THERESA M. SILER-KHODR, Plaintiff-Appellee, versus THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER SAN ANTONIO; ET AL., Defendants, and THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER SAN ANTONIO, Defendant-Appellant.
No. 00-50092
United States Court of Appeals, Fifth Circuit
August 24, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
OPINION
CARL E. STEWART, Circuit Judge:
The University of Texas Health Science Center San Antonio (UTHSCSA or the University) appeals from a final judgment awarding Dr. Theresa M. Siler-Khodr (Siler-Khodr) $91,000 back pay and $20,000 of compensatory damages, including costs and prejudgment interest,
FACTUAL & PROCEDURAL BACKGROUND
Siler-Khodr began her career at UTHSCSA in the Department of Obstetrics and Gynecology (Ob/Gyn Department) as an assistant professor in 1976. She has a Ph.D. in biochemistry, and she is a reproductive endocrinologist specializing in the area of hormones involved with the female reрroductive system. Siler-Khodr primarily conducts laboratory research in this field. She also publishes the results of her research, supervises Fellows, and teaches classes. She has also directed clinical and research laboratories. Siler-Khodr became a Full Professor with tenure in 1986, and her supervisor is Dr. Robert Schenken (Schenken).
Dr. Sydney Shain (Sydney) is also in the Department and joined the University in 1989. According to UTHSCSA, Sydney was hired in an effort to retain Dr. Rochelle Shain (Rochelle), Sydney‘s wife and one of the four Ph.D. researchers in the Ob/Gyn Department. Rochelle informed Dr. Carl Pauerstein (Pauerstein), chair of the Department since 1979, that her husband wanted to leave his job at the Southwest Foundation for Biological Research in San Antonio where he earned $80,000 per year. Pauerstein offered Sydney a job with the University at a salary of $83,000, in part, because he wаs concerned that Sydney would seek employment outside of San Antonio, causing Pauerstein to lose Rochelle. Siler-Khodr‘s salary at the time was $64,354. The University also justifies Sydney and Siler-Khodr‘s difference in pay by asserting that Sydney has been more successful than Siler-Khodr in obtaining grant funding.
Siler-Khodr filed suit in state district court against UTHSCSA, alleging in part violations of Title VII and of the EPA. The University subsequently removed to federal court. At trial, Siler-Khodr presented two studies: 1) the Women‘s Faculty Association Report conducted by the University in 1994 and 2) a report and testimony of Dr. Mary Gray (Gray), an expert statistician and Full Professor of mathematics and statistics at American University, in which she conducted a multiple regression analysis that controlled for a variety of factors.
Both reports indicated that gender significantly affected faculty salaries at the University. After adjusting for confounding factors such as rank, degree, tenure, duration in the institution and age, women tended to earn lower salaries than men. The reports studied salaries university-wide, and neither of them distinguished faculty salaries among medical specialities. The University contends that the Women‘s Faculty Association report was inherently flawed since, for example, more women tend to be pediatricians than surgeons at medical schools across the country and at UTHSCSA, and surgeons make considerably higher salaries than pediatricians. Moreover, UTHSCSA argues that the report did not analyze salaries within the Ob/Gyn Department and mentioned nothing regarding Siler-Khodr‘s salary. The University also asserts that Gray‘s report speaks only to the salary structure throughout the University. The report does not speak to the Ob/Gyn Department or the medical school in particular and does not pertain to Siler-Khodr‘s individual salary. In response, Siler-Khodr
A jury subsequently returned a verdict for Siler-Khodr on the issues of sex discrimination under Title VII and unequal pay under the Equal Pay Act. In addition to ordering back pay in the amount of $91,000 and compensatory damages in the amount of $20,000, it also ordered the University to equalize Siler-Khodr‘s compensation to that of Sydney and to pay her all sums necessary to accomplish that equalization retroactive to the date the jury returned the verdict. The district court further awarded Siler-Khodr an additional $91,000 in liquidated damages in keeping with the jury‘s finding under the Equal Pay Act, as well as reasonable attorneys’ fees. UTHSCSA moved for a judgment as a matter of law, pursuant to
DISCUSSION
I. Rule 50(a) Motion and the Sufficiency of Evidence
The district court refused to grant the University‘s
statistics evidencing an employer‘s pattern and practice of discriminatory conduct, which may be helpful to a determination of whether the alleged discriminatory act against the plaintiff conformed to a general pattern of discrimination against members of a protected group. . . . that evidence is not determinative of an employer‘s reason for the action taken against the individual grievant.
Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Terrell v. Feldstein Co., 468 F.2d 910, 911 (5th Cir. 1972)).
In contrast, the EPA has a higher threshold, requiring that an employer not discriminate between employees on the basis of sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.
A. Statistics
The University contends that the trial court erred when it failed to grant its
The University, however, fails to mention Plemer, a Fifth Circuit case almost directly on point. Moreover, the cases that UTHSCSA cites are inapposite. First, the Fifth Circuit stated in Plemer, a case with facts quite similar to those in the instant case, that
[i]f an employee establishes by statistics that an employer had a discriminatory practice or policy toward employees of the claimant‘s gender, the court may infer that the employer‘s justification for an action it took against the plaintiff was merely pretext and that the action was really taken on the basis of the plaintiff‘s gender in conformance with the general practice of discrimination.
Indeed, this Cоurt stated that the district court should have considered the plaintiff‘s statistics as evidence that rebutted the employer‘s evidence that the wage disparity between her and another male employee for the same position hinged on a factor other than sex. Id.
Second, the study in Zahorik did not consider discriminatory wage structures, and the statistics were limited in numbers, remote in time, based upon the statisticians’ estimates, and reflected a deliberate exclusion from consideration of nearly 50 tenure decisions. Third, Pollis is distinguishable from the instant case. The petitioner‘s statistics in that case failed because her sample group was too small, consisting of only eight faculty members, and too spread out over time, covering the years 1974-1993, to be probative of anything. In contrast, both studies that Siler-Khodr presented analyzed salary data of hundreds of faculty members, university-wide, during а single year. Fourth, Wyvill may be distinguished because it did not even involve statistics, but anecdotal evidence of how other individuals had been treated by the employer.
Furthermore, the Supreme Court has specifically addressed the University‘s arguments regarding the regression analysis in Gray‘s report. The Court concluded that [w]hile the omission of variables from a regression analysis may render the analysis less probative than it otherwise might be, it can hardly be said, absent some other infirmity, that an analysis which accounts for the major factors must be considered unacceptable as evidence of discrimination. Bazemore v. Friday, 478 U.S. 385, 400 (1986) (citation omitted). Normally, failure to include variables will affect the analysis’ probativeness, not its admissibility. Id. (emphasis added). Furthermore, the Court stated that [a] plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination by a preponderance оf the evidence. Id.
Thus, although both reports do not study faculty salaries by medical sub-specialty or study Pauerstein‘s individual conduct, they are sufficient to prove discrimination under a Title VII claim according to Supreme Court and this Court‘s precedent. Moreover, it is noteworthy that the University failed to present evidence at trial rebutting the conclusions of the reports that Siler-Khodr presented into evidence. In contrast, Siler-Khodr put forth ample evidence to overcome the
B. Affirmative Defenses
1. Grant-Obtaining Abilities
The University offered two affirmative defenses at trial to explain the wage differential alleged in Siler-Khodr‘s EPA and Title VII claims: 1) Sydney was more productive in his ability to secure
Siler-Khodr testified at trial that she had brought in $2.8 to $2.9 million in grants over the course of her tenure at the University as a principal investigator. In contrast, Sydney testified that he had obtained in excess of $1.9 million in grant money to the University. Pauerstein, however, testified that the department had attributed $2.9 million in grant funding, all from NIH, to Sydney as a Principal Investigator (PI) during the years 1989-1999. During the period 1975-1999, however, Pauerstein testified that Siler-Khodr obtained only $600,000 in grant funding as a principal investigator, all from NIH.
Sydney also testified that although he had not obtained any new grant funding since 1995, he had received raises since that time. Pauerstein testified that he did not recommend a raise for Sydney in 1999 because he had been unable to receive a grant. Similarly, Pauerstein testified that he did not recommend Siler-Khodr for a raise in 1999 because her track record in bringing in grant support was not excellent, although she had obtained grant support for that year. In 1991, however, Pauerstein
Siler-Khodr argues that the University‘s grant-obtaining defense is mere pretext for the discrepancy between her and Sydney‘s compensation. She notes, in contrast to Pauerstein‘s testimony regarding the importance of obtaining grants in evaluating salary raises, that Dean Young wrote in a 1996 letter that [t]here are no institutionally specified factors to consider as a basis for determining total annual compensation. Siler-Khodr also contends that the University presented neither a campus-wide nor departmental policy showing that this factor had ever been used as a wage-setting criterion. Although she was informed in her 1996 and 1997 faculty evaluations that she needed to improve her ability to obtain further grant funding for research studies, there is no evidence in the record that Siler-Khodr had been criticized in her evaluations for not obtaining sufficient funding prior to 1996 and 1997. The record also reflects that she had not been informed that she was рaid less because of her purportedly lesser ability to obtain grants.
A review of the record therefore indicates that Siler-Khodr presented sufficient evidence at trial to support the jury‘s finding that the University‘s grant-obtaining affirmative defense was pretext for its paying Siler-Khodr a lower wage than Sydney. We, therefore, hold that the district court did not err.
2. Prior Salary/Market Forces
The trial court similarly did not err when it denied the University‘s motion for judgment as
The University also argues that market forces dictated a higher salary for Sydney. It relies on the testimony of Dean Young, who stated that the wage differential is justified, given that the salary paid to a new employee is driven almost entirely by market forces- the University must expend resources to attract qualified individuals in a market where other organizations have the same goal. This Court has previously stated that the University‘s market forces argument is not tenable and simply perpetuates the discrimination that Congress wanted to alleviate when it enacted the EPA. See Brennan v. City Stores, Inc., 479 F.2d 235, 241 n.12 (5th Cir. 1973) (stating that factors other than sex such as the tighter market for salesmen and male tailors does not justify its hiring of men with such skills at a rate higher than that paid to obtain women of similar skills).
II. Constitutionality of the EPA
The University asserts that Congress exceeded its authority when it abrogated the states’ Eleventh Amendment immunity in the EPA, in light of the Supreme Court‘s recent opinion in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). Kimel held that the Age Discrimination in Employment Act of 1967 (ADEA),
This Court reviews de novo the question of whether a state is entitled to immunity under the Eleventh Amendment. Ussery, 150 F.3d at 434. This Court in Ussery explicitly upheld the constitutionality of the EPA under the Eleventh Amendment in a similar challenge when it stated, [b]y amending the EPA to include the States as employers, Congress sought to eliminate such discrimination by the States themselves . . . [and] it goes without saying that the substantive provisions of the Fourteenth Amendment prohibit the States from discriminating on the basis of
We find that in the wake of Kimel, the EPA nevertheless does not violate the Eleventh Amendment of the Constitution because it is congruent and proportional between the injury to be prevented or remedied and the means adopted to that end and is therefore an appropriate use of Congress‘s § 5 power of the Fourteenth Amendment. City of Boerne, 521 U.S. at 520. Kimel held that the ADEA was not an appropriate use of Congress‘s § 5 power because it was not congruent and proportional to the means employed by the Equal Protection Clause to prohibit discrimination by the states on the basis of age. Kimel, 528 U.S. at 82-86. The Court essentially fоund that the discriminatory conduct that is prohibited by the ADEA, as applied to the states, is disproportionate to similar conduct prohibited by the Constitution‘s Equal Protection Clause. Id.
The Kimel Court distinguished between state discrimination on the basis of age, which requires rational review under Equal Protection, and state discrimination on the basis of race or gender, which requires higher standards of review and a tighter fit between the discriminatory means and the legitimate ends they serve. Id. at 84. Importantly, other courts to consider this issue post-
Moreover, although the Kimel Court discussed the lack of legislative findings regarding unconstitutional age discrimination by the states, it nonetheless stated that lack of support is not determinative of the § 5 inquiry. Kimel, 528 U.S. at 91. Other courts examining the lack of legislative findings regarding the discriminatory practices by the states on the basis of gender have found this argument unpersuasive, as the historical record clearly demonstrates that gender discrimination is a problem that is national in scope, whether or not committed in the public sector. Varner, 226 F.3d at 935-36; see also Kovacevich, 224 F.3d at 821 n.6 (stating that we are satisfied by Congress‘s more general finding in enacting the original EPA that wage differentials are due to outmoded beliefs about the relative value of men‘s and women‘s work . . . combined with the fact that women have been subjected to a history of purposeful unequal treatment more generally (internal citations omitted)). Thus, we hold that the EPA is constitutional under the Eleventh Amendment.
We affirm the district court‘s denial of UTHSCSA‘s motion for judgment as a matter of law because its judgment was legally sufficient to support the jury‘s findings of prima facie sex discrimination under Title VII and unequal pay under the EPA. We also agree with our sister circuits that the EPA does not violate the Eleventh Amendment of the Constitution in light of the Supreme Court‘s decision in Kimel.
AFFIRMED.
Insofar as the majority opinion affirms the judgment of the district court and the jury verdict authorizing recovery against the University for discrimination under Title VII (
As to the portion of the majority opinion that affirms the district court‘s award of money damages based on the jury finding of a violation of the Equal Pay Act of 1963,
I. Historical Review
I think a brief historical review of the key statutory provisions involved in this appeal will be helpful to understanding my dissent. The Fair Labor Standards Act (codified as amended at
In 1963, Congress enacted the Equal Pay Act of 1963, which amended
The bill (H.R. 6060) would add one additional fair labor standard to the act; namely, the employees doing work should be paid equal wages, regardless of sex.
Because of the long history and experienсe of Government and business and workers with the Fair Labor Standards Act, a simple expansion of that act to include the equal pay concept offers the most efficient and least difficult course of action.
. . . .
Such utilization serves two purposes: First, it eliminates the need for a new bureaucratic structure to enforce equal pay legislation; and second, compliance should be made easier because both industry and labor have a long-established familiarity with existing fair labor standards provisions.
Perhaps the most worthy result in this approach is in the question of coverage. This bill neither extends nor curtails coverage of the Fair Labor Standards Act but simply provides that those employers and employees who are presently covered by that act shall be covered by the new provisions relating to equal pay for equal work, regardless of sex.
H.R. Rep. No. 88-309, at 1-2 (1963), reported in 1963 U.S.C.C.A.N. 687, 687-89.
The final source of congressional action that must be considered in resolving the issues in this appeal is the Act entitled Fair Labor Standards Amendments of 1974 [hereinafter 1974 Act], Pub. L. No. 93-259, 88 Stat. 53. The 1974 Act consists of 29 separate sections covering 25 pages. Section 1 of the 1974 Act simply provides thе name by which the Act may be cited and states that unless otherwise expressly specified any reference to an amendment or repeal refers to sections or provisions of the Fair Labor Standards Act of 1938 (
Section 2 through § 27, therefore, are the portions of the 1974 Act that make changes in and additions to the
- Section 6(a)(1) of the 1974 Act which made various changes to the statutory definitions in
§ 203 of the FLSA so as to: (1) include a new defined term of “public agency” which includes “a state or a political subdivision of a state“; (2) amends the term “employer” to include “a public agency“; and (3) defines the term “employee” to include “an employee of a public agency except those who are covered by civil service or who hold a public elective office.” - Section 6(d)(1) of the 1974 Act which changes the second sentence of
§ 16(b) [29 U.S.C. § 216(b)] to read as follows:Action to recover such liability may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.
This change was made to satisfy the holding of the Supreme Court in Employees of the Department of Health of Missouri v. Missouri, 93 S. Ct. 1614, which was decided
Where employees in state institutions not cоnducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status
should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress acting responsibly would not be presumed to take such action silently.... But we have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts....It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution....
... In this connection, it is not amiss to note that
§ 16(b) allows recovery by employees, not only of the amount of unpaid wages but of an equal amount as liquidated damages and attorneys’ fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly.
- In § 7 of the 1974 Act, various changes in sections of the
FLSA were made in order to bring “domestic service workers” under the provisions of that Act. Of these changes the most significant to our current analysis is the change made by § 7(a) of the 1974 Act, which inserts the following new sentence in§ 202(a) of the FLSA : “That Congress further finds that the employment of persons in domestic service in households affectscommerce.” This change clearly indicates to me that Congress thought about the subject, and the basis of authоrity, of what changes, if any, it needed to make in § 202 of the FLSA , the section that sets forth its statements of effects on interstate commerce justifying its exercise of the power to regulate commerce.
While it is true that the 1974 Act, unlike the
The bill seeks to implement the policy of the Act [the
FLSA ] by (1) providing an increase in the minimum wage rate, and (2) extending the benefits and protection of the Act to workers engaged in commerce, or in the production of goods for commerce or employed in enterprises engaged in commerce or in the production of goods for commerce.
Id. Later on in this same section of the Committee report, there is a very cursory reference: “The bill extends the minimum wage and overtime coverage of the Act to Federal, State and local government employees....” Id. Later on in the report in a section-by-section discussion of the main provisions of the bill, the report states:
Sec. 6. Federal and State Employees. -- Amends definitions of the act to permit the extension of minimum wage and overtime coverage to Federal, State, and local public employees.
Id. Later on in this report, there is a two-page discussion of § 6 of the bill, which would extend “minimum wage and overtime coverage to about five million nonsupervisory employees in the public sector not now covered by the Act.” Id. In this discussion, there is no specific reference to the “equal pay for equal work” provisions of subsection (d) of
In light of the foregoing, I come to the following conclusions:
- In adopting the
FLSA and theEqual Pay Act of 1963 , Congress expressly and explicitly, in the statutes themselves, relied upon its powers under the Interstate Commerce Clause of the Constitution. - In passing the 1974 Act, Congress acted under its authority under the Interstate Commerce Clаuse. While this conclusion is not as express and as explicit as that regarding the
FLSAEqual Pay Act of 1963 , there is overwhelming evidence upon which to draw such a conclusion, and there is no evidence that would support a contrary conclusion. - From my review of the statutory language in each of these legislative enactments and their respective legislative histories, I can see absolutely no basis for treating the provisions of
§ 206(d) separately and apart from the remainder of theFair Labor Standards Act for purposes of determining the constitutional power upon which Congress purported to act.
I disagree completely with my colleagues in the majority who relied upon the prior opinion of this Court in Ussery, which relied upon prior opinions of other Circuit Courts, in attributing some sort of separate standing to the
II. The Impact of Seminole Tribe
No satisfactory disposition of the case now before us can be accomplished without giving full application to the decision of the Supreme Court in Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996). In Seminole Tribe, the Supreme Court made two holdings that control in this case. First and foremost, the Supreme Court overruled its prior decision in Pennsylvania v. Union Gas Co., 109 S. Ct. 2273, in which a plurality of the Supreme Court held that Congress had the power under the Interstate Commerce Clause to abrogate the immunity that a State claims under the
[W]e reconfirm that the bаckground principle of state sovereign immunity embodied in the
Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government....TheEleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner‘s suit against the State of Florida must be dismissed for a lack of jurisdiction.
Seminole Tribe, 116 S. Ct. at 1131-32. The Act in question in this case was the
In my view, this precise question rephrased to fit the circumstances of this case is the determinative issue for this Court. That question is “Was the 1974 Act passed pursuant to a
- Under what provision of the Constitution was the 1974 Act passed; and
- Does that constitutional provision grant Congress the power to abrogate the state‘s
Eleventh Amendment immunity from suit?
For the reasons stated earlier in this dissent, I have no trouble at all conсluding that the 1974 Act was passed pursuant to Congress’ powers under the Interstate Commerce Clause. And in my view, the answer to the second subquestion is controlled by Seminole Tribe and must be “no“. Answers to these questions are strictly factual determinations to be made on the basis of the statutory text and the legislative history as of the time of “passage” or “enactment” of the Act in question. I make this point expressly because I disagree with the panel majority‘s reliance on our prior decision in Ussery, which relied on an Eighth Circuit case and stated:
Seminole Tribe “requires us to make an objective inquiry, namely whether Congress could have enacted the legislation at issue pursuant to a constitutional provision granting it the power to abrogate.” (Emphasis added.)
150 F.3d at 436 (quoting Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997)). But this “could of, would of, should of” concept is totally inconsistent with the language of Seminole Tribe. The
Nor are we free to rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that
§ 2710(d)(7) was beyond its authority. If that effort is to be made, it should be made by Congress, and not by the federal courts.
Id. The majority opinion in Seminole Tribe does not get into any speculation as to whether