Margaret Spaulding, and James Bush, Intervenors-Appellants v. University of Washington

applicability of its of the determination U.S.-, SPAULDING, al., Bell, 465 Margaret City College v. et

Grove Plaintiffs-Appellants, S.Ct. prior decision The district court its

stated: Bush, al., James et appears It that the federal funds Intervenors-Appellants, psychology department received University were instruc- of Arizona State WASHINGTON, UNIVERSITY OF grants given tional and research Defendant-Appellee. Next, professors. it must individual be “any plaintiff whether has determined No. 82-3038. connection with” these federal funds. Appeals, United States Court of (D.Ariz.1981). ap- It F.Supp. Ninth Circuit. pears that the court have been district Argued and Submitted Feb. 1983. opinion Meyerson himself must receive federal funds before he could state July Decided 1984. under 504. a cause action section Denied Nov. 1984. Certiorari question in City College was Grove See S.Ct. program or whether or not an education activity receiving aid. In foot- federal stated, Supreme part:

note Court employees in an edu-

Just who “work program

cation federal as- receive[s] sistance,” North Haven Board Edu- Bell, supra,

cation U.S. 512] [456 1912, 72 L.Ed.2d 299 [102

(1982)], protected under Title IX if

even their salaries are “not funded ibid., money,”

federal so also are stu- participate College’s

dents who in the

federally program assisted financial aid

but who do not themselves receive feder- protected against

al funds discrimination

on the basis of sex. City College, statute involved Grove § 1681(a),

20 U.S.C. contains the same lan-

guage regarding “program activity

receiving Federal financial assistance” as Act,

section 504 of the Rehabilitation §

U.S.C. 794. also, Cir.,

See 9th 676 F.2d 1232. Aslin, Ottesen, Prentke, John F. Richard Perkins, Coie, Stone, Williams, Olsen & Se- attle, Wash., Eikenberry, Atty. Kenneth Gen., Wash., Olympia, Wilson, James B. Jr., Cole, Gen., Elsa Kircher Attys. Asst. Seattle, Wash., for defendant-appellee. Williams, Robert E. Douglas S. McDo- well, Kessler, Lorence L. MeGuiness & Wil- liams, D.C., Washington, for amicus curiae Equal Employment Advisory Council. Alessi, Mo., Dennis City, J. Kansas American Nurses’ Assoc. WALLACE, ANDERSON, Before SCHROEDER, Judges. Circuit WALLACE, Judge: Circuit Appellants past present mem- bers of the Washington of the University of (the School of Nursing faculty). them, Fine, One of Ruth has served as an associate administrator of the University’s hospital, as the director of services, pro- and as an associate intervenors, fessor. The past present members of the faculty, join appeal. in this nursing The faculty filed suit in the dis- alleging trict court University that the en- gaged discriminatory compensation prac- § 1983, tices in violation of 42 U.S.C. the Equal court Act, Pay and Title VII. The district sponte sua referred the case to a Magistrate sitting United States spe- as a cial master. After the faculty case, presented special its the master is- report sued a recommending dismissal of pursuant 41(b) the action to rule Federal Rules of Civil Procedure. The dis- granted trict court the motion for an invol- untary jurisdiction dismissal. We have un- § der 28 U.S.C. 1291. The nursing faculty argues that the dis- trict court erred in not reviewing spe- the cial master’s findings novo, de that we must consequently engage in de novo re- view, and that the district court erred in dismissing the action 41(b). under rule On White, Richard Whitson, S. Lish Pauline its claims, substantive the nursing faculty Smetka, V. Vanderlaan, and Karen J. Hel- contends that it demonstrated that the Uni- sell, Fetterman, Martin, Hokanson, Todd & versity violated section 1983 and Equal the Seattle, Wash., for plaintiffs-appellants. Pay Act, that it made out a facie Sidney Strong, J. Halverson & Strong, showing prohibited discrimination by Ti- Seattle, Wash., for intervenors-appellants. tle VII under both the treatment models, disparate impact that the Uni- sentatives of the nursing faculty to discuss versity rely “competitive cannot on a mar- petition. the University The asserted that ketplace” defense, and that the salary levels varied because each academic faculty attorneys’ discipline is entitled to recover commanded salary upon based affirm. training, fees. We expertise, emphasis, subject mat- ter, and the marketplace academic for that

I Thus, discipline. University the argued that it purposes appeal, accept inappropriate this compare For we average salary in agreed parties, discipline the facts one with the composite during presentation average salary paid University evidence admitted case, faculty nursing faculty’s Subsequently, and the district members. the Uni- undertook, findings. versity court’s factual Because the and made case available to faculty, sophisticated was dismissed under Federal Rule of a more Civil 41(b) study of nursing faculty Procedure after the salaries in the School Nursing. case, presented study University its did concluded that salaries present University its case. as a whole at the Washington lagged percent paid behind the salaries Washington University State created the by schools with University which the had Washington by statute. Wash.Rev.Code traditionally compared its salaries. The §§ (1982 Ann. 28B.20.010-.20.820 Supp. & study also average faculty concluded that 1983). University sepa- consists of 16 salaries in the Nursing lagged School of schools, rate each under its own dean. percent 10.9 paid by compa- behind salaries Most schools are divided further into aca- rable nursing, schools of many but that departments. demic func- disciplines other lagged at least that very tions under a decentralized adminis- much behind. trative responsible, scheme. Each school is subject approval by September 1972, University’s University’s president, for faculty appointments, budget entry office percent allocated merit appointees level of new and their salary, response increase to each school. In promotions, salary salary study findings, increases for indi- budget office vidual Generally, members. allocated an 2 percent additional increase to University’s president accepts departmen- Nursing the School of align in order to tal recommendations on these issues. The salaries with average University’s budget money office allocates deficit in University. salaries at the Be- to each receiving school after salary allo- tween 1973 and the University’s cation for the University budget from gave the state office an average above allo- legislature. budget normally office cation to the Nursing School of in two designates portion budget years of the funds for and an equal allocation to salary across-the-board given increases. The re- other schools in budget three mainder is then among schools, years. divided the varying sometimes in percentages, for dis- The faculty remained dissatis-

tribution at the schools’ discretion to their Throughout fied. the summer and fall of faculty. 1972, of nursing faculty members the held In March faculty meetings members of the petition to discuss their and relat- Nursing of the School of petition filed a ed issues. In group November Katz, Dr. with Vice President for Academic Salary entitled the Women’s Inequity Com- Affairs and (the Provost of the University, Committee) mittee sought support alleging by sex faculty discrimination the Universi- from members and sent complaint ty. The responded peti- letter to the Rights Office for Civil of the provided tion salary and certain Health, data. Dr. Department United States Edu- Grayson, cation, Vice President of the Health Sci- and Welfare. The Committee also Center, ences and Dr. Katz repre- complaint met with filed a Washington with the Rights State Human Commission. There- the special While master was preparing after, charges the filed with findings conclusions, Committee the his and we decided Equal Employment Opportunity Commis- v. County Washington, Gunther (EEOC) sion the University’s and Human Cir.1979), aff'd, F.2d 1303 Rights Commission. (1981) (Gunther). We a plaintiff held that who the February United States De- performs fails to show that he substantial partment right of Justice issued a to sue ly equal work precluded is not from suing Spaulding letter to as head of the Commit- under Title VII for relief from intentionally nursing faculty tee and the this ac- filed discriminatory compensation practices un Although originally tion. this suit was practices less such are authorized under against filed as a class action officials at Equal one of four Act Pay affirmative University Washington, the Univer- defenses. F.2d at spe 1310-13. The sity sole was later substituted as the de- cial requested master memoranda from the dropped. fendant and the class claims were parties on the effect of our decision in intervenors, objecting after to the dis- 41(b) Gunther his ruling. He then con claims, granted missal of the class were cluded that Gunther did alter the out permission intervene to and their claims come of the case and recommended that stayed pending of the resolution the district court dismiss the case. plaintiffs’ named claims. requested that the In August finding after that he district court special direct the master to could not schedule case for trial within transcript proceedings file a before days joined, after issue was the district him district court. district judge sponte sua referred the case to a request, court denied this but certified the Magistrate pursuant United States to issue interlocutory appeal § under 28 2000e-5(f)(5), U.S.C. rule 53 of the Feder- § 1292(b). granted permission U.S.C. We Procedure, al Rules of Mag- Civil and Local appeal to and held that the district court istrates’ Rule The order of reference required provide was a transcript. expressly magistrate stated was to Spaulding v. University Washington, master, special sit aas hear the on the case (9th Cir.1982) (Spauld- merits, report findings recommended I). We ing expressly declined decide fact, law, disposition. conclusions required whether district court was The order stated special that the mas- special findings review the master’s under report ter’s subject would be to review a de novo standard or a erroneous district court accordance with rule standard. 676 F.2d at 1234 n. 1. 53(e) of the Federal Rules of Proce- Civil dure. I, to our Spaulding Prior decision in transcript prepared and used nursing faculty presented After the its judge special district as he reviewed the master, special special case before the findings master’s factual under the clearly planned master that he grant stated adopted standard1 erroneous both the 41(b) University’s rule motion for involun- findings of fact and conclusions law with tary He dismissal. concluded minor modifications. district judge had failed to show that 41(b). then ordered dismissal under rule they performed substantially equal work compared to male in other members II departments Pay Equal and that the Act governed judge standard claims under Title VII The district did not decide whether and section 1983. he jurisdiction nursing had over the facul- agree judge parties ap- by 1. The that the district de review novo the district court.” 676 F.2d clearly plied the purposes erroneous standard in his re- appeal, at 1234. For of we this will I, Spaulding view. The record is unclear. In accept parties. the issue as framed nursing faculty we observed that “obtained a 694 claims, directly jurisdiction to the the district lacked

ty’s but went merits. court nursing faculty’s This was incorrect. over the section 1983 claim. are courts limit Federal courts of jurisdiction may not resolve the ed did, however, court The district they jurisdiction. lack disputes merits of if jurisdiction have question federal over the Wright, Cooper, 18 C. A. Miller & E. See Equal Pay Act claims. The § Federal Practice & Procedure 3522 comes within because it the Act is both an (1975). Although the district court failed employer and an within the establishment jurisdiction, address the issue of its we meaning of 29 statute. U.S.C. any sup affirm its on basis decision §§ 203(d), 206(d)(1).2 E.g., v. Dun ported by record. Jaffke ham, 280, 281, 307, 308, 352 77 1 U.S. S.Ct. (1957) curiam). (per

L.Ed.2d 314 Ill We first consider district nursing faculty asserts that the dis jurisdiction court’s over section 1983 reviewing trict court spe erred claim. The eleventh amendment to the findings cial master’s factual de novo. It bars suit in federal court Constitution interpretation bases this assertion its against agency citizens a state its under statutes, applicable as well as on article 1983 section unless the state has waived its Further, III of the argues Constitution. it Quern Jordan, v. immunity. 332, 440 U.S. that we in de engage must novo review of 338-45, 1143-47, 1139, 99 S.Ct. 59 L.Ed.2d the facts judge the district because failed v. Pugh, (1979); Alabama 358 438 U.S. nursing faculty to do so. The also con 781, 3057, (1978) 98 S.Ct. special tends that the to the mas reference Jordan, curiam); v. Edelman (per 415 U.S. ter improper because 42 U.S.C. 651, 662-63, 1347, 1355-56, 94 S.Ct. 39 § 2000e-5(f)(5) authorize does not referrals California, v. (1974); Bennett L.Ed.2d 662 Equal Pay Act claims.3 denied, 36, Cir.), cert. (9th 1320, U.S. L.Ed.2d 568 We first consider whether the nurs (1969); Wolcher, Sovereign see Immunity ing faculty any objections. waived these the Supremacy Damages Clause: I, Spaulding nursing we held Against States in Their Own Courts for faculty right had not its waived have the Violations, Constitutional Calif.L.Rev. judge transcript district review of the (1981). 200-34 proceedings special before the master. 676 nursing faculty F.2d at faculty conceded in its 1235. The raised complaint pretrial objection amended in the its of the clearly or- to the use erro that the University agency der is an neous standard of at the review same time Thus, Washington. that it objection transcript State we need not raised its Thus, independently provision. determine whether the must Uni- we hold that versity agency. is a state right did not waive its Washington does not assert contest the use of the erroneous immunity. its We standard waived therefore hold of review. parties parties did not raise before the district neither Because raise appeal League court nor on whether National jurisdic- the issue nor contend that it affects our Usery, tion, Cities v. 96 S.Ct. U.S. question. we do not reach the (1976), progeny prevents L.Ed.2d and its 206(d)(1) equal pay provision of section from 3. The also contends that section being against agency. enforced state or state 2000e-5(f)(5) does not authorize referrals of sec- See, e.g., County, Pearce v. Wichita 590 F.2d 128 tion 1983 claims. We need not address this Cir.1979); (5th City Sheboygan, Marshall jur- contention because the district court lacked (7th Cir.1978); F.2d 1 see Ruffin part isdiction over the section 1983 claim. See County Angeles, Los 1282 n. 3 II. Cir.1979) issue), (declining to decide cert. denied, 63 L.Ed.2d I, however, action,

Spaulding jury does not the district court shall accept affect our findings determination of whether the the master’s of fact clearly unless nursing faculty objection 53(e)(2). waived its to re erroneous. Fed.R.Civ.P. After Equal Pay report, ferral of the Act the master filed claims. The his the nursing faculty objected appeal waited until to the clearly this use of the erroneous argument Equal Pay raise the standard of Act review. The district judge rejected special faculty’s claims cannot be referred to a mas claim § that de novo 2000e-5(f)(5). required, review was They relying ter under U.S.C. upon v.White General object are too late. Services Adminis- Parties should to a tration, Cir.1981) F.2d 913 magistrate special reference to a or a mas (White). ter at the time the reference is made or See, within a reasonable time thereafter. White, we held that a reference Foodmaker, Hayes Inc., e.g., 634 F.2d special to a pursuant master to the same (5th Cir.1981) curiam); (per Cruz magistrates’ local rule now before us was Hauck, (5th Cir.1975), § proper 2000e-5(f)(5). under 42 U.S.C. denied, cert. U.S. alsoWe stated that: (1976); L.Ed.2d 322 Diamond Door Co. v. Despite statutory language providing Co., Lane-Stanton Lumber appointment for of a pursuant master (9th Cir.1974); 5A J. Moore & J. Lu Rule it is clear Congress intend- cas, Moore’s Federal Practice 153.05[3] ed to relax that Rule’s stricture that ref- (2d 1982); Wright Miller, ed. 9 C. & A. erence shall “only upon be made a show- § Federal Practice & Procedure ing exceptional that some condition re- quires it.” ... There would have been little We therefore turn to the reason for the Congress merits of the statute had merely wished to faculty’s claim that confine district referrals to the extremely reviewing contemplated court erred in not limited instances special 53(b). by Rule We findings master’s factual de therefore view the novo. The § 2000e-5(f)(5) citation to Rule 53 judge district as sponte referred sua the nurs manifesting congressional ing intent to faculty’s incor- special claims to the master porate except § all of the rule the severe authority under the of 42 U.S.C. 2000e- upon restrictions reference. 5(f)(5)4 pursuant to rule 53 of the Federal Rules of Civil Procedure and rule White, (citations omitted). 652 F.2d at 915 magistrates’ of the local rules.5 The By incorporating all except of rule 53 provided order magis of reference that the (b), part 53(e)(2) appli- White teaches that special trate would sit as a master and that cable. That part subdivision states in “the report subject master’s would be accept court shall findings the master’s review the district court accord with clearly Thus, fact unless erroneous.” we 53(e) rule of the Federal agree Rules Civil with other courts which have held 53(e) Procedure. Rule states that in a non- expressly that the erroneous stan- 2000e-5(f)(5) provides 4. Section judge, may, that: reference a district without compensation: duty judge designated additional It shall be the pursuant assign to this subsection to the case hearing practicable (b) for to at the earliest date special try Serve as master to the issues way every expedited. cause case to be in employment discrimination cases under Ti- judge If such has not scheduled the case for Rights tle VII of the Civil Act of twenty days trial within one hundred and 2000(e)(5)(F)(5) [sic], amended U.S.C. [42 § ] joined, judge may after issue has been regard provisions without of Rule appoint pursuant a master to rule 53 of the 53(b), judge whenever the district determines Federal Rules of Civil Procedure. that the case could not be scheduled for trial (120) twenty days within one hundred and Washington 5. Rule 21 of the Western District of joined____ Magistrates’ after issue is provided Rules that: Magistrates’ The rule is now Rule 5. 636(b)(2), In accordance with 28 § U.S.C. district, magistrates upon the full-time in this 696 (9th applies Cir.1972) of a 328 magistrate’s (findings

dard review or of referee special findings master’s factual a Title bankruptcy which have been affirmed VII v. ease. Cockrham South Central district not court to be set aside unless Co., 143, (5th Telephone Bell 695 F.2d 145 erroneous). Cir.1983) curiam); (per Hayes v. Foodmak er, (reference Inc., 634 F.2d at 802-03 un IV § 636(b)(2)); der 28 U.S.C. Livas v. Tele On Equal Pay the merits of the Act Inc., dyne 118, Offshore, Movible 607 F.2d claim, the district court held that the nurs- (5th Cir.1979) curiam); (per 119 Harden v. ing faculty had failed to establish that its Center, Dayton Human Rehabilitation performed substantially members work (S.D.Ohio F.Supp. 769, 1981) 520 770-71 equal performed by to that male § (reference 636(b)(2)); under 28 U.S.C. see members in other of parts University. Allison, F.Supp. 885, v. 488 Oliver The nursing faculty attempted to establish (D.D.C.1980) (mem.) (consensual 888-89 this claim comparing job of magistrate). reference to faculty members to that of male nursing faculty contends that de members in other of University schools required novo is review order to alleviate services, work, such as health social archi- an “irreconcilable tension” between cases tecture, planning, urban environmental referred under sections of the Federal health, speech hearing, rehabilitative Magistrates requiring Act de novo review medicine, pharmacy practice. 53, pursuant and cases referred to rule but nursing faculty does assert that male they cite cases in which reference was female members of the § 636(b)(1) (b)(3). under 28 U.S.C. or Sub Indeed, differently. plain- treated one 636(b)(1)expressly section states that a dis tiff and one intervenor are male members judge required is trict a de make novo faculty. The district court portions magis determination of those also held that Fine failed to establish report objects. a party

trate’s to which We performed equal she substantially work require the same in under references sub performed by either the two male 636(b)(3). Coolidge section v. The Schoon hospital associate administrators identi- she 1321, er California, 637 F.2d 1325-27 & comparators. fied as (9th Cir.), denied, 1326 n. 5 cert. 451 U.S. 1020, (1981) 101 S.Ct. 69 392 L.Ed.2d Equal Pay prohibits Act an (consensual reference). But these cases employer subject provisions to its from dis differ from those referred under 28 U.S.C. criminating payment in the of wages be § 636(b)(2). Further, nursing faculty’s employees tween on the basis of sex. § argument 636(c), permit that 28 U.S.C. order prima to make out a facie ease an magistrate ting a hear judg and enter Equal violation, Pay Act the nursing facul upon ment in a civil matter consent of the ty establishing bears the burden of that its parties, implicit is authority that de novo equal pay members did not receive required review is parties unless the con equal Oregon College work. Hein v. sent, lacks merit. Education, (9th Cir.1983) 718 F.2d 913 (Hein); Gunther, 1309;6

We hold we should not under 623 F.2d at see special Brennan, take our own de novo review Corning v. Glass Works findings. 188, 195, 2223, 2228, master’s factual Fed.R. U.S. See S.Ct. 52(a); Civ.P. accord Pullman-Standard v. L.Ed.2d 1 If facie case is Swint, 273, 285-90,102 1781, established, may attempt to 1788-91, (1982); payment L.Ed.2d Rohde wages show that the of different cf. Inc., Castings, K.O. 649 F.2d seniority Steel based on either a system, a 1981); Zick, Cir. system, system Coen merit which measures County (1981), 6. Our decision in Gunther v. Wash- U.S. (9th Cir.1979), ington, aff’d, reported is also at 602 F.2d 882. (9th Cir.1981), denied, earnings by quantity quality produc- cert. U.S. tion, (1982) or a factor than sex. 74 59 other 29 U.S.C. L.Ed.2d (Lynn). § 206(d)(l)(i)-(iv); Corning, 417 U.S. at attempting burden, meet its 2229; 94 S.Ct. at Kouba v. Allstate nursing the faculty contends that nursing Co., (9th Insurance 691 F.2d 875 Cir. faculty perform members substantially 1982); Gunther, F.2d at 1308-09. 623 equal performed by work to that specified defines, comparator faculty at

The Act least in members because both jobs terms, require equal preparation teaching broad what constitutes work and courses, by equal publication, if research specifying jobs that are their and commit work, skill, students, tee performance equal effort, advising of requires and commu nity nursing service. The responsibility they performed faculty and are and selected departments the upon relied for working compara under similar conditions. 29 § they professional tors because 206(d)(1). plaintiff are U.S.C. A schools show degree “with a mix similar to the jobs substantially that school of equal, the are not practice activities, related necessarily are they that identical. Gun frequently where put students are ther, into clin job 623 Actual per F.2d at 1309. ical settings faculty under content, supervision.” job formance rather than and de faculty introduced classifications, scriptions, statistics titles or is deter attempting compare 66 individual faculty Thus, each claim jobs minative. Id. that comparator members from the selected de substantially equal necessarily are must be partments with members of the nursing case-by-case Hein, determined on a basis. faculty held, based degrees experience, on 913; Gunther, 718 F.2d at 623 F.2d at addition, and merit. In the 1309; nursing faculty Usery University, v. Columbia points to describing evidence Cir.1977). various facul (2d F.2d disagree, We ty positions showing and that its therefore, members University’s with the contention taught comparator courses in departments, jobs that from different academic disci engaged in on interdisciplinary research plines is substantially can equal. never be sues, and worked on committees with com proper of each resolution case neces parator faculty Despite members. the fa sarily depends upon the actual content of similarity cial in nature of the the jobs. Gunther, the F.2d at 1309. The positions upon by relied facul judge’s district determinations on the issue ty, special master concluded that the of substantial are equality findings of fact. nursing faculty not had shown substantial Hein, 913; Gunther, 718 F.2d at equality. judge adopted The district 1309; that Mary Institute, accord Horner v. finding. We conclude that Cir.1980). district (8th apply F.2d We judge’s finding equality on substantial is clearly erroneous standard of review. erroneous. See generally Hor argues The nursing faculty that it need Institute, ner v. Mary 613 F.2d at 714 objective demonstrate that the charac- (affirming jobs finding physical of two jobs substantially teristics of the equal. are education substantially teachers were not Then, according nursing faculty’s equal though even “superficially identical argument, the shifts to the burden Univer- in that teaching both physical involve sity any subjective to show whether differ- education”). jobs, ences between the such as subject taught, legitimate are supports actual bases for The evidence the finding disparity. upon by special The cases relied master and the district judge nursing faculty are not cases under equality. substantial It indicates that Equal Act, but, rather, Pay departments cases aris- different the University ing plaintiffs comparators under Title VII and involve the alloca- which used placed varying tion of degrees emphasis burdens treatment on re See, search, Regents training, claim. e.g., Lynn community service, California, nursing historically F.2d 1337 had been con- discipline regarding distinct from those nation equality sidered substantial Further, plaintiffs comparison. Id.; chose for City skill. Fargo, see Peltier v. submitted evidence Cir.1976). train Clearly, statistical deficient several ing in an to a necessary academic field adequately respects. It did not account for job university as a member in rank, multiple prior job experience, de- Rantoul, field. See Melanson and, grees, important, it not ade- most did (D.R.I.1982) F.Supp. (refusing quately per- evaluate the actual work compare plaintiff’s salary salary average faculty members. formed various We professors of male associate absent show agree with the court’s district observation ing professor’s position that each associate faculty’s nursing that statistical evi- requires skill). equal Some members ignores dence “either central fact dis- the engaged had in inter lawsuit, puted in this which is whether or disciplinary research, teaching, or commu by plaintiffs not the work done is substan- activities, nity judge but the district did not tially equal to male done facul- work err in adopting finding the master’s that themselves, ty compare they with whom or job required these were not although some presumes equality.” it The statistical evi- brought unique individuals their skills to may pay disparity, dence demonstrate a but best, the work. At those activities were pay jobs difference in between which and, only part thus, of their duties not do primarily jobs women and which hold men convince us that judge district was primarily hold prima does state a facie clearly equali on erroneous the substantial Equal Pay Act if jobs case are not ty issue. substantially equal. See v. Mary Horner Institute, 613 at 715. The district Equal Pay The evidence Fine’s on court was not in finding erroneous Act prove claim also shows that she did not nursing had not shown equal substantially work. Fine was em day-to-day responsibilities, that the actual ployed University Washington by the skill, required and effort of the male com- Hospital from 1958 to 1976. She di was parators substantially equal to that of nursing rector of from services 1962 to nursing faculty. 1976. From 1962 to she served as a decision, In this reaching the dis clinical professor assistant in the School adopted special trict court master’s Nursing. From 1968 to she awas findings concerning the differences in part-time professor nontenured in assistant training in and education academic fields. of Nursing beginning School and in nursing faculty argues a differ part-time she awas tenured associate training ence in and back educational professor. From she also ground jobs irrelevant whether had the title of associate administrator. substantially brief, equal. In position Since her exclusive been has “teaching contends that is teach professor. as an associate She holds a contention, ing.” superficial although degree master’s and has some ly appealing, lacks merit. As we stated post-graduate training in business adminis previously, the determinative factor is actu argues performed tration. She that she job Equal al Pay speci content. The Act substantially equal performed work equal component equal fies that skill is a Stein, by Lang and male two associate hos § 206(d)(1). work. 29 U.S.C. The adminis pital administrators. regulations interpreting the Equal trative During Fine’s Pay including hospital, Act define skill as tenure at the she “consider responsible experience, supervising nursing ation of such for factors train ing, education, personnel ability.” respiratory therapy, and for the and C.F.R. § records, 800.125 central supply, in-pa- Possession of skills irrel medical job requirements, however, admitting departments. evant to the tient She testified making cannot be a determi- reported directly hospital considered that she administrator, capacity ty that in her as asso- in violation of Title VII of the Civil responsible ciate she was administrator for Rights 703(a) Act of 1964. Section of Title department development, program VII makes it employer unlawful for an “to changes, planning, and that she was against any discriminate individual with re- responsible nursing department for the spect compensation, terms, to his condi- budget. She also testified that she chaired tions, privileges employment” or or to planned computer pro- a committee which “limit, segregate, classify or employees his gram system University Hospital applicants” because of sex. 42 U.S.C. (Harborview), Harborview Medical Center § 2000e-2(a). charge was in plans, of disaster and served on various other committees. Harborview The decisionrendered at the end of University. was also associated with the faculty’s case indicates a deter addition, she at times had administrative mination judge district prima that no responsibility hospital for the entire facie ease has been established. Evidence night, weekends, and on an on-call basis. which is relevant to the issue of a Lang degree public holds a master’s facie ease also be relevant to an em health hospital and served as an assistant ployer’s good Thus, defense of faith. these University Hospital administrator at and findings applicable which could be hospital then as an associate administrator either of those issues or to the issue of responsible at Harborview. He was for pretext. Essentially, however, the issue is hospital departments, numerous in charge one of prima whether a facie case was negotiation, program development, labor established.7 This approach was our major hospital planning and had a role in Moore v. Hughes Helicopters, Inc., 708 special The administration. master (9th Cir.1983)(Moore). F.2d 475 Lang concluded responsible was for administering departments more than Fine past Our cases have not been consistent departments and that those were more on whether our review of the lower court’s complex. In the hospital of the absence finding regarding ultimate establishment administrator, Lang complete assumed re- prima of a facie case is de novo or under a sponsibility. clearly erroneous standard. See generally Stein holds a degree master’s in business Moore, 480; 708 F.2d at Gay v. Waiters’ administration and served as an associate Union, and Dairy Lunchmen’s Local No. hospital administrator from January 1974 30, 531, (9th Cir.1982). 694 F.2d 539-46 We to March 1978 at of Wash- need not decide which standard is correct ington Hospital. He then acting served as case, Gay Moore, because this as in hospital administrator for a time. As asso- reach we the same conclusion under either administrator, ciate he was second in com- one. primary mand. He had administrative re- nursing faculty asserts that it has sponsibility major all professional for de- partments, prima established a facie Title represented the VII case of administration negotiations, in labor wage and coordinated sex-based hos- discrimination under both pital planning budgeting. disparate treatment disparate and the models, impact although it cannot show judge The district was not errone- equality jobs. substantial Supreme finding ous in jobs that the of Fine and opinion Court’s in Gunther held that a Lang or substantially equal. Stein were not Title VII cause action exists outside the V scope Equal Pay 161, of the Act. 452 U.S. 2242, 101 S.Ct. also claims sex- wage holding based discrimination the Universi- affirmed our plaintiff Court “that a adequacy prima 7. Because we rule prima on the as a defense to a successful facie case case, facie we do not address whether the Uni- under Title VII. versity may rely competitive marketplace on the 324, 15, 1843, precluded establishing is not from sex- U.S. 335 n. 1854 n. wage 15, (1977) (Teamsters); some oth- based discrimination under L.Ed.2d equality] theory Co., er substantial com- Jackson v. R. [than Seaboard Coast Line Gunther, patible Title VII.” 623 F.2d 992, (11th Cir.1982); Heag 678 F.2d at added 1321. We unneces- ney University Washington, “[i]t 642 F.2d sary might to determine now what theories 1157, Cir.1981) (Heagney). be feasible.” Id. The Court also Supreme course, purpose Of Title VII’s nature and precise decide declined to “the contours of require Douglas that the McDonnell test challenging lawsuits sex discrimination in sup- be flexible. must What be shown VII,” compensation Gunther, under Title port plaintiff an inference at U.S. S.Ct. at and took against depends discriminated on the facts pains “emphasize at the outset the nar- Lieuallen, of each case. Peters v. faced, the question” rowness of it id. at (9th Cir.1982); Hagans Accord Plemer v. Andrus, (9th Cir.1981). 651 F.2d Parsons-Gilbane, 1131-34 Thus, specify we do not the minimum fac- (5th Cir.1983) (Gunther a special situation required plaintiffs tors to establish a clear, presented plaintiffs where direct evi- VII facie Title case of sex-based discrimination). dence of intentional wage discrimination. A. the district did Because court First, we examine the nursing clearly err the issue substantial faculty’s claim under the treat equality, nursing faculty’s case must ment model sex Plain discrimination. solely creating rest on evidence an infer proceeding theory tiffs under this must wage they disparity point ence that the prove by preponderance of the the evidence likely was more than result not the of prima a case of facie discrimination. Texas intentional sex discrimination. Under Department Community v. Gunther, of it certain if Affairs is Burdine, 248, 252-53, 450 U.S. 101 S.Ct. prima were to base its facie case 1089, 1093-94, (1981)(Bur 67 L.Ed.2d 207 comparison only per on a of work ); Corp. dine Douglas McDonnell formed, it would have to substantial show Green, 792, 802, 1817, 411 U.S. 93 S.Ct. Gunther, equality. F.2d at We (1973) (McDonnell comparable stated that “because a work so, To Douglas). nursing faculty do standard cannot be substituted for an “proof must show of actions taken standard, equal compara work evidence of employer from which we infer discriminato work, although necessarily ble irrele ry experience proved animus because has vant in proving discrimination under some any explana that in the absence of other theory, alternative will not alone be suffi tion, likely it more not that is than those prima cient a to establish facie case.” Id. impermissible actions bottomed Thus, nursing faculty has to es failed considerations.” Furnco [i.e. sex-based] equal a pay tablish Title VII claim on an Waters, Construction Co. v. equal theory for work for the reasons same 2943, 2951, 57 L.Ed.2d 957 that we it failed concluded to establish a (1978); City Diego, White San of prima Pay Equal facie Act claim. See Piva (9th Cir.1979). While the Corp., v. Xerox establishing prima burden of facie case Cir.1981). payments That are different is onerous,” Burdine, “is not 450 U.S. at insufficient alone establish a facie 1094,disparate 101 S.Ct. at treatment cases case. require necessarily direct or circumstantial not, motive, therefore, proof We will infer discriminatory whereas intent no merely wage proof in.dispar such motive from the existence of differ required is jobs only ate impact cases. ences between that are similar. International Brother States, require hood Teamsters v. The com- United Gunther does not this. however, parability jobs, can be rele- various statistics. We now consider those determining arguments. vant we can whether infer discriminatory Gunther animus. allows a nursing faculty contends that an in “comparison jobs.” dissimilar somewhat discriminatory ference of intent follows plaintiff ultimately prove must still from the University’s failure cooperate intent to discriminate to make out a case of in developing providing and information in Burdine, treatment. See 450 response to the charge discrimination U.S. at at 1093. S.Ct. its failure appoint sufficiently experi persons enced to act as rights women’s suggests we inter- advocates. More ample than evidence pret providing “compara- Gunther as for a shows, however, the University did is, bility plus” requiring as test—that cooperate good faith. It met with the degree job some comparability plus nursing faculty, provided data as to sala some including combination of factors di- ries, degrees, entry dates for nursing rect and circumstantial evidence of discrim- faculty, women at rep inatory disparities. pay conduct and This males, resentative developed studies on its be, nursing faculty would argues, computers, own and initiated salary new sliding “plus” vary scale where the factors studies. The district court found that the proportion degree inverse of com- University generally improve worked to parability reject proposal shown. We status of employed women there and one providing and do not read such Gunther aspect of its efforts the formation of a test. explicitly adopt Gunther refused to an office equal opportunity for women, precise litigation. formula for Title VII organized directly under the University’s 181,101 452 U.S. at at 2253. Such an vice-president.8 executive unwieldy might plaintiffs test allow to bol- showings inadequate ster of comparability contends that confusing potpourri “plus with a fac- composition all-male of the University’s tors,” into plunging courts standardless su- three-person budget committee bolsters an pervision of employer/employee relations. inference discriminatory animus. How ever, any no evidence showed discriminato nursing faculty’s case, The crux of the ry fact, conduct part. on their the mag then, something within our compe- more findings istrate’s established that namely, showing of an inference tence— Nursing School of salaries were not discriminatory magistrate animus. The kept schools, competitive other but court, and the district after an extensive salary expanded that the base there at a hearing, showing found no of discriminato- rate faster than of all that but the School ry intent or that motive and whatever dis- of Law. parities in pay were existed not due to arguing sex-based nursing faculty argues treatment. that the that acts erroneous, court the clearly nursing budget was the all-male committee forced the faculty Nursing rely submits of: School of heavily a collection their wit- on the rank, testimony; alleged paid nesses’ of an instructor evidence the lowest and lowest But, “predisposition” discriminatory voting faculty. rank of toward con- the extensive by University officials; duct various and evidence showed the that use the in- faculty’s Faculty nursing Reports by 8. Part the evidence Senate was not Subcommit- proof, admitted as but substantive rather tee on Academic and the Task Women Force on University was show that on notice that Policy Personnel and Practice. groups various felt issues needed more women’s however, magistrate explicitly, found that report by a 1970 attention. These were University improve worked to the status of of the Associated Women’s Commission Stu- during women the time relevant to this lawsuit University; documents dents of the written approved finding adopted by and that was Caucus, Women’s Coordinator of the Wash- say the district court. We cannot that the find- Association; ington Library a letter on behalf of ing of the district is erroneous. court University’s department; economics home Douglas ease under in a structor rank unrelated to sex and McDonnell Uni- was justified by non fac- legitimate versity’s sex-related tenure decision case. Id. at 1342- tors. The rank enabled the issues, instructor said, 44. We “disdain for women’s non-doctorally inexperienced, school to hire opinion and a of those who con- diminished prepared faculty. showing No was made issues,” centrate on could evidence those persons disciplines that other hired of simi- an attitude which tended to establish ranks, higher backgrounds lar at nor that Lynn’s prima presented facie case when Nursing any doctorally hired School with other evidence relevant to an infer- prepared faculty at the instructor rank. discriminatory ence of motive. Id. thirty-nine plaintiffs, Of the the three who The district court there found that the ten- doctorally prepared were hired at the ure decision been have influenced professor. level of assistant Other testi- general such emphasized disdain. Id. We indicated, fact, mony that other disci- in Lynn express that “the view we is a plines persons hired of the same back- one,” impor- narrow id. at 1343 n. 5. The assistants, ground teaching a non-facul- holding tance of such a the area of ty rank. tenure decisions is obvious: where academ- argues next that its judgments ic be made on should the basis one evidence showed that of the Universi- qualitative performance, of the individual’s ty’s administrators, Grayston, Dr. Vice- an irrational disdain women’s issues Services, President for Health exhibited a part has no in the deliberation. Neverthe- “demeaning attitude” toward the less, in Lynn, sensitivity we reaffirmed our profession Nursing. School of to “the need for courts to refrain from attitude, they argue, merely part This was substituting judgment their for that of edu- larger “predisposition to discriminate” affecting cators areas the content of pervaded responsible certain adminis- curricula.” Id. trators at the and included “a clear lack of concern for the needs of fe- nursing faculty, however, male The extent members.” presents evidence of an insufficient endem which the nursing tries to construct discriminatory ic attitude would bol “pattern practice” case is unclear from ster a There facie case. is no evi However, pigeon-holing briefs. such dence that the so-called academic disdain theory faculty’s unnecessary any wage for women’s resulted in issues prove because its evidence does “more testimony discrimination. The of former than the mere occurrence of isolated or Grayston Leininger Dean was “arro sporadic discriminatory ‘accidental’ or gant, authoritarian and autocratic toward acts,” nor does it establish that discrimina- female or that he “ill- administrators” tory [University’s] treatment is “the stan- informed as to role of academic nurs operating procedure dard regular —the ing” disagreed or that he with some of the rather practice.” than the unusual Team- curriculum, faculty over with

sters, 431 U.S. at 97 S.Ct. at 1855. more, out is not sufficient to overturn the nursing correctly points The faculty out findings factual entered below. Title VII that have we said that “existence of a does plaintiffs not allow translate their discriminatory ... tends to attitude estab- subjective impressions into evidence of dis likely that it lish is more than not that the criminatory impres motivation when those University’s decision based an im- was on disagreements. sions stem good from faith criterion, permissible and therefore tends any Such a rule squelch meaningful would plaintiff’s] prima to establish facie [the internal policy University. debate at the Lynn, case.” at 1343. That 656 F.2d cita- similarly We are unconvinced not, however, that Lynn tion of does control University discriminatorily these facts. handled the Lynri reversed the district Nursing adequately request pro- court for not School’s for a investigating the Ph.D. Lynn’s prima gram, elements of facie demeaning treatment because of a attitude to-

703 discipline. ing as an academic an ward such inference. The statistics must eventually approved program treatment, and show the differences in their “depends the record demonstrates that the thus usefulness on all of the surrounding faculty prove Nursing facts and failed to circumstances.” Id. 340, 97 S.Ct. at 1857. program example, Ph.D. was treated differ- For School’s probative force of the proposals statistics can ently any than other submitted be rein- forced with testimony experiences by departments. and other schools discriminatory treatment of individuals to also con bring “the cold convincingly numbers University tends that the instituted a series 339, life.” Id. at 97 S.Ct. at 1856. Of equity adjustments “past to amend for course, if plaintiff only presents the practice discrimination” and that this is rel circumstantial evidence of statistics lieu present discriminatory evant to conduct of all proof intent, other of discriminatory University. placed The label on such the case becomes a disparate case of im- however, payments, dispositive. is not The pact. adjustments evidence showed these Granting that properly statistics “when part policy pay discipline’s of a each authenticated, constitute accepted an form faculty equitably among and themselves — of circumstantial evidence of discrimina compared at other institut tion,” EEOC v. Federal Reserve Bank of Iowa, ions.9 Christensen v. State Cf. Richmond, 633, 698 F.2d 645 Cir. 353, (8th Cir.1977) (Universi 563 F.2d 357 1983), we are warnings still sobered ty’s good attempt wage faith to remove “inherently statistical evidence has an slip disparities through special sys evaluation nature,” pery Wilkins v. VII). tem not faulted as a of Title violation Houston, 388, (5th Cir.1981), 654 F.2d 395 Finally, remanded, 809, vacated 459 U.S. presented support statistical evidence to its 34, (1982), L.Ed.2d 47 aff'd prima disparate facie case of treatment. remand, (5th Cir.1983), 695 F.2d 134 Generalized statistical evidence can rele be exaggerated, oversimplified, “can be or dis adaptation vant to an of the McDonnell support torted to position create for a prima Douglas criteria for a facie case of supported by is not otherwise the evi Lynn, treatment. 656 F.2d at Note, dence.” Judicial Refinement of (generalized statistics relevant to indi Cases, Statistical Evidence in Title VII vidual’s facie case because tenure 515, (1981). Thus, Conn.L.Rev. highly decisions in academic context weight proof implicitly of statistical relies subjective). Sky See O’Brien proper supportive on “the existence of Inc., 864, (9th Cir.1982) Chefs, 670 F.2d facts of variables which absence (class action). undermine the would reasonableness inference of discrimination.” White v. Supreme that, Court has said 460, 605 F.2d at City Diego, quot San cases, “[pjroof in treatment of discrimina ing United States v. Ironworkers Local critical, tory although motive is it can in 544, (9th Cir.), cert. de some situations inferred from the be mere nied, 92 S.Ct. 30 L.Ed.2d fact of differences treatment.” Team sters, n. U.S. n. already 52 L.Ed.2d 396. Statistics Because we have found that the part proof nursing faculty’s of the circumstantial be bolster- statistics do not show actions, nursing faculty presents plaintiff contested evi- reasons for his then has a discriminatory dence that a less alternative proffered chance to show the are reasons mere- system compensation Burdine, 248, 254-56, exists at another universi- ly pretextual. ty. prima to This is not relevant a facie case of 1089, 1094-95, 67 L.Ed.2d 207. It is at plaintiff treatment. Once a establish- stage this last that such evidence could be rele- a defendant es facie case and the has vant. responded legitimate, nondiscriminatory 704 equality jobs question, tion comparable faculty depart

substantial of in other to we must evaluate the extent which those unrealistically equality ments assumed the comparability and statistics show then to degrees, ignored job of all experi master’s comparability showing, what extent that ence prior University employment to and along discriminatory with other evidence of ignored analysis day-to-day detailed of re animus, an of supports illegally inference sponsibilities. Finally, nursing facul discriminatory motive. ty’s compared never female statistics nurs ing wages wages to female any Statistics be departments. other such a Without com rigorous simply they only go less because parison, meaningful way we have no comparability to to and not substantial determining just proposed how much equality. especially true This is when we wage differential was due sex and how are them for asked not take what much to discipline. was due The statistics they mean, but an draw inference generated input from that failed to nursing from them to motive. The as fac exactly control for those differences be ulty’s general statistics are not so much as tween legitimately individuals that can lead they strictly comparative: they are com being to their differently. treated pare jobs salaries across within the Univer Cf. Agarwal Co., v. Arthur and sity experts already G. McKee 19 that their have chosen (N.D.Cal.1977), FEP 512 aff'd, Cases comparable comparisons as and make no Cir.1981) F.2d 803 (plaintiffs’ with other sta universities or the labor market ignored general. study tistical validity or similar essential fac usefulness of tors); comparative Service, such statistics therefore rests Valentino U.S. Postal directly single F.Supp. (D.D.C.1981), capacity on their out aff'd, (D.C.Cir.1982); merely factors that convert different Vuyanich treat unjustified ment discriminatory Republic Dallas, into treat National Bank sophisticated (N.D.Tex.1980); ment. The more F.Supp. method Keely v. algebraic adjustment used, that is Westinghouse such Corp., F.Supp. Electric regression analysis, (E.D.Mo.1975). Further, multivariate the faultiness discriminatory more an illicit likely nursing faculty’s amplifies factor data base can generally be ferreted out. methodological See Baldus effect of this deficiency. Cole, Statistical Proof Discrimina data was built base on information Fisher, tion (Supp.1983); Multiple Regres cards, derived from the President’s record Legal which, sion in Proceedings, ample testimony Col.L.Rev. and exhibits 702, 702, (1980) showed, (“Multiple regression were inaccurate. analysis making precise is a device for nursing faculty responds that expert quantitative estimates of the effects of dif testimony reinforced methodology. its

ferent factors on some of interest variable argument, however, wholly That uncon- systematic signal ... to extract a from the vincing. Lieberman, Dr. facul- presented by data”). noise ty’s expert, presented specific support no

Intuitively, pay of a methodology, evidence dis the statistical was not an parity jobs only compara expert between application on the of statistical stud- says very ble discrimination, little ies presented about discrimination. to sex specify exactly We refuse to what role part conclusion that rested in on unreli- such comparative however, play, Leininger’s statistics able testimony statistics. because faculty’s commonality statistics are “there is a in terms of social so unreliability rife with they process” are a and helping and a interdigi- “close poor vehicle for such a purpose. nurs tation” disciplines between some of the ing faculty’s compiled by statistics were a based joint seminars, conferences and paralegal company services that did not with no of specific other identification use regression only, apparent model but duties and responsibilities, breathes no life ly, simple matching technique. The proof. selec- into the faculty’s statistical

705 B. establishing prima case,” a Gay facie v. Lunchmen, and Dairy Waiters’ 694 F.2d nursing argues that it 537; Contreras, at 656 at 1271. presented prima a facie case of discrimina- against benefit however “weighed the disparate impact theory, tion under the requirements prima of a disparate facie in promulgated Griggs first Power Duke case, impact which in some respects are Co., 91 401 U.S. S.Ct. 28 L.Ed.2d exacting more than of a disparate those (1971) (application general 158 (Griggs) Moore, treatment case.” 708 F.2d at 482. intelligence minority group). test to Ex- prove must merely Plaintiffs not circum plaining theory’s boundaries, the the Court raising stances an inference of discrimina protects people said that Title VII from tory impact; they prove must the discrimi discrimination, only “not overt but also natory impact Moore, at issue. 708 F.2d at practices form, fair that are in but discrimi- (involving impact showing respect with natory operation.” in It mandate does not promotion to policy); see also Johnson v. special employment “any treatment for Ben’s, Inc., Uncle person simply formerly because ... he was Cir.1981), denied, cert. U.S. discrimination, subject the he or because minority is a a group.” Griggs, member of Gunther, disparate case, a treatment of 430-31, 401 U.S. S.Ct. at 853. help fers in evaluating no the nursing fac showing discriminatory A ulty’s impact claim. theory by under replaced animus is this a “comparable has theory worth” showing disproportionate impact, on a upon rely. See, which to e.g., Power v. protected group member of a under Title County, (W.D. Barry F.Supp. VII, by employer’s facially prac an neutral Mich.1982)(defining comparable worth the tice. 642 F.2d at Heagney, 1163. Where ory). Its case essentially becomes a claim applicable, the elements of a facie that the unequal received general case under most formulation of pay comparable equal for work of value to disparate impact (1) model are: employer. its outwardly occurrence of certain neutral faculty’s impact case is sim employment practices, (2) significant ply they disparate stated: have shown ly disproportionate adverse or impact on impact by showing wage disparity be persons particular of a produced by sex only comparable jobs tween dispar and this employer’s facially prac neutral acts or impact is facially ate caused neutral Rawlinson, tices. Dothard practice policy of set 321, 329, 2720, 2726, 53 L.Ed.2d ting according wages prices to market for (1977); Moore, 481; Heag F.2d at disciplines. jobs in the We confront then ney, 642 F.2d at 1163. question the difficult whether model, Under this fac impact who, model is plaintiffs available to ulty proving discriminatory avoids animus nursing faculty here, make a broad- by being and benefits enabled “to shift a ranging wage sex-based claim of discrimi nation, employer upon substantial burden on comparable based worth.10 "comparable theory by pervasive 10. The controversial worth” defects in the market caused dis- men, essentially Blumrosen, holds women and minori- Compare Wage crimination. crimination, Dis- equally jobs paid ties should be for that are of Segregation Job and Title VII comparable employer. "At value its Rights Civil Act 12 U.Mich.J.L.Ref. 397 broadest, ‘comparable encompasses any worth’ Nelson, (1979) (same) Wilson, Opton wage claim sex-based discrimination ... in Wage “Comparable Discrimination and the perform plaintiff which the does not ‘sub- work Theory Perspective, Worth" 13 U.Mich.J.L.Ref. stantially equal’ higher employ- paid that of a (1980) (no technique social science exists to Grossman, opposite ee of the sex.” Schlei and are, wage residual show that differentials (2d Employment Discrimination Law ed. fact, sex-based). Comparable worth theorists 1983). employer, argue, This value some attempted argue have also that discriminato- objectively can be measured. The market does ry practices ultimately the labor market accurately portray that value because of 706 parable theories); Nelson, increasing patina

Doubtless “an worth Opton, because Wilson, subtlety complexity and has obscured Wage of and Discrimination and the discrimination,” alleged “Comparable claims of sex Theory Perspec- in Worth” Services, Bryant tive, (1980) International Schools (explain- U.Mich.J.L.Ref. 233 Inc., 562, Cir.1982) (chal- (3d 675 F.2d ing problems comparable theory of worth lenge policy giving unequal employment to vehicle), legal as a and accords with the law Iran), people to hired to in benefits work goals and of Title VII. We so hold without we must be sensitive to Title VII’s broad making any gen- broad statement as to the purview, especially employ- remedial when availability eral impact of the model in oth- “artificial, arbitrary ers use and unneces- sex-wage er broad based cases. sary employment ... invidious- barriers compellingly rejected Other courts have ly to discriminate on the basis of racial or comparable theory worth in sex-based impermissible other classification.” wage discrimination im claims under an 431, Griggs, 401 at U.S. 91 S.Ct. at 853. pact theory. by Those cases involve claims However, asks for an here, employer, that it paying plunge extension of Title VII that would us instance, wages. market For in Lemons v. into uncharted and treacherous areas. City County Denver, and 620 F.2d 228 (10th Cir.), denied, We hold that on facts such as cert. these, plaintiffs’ (1980), where sex-discrimination S.Ct. several wide-ranging wage claim is a city-employed claim of dis nurses in sued a class action parity only comparable jobs, require between City pay equally them go does not comparable jobs law so far as to allow a in community.11 by showing facie case to pay by wages be constructed Denver set its the market disparate impact. Barry community. Accord Power v. nurses in the The court held County, F.Supp. (rejecting require at 726 com VII employers Title did not “to parable theory ignore worth setting wage suit female the market in rates for members at sheriff’s genuinely office: “a review of different work classifications.” legislative history of Title VII ...” led Id. at quoting Christensen v. State of Iowa, (8th the court there Cir.1977) (Chris to conclude that Gunther’s 563 F.2d 353 “recognition tensen). of intentional discrimination existing court also said that signal legal well the outer limit of authority require city did not and coun cognizable VIL”). theories ty under Title “to reassess the worth of services supported by This conclusion position considera each in relation to all others.” Id. precedent, prudence tions of judicial and Supreme 229. When the Court stressed competence, Note, generally see Sex-Based that was not a case involving Gunther Wage comparisons Discrimination Under The in question, Title VII of the work Doctrine, Disparate Impact distinguished 34 Stan.L. precisely Court Lemons aas (1982) (surveying Rev. 1083 cases and case which did. 452 U.S. at 166 n. presenting arguments why courts should S.Ct. at 2246 n. 7. The case before us is on deny disparate impact claims based on corn- all fours with Lemons. This, job-related. inefficient because not The nurses in Lemons did not want to be course, can be said based on the paid belief community paid as nurses in the Note, Equal Pay, market is defective. See because, they argued, price the local market Evaluation, Comparable Work and Job 90 Yale depressed past nurses was because of social Beller, LJ. But The Eco- nursing faculty's cf. argu- discrimination. nomics An Antidiscrimination of Enforcement of rely historically ments here also on their de- Rights

Law: Title VII the Civil Act pressed wages being due to discrimination in an (1978) (empirical analysis J.L. and Econ. 359 imperfect competent market. Courts are not suggests that laws cannot eliminate sex both engage sweeping wage in a revision of market wage conflicting discrimination because Iowa, rates. Christensen v. State Cf. provisions simultaneously increase and de- (Title Cir.1977) VII not intended to employment protected crease relative abrogate demand). supply the laws of effect). group, cancelling-out with a compara- Impact, Christensen tion: Adverse involved a similar Validity and Equality, employ- claim female clerical Sup.Ct.Rev. ble worth (discussing Northern Griggs against progeny). ees As the court wages to in Pouncy v. Prudential Iowa. referred Insurance Co. of America, wages. 795, (5th the local labor market to set Cir.1982) 668 F.2d underpaid (Pouncy), plaintiffs argued they vis- were made clear: comparable doing a-vis males who discriminatory impact model of [t]he equal University, jobs of value to the and not, proof however, is ... appropri- the wage that reliance on the local market sim- ate vehicle from which to launch wide a ply depressed wages. their perpetuated ranging attack on the cumulative effect reaching Without the Bennett Amendment company’s of a employment practices. eventually by Supreme issue addressed the faculty unconvincingly cites Gunther, in Court court held that the proposition cases for the dispar- that “the prima plaintiffs failed to establish a facie impact analysis ate applied has been to wage disparity case that was caused wage discrimination cases.” They do not sex discrimination. 563 F.2d at 355. It wide-ranging involve allegations challeng- policy stressed federal embodied “[t]he ing general wage policies but chal- rather in Title VII is that should individuals be lenges specific employer to practices, name- equal opportunities” job to in entitled ly, fringe policies, benefits respect with to market, equal not at Id. results. which employers exercise judgment. The an Chris agree employer

We and rules which Lemons with determines availability fringe tensen join refusing and those benefits can evalu- courts in to be ated in job-relatedness. a terms their accept allowing construction of It Title VII has such procedures been “selection prima to establish disparate impact which the model has tradi- facie violation of that Act em “whenever tionally applied,” Pouncy, 668 F.2d at ployees of disparate different sexes receive payment and not mere of market compensation differing for work of skills wages. may, subjectively, equal be of value to employer, but does not an command Governing Arizona Committee for price in the labor market.” Chris equal Annuity Tax and Com Deferred Deferred tensen, — 563 F.2d at 356. pensation Norris, Plans v. U.S.-, aff'g (1983), 103 S.Ct. L.Ed.2d 1236 The case simply before us does not part, rev’g part, in (9th 671 F.2d 330 fit impact into model. The Cir.1982), instance, employer’s poli developed pretext model was as a form cy providing retirement benefits based analysis specific employment to handle sex-segregated annuity tables chal practices obviously job-related, not such as: lenged. The Court discrimination held that employers’ intelligence which ad tests proscribed by Title VII an occurs where e.g., versely minority persons, affect employer’s policy is to offer employ female Griggs; height other re weight or plan requiring ees a benefit them make sex, quirements affecting certain those of a employees, same contributions as male Rawlinson, e.g., Dothard v. 433 U.S. Id. at yet lower receive benefits. (1977); Ger L.Ed.2d 786 Angeles Department 3501. Los Water Airlines, dom v. Continental 692 F.2d 602 Manhart, and Power (9th Cir.1982) (en banc); Harriss v. Pan (1978), in also Inc., American Airways, World sex-segregation under volved a benefits (9th Cir.1980) (policy requiring com plan. upon pregnancy), mencement of leave Wambheim Pen policies applicants opinion which exclude based on v. J.C. Our Sys Co., records, e.g., Gregory ney v. Litton Cir.1983), arrest 705 F.2d 1492 also Inc., tems, See (9th Cir.1972). specific F.2d 631 employer policy, involved a is Lerner, Employment Discrimina- contrary holding our here. Wam- action, bheim, prices inherently job-related, although are narrowly held class analysis “disparate impact appropriate embody judgments market social § 703(a)(1) jobs. case” Employers this where Wambheim as worth of some challenged Penney’s are, extent, “head- and her class on the to that relying market under its medical of-household” rule “price-takers.” They deal with the market plain- coverage, dental insurance and that given, meaningfully as a and do not have a successfully facie tiffs established a “policy” about it in relevant Title VII we case. 705 F.2d 1494. That case Fringe policies, sense. which are discre an found because it involved “unusual” tionary, altogether another matter. allegation under section of violations Additionally, allowing plaintiffs to establish respect 703(a)(1): discrimination facially reliance on the market as neutral terms, conditions, privi- “compensation, or policy for Title VII purposes subject would dispar- leges employment,” of whereas the employers liability pay disparities for impact developed had in theory ate been respect they not, any with to which have 703(a)(2) section cases. Wam- However sense, meaningful independent an made it inapposite here bheim is because judgment. previously business As we have particular employ- with specifically dealt a said, ultimately “Title VII does not focus policy er a full-scale assault on rather than persons on social of ideal distributions of salary practices. employer’s races and various both sexes. Instead it is combatting culpable concerned dis manageably apply the We cannot cases, In disparate impact crimination. cul plain impact model the kernel of the when pable discrimination takes the form of busi theory comparable tiff’s The is worth. discriminatory ness decisions that a have problem compounded in When is this case. impact justified by job-re and are not their disparate impact model is removed City latedness.” Contreras v. Los An involving challenges from the cases of n. geles, 656 Cir. policies neutral of em delineated 1981) (use allegedly discriminatory audi ployers, vague inap it so becomes as to be challenged). tor’s examinations plicable. Pouncy, at 801. See 668 F.2d pin The claims to have it has asserts shown pointed facially policy a neutral at the Uni facially policies three other neutral as a versity impact having discriminatory impact analysis foundation here. The they policy University’s assert. That is the nursing faculty argues the University relying wages. on the market to set their facially making policy had a neutral all so, We find that have they failed to do percentages present increases in salary emphasize practice that such a not the evidence, however, salaries. shows “policy” disparate impact sort of which at disciplines University at that the were analysis is aimed. lock-step purpose per- not in a for the pay increases, part centage and that of the Relying competitive market money appropriated legisla- from state prices qualify does not as a neutral facially ture sometimes in varying was allocated practice policy purposes or for the of the occasions, percentages. On some the nurs- disparate analysis impact first ing faculty greater percentage received in- Griggs. pur articulated For Title VII creases. simply labelling employer’s an action poses, “policy practice” is not sufficient. nursing faculty also contends the

What matters is the of the em substance practice had the of requiring ployer’s acts and whether neutral those to start “instructors” non-job-related pretext acts are a to shield progress through four-rank promo- an judgment. invidious However, system. ample tional evidence Every employer constrained market facul- showed members ty required begin must market set- forces consider values were as instruc- ting tors, Naturally, entry depended his labor market rank on the costs. person’s teaching prior experience, publish- brought crimination suit by male officers ed outstanding professional research or ac- summary dismissed on judgment). There complishments. we past held “that the County’s employ- practices ment as to deputy-sher- its female final facially policy neutral iffs, ill-conceived, however did not serve as alleged University’s “discretionary is the a foundation for this brought suit under budgeting policies subjective based on con Title Equal VII and the Pay Act.” Id. at quali siderations.” We fail to see how this 1281. Williams makes claim no that he facially policy, fies as a neutral even if it wage received a lower of his because sex. proved. Ordinarily, the lack of well- facilitating defined wage criteria as dis VIII presented

crimination is claim better un der treatment model. See above, In light of the there is no reason (treatment Heagney, 642 F.2d at 1163 mod to disturb the district court’s denial of at- gravamen el more appropriate where torneys’ fees.

plaintiff’s goes subjec claim the use AFFIRMED. criteria); 801; tive Pouncy, 668 F.2d but Hung Wang Ping Hoffman, cf. SCHROEDER, Judge, Circuit specially (9th Cir.1982) (lack objective concurring. job promotion disparity criteria and a I agree the majority that plain the impact claim). be basis for tiffs in did prove any this case violation of Equal Pay Act they because failed to VI jobs show that their were substantially We also affirm as to Ruth Fine’s claim equal comparator jobs used. Gun above, under Title VII. As we held she County ther v. Washington, 623 F.2d of prove equal failed to substantially work. (9th Cir.1979), 1303 aff'd, 161, 452 U.S. 101 Thus, she must make out a case of inten- 2242, (1981). S.Ct. L.Ed.2d 68 751 For the tional discrimination with other evidence reason, same their Title VII claim based on and the comparability job of her with Lang alleged pay unequal must fail. Id. us, and Stein. There is no evidence before plaintiffs I agree prove also failed to however, which creates an inference of in- disparate a Title violation of VII on treat- tentionally discriminatory treatment suf- grounds. They prima ment no made facie University. fered at of the hands She showing any university action was presented also no evidence of im- upon unlawfully based an discriminatory pact. criterion. See International Brotherhood States, Teamsters v. United U.S. VII of 324, 358, 1866, 1843, S.Ct. L.Ed.2d next faculty asserts (1977); Lynn Regents the Univer- of Williams, Reg faculty mem male sity California, 656 F.2d 1340-41 of ber, has a valid claim for discrimination (9th Cir.1981); Andrus, Hagans v. salary because he received a “infected” (9th Cir.1981). Although plaintiffs the discrimination the female mem discriminatory established a attitude on the However, bers where suffered. even part official University, of one of the female faculty members are able frame through of disparaging evidence comments cognizable a Equal Pay Title VII or Act by the Vice President of the Health Sci- claim, employees it does not allow the male Center, ephem- ences the animus remained bootstrap job grievances “to their ... into eral. no There connection between his was an claim employment discrimination rooted any wage attitude and suggesting decisions County in federal law.” Los Ruffin disparate treatment. (9th Cir.), Angeles, denied, I agree cert. U.S. that the nurses failed to (1979)(sex-based wage 63 L.Ed.2d make a dis- facie case of discrimination using impact university employee an analysis. jobs. adverse This is of other they only were attempted comparisons never show that of "work”—not because practices “worth.” The district court any facially of the removed from neutral findings they impact its final of fact and conclusions complain had a disparate which magistrate’s law the observation that nurs- upon university faculty women members as might being paid they be es well less than to male opposed faculty members. See court, were In their worth. brief to this Griggs Co., v. Duke Power plaintiffs repeatedly having best, disclaim At presented any comparable theory. worth they showed that members of the possible It is thus not for this in this court paid than some were less any ruling case to render definitive on fields. male members in other validity comparable in worth as a tool plaintiffs’ is more appeal fate in this employment discrimination cases. product history any demon- than of reasons, For I join similar cannot in the cause. This strated unworthiness of their majority’s appropriate- discussion of the in in case was filed 1974 and tried theory ness of a in “comparability plus” before All evidence was received this wage discrimination ease. A fair evalua- Gunther, historic court’s decision concept’s utility this, any tion of that appellate opinion recognize first that a case, impossible theory other because the wage sex based discrimination claim could presented magistrate neither to the any proved way showing be other than when he considered the evidence nor unequal pay substantially equal district when it post court reviewed the magistrate’s work. The court’s district trial briefs. years decisions made before Su- existence, preme acknowledged Court I the majority opinion concur in validity, comparable if not of a worth remainder of the issues. theory when it affirmed decision. our Gunther, County Washington v. of 161, 166, 2242, 2246,

U.S.

L.Ed.2d 751

Plaintiffs’ counsel cannot faulted for be prescience regard,

a lack in this for the in LANDI, Uban, explosion comparable debate over worth Carol servants, agents, its began after our decision See employees representatives, Gunther. Gunther, County Washington class of land owners in the State California, U.S. 166 n. 2246 n. 6. Plaintiffs-Appellants, S.Ct. at Thus, case, it is no surprise that like this vintage, most cases of its was tried PHELPS, Judge Superi James Barton theory that the nurses’ was sub- work California, Court State or, stantially equal phrased it, plaintiff capacity, his individual and all his suc sufficiently comparable, wage to establish cessors, Defendant-Appellee. discrimination on the basis of sex. No. 83-1921. join majority’s I therefore cannot in the Appeals, States United Court of analysis of the issue. impact adverse It Ninth Circuit. confusingly impact meshes adverse varying concepts comparable worth. March Submitted 1984. confusion ten is evident in footnote July Decided 1984. majority opinion, the majority in which Rehearing July Denied fails even to define it “com- what means parable parties worth.” The did not any

present evidence of the of nurs- worth

ing faculty jobs comparison the worth

Case Details

Case Name: Margaret Spaulding, and James Bush, Intervenors-Appellants v. University of Washington

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 26, 1984

Citation: 740 F.2d 686

Docket Number: 82-3038

Court Abbreviation: 9th Cir.