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May 14, 1990

ANN B. HOPKINS, Plaintiff,

Gerhard A. Gesell, United States District Judge.

The opinion of the court was delivered by: GESELL



 The firm of Price Waterhouse refused to make Ann Hopkins a partner. Gender-based stereotyping played a role in this decision. Now this Title VII case is again before this Court on remand from the Supreme Court of the United States. The Court must make a determination as to whether or not, absent sex stereotyping discrimination, Ms. Hopkins would still have been denied a partnership at the time her candidacy first came under consideration by the firm. The burden of proof rests squarely on Price Waterhouse to establish that it would have placed Ms. Hopkins' candidacy on hold, rather than vote her into the partnership, had it not permitted sex stereotyping to affect its decision-making process. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 1793, 104 L. Ed. 2d 268 (1989). *fn1"

 The existence of sex discrimination originally found by this Court was affirmed. However, the Supreme Court's decision reversed the holding of this Court and the Court of Appeals as to the nature of Price Waterhouse's burden. The prior decisions held that a plaintiff who has established evidence of discrimination affecting an employment decision was entitled to relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., unless the employer proved by clear and convincing evidence that it would have made the same decision absent discrimination. Both this Court and the Court of Appeals determined that Price Waterhouse had not met this difficult burden. The Supreme Court subsequently held that the employer meets its burden if it proves this proposition only by a preponderance of the evidence. *fn2" Accordingly, the Supreme Court remanded for evaluation of this issue under this less exacting standard. *fn3"

 After the mandate came down via the Court of Appeals on August 4, 1989, this Court held a status/scheduling conference on October 3, 1989. The Court was willing to reopen the record for further evidence in light of the lowered burden of proof, but both parties advised the Court that they wanted the decision on this fundamental remand issue resolved on the basis of the existing trial record. Thus no further evidence was produced by either side. The Court accordingly established a briefing schedule and, following receipt of briefs, heard oral argument on the burden of proof issue on November 15, 1989.

 Ms. Hopkins had failed to present any proof of damages at the original trial. Because the Court of Appeals' decision directed this Court nonetheless to reopen the record to permit Ms. Hopkins to present proof of her damages, the parties were also directed to undertake damage discovery without waiting for a decision on the merits. The Court noted the clear probability that a further round of appeals would ensue regardless of what the Court might decide. Accordingly, discovery on damages went forward and was completed by December 15, 1989, as scheduled. Thereafter, a full trial on damages was conducted on February 28 and March 1, 1990. Post-trial briefing was completed by April 25, 1990. *fn4"

 The Court will first resolve the burden of proof issue on the merits and then will consider appropriate monetary and injunctive relief.


 To resolve the remaining issue on the merits, the Court, after reviewing the transcript of the original trial and considering the briefs and arguments of counsel, reaches the following findings of fact and conclusions of law pertinent to the remand. *fn5"

 (1) Price Waterhouse partners are selected annually by its Policy Board with the aid of the Board's Admissions Committee. The Admissions Committee develops statistical and other personal information concerning each candidate, inquires specifically into the factual basis of any negative comments received after requesting comments about each candidate from the entire partnership and eventually, following a full discussion by the entire Committee of each candidate proposed that year, recommends that the candidate be accepted, rejected or held over for further consideration. The Policy Board then, after full discussion of the Committee's recommendation, renders a final decision.

 (2) Partnership selection is carried out conscientiously, usually after about three years' employment. Individual candidates are usually nominated by partners who have directly supervised them. Selection is based on appraisal under well-identified written criteria. These same standards apply to accountants, tax specialists and candidates, such as Ms. Hopkins, involved in the less "professional" management consulting sector of the firm's activities. About twice as many candidates are rejected each year as are accepted on first consideration.

 (3) Ms. Hopkins joined Price Waterhouse as a manager in 1978 and was first enthusiastically proposed for partnership in 1982 by her unit, the Office of Government Services ("OGS"). She had worked out of Washington, D.C., with temporary assignments to several other firm offices in different cities.

 (4) Plaintiff's Exhibit 21 reflects comments received from partners concerning Ms. Hopkins directed to the criteria considered relevant to the selection of any partner. Along with many favorable comments, she received more negative comments than any other candidate that year. Some of these negative comments suggested sex stereotyping, while others did not.

 (5) During the review of Ms. Hopkins' candidacy by the Admissions Committee it was apparent that, although there was considerable respect for her abilities and record of achievement and a recognition of the benefits she had brought to the firm, she ranked very low on her interpersonal relations. Even some partners who were most familiar with her work and were strongly urging the Committee and Board to recommend her for partnership in the interests of the firm commented pointedly on her inability to get along with staff and partners. The Chairman of the Admissions Committee testified:


We did discuss and we did talk with the partners throughout the whole admissions process that knew Ann Hopkins best. We spoke with the partners who had dealt with her on a day to day basis, partners who had known her casually and there was a basic underlying pervasive theme in all of our discussions and the responses that came through the partner canvas that she, in effect, was -- that she had difficulty dealing with staff, relating to both the partners, the peers within the OGS group and the peers in other offices she visited and she had difficulty in relating and leading and developing staff that worked for her so it was not an isolated comment, but it was a pervasive theme that was running through the comments that ran through all the partners that had contact with her or a substantial number of partners that had contact with her.

 (6) The Admissions Committee wavered between rejecting her candidacy outright or placing her on hold, but ultimately chose the hold option. After full discussion, the Policy Board adopted the Admissions Committee's recommendation. The record does not provide any detailed account of the oral discussion concerning Ms. Hopkins' candidacy within the Committee or the Board. Ms. Hopkins was informed of the hold decision in late March 1983.

 (7) In Ms. Hopkins' year she was the only woman among 88 candidates for partnership. By July 1984, only seven of 662 Price Waterhouse partners were women. In Ms. Hopkins' year 19 male candidates were placed on hold (16 of these were made partner the next year), and 21 male candidates were rejected outright.

 (8) Five months after the hold decision, the OGS partners decided not to repropose Ms. Hopkins for partnership. Ms. Hopkins was informed of this decision on August 6, 1983. Although she could have stayed at the firm as a senior manager, in December 1983 she submitted her resignation. On January 17, 1984, Price Waterhouse accepted Ms. Hopkins' resignation, and she left the firm.

 It is established at this stage that Price Waterhouse intentionally maintained a partnership evaluation system that permitted negative, sexually-stereotyped comments to influence partnership selection. See 618 F. Supp. at 1118-20. Against this background, the Court must evaluate the March 1983 hold decision to determine whether Price Waterhouse has shown by a preponderance of the evidence that it would still have placed Ms. Hopkins' candidacy on hold even in the absence of sexually biased evaluations.

 Price Waterhouse relies heavily on the Court's original opinion, which stated, "Because plaintiff had considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board's decision had not been tainted by sexually biased evaluations." 618 F. Supp. at 1120. Price Waterhouse contends that in light of this finding, unless the evidentiary scale is in perfect balance, the preponderance of evidence must have been on its side with respect to the hold decision. This argument is advocacy, not proof.

 Preponderance of the evidence still requires proof sufficient to persuade the finder of fact that the proposition is more likely true than not true. E. Devitt, C. Blackmar, M. Wolff, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 7-2.02 (4th ed. 1987). The Court's original statement simply reflected its conclusion that neither side had persuaded it on the disputed issue. The Court merely advanced the unremarkable observation that it could not say for certain what would have happened in the absence of sex stereotyping. The Court did not need to go further and decide which way the evidentiary scale tipped, because it was obvious that Price Waterhouse had not met the "clear and convincing" burden then applicable under then-controlling case law.

 Although the Supreme Court's decision lowered the standard of proof, it did not shift the burden of proof. Price Waterhouse, having permitted discriminatory comments to be weighed in the hold decision when appraising Ms. Hopkins, was required to separate the good from the bad. As Justice Brennan's plurality opinion states, where the proof shows that the employer acted with an illegitimate motive, " It is fair that he bear the risk that the inference of illegal and legal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing.'" Price Waterhouse v. Hopkins, 109 S. Ct. at 1790, quoting NLRB v. Transportation Management Corp., 462 U.S. 393, 403, 76 L. Ed. 2d 667, 103 S. Ct. 2469 (1983). Price Waterhouse had the burden to prove something; it had to persuade the Court. This it has failed to do.

 Plaintiff's expert witness at the original trial -- a well-qualified social psychologist specializing in sex stereotyping issues -- testified that sexual stereotyping can lead to negative judgment of women in traditionally male-dominated organizations. She expressed her expert opinion that some Price Waterhouse partner comments about Ms. Hopkins were influenced by sex stereotypes and concluded that stereotyping "played a major determining role" in the firm's decision on Ms. Hopkins, although the precise effect stereotyping had on the decision could not be determined. It was apparent from the testimony that disentangling stereotyping from fact is difficult. Stereotyping may be conscious or unconscious, and a negative fact may be expressed in words that imply stereotyping and yet be wholly nondiscriminatory.

 Thus the trial record left uncertainty on the point now at issue, and Price Waterhouse was directly challenged by the remand to prove that it was more likely than not that it would have put Hopkins' candidacy on hold even in the absence of sex stereotyping.

 The record does not identify each sexually stereotyped negative comment, nor does it show what weight these comments had on the decision. Moreover, the Court has been provided with no guidance to enable it to differentiate between all sexually stereotyped comments and comments not influenced by stereotyping. The subtle influence of sex upon a person's perceptions may vary with each observer and play both an unconscious and conscious role in influencing actions taken. Any judge, male or female, deciding the issue presented on remand based on mere advocacy without benefit of expert guidance or even opportunity to examine the partners suspected of bias would be subject to serious criticism. Proof, not merely an invitation to guesswork, was required.

 Price Waterhouse could have presented testimony from an expert after presenting more detailed background facts concerning Ms. Hopkins' relations with staff and peers, thus providing some basis for this Court to make appropriate findings. Nothing of this kind is available in the record. While it was apparent at the time the case was originally tried that sexist remarks were involved in the process, Price Waterhouse has made no effort to suggest guidelines for identifying sexual stereotyping. As Price Waterhouse notes, the record revealed that a number of female staff members complained about Ms. Hopkins' interpersonal skills. But Price Waterhouse does not address the issue of whether the perceptions of these women reflected male-dominated standards governing how women were supposed to behave.

 Just as the Admissions Committee failed to investigate whether any of the negative partner comments on Ms. Hopkins were based on sex stereotyping, Hopkins v. Price Waterhouse, 618 F. Supp. at 1118-19, on remand Price Waterhouse has failed to separate out those comments tainted by sexism from those free of sexism for the purpose of demonstrating that non-discriminatory factors alone justified the hold decision. Nor have those partners making negative comments been presented for appraisal of the motivations underlying their comments. Instead, Price Waterhouse simply notes repeatedly that Ms. Hopkins was rejected because of her perceived inadequate interpersonal skills. This approach begs the question of the extent to which the perceptions of her interpersonal skills were tainted by sexism. *fn6"

 Thus the record is insufficient to meet the difficult task of proof required, albeit under a lower standard, on remand. Price Waterhouse has not met its burden. Ms. Hopkins must be deemed to have failed to receive partnership at the time she was held over because of sex discrimination, in violation of Title VII.


 Since Price Waterhouse has failed to establish that apart from impermissible discrimination Ms. Hopkins would not have been accepted as a partner, the Court must now determine her entitlement to that status and resolve other remedial issues.

 It is necessary at the outset to have clearly in mind the respects in which appellate proceedings have altered the direction of the remedial issues. This, in turn, requires the Court to resolve an issue concerning the force of the Court of Appeals' 1987 decision in this case which decided certain issues before the Supreme Court's limited review.

 Not all of the elements of the Court of Appeals' decision were presented by certiorari to the Supreme Court. The Supreme Court's decision in this case reversed and remanded, but did not vacate all rulings by the Court of Appeals in its 1987 decision. In its August 4, 1989, mandate to this Court in the wake of the Supreme Court's decision, the Court of Appeals vacated this Court's "judgment" as well as the Court of Appeals' earlier August 1987 "mandate." The August 1987 mandate had remanded to this Court for proceedings in accordance with the Court of Appeals' decision. Price Waterhouse points out that the Court of Appeals generally uses the term "mandate" to refer to its judgment and its opinion, see City of Cleveland v. Federal Power Commission, 182 U.S. App. D.C. 346, 561 F.2d 344, 347 n. 25 (D.C.Cir. 1977); Handbook of Practice and Internal Procedures, United States Court of Appeals for the District of Columbia Circuit, XII (2) (August 1, 1987); Fed.R.App.P. 41(a). Accordingly it suggests that the 1987 opinion has been voided and that even on those issues not appealed and thus not addressed by the Supreme Court, this Court is free to disregard the earlier holdings of the Court of Appeals and decide the case at this stage without reference to those holdings.

 Price Waterhouse's position will not be sustained. The Court is not convinced that, in vacating its earlier "mandate," which directed this Court to proceed in accordance with the Court of Appeals' prior mandate, the Court of Appeals intended to vacate its judgment on issues that the Supreme Court did not address. The Court of Appeals' action is admittedly somewhat confusing. When the August 1989 mandate came down, the Court repeatedly pressed counsel to seek clarification from the Court of Appeals. The parties chose not to do so.

 As a matter of common sense and judicial economy, the Court of Appeals had no reason to vacate aspects of the decision dealing with remedy which were analytically unrelated to the decision on liability. The law of the case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983). This doctrine is "an expression of good sense and wise judicial practice." Melong v. Micronesian Claims Commission, 207 U.S. App. D.C. 15, 643 F.2d 10, 17 (D.C.Cir. 1980). Here, where there are no new facts or intervening authority that would provide a basis for questioning crucial unappealed holdings by the Court of Appeals on the same factual record, the Court sees no logical basis for upsetting them.

 Finally, it is worth noting that the Court of Appeals' decision in Hopkins has been repeatedly cited in this Circuit, in every case on the precise issue -- constructive discharge -- that Price Waterhouse now wants to avoid. *fn7" Although all but one of the opinions citing Hopkins was issued prior to the issuance of the Court of Appeals' August 1989 mandate, it would be difficult to argue that they are no longer good authority on the constructive discharge issue because a wholly distinct aspect of an opinion they cite was reversed by the Supreme Court. The Court also notes that the Court of Appeals declined to rehear Hopkins en banc, and no subsequent case in this Circuit has criticized the Court of Appeals' judgment in that case. If the unappealed findings by the Court of Appeals' reflect a legal standard for purposes of other cases, surely this Court is bound to comply. In so doing this Court is well aware of the far-reaching implications this has with respect to remedy in this case.

 Following the original trial, this Court concluded that Ms. Hopkins was not entitled to partnership or to back pay because she had failed to prove that she was constructively discharged. 618 F. Supp. at 1121. The Court of Appeals reversed on this point, holding that Ms. Hopkins was constructively discharged when OGS decided not to repropose her. 825 F.2d at 472-73. As Justice Brennan noted, Price Waterhouse did not appeal this holding to the Supreme Court, 109 S. Ct. at 1781 n. 1. This Court is bound by it.

 Price Waterhouse argues that the Court of Appeals' finding on constructive discharge was predicated on that court's erroneous view of the liability issue. But there is no logical reason to believe that the constructive discharge finding was in any way dependent on a "clear and convincing" evidence requirement at the liability stage. The issues are totally distinct. Nothing in the Supreme Court's decision suggested that the remand on liability had any implication whatsoever for the substance of the Court of Appeals' findings on remedy. *fn8"

 This Court also found that Ms. Hopkins had established entitlement to claim for back pay from the date she would have been elected partner had she not been held, July 1, 1983, until her January 17, 1984, resignation. However, the Court concluded that it had no basis for granting such relief because no proof was presented as to the compensation Ms. Hopkins would have received as a partner, owing to the fact that the parties agreed, without consulting the Court, to defer resolving the back pay issue until liability was resolved. 618 F. Supp. at 1121. The Court of Appeals, holding that this Court erred in penalizing Ms. Hopkins for conduct by counsel for both sides, reversed on this point as well, 825 F.2d at 473, and the Supreme Court was not asked to address this issue. Once again, this Court is bound.

 Thus Ms. Hopkins, having now the benefit of her constructive discharge, may claim for back pay, both before and after her resignation from Price Waterhouse, without limitation, except as governed by the equitable rules of mitigation, and she may press her claim to be made a partner by court-ordered injunction, effective when she was held over. The latter claim will be addressed first.


 Ms. Hopkins asks for an order directing Price Waterhouse to "invite" her to be a partner. She insists this has always been her goal, but Price Waterhouse has equally insisted it does not want her as a partner.

 Whether the Court should force Price Waterhouse to make Ms. Hopkins a partner presents a difficult and unresolved issue. It involves an appeal to the Court's discretion, but the Court's authority to so direct is clear. Hishon v. King & Spalding, 467 U.S. 69, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), firmly established that partnership admission decisions are subject to the reach of Title VII. While Hishon did not involve an order directing that the claimant be made a partner, because the claimant was not seeking such relief, the reasoning of Hishon provides this Court ample authority to order partnership in the circumstances presented. If, as Hishon held, Title VII liability may be premised on denial of partnership, then there is no logical reason that the full range of Title VII remedies aimed at making the claimant whole are not appropriate. *fn9"

  In deciding whether to exercise its discretion to make Ms. Hopkins a partner, the Court has weighed a number of factors. The Court of Appeals for this Circuit recently reiterated that


District Courts must strive to grant "the most complete relief possible" in cases of Title VII violations. Franks v. Bowman Transp. Co., 424 U.S. 747, 764 [47 L. Ed. 2d 444, 96 S. Ct. 1251] (1976). In particular, the courts must make the victim "whole" by " placing him, as near as may be, in the situation he would have occupied if the wrong had not been committed.'" Albemarle Paper Co. v. Moody, 422 U.S. [405] at 418-19 [95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975)] (quoting Wicker v. Hoppock, 73 U.S. 94, 99, 18 L. Ed. 752 (1867)).

 Lander v. Lujan, 281 U.S. App. D.C. 140, 888 F.2d 153, 156 (D.C.Cir. 1989).

 In light of this controlling law, ordering Price Waterhouse to make Ms. Hopkins a partner would appear to be the appropriate remedy unless some factor makes such an order inequitable or otherwise inappropriate. The Court finds that no significant factor of this kind exists.

 The fact that Price Waterhouse opposes her admission to the partnership cannot control. Although a clear likelihood of extreme workplace hostility and disruption may influence a court to deny reinstatement, see Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987), cert. denied, 484 U.S. 1047, 98 L. Ed. 2d 870, 108 S. Ct. 785 (1988), this is not such a case and "[a] district court's discrimination remedy cannot turn on the employer's preferences." Lander v. Lujan, 888 F.2d at 158.

 Price Waterhouse has traditionally sought to function as a partnership. As it has expanded into a national concern providing a diversity of accounting and non-accounting services at more locations to varying businesses, the number of partners has now reached approximately 900 spread out over some 90 offices in the United States. *fn10" There is no indication that Price Waterhouse has placed a ceiling on its number of partners. Committees selected by the partners run the firm and, indeed, at this point only a small percentage of the partners have ever even met Ms. Hopkins. Price Waterhouse lacks the intimacy and interdependence of smaller partnerships, so concerns about freedom of association have little force.

 Ms. Hopkins is not an accountant. If she becomes a partner she will function, as do some other partners, in the less exacting non-accounting sector of the firm's activities and will probably be subject to accountant supervision. Partnership, particularly for a non-accountant in this widely scattered enterprise, carries increased pay and opportunity. It has less to do with status within the firm than it does with status in the eyes of outside observers. True status within the firm has to be earned. For one in Ms. Hopkins' circumstances partnership is a promotion, the ultimate significance of which depends on her subsequent performance. Since in this instance money, not significant influence in the firm's affairs, appears to be initially involved, the discriminatory condition points toward exercising discretion to make her a partner, which will provide greater opportunity.

 Ms. Hopkins had the necessary skills to be a management consulting partner. There was little question as to this point among the Price Waterhouse partners in 1983. Price Waterhouse has offered only unproven speculation in support of its claim that changing technology in her field -- big computer systems -- has rendered Ms. Hopkins less capable of adequate performance.

 Ordering Price Waterhouse to simply reconsider Ms. Hopkins for partnership would be futile and unjust, because the testimony of Price Waterhouse's chairman at the relief trial suggested that the deck is stacked against her. Price Waterhouse plainly does not want her and would not voluntarily admit her. Partnership, not simply a new vote, is the logical remedy, given the finding that Ms. Hopkins was likely to have been made a partner if not for unlawful discrimination.

 Since Ms. Hopkins' claim that partnership was always her objective cannot be tested, the alternative of front pay for the rest of Ms. Hopkins' business life does not appear to make her whole and, in any event, might well provide a wholly unwarranted windfall. The Court cannot determine whether she will be a successful, inadequate or superior partner. Nor can it determine how factors affecting her health, availability or the firm's own fortunes will impinge on her earnings. In addition, the Court is skeptical as to whether monetary relief alone provides a sufficient deterrent against future discrimination for a group of highly-paid partners. Given these considerations, equity favors the course that will most vindicate the purpose of the sex discrimination statute, consistent with established national policy.

 The Court will order that Ms. Hopkins be made a partner of Price Waterhouse effective July 1, 1990. Upon admission, Price Waterhouse must grant Ms. Hopkins sufficient partnership shares so that she will receive during the Price Waterhouse fiscal year (July 1, 1990 to June 30, 1991) the average compensation given management consulting partners admitted on July 1, 1983. Price Waterhouse shall in respect to any collateral benefits treat Ms. Hopkins as if she had been admitted to the partnership on July 1, 1983. Price Waterhouse will be enjoined from retaliating against her for having brought this case or for having pursued her full remedies.

 It is, indeed, a strained partnership relationship that lies ahead in the immediate future. Ms. Hopkins' perception of her mistreatment, on the one hand, and her conduct during the hold period, on the other, will require mutual accommodation.

 Back pay

 Back pay must now be considered. Ms. Hopkins left Price Waterhouse in January 1984. She must be deemed to have become a partner as of July 1, 1983, for purposes of computing lost back pay. Between July 1, 1983, and July 1, 1990, she would theoretically be entitled to the present value of the average level of compensation received by the partners in her class who were not passed over, less the compensation she did receive during the period, provided she adhered to her obligation to mitigate. *fn11" Ms. Hopkins' expert estimates the amount owed, with interest, to be $ 682,481.

 Upon leaving Price Waterhouse in January 1984, Ms. Hopkins established her own consulting firm, which she later incorporated as The Hopkins Company, Inc. She continued with her own business until mid-1987, when she sought full-time employment with one of her clients, the International Bank for Reconstruction and Development (World Bank). She became a senior budget and policy review officer at the World Bank in September 1988 and now earns approximately $ 92,500 annually. The following table compares the stipulated average annual earnings for Price Waterhouse management consulting partners admitted July 1, 1983, n12 with Ms. Hopkins' actual earnings. These figures form the basis of her back pay claim. Fiscal Year n13 Average partner Ms. Hopkins Net Loss 1984 $ 107,157 $ 80,015 $ 27,142 1985 $ 111,000 $ 56,112 $ 54,888 1986 $ 124,240 $ 54,299 $ 69,941 1987 $ 159,265 $ 68,842 $ 90,423 1988 $ 176,420 $ 45,524 $ 129,896 1989 $ 172,957 $ 67,106 $ 105,851 TOTAL $ 851,039 $ 372,898 $ 478,141 n14


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