An appeals court affirmed that Penn engaged in discrimination in 1997.
The University lost its appeal last month of a sexual discrimination lawsuit which found it guilty of passing over a qualified male candidate for the position of women's crew head coach.
Andrew Medcalf -- a male assistant with the Penn men's heavyweight crew team from 1991 to 1997 -- was awarded $115,000 in the original suit.
He sought to fill the women's team's coaching vacancy in 1997, yet his resum‚ was dismissed before he was granted an interview.
The University instead hired current women's crew head coach Barbara Kirch. Of the 26 candidates -- 13 males and 13 females -- who applied for the position only four were granted interviews. They were all females.
As a result, in October of 1997, Medcalf filed a discrimination complaint against the University with the Equal Employment Opportunity Commission, alleging that he was denied the position on the basis of his gender.
In the complaint, Medcalf claimed that then-Senior Associate Athletic Director Carolyn Femovich told him that the Athletic Department wanted to hire a coach who could "serve as a strong female role model," and that they sought a woman that would be "at least a good as if not better" than he would be.
In contrast, Medcalf noted in the complaint, men's crew head coach Stan Bergman, who, along with Femovich, organized the search, "forcefully recommended" Medcalf.
In 1999, after investigating the complaint, the EEOC determined that Penn did in fact discriminate against Medcalf by denying him the opportunity to interview for it.
Specifically its report noted that the University had "considered gender during discussions concerning filling the position" and took "extraordinary measures to recruit only female candidates."
While, according to the EEOC's report, Femovich did not admit to these accusations, she had previously told the team that she hoped to attract "strong female candidates."
Following the EEOC's ruling, Medcalf filed suit against the University, and in October of 2001, a federal jury ruled unanimously in his favor. He was awarded $72,000 in lost wages, $18,000 for emotional distress, and $25,000 in punitive damages.
However, the University then filed an appeal, arguing the jury's decision had been based on insufficient evidence.
In the University's oral arguments in the appellate case, Penn Associate General Counsel Eric Tilles brought up a new argument, claiming that Medcalf had "circumvented the hiring process" by forwarding his application not only to Femovich and long-time men's crew head coach Stan Bergman -- the proper procedure -- but also to Bilsky.
Furthermore, Tilles argued that Bilsky rejected Medcalf's application independently, without consulting Femovich, and therefore, that her comments and actions regarding her preference for female candidates were irrelevant.
"If Medcalf stuck with proper procedure, things would be different," Tilles said. "Carolyn Femovich played no role in Bilsky's decision."
In addition, according to the court's written decision, Penn argued that Kirch was the most qualified candidate due to her "knowledge of NCAA and Ivy League rules, recruiting, fundraising, administering budgets and knowledge of Ivy League student financial aid requirements and constraints."
"She had been a head coach for nine years at a peer university [Dartmouth College]," Bilsky testified. "Recruiting is similar... [she had experience] managing a budget, sensitivity to fundraising [and] having staff work for her."
Circuit Judge D. Brooks Smith dismissed these arguments. In his decision, he noted that "Femovich herself conceded on cross-examination [that] Medcalf... submitted his resum‚ to Stan Bergman.... Only when Medcalf failed to receive a response to his repeated attempts to schedule an appointment with Femovich did he forward his resum‚ to Bilsky."
Furthermore, Smith wrote that despite Kirch's excellent resum‚, Penn's stated non-discriminatory reasons for hiring her over Medcalf -- such as knowledge of NCAA and Ivy rules -- failed to address the advertised qualifications for the job, which instead stressed technical coaching ability.
Having served as a head crew coach at both the University of Rochester and the University of London, Medcalf did have technical coaching experience.
Penn is not pleased with the outcome of the case, but has no plans to appeal it any further, according to Tilles.
"We've spent enough time and effort on it," Tilles said. "And, anyways, the jury's verdict was not that large."
"We are disappointed in the outcome of the case," said University spokeswoman Phyllis Holtzman. "We believe we hired the most qualified individual."
