, 15, 17, 26).
102. None of the hundreds of evaluations of Ms. Ezold’s job
performance during her six years at Wolf, Block reflect any
sexist comments, gender-based stereotypical comments, or dis
criminatory treatment of her on account of her gender. (Def.
Ex. No. 80).
[288a] 103. None of the members of the Associates
Committee took Ms. Ezold’s gender into consideration at all in
deciding whether or not to recommend her for partnership.
(Strogatz, Day 11, pp. 85-86); (Liebenberg, Day 10, p. 70);
(Garber, Day 12, pp. 45-46); (Day 10, pp. 106-110).
104. The Associates Committee’s decision not to recom
mend Ms. Ezold for regular partnership was not based upon or
influenced by her gender.
XI. Neither the Review by Mr. Rosoff Nor the Executive
Committee’s Decision Were Influenced At All
by Ms. Ezold’s Gender
105. In the Fall of 1988, the Chairman of the Associates
Committee, Ian Strogatz, presented the Associate Committee’s
recommendations for partnership to the Executive Committee.
Mr. Strogatz informed the Executive Committee that although
Ms. Ezold had certain skills and attributes, the Committee had
reached a consensus that her legal analytical ability did not
meet Wolf, Block’s normal partnership standards. (Kopp, Day
6, pp. 25-27); (Rosoff, Day 12, p. 80); (Strogatz, Day 11, pp.
60-61).
106. When the Associates Committee has decided not to rec
ommend to the Executive Committee that an associate be
admitted to the partnership, the Executive Committee has asked
“an independent person, namely somebody not on the
Associates Committee, to conduct an independent review so we
173a
can be absolutely certain that this person should not be made a
partner.” (Kopp, Day 6, pp. 20-21). No such inquiry is con
ducted with respect to associates who have been recommended
[289a] for partnership by the Associates Committee. (Kopp,
Day 6, pp. 20-21); (Strogatz, Day 11, pp. 77-79).
107. After receiving the Associates Committee’s partnership
recommendations, the Executive Committee asked William
Rosoff to perform an independent review on its behalf into Ms.
Ezold’s qualifications for partnership. Mr. Rosoff is the Firm’s
Financial Planning Partner. In 1987, Mr. Rosoff served as
Chairman of the Executive Committee. (Kopp, Day 6, p. 29);
(Strogatz, Day 11, pp. 77-78); (Rosoff, Day 12, pp. 82-83).
108. In addition to conducting a review concerning Ms.
Ezold, Mr. Rosoff also conducted a review concerning Mr.
Wiles’ qualifications for partnership after the Associates
Committee decided not to recommend him for admission to the
partnership. (Kopp, Day 6, pp. 20-21, 30); (Strogatz, Day 11,
p. 78); (Rosoff, Day 12, pp. 90-91, 104; Day 13, p. 49).
109. Mr. Rosoff reviewed evaluation documents of Ms.
Ezold submitted over several years. Thereafter, he interviewed
four partners in the Litigation Department who had worked
directly with Ms. Ezold and who he believed would provide an
“objective” assessment of Ms. Ezold’s legal analytical ability.
He did not interview any members of the Associates
Committee, nor did he interview either Mr. Davis or Mr.
Magarity, since their viewpoints were “very clear” to him from
their written evaluations and he believed that the partners he
chose to interview were “more objective” concerning Ms.
Ezold. Mr. Rosoff believed that Mr. Davis, as a Department
[290a] Chairman, had a natural “parochial interest” in spon
soring Ms. Ezold’s partnership candidacy, and Mr. Magarity
was “obviously actively supporting her” because she was his
“principal assistant.” (Rosoff, Day 12, pp. 83-85; Day 13, pp.
5-7, 12, 17, 26).
110. Mr. Rosoff interviewed Mr. Schwartz, Mr. Boote, Mr.
Fiebach and Mr. Arbittier. Two of them (Messrs. Schwartz and
Boote) had stated in their 1988 evaluations of Ms. Ezold that
174a
they viewed her admission as a partner “with favor”; one (Mr.
Arbittier) had stated in his 1988 evaluation that he had “mixed
emotions” concerning her admission as a partner; and one (Mr.
Fiebach) had indicated in his 1988 evaluation of Ms. Ezold that
he viewed her admission as a partner with “negative feelings.”
(Def. Ex. Nos. 283, 309, 275, Def. Ex. No. 80 at p. 003177).
111. After his review of the written evaluations and his inter
views, Mr. Rosoff concluded that there was an overall con
sensus that Ms. Ezold did not possess the level of legal
analytical ability which the Firm had consistently required of
its incoming partners who handled general litigation matters.
(Rosoff, Day 12, pp. 85-91; Day 13, pp. 27, 30-31); (Schwartz,
Day 8, p. 68); (Arbittier, Day 7, pp. 133-135).
112. Mr. Rosoff reported to the Executive Committee that,
“unless we are prepared to substantially reduce the standard for
making regular partner,” it should adopt the Associate
Committee’s recommendation that Ms. Ezold [291a] not be
admitted as a general litigation partner. (Rosoff, Day 12, p. 91);
(Kopp, Day 6, p. 31). Mr. Rosoff’s review of Ms. Ezold’s qual
ifications and his recommendation to the Executive Committee
with respect to her were not based upon or influenced by the
fact that she is a woman.
113. Although Mr. Rosoff had not interviewed Mr. Davis as
part of his review, Mr. Kopp, who was the Chairman of the
Executive Committee, had spoken to Mr. Davis concerning Ms.
Ezold’s qualifications. Mr. Davis acknowledged to Mr. Kopp
that Ms. Ezold did not have sufficient legal analytical ability to
handle complex legal issues, but he expressed the view that the
Firm should lower its standards to allow Ms. Ezold to become
a regular partner. (Kopp, Day 6, pp. 32, 51-53). Mr. Kopp also
spoke with Mr. Schwartz and Mr. Fiebach, who both expressed
the view that Ms. Ezold did not have sufficient legal analytical
ability to handle complex legal issues. (Kopp, Day 6, pp.
33-34) (Schwartz, Day 8, p. 69).
114. Based upon Mr. Rosoff’s review and the other infor
mation it had received previously concerning Ms. Ezold, the
Executive Committee decided unanimously to accept the rec
175a
ommendation of the Associates Committee and decided not to
recommend to the partnership that Ms. Ezold be admitted as a
partner. (Kopp, Day 6, pp. 77-78); (Rosoff, Day 13, p. 13).
115. None of the five members of the Executive Committee
(Messrs. Kopp, Segal, Goodman, Promislo and Manko) took
Ms. Ezold’s gender into consideration in deciding not to [292a]
recommend her for partnership. (Kopp, Day 6, p. 35); (Day 10,
pp. 106-110). The Executive Committee’s decision was not
based upon or influenced by the fact that Ms. Ezold is a
woman.
116. On November 30, 1988, after the completion of Mr.
Rosoff’s inquiry and after the Executive Committee had
already decided not to recommend Ms. Ezold for admission to
the partnership, Mr. Magarity sent a memorandum to the
Executive Committee promoting Ms. Ezold’s partnership can
didacy. (Plaintiff’s Exhibit No. 9a); (Rosoff, Day 12, pp.
101-102). Mr. Magarity testified on direct examination by
counsel for Ms. Ezold that “This was very much a memo trying
to persuade the Executive Committee, and I was writing it as an
advocate for Nancy.” (Magarity, Day 4, p. 159); (Plaintiff’s
Exhibit No. 9(a)). Mr. Magarity further testified that “I wanted
to keep her. I had my own reasons for wanting to keep her.”
(Magarity, Day 4, p. 157). Also, in contrast to Mr. Rosoff’s
effort to “get behind” the mere numbers and comments on the
face of the evaluations, Mr. Magarity stated that his memo
randum simply tallied the number of partners who recom
mended Ms. Ezold for partnership, expressed “mixed feelings,”
or expressed “negative feelings.” (Magarity, Day 4, pp. 162-
163).
176a
Trial Testimony
[1170a] Q. Before you launch into your answer, perhaps I
could help you. The summary sheet, which I had shown to you
first, which is 002946, lists legal analysis, legal writing and
drafting, research skills, formal speech, informal speech, judg
ment, creativity, negotiating, advocacy skills, promptness, effi
ciency.
Are those standards that you look at in evaluating candidates
for partners?
[Mr. Strogatz] Those are certainly all factors that would
be part of our consideration.”
Ms. Raskin: And then it picks up on the bottom of 382.
By Ms. Raskin:
Q. “What are the normal standards that you look at?
A. The normal standards for partnership include as factors
for consideration all of the ones that you have listed that are
contained under our evaluation forms.
Q. What else?
A. That is basically it.”
Ms. Raksin: Page 387, line 23.
By Ms. Raskin:
Q. Who were the people who had the most direct knowledge
of Ezold’s performance with respect to those standards, which
we have already agreed, were the normal standards for part
nership? * * *
[1209a] Q. And all you get is that we recommend John
Jones or we don’t recommend John Jones?
[Mr. Kopp] I did not testify to that.
Q. Then what do you get?
A. We get the reasons why John Jones is recommended or
not recommended.
Q. Whose reasons? The majority?
A. The consensus of the committee. We don’t get the num
ber of votes of who voted. We get a report that this is the con
sensus of the committee. That is all I know.”
Line 5 on page 55:
“Q. Have you ever determined that billable hours, either the
billable hours or failure to meet a standard of billable hours,
should result in overruling the consensus of the associates’
committee?
177a
A. There is never, to my recollection, one single, solitary
factor that turns a decision. Billable hours is fa] factor. There
are other factors. We look at a lot of facftors].
Also, so that will understand the process, it would be help
ful—this is not a case where we get to January and the asso
ciates’ committee comes in and makes recommendations about
people that we have never heard of before. We have heard
reports about these people for years. Each year we get a report
from the associates’ * * *
[1253a] [Mr . Kopp] Experience prior to law school is
given weight only with regard to the question of whether that
person should be hired at all.
In other words, there are times when experience prior to law
school might indicate a background in engineering or might
indicate that this person has a maturity level that is high, and
that’s given weight in terms of whether that person should be
hired at all.
But once having made the decision to hire that person, non-
legal experience is not given credit for legal experience.
Q. So that if you are talking about hiring a law student
directly out of law school, for example, one who had gone from
high school to college to law school and then come right to the
firm would be treated the same as someone who may have
worked either before or after college or before law school?
A. Yes.
Q. What are the standards for admission for partnership,
admitting associates to partnership?
A. The standards for admitting associates at Wolf, Block are
that a regular partner at Wolf, Block should be able to handle
by himself or herself any case that the firm gets, no matter how
complex, no matter how difficult, no matter how sophisticated.
[1311a] * * *
Q. It was a growing area of the practice?
[Mr. Kopp] I wouldn’t say it was growing any faster than
any other area. It was just an area where we had a decent
amount of work.
Q. You were growing generally through the years?
A. Yes.
Q. So that the domestic relations area, like other areas, was
a growing area?
178a
A. Part of the growth.
Q. Now, you said that the executive committee recommends
to the partnership, as a whole, candidates for partnership?
A. That’s correct.
Q. The executive committee doesn’t recommend to the part
nership, as a whole, those individuals who have been rejected
for partnership?
A. That’s correct.
Q. So that the partnership, as a whole, never got a chance to
vote in January of 1988 on Miss Ezold’s candidacy; is that cor
rect?
A. That’s correct.
Q. Mr. Kopp, there has never been a woman on the executive
committee, has there?
A. Not to my—
[1312a] Mr. Dichter: Objection, Your Honor, to the rel
evance.
The Court: Overruled.
The Witness: Not to my recollection.
By Ms. Raskin:
Q. Now, Mr. Kopp, do you know whether anyone on the
executive committee had ever worked with Miss Ezold?
A. I ’m not sure.
Q. And did you know that Mr. Segal—Mr. Segal was on the
executive committee at the time that you were?
A. Yes. He was on the executive committee at the time that
I was in 1988.
Q. And that was at the time of Miss Ezold’s candidacy, is it
not?
A. Yes.
Q. And do you know that Mr. Segal had written his 1988
evaluation form for Miss Ezold that he had no opinion of her,
no contact?
A. I did not know that.
Q. Would your answer be the same for Mr. Manko?
A. Yes. I did not know if any member of the executive com
mittee had any contact with Miss Ezold.
Q. Mr. Goodman was on the executive committee at the time
that Miss Ezold’s candidacy was considered; isn’t that right?
179a
Interrogatory Responses by Wolf, Block,
Schorr and Solis-Cohen
[5731a]
Interrogatory No. 8:
8. For all individuals listed in Defendant’s Response to
Plaintiff’s First Set of Interrogatories, Interrogatory No. 22,
state the dates of their membership on the Associates
Committee.
Response to Interrogatory No. 8:
Name
Ian A. L. Strogatz
Bruce S. Katcher
Roberta D. Liebenberg
Robert I. Friedman
Mark K. Kessler
Ronald B. Glazer
Roma Skeen Young
Philip E. Garber
Ronald M. Wiener
Arthur R. Block
M. Norman Goldberger
Thomas P. Witt
Robert M. McNair, Jr.
Mark L. Alderman
Dates of Membership on
Associates Committee
1987, 1988, 1989, 1990
1987,1988,1989
1987, 1988, 1989,1990
1987.1988.1989.1990
1987, 1988, 1989, 1990
1989.1990
1989.1990
1987.1988.1989.1990
1987, 1988, 1989, 1990
1987.1988
1987, 1988, 1989, 1990
1987.1988
1989
1990
Interrogatory No. 9:
9. For all individuals listed in Defendant’s Response to
Plaintiff’s First Set of Interrogatories, Interrogatory No. 24,
state the dates of their membership on the Executive
Committee.
180a
[5740a]
Interrogatory No. 3:
3. State for each year from 1986 to the present the following
information regarding defendant’s partners and employees:
(a) that total number of partners;
(b) the number of female partners;
(c) the total number of associates;
(d) the number of female associates;
(e) the total number of litigation partners;
(f) the number of female litigation partners;
(g) the number of litigation associates;
(h) the number of female litigation associates.
Response to Interrogatory No . 3:
Total number o f Partners'.
Year Total
02/01/86 102
02/01/87 107
02/01/88 105
02/01/89 107
02/01/90 102
Total Number o f Female Partners
Year Total
02/01/86 5
02/01/87 4
02/01/88 5
02/01/89 5
02/01/90 5
Total Number o f Associates:
Year Total
02/01/86 91
02/01/87 102
02/01/88 111
02/01/89 117
02/01/90 113
181a
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
P l a i n t i f f ’ s E x h i b i t N o . 2 0 0 d
6240a Review Period:
5-1-87-5-30-88
Name Nancy O. Ezold
Department Litigation
Earliest Partnership
Consideration ______2-1-89
Billable Hours
Prior Year 1,928.30
Billable Hours
Current Year thru 6/88: 931.70
Senior / x 7
____________ Non-Senior / /
Law School Class ’81
(actually ’80 viewed as ’81)
Current
Salar $70,000 as of 9/28/87______
Non-Billable Hours
Prior Year 373.30
Non-Billable Hours
Current Year thru 6/8 8: 141.20
Lawyers Who Requested
To Be Interviewed R. Booth, A. Davis, S. Goodman, G. Magarity, B.
Schwartz
Completing Partner A. B l o c k
182a
I. LEGAL
1. Analysis
2. Writing
3. Research
4. Formal Speech
5. Informal Speech
6. Judgment
7. Creativity
8. Nego./Advo.
9. Promptness
10. Efficiency
Bottom Line
D G A M U COMMENTS:
COMMENTS:
Grades all over—range from “D” to “M.”. Common
view is that Nancy has many fine and valued abilities—
industry, negotiating skills, trial skills and good
judgment and common sense; but she is no “legal
scholar” and never will be. The evaluations reflect the
degree to which the reviewer considers serious
intellectual ability as a prerequisite to regular
partnership and/or the degree to which Nancy does his
work. Ignoring Magarity’s view for the latter reason,
Davis starts out cold and votes Yes with enthusiasm;
Fiebach votes a strong no. Overall stronger grades in
intellectual skills than last time.
II. PERSONAL
11. Reliability
12. Responsibility
13. Flexibility
14. Growth
15. Attitude
16. Client Relations
17. Client Serv./Devel.
18. Pressure
19. Independence
20. Dedication
Bottom Line
D G A M U COMMENTS:
More consistent
good grades in II
categories.
Universally
recognized as
mature, confident
and dedicated.
COMMENTS:
184a
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
P l a i n t i f f ’ s E x h i b i t No. 2 0 0 a
6197a Review Period:
5-1-86-4-30-87
Senior / x /
Name Bruce Grohsgal_______________________ Non-Senior / /
Department Real Estate______________ Law School Class ’80
Earliest Partnership Current
Consideration______2-1-88_____ Salary _________ $59,000_________
Billable Hours Non-Billable Hours
Prior Year _________ 1733_______ Prior Year _________ 304_________
Billable Hours Non-Billable Hours
Current Year as o f 5-19-87: 524 Current Year as o f 5-19-87: 51
Lawyers Who Requested
To Be Interviewed j . g o l d b e r g : “if t h er e is a n y d o u b t a b o u t bruce,
I WOULD LIKE THE OPPORTUNITY TO SUPPORT HIM ORALLY.
M. DEAN, J. MANKO, H. MILLER, J. ROSENSTEIN, LIZ
READ??
Completing Parmer p.e . g a r b e r
185a
I. LEGAL
1. Analysis
2. Writing
3. Research
4. Formal Speech
5. Informal Speech
6. Judgment
7. Creativity
8. Nego./Advo.
9. Promptness
10. Efficiency
Bottom Line
D G A M U COMMENTS:
X
X
X
A+
A+
G-
G-
X
X
X
G-
[ILLEGIBLE
HANDWRITING]
COMMENTS:
Analysis and Writing are clearly “good.”
(Miller and Dean gave adequate m ix)__________
Research—less clear because of nature of practice
Speech—Mixed reviews between G and A
Judgment and Creativity— ____mixed, better than
speech.
Promptness and____adequate only, perhaps because of
workload.
Bottom Line: Difficult to make a judgment. Fiebach
and Bean rate him distinguished. Most
rate him good. But Segal and Dean rate
him adequare, with Miller rating him
adequate minus. Overall, I believe he is a
G—.
186a
II. PERSONAL
11. Reliability
12. Responsibility
13. Flexibility
14. Growth
15. Attitude
16. Client Relations
17. Client Serv./Devel.
18. Pressure
19. Independence
20. Dedication
Bottom Line
D G A M U COMMENTS:
COMMENTS:
Recognition among partners that his attitude is good.
Pattern of only adequate with respect to reliability,
working under pressure and getting work done. Unusual
personality.
187a
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
P l a i n t i f f ’ s E x h i b i t N o . 2 0 0 b
6212a Review Period:
5 - 1 - 8 6 - 4 - 3 0 - 8 7
Name Jeremy T. Rosenblum
Department Corporate________
Earliest Partnership
Consideration _____ 2-1-88_____
Billable Hours
Prior Year ________ 2123_______
Billable Hours
Current Year as of 5-19-87: 492
Senior /~x /
______ Non-Senior / /
Law School Class ’79
Current $75,000 (as o f 2-1-87—
Salary n o in c r e a se in july , 1987)
Non-Billable Hours
Prior Y ear_________ 256______
Non-Billable Hours
Current Year as o f 5-19-87: 66
Lawyers Who Requested
To Be Interviewed a . r e u b e n , m . s h e r m a n , j . r e d e k er
Completing Partner r .m . w i e n e r
188a
I. LEGAL
D G A M U
1. Analysis
2. Writing
3. Research
4. Formal Speech
5. Informal Speech
6. Judgment
7. Creativity
8. Nego./Advo.
9. Promptness
10. Efficiency
Bottom Line
COMMENTS:
Limited reviews
of research, but
seems at least
“adequate” if not
“good.” Formal
and informal
speech are
weakest areas in
legal skills.
Promptness is his
other weak area.
COMMENTS:
II. PERSONAL
D G A M U
11. Reliability
12. Responsibility
13. Flexibility
14. Growth
15. Attitude
16. Client Relations
17. Client Serv./Devel.
18. Pressure
19. Independence
20. Dedication
Bottom Line
COMMENTS:
Works very hard—
“Dedication” and
“Responsibility”
border on
“Distinguished”.
Some weaknesses
based in part on
lack of
organization and
excessive
workload.
COMMENTS:
190a
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
P l a i n t i f f ’ s E x h i b i t N o . 2 0 0 c
6227a Review Period:
5-1-87-5-30-88
Name Andrew A. Chirls______
Department Litigation________
Earliest Partnership
Consideration _____ 2-1-89_____
Billable Hours
Prior Year _________1,892.90
Billable Hours
Current Year t h r u 6/88 - 746.00
Senior / x /
_____ Non-Senior / /
Law School Class ’81
Current
Salary $70,000 (as of 9/28/87)
Non-Billable Hours
Prior Year _________ 244.80
Non-Billable Hours
Current Year THRU 6/88 - 85.80
Lawyers Who Requested
To Be Interviewed m . a l d e r m a n , d . Jo se ph , m , k ra sn y (“If necessary.”)
Completing Partner A. b l o c k
191a
I. LEGAL
D G A M U
1. Analysis
2. Writing
3. Research
4. Formal Speech
5. Informal Speech
6. Judgment
7. Creativity
8. Nego./Advo.
9. Promptness
10. Efficiency
Bottom Line
COMMENTS:
COMMENTS:
Varied grades,
some “D’”s, some
“A”’s. Arbittier
says “not real
smart”. Davis
votes no and is
harsh with view
but appears more
for personality!
and____than
substance. Most
others generally
positive. (He had a
personal problem
with Kauffman).
192a
D G A M U COMMENTS
11. Reliability
12. Responsibility
13. Flexibility
14. Growth
15. Attitude
16. Client Relations
17. Client Serv./Devel.
18. Pressure
19. Independence
20. Dedication
Bottom Line
II. PERSONAL
COMMENTS:
193a
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
P l a i n t i f f ’ s E x h i b i t No. 200e
6253a Review Period:
5-1-87-5-30-88
Senior /~x /
Name David Gitlin Non-Senior / /
Department Corporate Law School Class ’81 i s ’79 but
viewed as ’81
Earliest Partnership
Consideration 2/1/89
Current
Salary $70,000 (as of 9/28/87)
Billable Hours
Prior Year 1,848.60
Non-Billable Hours
Prior Year 231.60
Billable Hours
Current Year th r u 6/88 - 803.50
Non-Billable Hours
Current Year t h r u 6/88 - 72.50
Lawyers Who Requested
To Be Interviewed s. Go o d m a n (“Only if a problem.”), d . pr o m isl o (“I
assume David is going to become a regular partner. If that
assumption is not so, I would welcome the opportunity to
talk to someone from the Associates Committee.”)
Completing Partner r . l ie b e n b e r g
194a
I. LEGAL
1. Analysis
2. Writing
3. Research
4. Formal Speech
5. Informal Speech
6. Judgment
7. Creativity
8. Nego./Advo.
9. Promptness
10. Efficiency
Bottom Line
COMMENTS:
D G A M U COMMENTS:
Steve Goodman is very
enthusiastic about
David. He is already
assigning partner level
work to him and is
very satisfied with
David’s performance.
David appears to be
very well suited for
merger and acquisition
work. However, other
attorneys find David’s
work just acceptable.
195a
II. PERSONAL
11. Reliability
12. Responsibility
13. Flexibility
14. Growth
15. Attitude
16. Client Relations
17. Client Serv./Devel.
18. Pressure
19. Independence
20. Dedication
Bottom Line
COMMENTS:
COMMENTS:
196a
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
Plaintiff’s Exhibit No.__
6295a Review Period:
5-30-88
Senior / x /
Name __David I. Bookspan____________________ Non-Senior / /
Department Litigation_______________ Law School Class ’82
Earliest Partnership Current
Consideration 2/1/90 Salary $67,000 (as of 9/28/87)
Billable Hours Non-Billable Hours
Prior Year _________ 2,614,30 Prior Year 248.30
Billable Hours Non-Billable Hours
Current Year t h r u 6/88 - 776,00 Current Year th r u 6/88 - 127.00
Lawyers Who Requested
To Be Interviewed D. Jo seph (“Only if there are any questioas about his direct
route to partner.”). K. w a rren (“Norman is aware of my
views.”), D. Simon (“Up to you.”)
Completing Partner a . blo ck
197a
I. LEGAL
1. Analysis
2. Writing
3. Research
4. Formal Speech
5. Informal Speech
6. Judgment
7. Creativity
8. Nego./Advo.
9. Promptness
10. Efficiency
Bottom Line
D G A M U COMMENTS:
COMMENTS:
Many more litigation reviews show a different picture
than last time, when Poul loved him and Simon hated
him. Simon’s views on the same issues, a uniform view
of David as having “G” law skills without the desire to
work hard. He appears to act as if he is a “D” lawyer
without backing it up with work, comments like “too
slick” and “more sizzle than steak.” Two comments
about overbilling matters, also a bad sign. Is only 25
and 2M out of 14 reviews____indications of avoiding
hard work?
198a
II. PERSONAL
11. Reliability
12. Responsibility
13. Flexibility
14. Growth
15. Attitude
16. Client Relations
17. Client Serv./Devel.
18. Pressure
19. Independence
20. Dedication
Bottom Line
COMMENTS:
COMMENTS:
See above
199a
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
Plaintiff’s Exhibit No. 200k
6309a Review Period:
6 - 1 - 8 8 - ? - ? ? - 8 ?
Name Leonard P. Goldberger
Department Corporate
Earliest Partnership
Consideration _____ 2-1-90
Billable Hours
Prior Year 2044.90
Billable Hours
Current Year 2/89 -5/89 871.30
Senior /~x 7
_____ Non-Senior / J
Law School Class ’76
Current
Salary $81,000_______
Non-Billable Hours
Prior Year 424.60
Non-Billable Hours
Current Year 2/89- 5/89 115.50
Lawyers Who Requested
To Be Interviewed B. schw artz
Completing Parmer r .d . l ie b e n b e r g
200a
I. LEGAL SKILLS
1. Legal Analysis
2. Writing & Drafting
3. Oral Communication
4. Research Skills
5. Prompt. & Effic.
capabilities but his
strengths seem to be
his ability to attract
business and sell the
Firm.
D G A M U COMMENTS:
Len seems to know
the bankruptcy field.
There are not many
comments on Len's
substantive
COMMENTS:
II. PERSONAL
1. Dedication
2. Reliability
3. Manag. Respon.
4. Attitude
D G A M U COMMENTS:
Len seems to have
somewhat of an
attitude problem.
There are some
criticisms that he
does not get his work
done timely.
COMMENTS:
“I would object if the Associates Committee deemed it appropriate
to disclose my comments and identity to this associate in giving
him/her an evaluation.”
I. Light, B. Schwartz, H.R. Fiebach, B. Katcher, A. Kaplinsky, G. Brantz
201a
Plaintiff’s Exhibit No. 200n
6347a Review Period:
6 - 1 - 8 8 - ? - ? ? - 8 ?
COMMITTEE MEMBER’S ASSOCIATE EVALUATION SUMMARY
Senior /~x /
Name Neil S. Witkes ____________________ _ Non-Senior / /
Department Litigation_______________ Law School Class 82__
Earliest Partnership Current
Consideration ______2-1-90_____ Salary $76,000______________
Billable Hours Non-Billable Hours
Prior Year ______1964,00 Prior Year __________197.10_______
Billable Hours Non-Billable Hours
Current Year 720.70__________ Current Year 55.60
Lawyers Who Requested
To Be Interviewed B. sch w a rtz , r . booth_______________
Completing Partner m .k . k e ssl er
202a
I. LEGAL SKILLS
1. Legal Analysis
2. Writing & Drafting
3. Oral Communication
4. Research Skills
5. Prompt. & Effic.
D G A M U COMMENTS:
COMMENTS:
Grades are remarkably consistent from all who graded
him.
II. PERSONAL
D G A M U COMMENTS:
1. Dedication
2. Reliability
3. Manag. Respons.
4. Attitude
COMMENTS:
✓
✓
✓
✓
“I would object if the Associates deemed it appropriate to disclose
my comments and identity to this associate in giving him/her an
evaluation.”
A. Reuben, B. Schwartz, G. Brantz, I. Light
203a
In t h e
ptutefr J i t a t e fflnurt of ^Appeals
Fo r th e Third C ircu it
Nos. 91-1741,91-1780
N a n c y O ’M a r a Ez o l d ,
Appellee and Cross-Appellant,
v.
W o l f , B l o c k , Sc h o r r a n d S o l is -C o h e n ,
Appellant and Cross-Appellee.
BRIEF OF APPELLANT AND CROSS-APPELLEE
WOLF, BLOCK, SCHORR AND SOLIS-COHEN
APPEAL FROM FINAL JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
Mark S. Dichter
MORGAN, LEWIS &
BOCKIUS
2000 One Logan Square
Philadelphia, PA 19103
(215) 963-5291
Arlin M. Adams
SCHNADER, HARRISON,
SEGAL & LEWIS
1600 Market Street
Philadelphia, PA 19103
(215)751-2072
Attorneys for Wolf, Block, Schorr and Solis-Cohen
204a
ner as to support conclusions of pretext and gender-based dis
parate treatment. However, Judge Kelly’s purported “compar
ative analysis” is legally invalid because it improperly:
• Focuses upon Ezold’s favorable evaluations in criteria
other than legal analysis, as well as isolated criticisms of the
eight successful male partnership candidates in criteria other
than legal analysis;
• Ignores the many criticisms of Ezold’s analytical ability;
• Ignores the many favorable evaluations of the analytical
ability of the eight male candidates;
• Ignores the evaluations of other male associates who, like
Ezold, were passed over for regular partnership because of an
assessment that they too were deficient in analytical ability;
and
• Fails to consider the evaluations of successful female part
nership candidates, which contain isolated criticisms of them
in criteria other than legal analysis similar to those of the eight
male candidates.
1. Judge Kelly Committed Legal Error By Basing His
“Comparative Analysis” Upon Evaluation Criteria
Other Than Legal Analysis
Judge Kelly’s “comparative analysis” consists merely of a
juxtaposition of selective evaluation comments favorable to
Ezold in criteria other than legal analysis with isolated snippets
of criticism of eight successful male partnership candidates in
criteria other than legal analysis. Since Ezold’s partnership
candidacy was rejected solely because her analytical ability was
assessed to be deficient, Judge Kelly’s rose-colored depiction
of her other attributes (e.g., personality, attitude, client skills)
and his unflattering depiction of the male candidates in those
same inapposite criteria are entirely beside the point. That
Judge Kelly focused on the wrong evaluation criteria is
undoubtedly attributable to the fact that his Findings con
cerning the evaluations of Ezold and the male candidates were
205a
copied verbatim from the self-serving and misleading Proposed
Findings submitted by her counsel.29
Conspicuously, Judge Kelly’s Findings (and Ezold’s evalu
ation file) reflect a dearth of comments praising her analytical
ability. Instead, the evaluation comments relied upon by Judge
Kelly state: “I state . . . her research, her meeting with all
opposing counsel and her handling of her clients.” (No. 61);
“an exceptionally good courtroom lawyer, instills confidence
in clients, gets things done, is unafraid. . . .” (No. 62); “pre
sents herself to the court and clients as an effective represen
tative of the firm.” (No. 63); “Has shown industriousness,
dedication, good judgment and client skills in several matters.”
(No. 66); “never complains about workload and is always avail
able.” (No. 68); “has excellent skills in various areas of liti
gation, including case management, document management,
witness preparation, dealing with opponents, professionalism,
maturity, aggressiveness. . . ,”30 (No. 69) (93-97a).
29. Judge Kelly made 50 Findings relating to Ezold’s job performance
and evaluations. (Nos. 22-71) (83-97a). All but two of those 50 Findings were
copied verbatim from the Proposed Findings drafted by Ezold’s attorneys. (Cf.
339-57a). Moreover, all 43 of the Findings by Judge Kelly relating to the eight
male candidates to whom he compared Ezold (Nos. 76-118) were copied ver
batim from her Proposed Findings, as were 11 of the 12 Conclusion of Law
relating to her disparate treatment claim. (Cf. 98-107a and 115-18a and 419-
22a).
Although Judge Kelly’s “cut-and-paste” approach to preparing his Findings
may not, in itself, require reversal, Hayes v. Community Gen. Osteopathic
Hospital, 940 F.2d 54, 57 (3d Cir. 1991), nonetheless this practice is certainly
not one which reflects either a careful or independent review of the record by
the fact finder. At trial (1535a), Judge Kelly expressed his reluctance to read
the record. Copying of proposed findings may be permissible when consider
ing simple fact issues, such as the evidence on Ezold’s constructive discharge
claim. However, Judge Kelly’s uncritical acceptance of Ezold’s Proposed
Findings on her disparate treatment claim is particularly troublesome and
fraught with peril, since there were thousands of evaluation documents to sift
through and compare and the voluminous record was susceptible to distortion
and mischaracterization.
30. It was because of these attributes that the Associates Committee rec
ommended Ezold’s admission as a Group VII “special” partner and Kopp later
extended the domestic relations partnership offer to her. See pp. 13, 17, supra.
206a
Similarly, Judge Kelly recites at length the isolated frag
ments of criticism of eight male candidates in criteria other
than legal analysis called by Ezold’s attorneys from the thou
sands of grades
207a
SUPREME COURT OF THE UNITED STATES
No. A-744
N a n c y O ’M a r a E z o l d ,
— V.
Petitioner
W o l f , B l o c k , S c h o r r a n d S o l is -C o h e n
ORDER
U p o n C o n s id e r a t io n of the application of counsel for the
petitioner,
It Is Or d e r e d that the time for filing a petition for a writ of
certiorari in the above-entitled case, be and the same is hereby,
extended to and including June 18, 1993.
/s/_________D. H. Souter_________
Associate Justice o f the Supreme
Court o f the United States
Dated this 2nd
day of April, 1993.
*