*2 DUSEN,* Before VAN Circuit Senior Judge, and ANDERSON BOOCHEV ER, Judges. Circuit BOOCHEVER, Judge: Circuit brought This is a sex under Title VII of the. Civil Act seq. Congress et U.S.C. 2000e § provisions applicable made the of Title VII governmental to state and local entities University Washington by such as the Equal Act of Employment Opportunity 92-261, 2(1), 86 Pub.L. No. Stat. § alleges effective March unfairly that the low University paid her an Dusen, * The Honorable Francis L. Van Senior Judge, Circuit, United States Circuit Third sit ting by designation. sex, seeking finally, promoted in November 1972 she was and is
salary because to Materials Research Scientist. subsequent damages seeks the difference 1972. She personnel at the Universi- Non-academic of a nondiscriminato- her estimate Washington categorized as either ty *3 from March salary ry salary and her actual Exempt “exempt.” employ- “classified” or 15,1973, when she left 24,1972 until jobs unique or filling ees are those University. also claims Heagney the Although requirements. unstandardized of a the full value be awarded she should was an positions, held titled she the salary for nondiscriminatory exempt employee. Salaries classified she was “con- resignation because since her employees by Washington are covered her Fi- discharged” job. from structively personnel adjust- law and are set and state the reinstatement nally, requests she by agency. ed an administrative Salaries University. were, during exempt the employees here, discretionary. time considered Opportunity Equal Employment by supervisory was set and investigated complaint Commission whose decisions were committee the NPL attempted to reach a settlement College of Arts and approved in turn the These efforts failed the University. University’s personnel the Sciences granted Heagney “Notice commission provided the department. University A the case tried Right Sue.” salary guidelines. NPL with certain findings in and conclu- and issued his 3,1977. principally upon relied statisti- August on In sions November prove her case of sex dis- cal evidence to adopted magistrate’s district the judge the attempted to show First she crimination. entirety, findings conclusions in their exempt employees group that as a women University. for the judgment and entered University disproportionate- received brought appeal. this Heagney then then at- lower salaries than men. She ly we a relevant sta- Because conclude that carried tempted pattern to show that this erroneously excluded report tistical the Lab. into her individual case at over case must be remanded from evidence the that women ex- showing As of her part to the district court for reconsideration received lower empt employees generally Heagney proved whether the issue of males, Heagney introduced salaries her sex. The underpaid she was because of by the study undertaken the results of supports finding Commis- Opportunity Equal Employment however, discharged, not constructively (EEOC). study among shows that sion This we of the district portion affirm University at the exempt employees all 717 opinion. court’s males made over in females $12,000, only but I. FACTS made over this amount. degree Joanne has bachelor’s about sta- also testified Several witnesses University chemistry in from the of Wash- Civil gathered by Office tistics post-graduate ington and has done Health, Department of Edu- Rights of the resigned she work there. From 1962 until com- statistics and Welfare. These cation in 1973 at the Nuclear employed she was exempt and female pay of male pared the Lab), Laboratory (NPL Physics Al- data. based on 1972-1973 University of Wash- part evidence, which is into though never introduced was to ington. primary duty Her at NPL that women show apparently data design targets and fabricate used in nuclear than their average, made less employees, on job titles initially with similar physics experiments. Heagney counterparts male I; Witnesses occupational of Radiochemist codes. held title II; of Civil and, and the Office she was Radiochemist both promoted comparable data was ceive agreed that salaries. The report also job titles were so broad deficient because includes a table how the salaries of an accurate indication of were not exempt jobs January 1975 actually com- the actual work content. For this reason pared with this curve. relation provide a reliable basis curve, statistics University paid per- 39.2 females comparing performed by work cent of the women below performed by with work males. The Uni- report what the established as a minimum versity’s Director of Personnel crit- Services salary. comparable figure for male icized the EEOC statistics on the same employees was 19.8 percent. The table grounds. shows that University overpaid 14.5 of its action, To avert an enforcement *4 overpaid while it only percent 4.6 of its the Office of Civil and the Universi- employees. female Thus approximately ty signed agreement a conciliation concern- twice the of women underpaid were ing employment practices at University. the than men and more than three the times As one of three required steps concerning percent of men overpaid than women. exempt employees, the University agreed to study The significant salary demonstrates a retain an outside consulting firm to under- disparity exempt male and female in-depth analysis take an of the salaries employees. paid employees, and to recom- changes. mend The hired the To show disparities salary, in her own consulting Hayes firm of Robert and Asso- Heagney survey prepared by introduced a ciates as a result of agreement. the comparing Battelle Columbus Laboratories salaries earned scientists across the trial, Heagney At made several attempts United States. The court found that to introduce the May 1975 final re- Hayes ney’s salary was about 73 port object- into evidence. The University job national equivalent mean for an de- ed grounds on the that the Hayes study was scription in the survey. Battelle Three based 1975salary data and was there- below, male employees at NPL had salaries fore question irrelevant to the of whether to, but closer the than Heag- national mean there during the ney’s salary for the work type did. period 1972-73 when was a Uni- Stowell had a 76 salary that was versity employee covered Title VII. The mean, percent, Roth’s was 78 and Che- magistrate sustained University’s objec- ney’s percent. was 85 opinion, In his oral kept tion and Hayes study out of evi- major prob- noted that the dence. lem he survey had with the use of this has made Hayes the unadmitted classifying job properly so she report part of the appeal. record on could be matched appropriate cate- report indicates that the firm Hayes stan- gory in the survey. exempt jobs dardized by ranking job each according Finally, Heagney to a scale introduced statistics point using such factors showing starting salary, initial rates of eligibility requirements, supervi- increase, sory responsibility, experience and education and creativity required and skill, other indicia of male and training im- female portance. data, Based on report 1975 NPL. Tabulations his- describes a salary prepared tory Heagney, curve the firm three male for the University that Kellenbarger, would insure that another female employee, are jobs with similar point rankings would re- margin.1 summarized These statis- following monthly apparently employed 1. The table summarizes the lab empt employees two other male ex- Heagney, supervisory jobs. mag- salaries ployee, another female em- provide salary istrate exempt employees. data for these two three male employees findings. in his
1161 attempt impress will make one last when I inequity some arguably indicate tics in the Chemists’ inequity you [He- compared salary is pay scale. Kellenbarger] agney and prior during at least about fact that we are Employment addition Equal the date institutions, to other compared low 20% applicable.2. became Act Opportunity own Labo- within our comparisons requested salary Lab times the At various shocking.3 ratory are also increases shows summarized above 1968 Professor If the example, employees. For prior to the effec- Williams, discriminatory pattern David Vandenbosch wrote extending Title legislation tive date of director: University’s personnel Cheney Stowell Kellen- Roth (Male) (Male) (Male) barger (Female) $ 425* 1962' Oct. 620* $ 630 Jan. 1966 $ 900* 651 July 661 1966 $ 740* 788 802 1021 1969 June $ 845* Jan. 1973** Mar. *5 exempt employee NPL. at the began working as an * Salary individual on date ** resigned. Heagney Salary on date years Kellenbarger of had indicates that percentages in this section used prepared per- experience. of a An internal memo off the nearest one-tenth rounded years Kellenbarger of had cent. states lab experience when she was experience) of work working Cheney in began the lab at 2. When to, salary remained close in Her hired 1966. college degree but had have a 1966 he did not salary Heagney’s slightly below but Cheney years experience. At the time of and 1973. hired, years experi- Heagney of had four lab, degree in a ence at chemistry. Cheney and bachelor’s Weit- Vandenbosch and In Professors salary of was hired at Physics kamp De- the chairman wrote percent more than $900 Heagney’s monthly or almost 38 a month partment: at that time. present of these salaries from the It clear previous experience had no other than Roth Kellenbarger] [Heagney .. . chemists in part-time lab he was hired work at the when disparity between degree that there a considerable physics. 1969. He had bachelor’s exempt hired, of the other and those Heagney, been their salaries Roth was had the time years. disparity is at Despite excessive working Roth’s We feel this the lab staff. at seven they inexperience present $740 a the work of view of the value of he was hired at Heagney compares or a perform. $62 a month less than the chemists’ one When month — salary equal of to about the classified salaries of salaries staff, n salary. to find that is rather astonished one Stowell, obtaining degree in business after personnel who are better technical there are administration, began at lab full-time work employees. professional-level paid than these technician, posi- a classified as an electronics Weitkamp wrote the chair- Professor years experi- of full-time tion. He had three Physics Department: man of the part-time years one and a-half of ence and experience [Heagney] feels told that she us . . . [S]he exempt when was hired as he require an in- would remuneration that fair exempt employee, employee. Stowell As an salary. We see a in her of about crease 30% Heagney began $845 a At this time at month. viewpoint.... She good in her deal merit years experience and was had over seven experi- nearly years professional ten has making only $37 month more than Stowell. ence; years’ experi- with several machinist percent of at Stowell thus started almost more, respon- yet has fewer ence makes salary. demands, sibilities, performance far lower Shirley Kellenbarger, ex- the other female school, high completed only have and need NPL, degree empt employee a master’s had college. instead of years (the report agronomy EEOC and 17 governmental to state proscriptions personnel VII en- with other at the Lab had deteri- tities, 24, 1972, it to orated.
determine whether the pattern was carried In discussing Heagney’s apparent person- effective forward after the date. nel problems magistrate, in his oral proportion An examination of raises as a decision, stated of initial indicates that the male em- In my judgment, these two problems ployees received increases similar to Heag- inability hours work [shortness ney’s. Thus if the evidence shows an initial with colleagues] arose from a common inequality between Heagney’s salary com- cause, and growing that cause was a dis- pared to the other employees, the plaintiff’s part satisfaction on the data indicate that appreci- degree recognition she was receiv- ably gap through increases, narrow the ing at the Lab for the work she was although gap did not widen.4 doing, perhaps primarily in terms sala- The events which apparently precipitated ry .... present suit began in June when He further found that many Heagney’s the NPL gave Roth a 15.2 percent pay personnel problems been “magni- increase and percent, Stowell 10 gave but fied” at trial to importance nothing to Heagney. She submitted a let- had when they occurred. ter of resignation September 1,1972, hand, On the other found stated aas condition for further employ- was “highly skilled.” She ment that she be granted a 30 percent pay had received written commendations for raise. In response Professor Weitkamp work. In 1971 had been invit- asked for a raise ed to the of Research Materials Conference and 5 for the rest Ridge, give Oak Tennessee to a paper staff. Heagney then contacted Human describing her work. Professor Weitkamp Rights officials at the University, and sev- noted that she had “achieved international eral months later contacted the EEOC and *6 recognition.” perhaps She was “one of one HEW. The University approved the 10 per- or two people dozen in the United States cent raise for Heagney effective in October who have made professional specialty a of 1972, and approved later percent a 5 raise fabricating such targets.” When Heagney for the other exempt employees retroactive resigned Bodansky Professor of the NPL to October. wrote her that her work had been “excel- The University has maintained that they lent” and would welcome her back. promotion policies were designed to award regard With to the statistical evidence especially meritorious service. As an expla- the magistrate noted that none of nation it com- why of Heagney may not have been more, pared job type with the same magistrate found that dur- job ing performed by the “latter other male part” employees. employment her Heagney’s job slacked, According to the magistrate, Heagney’s job enthusiasm she was working not week, a was forty-hour unique. judge, The district in adopting and she may have had some conflict magistrate’s conclusions, of interest be- findings and tween her at NPL and family-run a noted that “consistently Furthermore, business. her relationship based legal his conclusionson a finding that Comparing ney comparable raises of each female em- received increases in the four ployee employee, beginning years to each together. were at the lab Roth re- employee employed time the male salary was first ceived 33.1 increases while ending at the NPL resigned, when percent. Kellenbarger’s received 33.4 following. Cheney’s indicates in- percent during peri- increased 27.4 this creased 52.8 between 1966 years when he od. In the three that both Stowell and began working left, and 1973 when were Stowell’s sal- Heagney’s salary while increased 61.8 ary percent, Heagney’s per- increased 24 21.3 Kellenbarger’s per- increased 54.2 Kellenbarger’s percent. cent and 15.8 during period. cent the same Roth and
H63
and,
pears
likely than
that
defend
unique
employment
the Plaintiff’s
discriminate,
ant
an intent
such,
from under the statis-
took
out
as
An
is established.
Therefore,
facie “treatment” case
advanced.”
evidence she
tical
be
unless it can “articu
employer will
liable
... were based
Heagney’s “proofs
because
justify disparate
late”
treat
reasons
on statistical
entirely,
if not
substantially,
Douglas Corp. v.
ment.
See McDonnell
did not believe that
judge
evidence” the
792, 802, 93
Green,
1817, 1824,
411 U.S.
S.Ct.
discrimi-
proof of sex
there was sufficient
(1973);
v. Local 55 of
The EEOC that there discrimi- ages by job. cause to was sex remaining believe on the establishing nation involved F.2d at 617 65-66. The court reasoned also con- Office of Civil salary. The that, possible, where VII cases Title should discrimina- appeared cluded sex be “within of existing settled the context this back- occurring. Against tion was Id. employment relationships.” Hayes study ground, exclusion of the In his oral decision the found error must was not harmless Heagney, showing that she be remanded determine whether possibly underpaid, was introduced underpaid her sex. ney was because of circumstances wish to may the University On remand be it could inferred that University results of challenging submit evidence her employment made conditions difficult then Hayes study. court must supported or intolerable. This conclusion is evidence, including determine whether the by the evidence. We hold that Heagney study, establishes a facie Hayes prove failed that she was constructively so, case of discrimination. If the burden discharged. remand, On if the court does will be on the to offer some underpaid find that was because legitimate nondiscriminatory reason for the sex, may of her she recover difference disparate treatment.7 the salary she should have made discrimination the salary absent she III. CONSTRUCTIVE DISCHARGE actually made at NPL for the be- issue arise remand Since 24, 15, tween March 1972 and March we find it to discuss decision of the court is AF- district constructively contention that she was dis PART, IN FIRMED REVERSED IN charged. PART, and pro- REMANDED further discharged If constructively opinion. consistent ceedings with this she is entitled to recover back from the pay DUSEN, resignation time of her support Judge, 1973. In VAN con- Senior Circuit of her argument Heagney relies curring: Young v. & Savings Southwestern Loan Recognizing panel bound
Association, (5th 144 Cir. County Washington, 623 Gunther F.2d 1975), forcing which held that a plaintiff to 1979), denied, (9th rehearing Cir. weekly religious ceremony attend a created 1980), granted, - F.2d 1317 Cir. cert. working intolerable condition that forced -, L.Ed.2d 213 the plaintiff resign involuntarily. (1980). I judgment concur in the recently applied my
The Fifth Circuit court but note disagreement to a Young quite statutory decision factual situation construction in as stated Gunther instant case. Bourque my dissenting opinion similar to the in International U. Co., Elec., Powell Manufacturing Westinghouse Electrical 617 of Elec. v. F.2d 1980), F.2d 61 (3d 1980), a female ff. petitions filed, (U.S. she constructively claimed that dis- Nov. cert. U.S.L.W. 3410 (U.S. charged fairly. 1980) 80-781), because she was not (No. U.S.L.W. 1980) (No. 80-944). court concluded that Dec. in the manifesting itself unequal cannot, alone, form pay support finding
sufficient of con- discharge
structive .... Unequal justification
not a sufficient relieve Douglas Green, Corp.
7. McDonnell
411 U.S
. 792, 802,
1817, 1824,
93 S.Ct.