Full opinion text
OPINION AND ORDER BECHTLE, District Judge. INTRODUCTION Plaintiff is a former Assistant Professor in the Education Program at Swarthmore College (“Swarthmore”). On February 29, 1972, plaintiff received notification from Swarthmore that she would not be reappointed as an Assistant Professor for the 1972-73 academic year due to “logistical” considerations. After exhausting the appropriate administrative remedies, plaintiff commenced this class action alleging that this nonrenewal was based solely on account of her sex, in violation of, inter alia, the Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103 (1972), 42 U.S.C. § 2000e et seq. (Supp. V), amending, Civil Rights Act of 1964, 78 Stat. 253. (All subsequent citations to Title VII in this Opinion are to the 1964 Act as amended.) The action was bifurcated, and the liability aspect of the case was tried, non-jury, before this Court. After careful review and consideration of the testimony and exhibits presented at trial, the pre- and post-trial briefs and arguments of counsel, and the proposed findings of fact and conclusions of law submitted by the parties, the Court makes the following narrative findings of fact and conclusions of law. The bracketed references to the record set forth the primary sources from which the statements contained herein are drawn. FINDINGS OF FACT I. PARTIES The only individually named plaintiff, Barbara Z. Presseisen, was employed by defendant Swarthmore as a part-time Lecturer in the academic year 1970-71, and as a full-time Assistant Professor in the academic year 1971-72. The intervening plaintiff, the U. S. Equal Employment Opportunity Commission (“EEOC”), was granted leave to intervene as a plaintiff by Order dated June 4, 1976. Defendant Swarthmore is an “employer” within the definition of 42 U.S.C. § 2000e(b). Defendant Charles E. Gilbert served as the Provost of Swarthmore from the period of 1969 through 1974. The Provost is the chief academic officer under the President and has the primary responsibility for faculty personnel matters. [N.T. 23-184.] II. BACKGROUND On June 2, 1972, plaintiff filed a charge against defendants with the Pennsylvania Human Relations Commission (“PHRC”) alleging that defendants had discriminated against her on account of sex. On November 27, 1972, plaintiff filed a charge with the EEOC, alleging that defendants had discriminated against her on account of sex. After appropriate deferral to the PHRC, and after investigating plaintiff’s charge, the EEOC issued a right-to-sue letter to plaintiff on May 6, 1974. ‘Plaintiff then filed her judicial complaint on May 28, 1974. Pursuant to plaintiff’s motion to amend, this Court granted leave to plaintiff to file an amended complaint, which included, inter alia, class action allegations pursuant to Rule 23, Fed.R.Civ.P. Plaintiff’s amended complaint was filed on December'11, 1974. Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, by Opinion and Order dated March 25, 1976, this Court certified this action as a class action. We defined the class as all present female faculty employees at Swarthmore College, all future female faculty employees at Swarthmore College, all former female faculty employees who left the employ of Swarthmore College on or subsequent to March 24,1972, and those applicants for faculty positions who applied to Swarthmore College and were rejected on or subsequent to March 24, 1972, who have been, are at present being or in the future may be: (1) denied hire, promotion and/or tenure at Swarthmore College or were not recruited by Swarthmore on account of their sex; and/or (2) denied equal compensation for performance of substantially similar work as is performed by male faculty members at Swarthmore College, on account of their sex. However, we certified the class action as to declaratory and injunctive relief only. A certification ruling on damages in the form of back pay was deferred until after a determination of liability. In addition, the March 25 Opinion and Order dismissed plaintiff’s claims brought under 42 U.S.C. §§ 1981 and 1985(3), and dismissed plaintiff’s Title VII claim against those individual defendants (Theodore Friend, Stephen G. Lax and Alice K. Brodhead) not named in plaintiff’s charge before the EEOC. By Order dated January 12, 1977, we also dismissed plaintiff’s claim brought under 42 U.S.C. § 1983. At the time trial commenced, the only defendants before the Court were Swarthmore and Mr. Gilbert, and plaintiffs’ claims were based solely on Title VII. III. THE TRIAL Plaintiffs’ evidence at trial consisted mainly,of the testimony of 16 class members, Barbara Presseisen’s own testimony as individual plaintiff, the testimony of a statistical expert witness, Dr. John deCani, Professor of Statistics at the University of Pennsylvania, and numerous exhibits. Plaintiffs included in their presentation of evidence in the class case hundreds of documents from faculty personnel files, which they contend, when considered in .conjunction with the testimony and statistical evidence, establish a prima facie case of a pattern and practice of sex discrimination by defendants. The Court directed plaintiffs’ counsel to file a written statement to identify specifically what women were unfairly treated due to their sex and in what way. Plaintiffs, in response, submitted “Plaintiffs’ Memorandum of Comparisons.” At the close of plaintiffs’ evidence, defendants moved for dismissal pursuant to Fed.R.Civ.P. 50(a), and later amended the motion to dismiss pursuant to Fed.R.Civ.P. 41(b). The Court deferred ruling on defendants’ motion and requested defendants to present their evidence in defense. Defendants’ primary witness was Harold E. Pagliaro, present Provost of Swarthmore, who described all aspects of Swarthmore’s employment practices and procedures regarding the faculty. He further testified with respect to defendants’ response to plaintiffs’ Memorandum of Comparisons. [Ex. D-147.] Defendants also presented Dr. Robert Cross, Alice Brodhead and Mr. Gilbert, all of whom testified with respect to Barbara Presseisen’s individual case. Finally, defendants offered the testimony of two statistical expert witnesses, Dr. Paul Meier, Professor of Statistics at the University of Chicago, and Dr. Gudmund Iversen, Professor of Statistics at Swarthmore College. Plaintiffs offered rebuttal testimony, and defendants surrebuttal. DISCUSSION OF APPLICABLE LEGAL PRINCIPLES On May 31, 1977, in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, the Supreme Court set forth specific guidelines with respect to the burden of proof of the respective parties in a Title VII class action case. Although Teamsters was a Government-initiated pattern or practice suit, the Court finds, and all parties are in agreement, that the evidentiary bases for a private across-the-board class action suit are almost identical to a Government pattern or practice suit. Accordingly, we will look to Teamsters as our primary source of guidance in this case. Teamsters makes clear that the plaintiff must prove illegal discrimination in his or her individual case and a pattern or practice of discrimination against the class he or she represents. Quite simply, plaintiffs in this case contend that Swarthmore regularly and ' purposefully treated women faculty members less favorably than male faculty members. They allege disparate treatment with respect to, inter alia, recruitment, hiring, salary, promotion, reappointments and tenure. Accordingly, as stated in Teamsters, at 335, 97 S.Ct. at 1854, “[t]he ultimate factual issues are thus simply whether there was a pattern or practice of such disparate treatment and, -if so, whether the differences were ‘racially [or in this case sexually] premised.’ ” (Citation omitted.) (Footnote omitted.) Before we address the specific burden of proof with respect to the individual and the class case, we note that the Court in Teamsters recognized that there are two types of discrimination in Title VII cases. The first are claims of disparate treatment wherein the “employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Teamsters, supra, at 335 n.15, 97 S.Ct. at 1854 n.15. The other type of claims stress disparate impact which “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Id. Since plaintiffs concede in their “Post Trial Brief in Support of Findings of Fact and Conclusions of Law,” at pp. 2-4, that the entire thrust of their case was to establish that disparate treatment was accorded to women faculty members by Swarthmore in all terms and conditions of employment, we need only concern ourselves with the “disparate treatment” type of discrimination. The distinction is an important one since, as was stated in Teamsters, supra, at 335 n.15, 97 S.Ct. at 1854 n.15, under a disparate treatment theory, “[p]roof of discriminatory motive is critical,” whereas under a disparate impact theory proof of discriminatory motive is not required. Id. See, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Dothard v. Rawlinson, 433 U.S. 321, 328, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). As defendants point out in their Supplemental Memorandum of Law, at pp. 10-11, the Supreme Court’s citation, in Teamsters, 431 U.S. at 335. n.15, 97 S.Ct. 1843, to its previous opinion in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), is most-instructive with respect to proof of discriminatory motive. In Arlington Heights, the Court noted that, since legislators and administrators are concerned with balancing numerous competing considerations in making decisions, as must the administration of Swarthmore, “courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality.” 429 U.S. at 265-266, 97 S.Ct. at 563. This judicial deference is no longer' justified “[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision . . . .” Id. The Court in Arlington Heights then went on to explain as to how one might establish an invidious discriminatory purpose: Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action — whether it “bears more heavily on one race than another,” Washington v. Davis, 426 U.S. [229], at 242 [96 S.Ct. 2040, at 2049, 48 L.Ed.2d 597] — may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. . . . The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence. (Citations omitted.) Footnote 15 reads: Accordingly, it is the plaintiff’s burden in a Title VII disparate treatment case to establish not only the existence of disparate treatment but also that such treatment was caused by purposeful or intentional discrimination. Since plaintiffs in effect have brought a pattern and practice case, Teamsters explicitly defined what the plaintiffs must do in order to establish a prima facie case of class discrimination. They must show that alleged differences in treatment between men and women are sexually premised. In addition, since plaintiffs alleged a system-wide pattern or practice of resistance to the full enjoyment of Title VII rights, they must show by a preponderance of the evidence that sex discrimination against female faculty members is the standard operating procedure of Swarthmore. As the Teamsters Court noted: the Government ultimately had to prove more than the mere occurrence of isolated or “accidental” or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure — the regular rather than the usual practice. 431 U.S. at 336, 97 S.Ct. at 1855 (footnote omitted). One of the most widely used and effective means of establishing a pattern or practice of discrimination is by the use of statistics. As the Court noted both in Teamsters and in Hazelwood School District v. United States, 433 U.S. 299, at 306-309, 97 S.Ct. 2736, at 2741-2742, 53 L.Ed.2d 768 (1977), statistics can be an important source of proof in employment discrimination cases. This is due to the fact that: absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population. Teamsters, supra, 431 U.S. at 339 n.20, 97 S.Ct. at 1856-57. Furthermore, “[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. Teamsters, supra, 431 U.S. at 339-340 [97 S.Ct., at 1856].” Hazelwood, supra, 433 U.S at 307, 97 S.Ct. at 2741. However, the Court in Teamsters went on to state that: [w]e caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. Teamsters, supra, 431 U.S. at 340, 97 S.Ct. at 1856-57. The Court also noted that the value of statistics may be lessened where there are “considerations such as small sample size” or there is “evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants . . . Teamsters, supra, at 340 n.20, 97 S.Ct. at 1857. Defendants contend, at pp. 14-16 of their Supplemental Memorandum of Law, that cases such as Teamsters and Hazel-wood which make statistical comparisons of a defendant’s work force with the available labor pool or relevant labor market are not relevant in evaluating the statistical evidence presented by plaintiffs in this case through Dr. deCani. This is due to the fact that, for the most part, Dr. deCani’s statistical studies on rank, hiring, promotion and salary were internal comparisons concerned with analyzing Swarthmore’s faculty given the members actually appointed, and determining the probabilities of the distribution of the faculty by rank, length of contract and salary if that distribution were determined by chance alone. The fact that the particular statistical methods utilized in Teamsters and Hazelwood shed little light on plaintiffs’ statistical methodology is irrelevant, since Teamsters and Hazelwood explicitly recognized that statistics come in an infinite variety and that their usefulness depends on all of the surrounding facts and circumstances. Therefore, although an infinite variety of statistics may be used in an attempt to establish a prima facie case of a pattern or practice of sex discrimination, the Court must carefully analyze the particular statistical methods used and then, assuming their propriety, must determine whether the statistics, either alone or in conjunction with other evidence, establish that Swarthmore has regularly and routinely discriminated against women faculty members. In addition to their statistical evidence, plaintiffs chose to bolster their statistical presentation by offering the testimony of individual class members. The defendants’ position is that, although at the liability stage the plaintiffs are not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer’s discriminatory policies, see Teamsters, supra at 324, 97 S.Ct. 1843, if individual cases are used as evidence to create, in conjunction with statistics, an inference of a pattern or practice of discrimination, then the individual cases must meet the formula for establishing a prima facie case of discrimination outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). On the specific facts there involved, the Court held that this burden may be met by showing that a qualified applicant, who was a member of a racial minority group, had unsuccessfully sought a job for which there was a vacancy and for which the employer continued thereafter to seek applicants with similar qualifications. Upon such a showing, the burden then.shifted to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Id. at 802, 93 S.Ct. 1817. On the other hand, the plaintiffs’ position is that whether or not the specific instances meet the McDonnell Douglas test, “they certainly rise to the level of bolstering the statistical evidence such that the evidence as a whole creates an inference of sex discrimination.” [N.T. 27-18.] First of all, if a class member testifies in the liability stage of the class case, his or her' testimony need not exactly fit the McDonnell Douglas formula. As the Court pointed out in Teamsters, supra at 324, 97 S.Ct. 1843, their decision in McDonnell Douglas “did not purport to create an inflexible formulation. . . . The importance of McDonnell Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Teamsters, supra at 358, 97 S.Ct. at 1866 (footnote omitted). Second, what an individual class member’s burden of proof is depends on whether she testifies and, if she does testify, what her testimony consists of. For example, if plaintiffs are successful in establishing a broad-based policy of employment discrimination through the use of statistics alone, then a court may infer that individual hiring decisions were made in pursuit of the discriminatory policy. Teamsters, supra at 324, 97 S.Ct. 1843. The plaintiffs must then only show that an alleged individual discriminatee unsuccessfully applied for a job, was denied promotion or was not granted tenure, though eligible, and was therefore, a victim of proven discrimination. Id. at 324, 97 S.Ct. 1843. However, if plaintiffs present the testimony. of class members to bolster statistical evidence in an attempt to make out a prima facie case, then, whether or not that class member must carry the initial burden of offering evidence adequate to create an inference of unlawful discrimination, depends on the content of the testimony. Thus, if a female faculty member were to testify that she overheard a conversation between the President and the Provost wherein the President of the College told the Provost to make sure that no women are promoted above the rank of Assistant Professor, then such testimony obviously would not have to meet a McDonnell Douglas-type formula. However, if a female faculty member were to testify, as many did in this case, that, by reason of their own personal experience at Swarthmore, they were victims of alleged discrimination, then they would have to show more than the mere fact that they were not hired, promoted, renewed, tenured, etc. They must also demonstrate that the alleged discrimination did not result from the most common legitimate non-sexist reason on which Swarthmore might deny a female faculty member a promotion, renewal and tenure — an absolute or relative lack of qualification — and in the case of hiring, an absence of a vacancy. See Teamsters, supra at 338 & n.19, 358 & n.44, 97 S.Ct. 1843. The final legal issue we must address is the effect of the Supreme Court’s recent decisions in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), and in Hazelwood, supra, as to the relevance of pre-Act discrimination which, in this case, are alleged discriminatory acts which took place prior to March 24, 1972— the date educational institutions became subject to Title VII’s coverage. First, we may quickly dispose of any argument that Evans precludes this Court from considering any act of discrimination which was not itself the subject of a timely charge. [See N.T. 27-26 to 27-27.] This is due to the fact that we have already decided that Barbara Presseisen, who herself filed timely charges, may properly bring a class action on behalf of those who had not filed charges with the EEOC, 71 F.R.D. 34, 47-18 (E.D.Pa.1976); see United Airlines, Inc. v. McDonald, 432 U.S. 385, at 394, n.6, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), as long as the class members left the employ of Swarthmore on or subsequent to March 24,1972, or applied for faculty positions and were rejected on or subsequent to March 24, 1972. The crucial issue then is how do we treat pre-Act discrimination. As the Court noted in Hazelwood, racial discrimination by public employers, like sex discrimination by educational institutions, was not made illegal until March 24, 1972. Accordingly, a public employer or, as in this case a college, “who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white work force by purposefully excluding Negroes.” 433 U.S. at 309-310, 97 S.Ct. at 2742 (footnote omitted). In Evans, the Court also noted that: [a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences. 431 U.S. at 558, 97 S.Ct. at 1889. Of course, even though pre-Act discrimination has no present legal consequences, under narrowly defined circumstances, it may have probative force. For example, as pointed out in 433 U.S. at 309 n. 15, 97 S.Ct. at 2742, in Hazelwood: [p]roof that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decision-making process had undergone little change. Cf.Fed.Rule Evid. 406; Village of Arlington Heights, v. Metropolitan Development Corp., supra; 2 J. Wigmore, Evidence §§ 92, 302-305, 371, 375 (3d ed. 1940). Since, for the reasons stated in our findings infra, we do not find that Swarthmore’s employment practices before 1972 were so clearly discriminatory, pre-1972 acts of discrimination will be accorded little, if any, evidentiary weight. In addition, we do not believe that any pre-Act individual instance of discrimination, such as the failure of a female faculty member to be promoted from Assistant to Associate Professor in 1968, for example, can be deemed a continuing violation such that relief may be awarded for such an alleged act of discrimination. The act of discrimination took place in 1968 and is in the category of being “merely an unfortunate event in history which has no present legal consequences.” But see EEOC; Interpretative Memorandum, released 7/12/77, 46 U.S.L.W. 2028. Finally, plaintiffs argued for the first time at final arguments [N.T. 27-21 to 27-22] that pre-Act individual discrimination incidents can still serve as a basis for liability, if the discriminatory incident is locked-in by a post-Act sexually neutral employment practice. As mentioned above, these are claims that stress “disparate impact” and involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Examples of such neutral practices are the use of qualifying tests, see Griggs, supra, or the height and weight requirement for prison guards which disparately exclude women. See Dothard, supra. The only facially neutral lock-in practice identified by the plaintiffs is contained in Proposed Finding of Fact V.B.2, wherein they allege that “annual raises are determined across the board by rank on a percentage basis such as for example, 5% for Professors, 7V¡,% for Associate Professors and 8% for Assistant Professors.” Plaintiffs argue, for example, that if a woman were hired initially as an Instructor but should have been initially hired as an Assistant Professor but for sex discrimination, then Swarthmore’s annual salary percentage increase has a continuing impact on her pay, i. e., she will never make up the money lost by being hired initially at a lower rank. The Court has two responses to plaintiffs’ contention. The first is that plaintiffs have always, from the beginning of this case until the middle of the 27th day of trial, treated this case as one of disparate treatment and their late-inning attempt to establish a disparate impact theory is somewhat disturbing. Second, Evans held that a sexually neutral seniority system which gives present effect to a past act of discrimination cannot be the basis of any liability if the complainant failed to file a timely charge of discrimination. Since Evans held that a discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed, it could be held that pre-Act discriminatory incidents, even if locked-in by a post-Act neutral practice, cannot serve as a basis for liability. In their final argument, plaintiffs sought to distinguish Evans on the ground that it was a seniority case, whereas obviously this case is “a percentage salary increase case.” While it is true that Evans does discuss § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), which provides that it shall not be an unlawful practice to apply different terms of employment pursuant to a bona fide seniority system if any disparity is not the result of intentional discrimination, it can be persuasively argued, as Judge Becker recently did in Freude v. Bell Telephone Co., 438 F.Supp. 1059, (E.D.Pa., 1977), that “it is plain that the basic holding of Evans is that a current nondiscriminatory policy will not revive a time-barred [or, as in this case, a pre-Act] act of discrimination even though such policy has a continuing impact and gives present effect to a past act of discrimination. That holding is not based on the protection afforded a bona fide seniority system by § 703(h) and it applies directly to the instant [pension] case.” 438 F.Supp. at 1061. Accord, Dickerson v. United States Steel Corp., 439 F.Supp. 55, 69-71 (E.D.Pa., filed July 25, 1977) (Newcomer, J.). Were it not for Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), this Court would be quick to hold, on the basis of Evans, that all discriminatorily neutral policies cannot be used to revive past acts of discrimination which are, for whatever reason (pre-Act or time-barred), unfortunate events in history which have no present legal consequences. In Griggs, the Court held that non-job-related requirements as a condition of employment or transfer were, even though facially neutral, prohibited since they operated to exclude Negroes. In other words, Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs, 401 U.S. at 431, 91 S.Ct. at 853. As stated by the Court in Teamsters, “one kind of practice ‘fair in form, but discriminatory in operation’ is that which perpetuates the effects of prior discrimination. As the Court held' in Griggs, supra: ‘Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.’ 401 U.S., at 430, 91 S.Ct. [849] at 853.” 431 U.S. at 349, 97 S.Ct. at 1861. Most importantly, the prior discriminatory employment practices in Griggs occurred prior to the original enactment of Title VII. See also Teamsters, at 349 n. 32, 97 S.Ct. 1843. Notwithstanding the fact that Teamsters was decided the same day as Evans, the Court went on to point out that, were it not for § 703(h), the Teamsters’ seniority system, which unlawfully perpetuated the effects of pre-Act discrimination, “would seem to fall under the Griggs rationale.” At 349, 97 S.Ct. at 1862. Finally, it is interesting to note what the Court in Teamsters actually, thought was the holding of the Court in Evans. At 348 n. 30, 97 S.Ct. at 1861, of Teamsters, the Court stated: Evans holds that the operation of a seniority system is not unlawful under Title VII even though it perpetuates post-Act discrimination that has not been the subject of a timely charge by the discriminatee. (Emphasis added.) We need not finally decide this issue, however, since, as we stated at the outset, plaintiffs have maintained from the beginning that this is a disparate treatment case. We do not believe that one proposed finding of fact out of one hundred and fifty-five pages of proposed findings of fact comes close to establishing a neutral practice which perpetuates alleged past discrimination as to all class members. The Court will leave the above-mentioned Griggs-Teamsters-Evans pre-Act perpetuation problem for another day and another case. FINDINGS OF FACT — Continued IV. ORGANIZATION OF THE COLLEGE The ultimate authority of Swarthmore resides in the Board of Managers, which operates through certain standing committees. The President is the principal administrative officer, responsible to the Board. [N.T. 17-21 to 17-24.] The Vice-President for administration is the Controller responsible directly for financial records and for financial matters. The Provost is the principal academic officer with primary responsibilities in matters relating to faculty, curriculum and library. [N.T. 17-11 to 17-12.] The definition of functions of major officers of the institution and a description of many faculty procedures are set forth in the College faculty handbook. [Ex. D-2.] Department Chairmen are appointed by the President of the College. Since 1968, such appointments have been set at five-year terms. [Deposition of Charles Gilbert, at 132-133.] Department chairmen have responsibility for the administration of departmental matters, including such personnel matters as recruitment, hiring, contract renewal, compilation of dossiers for promotion and tenure, recommendations for promotion and tenure, and salaries. [Deposition of Charles Gilbert at 95, 96, 113, 115-119, 136, 138, 142, 143, 153, 154-156; N.T. 18-16, 25, 37, 40.] Department chairmen work with the College Provost in connection with the aforementioned personnel matters. [Ex. P-353 at III-1; N.T. 17-85, 17- 89, 18-40; Deposition of Charles Gilbert at 96, 115-118, 142-144, 149-151, 153-157, 169.] Decisions regarding recruitment, hiring, .contract renewal and salary are ultimately made by the President and the Provost in consultation with the department chairmen. [Deposition of Charles Gilbert at 95, 96, 113, 115-119, 136, 138, 142, 143, 153-157, 169.] The department chairmen write initial letters of appointment after the appointment and the terms thereof are authorized by the Provost and the President. Said letters are sent to individual faculty members subject to subsequent letters of confirmation of contract terms from the Provost and the President after approval by the College Board of Managers. [N.T. 17-83 to 17-86, 17-89, 17-101; Deposition of Charles Gilbert at 115, 116.] In 1968-69, the College created an advisory Committee on Promotion and Tenure. The committee is generally comprised of four tenured faculty members appointed by the College President. [N.T. 18-28, 18-48.] The President serves as chairman of the committee. [N.T. 18-27.] The Committee on Promotion and Tenure reviews tenure and promotion dossiers that have been compiled by the department chairmen. [N.T. 18- 25, 18-26 to 18-29, 18-37, 18-41; Deposition of Charles Gilbert at 170.] Following the deliberations of the Committee on Promotion and Tenure, the President makes a recommendation to the Instructions and Library Committee of the Board of Managers for its action. [N.T. 18-30, 18-31.] V. INDIVIDUAL NAMED PLAINTIFF — BARBARA PRESSEISEN Barbara Z. Presseisen was first employed by Swarthmore in May, 1970, as a Lecturer in Education to teach two units in the fall semester beginning September, 1970, and at least one unit in the spring semester beginning January, 1971. Her salary was set at $1,600 per unit plus travel expenses. [Ex. P-1.] At the time of her appointment, she was engaged in writing a dissertation for an Ed.D at Temple University. [N.T. 7-51.] During the 1970-71 academic year, plaintiff became aware of the fact that Swarthmore was searching for a director of the Program in Education. [N.T. 7-98.] Swarthmore was looking for someone who, in addition to being qualified in Education, could function authoritatively as a teacher and scholar in one of the regular departments. [N.T. 24-74 to 24-77.] From 1951 until May, 1970, when plaintiff was initially hired, Alice Brodhead, who developed the Program in Education, was the only faculty member who devoted herself exclusively to the Program. [N.T. 18-73 to 18-74A.] Mrs. Brodhead was always consulted by Mr. Gilbert before any additional appointments were made in the Program. [N.T. 18-77.] In June, 1971, plaintiff was appointed as a full-time Assistant Professor of Education for the year 1971-72 at a salary of $10,500. [Ex. P-2] At the time of her appointment, she advised Provost Gilbert that she had almost completed work on her Ed.D degree. [N.T. 7-96.] There is no question that plaintiff was highly qualified' for the position of Assistant Professor in the Program. [N.T. 7-73 to 7-76; Ex. P-200A.] Prior to plaintiff’s reappointment in June of 1971, plaintiff met in her office with Provost Gilbert. He informed her that her appointment as an Assistant Professor was for one year only since a successful search for a Director of the Program would preclude her reappointment. [N.T. 23-192 to 23-196; see Ex. P-2; Ex. P-3; Ex. D-66; Ex. D-93.] Throughout 1970-71 and into the second semester of academic year 1971-72, the relationship between plaintiff and Alice Brodhead was a warm and cordial one. [N.T. 18-77 to 18-79.] On Saturday, November 13,1971, Provost Gilbert phoned plaintiff at her home and advised her that she was entitled to a notice of whether she would be reappointed by March 1,1972, and that, since the search for a Director was continuing, he could not advise her further as to the concrete prospects of reappointment. [N.T. 23-197 to 23-198; Ex. P-4.] This telephone conversation distressed plaintiff, who expressed her concern to Mrs. Brodhead as to the question of reappointment for the 1971-72 academic year. [N.T. 18-78 to 18-79.] Sometime after the November 13 telephone call, Mrs. Brodhead urged plaintiff to apply for the directorship of the Program and not to decline to do so out of a mistaken sense of loyalty to her (Mrs. Brodhead). However, plaintiff responded that she did not want to apply for the position. [N.T. 18-81 to 18-82.]. On February 28, 1972, plaintiff was advised orally by Provost Gilbert that her one-year contract would not be renewed. [N.T. 7-118, 23-209 to 23-210.] This was confirmed by letter dated February 29, 1972. [Ex. P-5.] Orally, and in the letter, the Provost advised that the nonrenewal was based on logistical considerations; that is, with only two full-time positions which could be allocated to the Program in Education, one position already filled by Mrs. Brodhead, who was reappointed on February 28, 1972, and the other position to be filled by a permanent Director of the Program, there was no position available for Dr. Presseisen. Provost Gilbert also advised Dr. Presseisen that the nonrenewal was not based upon unsatisfactory performance and, in fact, she had performed in a fully satisfactory manner. [N.T. 7-119, 24-80; Ex. P-5.] At the time of the nonrenewal decision, Swarthmore expected a successful outcome in the search for a Director. [N.T. 23-208; Ex. P-5.] The candidates for the position included two women, Rachel Gel-man and Elizabeth Gallistel. [N.T. 23-207 to 23-208.] The failure to renew Dr. Presseisen was not based on discrimination against her on account of her sex, but was based on the legitimate staffing needs of Swarthmore’s Program in Education. At that time, Dr. Presseisen was not considered for the position of Director not only because she did not apply, but also because she did not meet the requirements for the position. As mentioned above, Swarthmore was looking for someone who, in addition to being qualified in Education, could function authoritatively as a teacher and scholar in one of the regular departments. [N.T. 24-74 to 24-77.] On March 1, 1972, Dr. Presseisen met for about an hour with President Cross concerning her nonrenewal [Ex. D-75], and by letter dated March 4, 1972, Dr. Presseisen wrote to the American Association of University Professors (“AAUP”) contending that the decision not to renew her appointment was based upon improper considerations. A copy of the letter was sent to President Cross. [N.T. 7-130; Ex. P-11.] In both her meeting with President Cross and in the letter to the AAUP Dr. Presseisen contended that, if Swarthmore could appoint only one person other than the Director, that person should be Dr. Presseisen rather than Mrs. Brodhead, since she was more qualified than Mrs. Brodhead. [N.T. 19-87 to 19-88; Ex. P-11, Ex. D-75.] Dr. Presseisen revealed to Mrs. Brodhead that she was making such a comparison when Mrs. Brodhead visited her office to correct a misstatement she recalled Dr. Presseisen making, in a previous conversation, with respect to Mrs. Brodhead’s qualifications. [N.T. 18-84.] Mrs. Brodhead requested that Dr. Presseisen correct the misstatement of Mrs. Brodhead’s qualifications in her letter of March 4, 1972, in which she compared herself favorably with Mrs. Brodhead. [N.T. 18-85 to 18-87; Ex. D-77.] Mrs. Brodhead did not learn of the comparison from anyone other than Dr. Presseisen. [N.T. 18-87, 23-211 to 23-212.] The above occurrence had a chilling effect on the previously warm and cordial relationship between Mrs. Brodhead and Dr. Presseisen. [N.T. 18-87.] Mrs. Brodhead told Provost Gilbert how upset she was over the situation the same day she had the “comparison” conversation with Dr. Presseisen. [N.T. 18-87 to 18-88.] On the basis of the split between Mrs. Brodhead and Dr. Presseisen, Swarthmore did not consider reappointing Dr. Presseisen when the search for a Director for academic year 1972-73 proved unsuccessful. [N.T. 23-212.] Accordingly, Swarthmore had ample justification for not reappointing Dr. Presseisen when the search proved to be fruitless. Dr. Presseisen’s nonrenewal was reviewed by the faculty members of the Committee on Promotion and Tenure (“Committee”). On March 21, 1972, the Committee found that the nonrenewal was not based upon improper considerations. [Ex. P-14, Ex. P-226.] Pursuant to Dr. Presseisen’s request, President Cross, on March 28,1972, provided her with a written statement of the reasons for her non-reappointment. [Ex. P-15.] Dr. Presseisen did not ask for a further formal review! [N.T. 8-16; Ex. P-227.] In June of 1972, Swarthmore interviewed Geraldine LaRocque for the position of Assistant Professor of Education. She was interviewed by Mrs. Brodhead, Provost Gilbert and another Swarthmore faculty member, Lee Bramson. She did not receive the appointment, since it was the collective judgment of Provost Gilbert and Mrs. Brodhead that she would not be a suitable appointment. [N.T. 18-89 to 18-91, 23-213 to 23-214.] In July of 1972, Swarthmore interviewed and hired Robert Pearson for the position previously held by Dr. Presseisen. [N.T. 23-215'; Ex. D-83.] Mrs. Brodhead’s opinion was that Mr. Pearson was a suitable appointment. [N.T. 18-91.] Provost Gilbert did not compare the qualifications of Dr. Presseisen with either Geraldine LaRocque or Robert Pearson, since Mr. Gilbert had already decided prior to the interviews of the latter two that Dr. Presseisen was no longer suitable for reappointment. [N.T. 23-215 to 23-216.] I find, therefore, that the decisions not to reappoint Dr. Presseisen, not to appoint her as the Director, and not to reappoint her once the search for the Director had failed were not made on account of Dr. Presseisen’s sex. I also find that there is no evidence that Dr. Presseisen’s salary was discriminatorily set at $10,500, when she was appointed as a full-time Assistant Professor of Education for the year 1971-72. VI. SCOPE OF THE CLASS As previously stated, the Court on March 25, 1976, certified the class and defined it as all those women who, on or subsequent to March 24, 1972, have been, are at present or in the future may be: “(1) denied hire, promotion and/or tenure at Swarthmore College or were not recruited by Swarthmore College on account of their sex; and/or (2) denied equal compensation for performance of substantially similar work as performed by male faculty members at Swarthmore College, on account of their sex.” As can be seen from our Order, the Court intended that the class be limited to four distinct issues — namely, hiring (which includes recruitment), promotion, tenure (which includes nonrenewal) and salary. , Although the Court at trial was very liberal in allowing all types of evidence to be introduced, the Court believes that the class was properly defined with respect to those four issues. Accordingly, notwithstanding the fact that the plaintiffs introduced evidence with respect to a host of other allegedly discriminatory policies on Swarthmore’s part, the Court need not address them. For example, at pages 17 through 20 of their Proposed Findings of Fact, plaintiffs discuss part-time people and drill instructors. In addition, at pages 71 through 77 of plaintiffs’ Proposed Findings of Fact, plaintiffs also discuss leave time, retirement policies, denial of chairmanships, stipends in aid of publications of dissertations and the denial of a directorship of the-art program. The Court holds that such issues are not properly part of the class action, and the Court need not address those issues. The fact that the EEOC was permitted to intervene by this Court on June 4, 1976 (Docket # 85), does not compel us to hold otherwise. An examination of the hearing of the motion of the EEOC to intervene held on June 2, 1976 (Docket # 88, pp. 3-15), and the EEOC’s complaint filed on July 14,1976 (Docket # 93), shows that the EEOC’s complaint was and is limited to the issues raised in plaintiffs’ original and amended complaints. Since the Court only certified the class as to the above-mentioned categories, the EEOC is bound by those limitations. In conclusion, the Court is not decertifying the class with respect to the above-named categories, such as part-time and drill instructors, but is merely stating for the record that we never certified the class with respect to those issues in the first place. Thus, although the notes of testimony are filled with references to those categories, the Court, for the reasons stated above, will not make findings of fact with respect to those issues. Upon a review of the evidence, the Court also deems it appropriate to divide the above four issues into sub-classes, since each of those issues represents different groups of women. Accordingly, pursuant to Rule 23(c)(4)(B) of the Federal Rules of Civil Procedure, the Court will divide the class into the following sub-classes: (1) those women who were allegedly discriminated against with respect to tenure, which includes nonrenewals; (2) those women who were allegedly discriminated against with respect to promotion; (3) those women who were allegedly discriminated against with respect to salary; and (4) those women who were allegedly discriminated against with respect to hiring, which includes recruitment. VII. TENURE In their attempt to establish a prima facie case that Swarthmore College has a policy of discriminating against women with respect to tenure, the plaintiffs relied on a series of exhibits. Plaintiffs’ Exhibit 95 shows that, in 1974-75, 16.7% of the female faculty at Swarthmore was tenured, whereas nationally 34-42% of the female faculty at other colleges was tenured. Plaintiffs’ Exhibit 96 shows that, in 1975-76, 12.9% of the female faculty at Swarthmore was tenured, whereas nationally 35-42% of the female faculty at other colleges was tenured. Plaintiffs’ Exhibits P-35 and P-35A show that, from 1971 to 1975, the number of tenured females dropped from 6 to 4; the number of tenured males increased from 50 to 68. Plaintiffs’ Exhibits P-33 and P-34 show a breakdown by department of the tenured positions in 1971-72 as compared with 1975-76. In ,1971, there were 16 departments out of 19 without any tenured women. The only tenured women were in Classics (1), English (1), and Modern Languages (4). In 1975, there were 16 departments without any tenured women. The same three departments had tenured women, but the total number had dropped to four, with Modern Languages losing two tenured women through retirement (Elisa Asensio and Hilda Cohn). Swarthmore’s position essentially was that the criteria for appointment to tenure include both the needs of the institution and individual excellence, evidence by scholarship, teaching effectiveness and services to the community as set forth in the faculty handbook. [N.T. 18-22; Ex. D-3, at p. II1-6.] The issue presented then is whether the plaintiffs have established by a preponderance of the evidence that sex discrimination was Swarthmore’s standard operating procedure — the regular, rather than the isolated or sporadic incident — with respect to tenure. The Court finds that the plaintiffs have not met that burden. As the plaintiffs themselves admit in their Proposed Findings of Fact IV-B(9), only two women were denied tenure during the period 1966 through 1975: Harriett Shorr and Katherine Morgan. Of those two women, Katherine Morgan was ultimately granted tenure by Swarthmore when she completed the intra-college appeals procedure. We also ■know that Margaret Anderson was granted tenure in the History department in early 1977. [N.T. 4-139.] Accordingly, even if we were to assume that Harriett Shorr and Katherine Morgan (at least as respects Katherine Morgan in the initial decision not to grant her tenure) were denied tenure because of their sex, the Court still could not find that the plaintiffs have established that Swarthmore regularly and purposely treated women less favorably than men with respect to tenure. As was stated by the Supreme Court in International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 360, 97 S.Ct. at 1867, an employer might show that a plaintiff’s proof is insignificant because “during the period it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination.” (Footnote omitted.) See Hazelwood School District v. United States, supra, 433 U.S. at 315, 97 S.Ct. at 2738 n.1 (Stevens, J., dissenting). Thus, whether or not we conclude that plaintiffs have not made out a prima facie case, because by their own evidence there were only two women denied tenure, or if wé conclude that plaintiffs did make out a prima facie case with respect to tenure but that defendants showed that the plaintiffs’ proof with respect to tenure was insignificant due to the small number of women denied tenure, the ultimate conclusion is the same. The plaintiffs have not established that Swarthmore regularly and routinely discriminated against women with respect to tenure. Since the Court has found that plaintiffs have not made out their case with respect to tenure, the Court need not decide the individual cases of Katherine Morgan and Harriett Shorr because neither Ms. Shorr nor Ms. Morgan moved to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure and are, therefore, not named plaintiffs; and also because, as we have just found, Swarthmore College does not have a policy of discriminating against women on a class-wide basis with respect to tenure. Since plaintiff’s complaint with respect to the class only alleges an across-the-board attack with respect to Swarthmore’s employment practices and does not affirmatively ask for individual relief on a non-class basis with respect to any other women, the Court is powerless at this point to grant any relief to Ms. Morgan and Ms. Shorr, even if the Court were to conclude that either of these women had been discriminated against on account of sex. VIII. PROMOTIONS In their attempt to establish a prima facie case that Swarthmore has a policy of discriminating against women with respect to promotions, the plaintiffs rely upon three types of evidence — statistical evidence, evidence of the promotion procedures and individual examples which seek to bolster the statistical evidence. Before the Court addresses the latter two types of evidence, we believe it is appropriate to discuss initially not only plaintiffs’ statistical evidence, but in addition, defendants’ statistical evidence and plaintiffs’ rebuttal evidence with respect to the statistics. The ranks of the faculty at Swarthmore from junior to senior are Instructor, Assistant Professor, Associate Professor and Professor. Part-time faculty not appointed to regular rank are designated Lecturer. In their case in chief, the plaintiffs offered the following statistical evidence: (1) The differences between men and women in time from receipt of the highest degree to promotion or appointment to Instructor at Swarthmore, between the 1966-67 and 1975-76 academic years, are as follows: [Ex. P-45A.] The median time for males is 2.5 years; the median time for females is 3 years. The mean time for males is 3.2 years; the mean time for females is 5.7 years. The standard deviation for males is 2.36 years; the standard deviation for females is 5.2 years. (2) The differences between men- and women in time from receipt of the highest degree to promotion or appointment to Assistant Professor at Swarthmore, between 1966-67 and 1975-76, are as follows: [Ex. P — 46A.] The median time for males is 3 years; the median time for females is 4 years. The mean time for males is 3.3 years; the mean time for females is 5.8 years. The standard deviation for males is 2.18 years; the standard deviation for females is . 4.82 years. (3) The differences between men and women in time from receipt of highest degree to promotion or appointment to Associate Professor at Swarthmore, between 1966-67 and 1975-76, are as follows: [Ex. P-47A.] The median time for males is 7 years; the median time for females is 9 years. The mean time for males is 7.6 years; the mean time for females is 16.4 years. The standard deviation for males is 3.77 years; the standard deviation for females is 14.03 years. (4) The differences between men and women in time from receipt of highest degree to promotion or appointment to Professor at Swarthmore, between 1966-67 and 1975-76, are as follows: [Ex. P-48A.] The median time for males is 13 years; the median time for females is 15 years. The mean time for males is 13.9 years; the mean time for females is 14.7 years. The standard deviation for males is 5.54 years; the standard deviation for females is 2.52 years. Dr. deCani was unable to make any statistical examination of the above data as far as statistical significance is concerned. He did comment, however, that, in his view, the above exhibits demonstrated that, for each rank, the average time to promotion or initial appointment from receipt of highest degree was longer on the average for women than for men on the faculty at Swarthmore, from 1966-67 to 1975 — 76. [N.T. 12-87, 12-88.] Before presenting its own statistical evidence with respect to promotions, Swarthmore attempted to show that Dr. deCani’s Exhibits P-45A through 48A were unreliable, basically for four different reasons. First, Swarthmore contended that the exclusion from the promotional studies of persons on the faculty prior to 1966, but who were co-faculty members along with persons still on the faculty at the time of, and included in, the promotional studies, has the potential for causing bias in the data concerning relative time to promotion for men and women. These people have repeatedly been referred to as the “inactives.” [N.T. 22-17, 22-18.] Second, Swarthmore’s expert, Dr. Meier, criticized the promotional studies of Dr. deCani because he believed the variable in question — years since highest degree — “is not a base line characteristic but rather it also has the characteristic of something that may change during the employment and is partly thus a dependent variable rather than an independent variable and analysis which treats it as an independent variable would therefore be not correct.” (Emphasis added.) [N.T. 22-24; see also N.T. 22-25.] Third, Dr. deCani’s variable (years since highest degree) effectively excludes years of experience prior to receipt of degree. [N.T. 13-101, 13-102, 22-35 to 22-140.] For example, if A, who came to Swarthmore in 1971 with a Masters degree and had 10 years’ teaching experience prior to 1971 and subsequently acquired a Ph.D in 1973, was compared with B, who also came to Swarthmore in 1971 with 2 years’ prior teaching experience and also acquired a Ph.D in 1973, as A did, Dr. deCani’s promotional study would not take into account the fact that A had 8 years’ more teaching experience than B did. Finally, Dr. Hollister, who the plaintiffs called in rebuttal, criticized Dr. Iversen’s promotional studies which we will discuss infra. However, Dr. Hollister’s criticisms of Dr. Iversen’s promotional studies apply equally as well to Dr. deCani’s promotional studies. For example, Dr. Hollister objected to Dr. Iversen’s failure to use control variables in his rank analysis. [N.T. 25-81, 25- 82.] Dr. deCani also did not use control factors in his studies of rank. [N.T. 25-114, 26- 66.] Dr. Hollister identified the following factors which .should be included in a rank analysis: years since degree, division, publications, some assessment of teaching ability, quality of degree, career interruptions, career continuity, quality of publications, administrative responsibility and some measure- of committee work. [N.T. 25-81, 25-82, 25-87 to 25-88.] Swarthmore offered its own statistical studies or promotion through the testimony of Dl\ Iversen. His studies show, on their face! that there is no statistically significant or observable difference between men and women in the length of time for promotion from rank to rank and in the length of time within rank at Swarthmore. [N.T. 22-164; Ex.' D-59 through D-61] Essentially, D-59, D-60 and D-61 are promotion analyses for Associate Professors, Assistant Professors and Instructors, for those appointed to those ranks- in 1966 or later, respectively. Exhibit D-59 shows the mean time from appointment as Associate Professor to promotion to full Professor. For women, it is 5.3 years and for men it is 5.7 years. It also shows the mean time in the rank of Associate Professor for those not yet promoted. For women, it is 3.2 years and for men it is 4.5 years. Exhibit D-60 shows the mean time from appointment as Assistant Professor to promotion to Associate Professor. For women, it is 4.2 years and for men it is 4.5 years. It also shows the length of time as Assistant Professor for those not yet promoted. For women, it is 2.8 years and for men it is 2.9 years. Exhibit D-61 shows the length of time from appointment as Instructor to promotion to Assistant Professor. The mean time for women is 2.2 years and for men it is 2 years. It also shows the mean time as Instructor for those not yet promoted. For women, it is 3 years and for men it is 1.7 years. Accordingly, although plaintiffs’ Dr. deCani and defendants’ Dr. Iverson both found no statistically significant difference with respect to promotional policies, Dr. deCani found that, on the average, women take longer to get promoted from the date they attain their highest degree; whereas Dr. Iversen concluded that, on the average, women do not take longer to be promoted from rank to rank and, on the average, do not spend a longer period of time within rank. Plaintiffs then attempted to attack the reliability of Dr. Iversen’s rank studies through the cross-examination of Dr. Iversen and through rebuttal testimony of Dr. deCani. In preparing his rank studies, Dr. Iversen believed it was statistically necessary to avoid the inactives problem. Accordingly, he only examined promotion decisions from 1966-67 through 1975-76 and the fall of the 1976-77 academic year. However, as pointed out in his cross-examination at N.T. 23-81 to 23-103, Dr. Iversen left certain people out of his rank studies. First, if a faculty member were promoted to full Professor prior to 1966, he or she was excluded from the rank studies. Second, if a person were last promoted prior to 1966 and still were not promoted as of 1975-76, then they would not be included in the rank studies. Third, if a person were promoted after 1966 and, prior to another promotion, retired prior to 1976-77, then those people would not be included within the rank studies. However, if a person were promoted twice within that 10-year period and retired say in 1975, they would be included within the rank studies. The effect of the method of Dr. Iversen’s studies was to exclude 47 members of the faculty who were on the faculty between 1966 and 1976. However, only four of those 47 people were women. [N.T. 26-40.] Dr. deCani then testified in rebuttal with respect to the people that Dr. Iversen excluded in his rank studies. For example, P-636 shows the persons omitted from Dr. Iversen’s promotional study. However, P-636 only studies time of promotion and did not study time in rank for those persons still in rank as did the studies of Dr. Iverson. [N.T. 26-36.] In addition, P-636 only deals with full-time people and not regular part-time. Exhibit P-636 shows that the median time for women to be promoted from Assistant Professor to Associate Professor was 6 years; the mean time 7 years. For men the median time was 6 years and the mean time 5.9 years. From Associate Professor to full Professor, the median time for women was 9 years and the median time for men was 6 years. The mean time for women was 10 years and the mean time for men was 7.8 years. Exhibit P-639 shows the persons included in Dr. deCani’s promotional studies, and it shows that the median time to promotion from Assistant to Associate Professor for women is 4.5 years and for men it is 5 years; and that the mean time is 4.5 years for women and 4.6 years for men. From Associate to full Professor, the median time for women is 5.5 years and for men 6 years; and the mean time for women is 5.5 years and for men 5.7 years. Exhib