Donnelly v. RI Board of Governor

• Court: Court of Appeals for the First Circuit
• Decided: April 8, 1997
• Docket: 96-1834
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1834



                             DOROTHY F. DONNELLY, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                           RHODE ISLAND BOARD OF GOVERNORS

                            FOR HIGHER EDUCATION, ET AL.,



                                Defendants, Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
                                        _____________



                     Aldrich and Campbell, Senior Circuit Judges.
                                           _____________________



                                 ____________________



            Lynette Labinger  with whom Roney &  Labinger, Robert  B. Mann and
            ________________            _________________  _______________

        Mann & Mitchell were on brief for appellants.
        _______________

            Jay  S.  Goodman  and  Fidelma Fitzpatrick  with  whom  William G.
            ________________       ___________________              __________

        DeMagistris, Louis  J. Saccoccio,  General Counsel, The  University of
        ___________  ___________________                    __________________

        Rhode  Island, Marc B. Gursky, Julie A.  Thomas and Law Office of Marc
        _____________  ______________  ________________     __________________

        Gursky, were on brief for appellees. 
        ______

                                 ____________________



                                    April 7, 1997

                                 ____________________



CAMPBELL,  Senior  Circuit Judge.   This  appeal is
                                 _____________________



            brought by certain women faculty members at the University of



            Rhode Island from the adverse judgment of the district court.



            They had sued  in the  district court for  an injunction  and



            damages  pursuant to  Title VII  of the  Civil Rights  Act of



            1964, 42 U.S.C.    2000e et seq. (1994) and the  Rhode Island
                                     __ ___



            Fair  Employment Practices  Act,  R.I.G.L.    28-5-1 et  seq.
                                                                 __  ___



            (1997).  Plaintiffs contend that  the University's three-tier



            faculty  salary plan  has  a disparate  impact  upon the  pay



            received by women faculty.1  Each tier of the challenged plan



                                
            ____________________



            1.  Title VII  of the Civil Rights Act of 1964, as amended by

            the Civil Rights Act of 1991, provides, in pertinent part:

                 (1)(A)    An  unlawful  employment   practice  based  on

            disparate impact is established under this subchapter only if

            --

                      (i)  a   complaining  party  demonstrates   that  a

            respondent uses a particular employment practice that  causes

            a disparate impact  on the  basis of  race, color,  religion,

            sex,  or   national  origin  and  the   respondent  fails  to

            demonstrate that  the challenged practice is  job related for

            the  position   in  question  and  consistent  with  business

            necessity; or

                      (ii) the complaining party makes  the demonstration

            described in subparagraph (C)  with respect to an alternative

            employment practice and the  respondent refuses to adopt such

            alternative employment practice.

                 42 U.S.C.   2000e-2(K)(1)(A) (West 1994).



                 The  Rhode  Island  Fair  Employment  Practices Act,  as

            amended in 1991, states, in relevant part:

                 (a) An unlawful employment  practice prohibited by   28-

            5-7  may be  established by  proof of  disparate impact.   An

            unlawful employment practice by  proof of disparate impact is

            established when:

                      (1)  A complainant demonstrates  that an employment

            practice  results in a disparate impact on the basis of race,

            color, religion,  sex, sexual orientation, handicap,  age, or

            country  of ancestral  origin,  and the  respondent fails  to

            demonstrate  that  the  practice   is  required  by  business



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provides  for  different salary  minimums  derived,  in large



            part, from data as to the average salaries paid nationally to



            professors  in  the  same  academic  disciplines  encompassed



            within  that tier.   Plaintiffs  base their  disparate impact



            claim  on  the  fact  that  while  only  27  percent  of  the



            University's  entire faculty  are  women, 31  percent of  the



            faculty  clustered within  the  disciplines  included in  the



            lower  paying tiers are women,  while women make  up only ten



            percent of those in  the disciplines included in the  highest



            paid tier.



                      The   district  court   held  a  bench   trial  and



            thereafter issued  a comprehensive  Opinion and Order,  since



            published.   Donnelly v.  R.I.  Bd. of  Governors for  Higher
                         ________     ___________________________________



            Educ., 929 F.  Supp. 583 (D.R.I. 1996).  It  denied relief on
            _____



            two  independent grounds:    (1) that  the plaintiff  faculty



            members  had  failed to  establish  a  prima  facie  case  of



            disparate impact; and (2)  that, even had such a  prima facie



            case been  established,  the  University  had  sustained  the



            burden of showing  that the plan  it followed was  consistent



            with  business necessity.   Id.   Because  we agree  with the
                                        ___



            district court that the plaintiffs  have failed to meet their



            burden that  the University's plan has a  disparate impact on



            female faculty members, we do not reach the issue of business


____________________



            necessity.

                 R.I.G.L.   28-5-7.2(a)(1) (West 1997).



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necessity.    We affirm  the  district  court's judgment  for



            substantially  the same reasons it set out in Sections I, II,



            and IV  of its Opinion and  Order.  As we  adopt the district



            court's reasoning (other than in Section III of its  opinion)



            we  do not undertake a separate statement of our views except



            for the following brief comments.



                      Plaintiffs,  as  the  district  court  shows,  have



            failed to  establish all  the necessary ingredients  of their



            prima  facie  case of  disparate  impact,  in particular  the



            "disparateness" of the salary  plan's impact on the protected



            group  (women), and  the existence  of a  causal relationship



            between the  plan and  any purported  disparate impact.   See
                                                                      ___



            E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d  594,
            ________    __________________________________



            601 (1st  Cir.), cert. denied,  ___ U.S.  ___, 116 S.  Ct. 65
                             ____________



            (1995).



                      Thus  plaintiffs have  not  demonstrated  that  the



            challenged Plan A has  any adverse impact either on  women in



            general   or  themselves  in  particular  (the  latter  being



            required in  this non-class disparate impact action, Robinson
                                                                 ________



            v.  Polaroid  Corp., 732  F.2d  1010,  1016  (1st Cir.  1984)
                _______________



            (citing Coe v. Yellow  Freight Sys., Inc., 646 F.2d  444, 451
                    ___    __________________________



            (10th Cir.  1981).)2  Nor have  they shown that they,  or the



                                
            ____________________



            2.  Contrary to  the appellants'  contentions, the weight  of

            the authority, both  before and  after the  enactment of  the

            Civil Rights Act of 1991, suggests that the element of impact

            combines  two  components:    adverseness  and disparateness.

            Compare Mack A. Player, Employment Discrimination Law   5.41,
            _______



                                         -4-



other  female faculty members in  Tier B (or  Tier C) receive



            under the  Plan salaries that are  proportionately lower than



            those ordinarily paid to similarly situated males (i.e. males
                                     __________________



            teaching in  the same or comparable  academic disciplines) at



            the  University  of Rhode  Island  or  at other  institutions



            around  the country.  In fact,  the record strongly indicates



            that  the faculty members, both  male and female,  in Tier B,



            the  lowest  paid tier,  are better  off  than they  would be



            without  Plan A  and  better  off  than  are  their  academic



            counterparts in the national market due to features of Plan A



            that tend to improve  the compensation of professors teaching



            in  the lower paid disciplines.3  The appellants argue, to be



                                
            ____________________



            at 356 ("Plaintiff carries the initial burden of proving that

            a particular  device or  system adversely  affects employment
                                            _________

            opportunities of  a defined protected class  when compared to
                                                         _____________

            the effect that  device has upon  the opportunities of  other

            classes."   (emphasis added)), and    5.54, at  419-21 (1988)

            with Walter  B.  Connolly, Jr.  and  Michael J.  Connolly,  A
            ____

            Practical Guide to Equal Employment Opportunity   1.02[1][a],

            at  1-18.1  (1996)   ("Disparate  impact  . . . results  from

            facially   neutral   employment   practices   that   have   a

            disproportionately  negative  effect  on   certain  protected
            __________________  ________

            groups . . . ."  (emphasis added)).



                 It  is  also  common sense  that,  to  avail oneself  of

            statutes,  like Title  VII  and the  RI-FEPA,  which seek  to

            redress the effects of discriminatory employment practices on

            protected  groups, one would have to show, at the very least,

            an  injury  stemming from  one  or  more of  those  practices

            (adverse impact)  disproportionately borne by members  of one

            or more of those groups (disparate impact).



            3.  Under  Plan A,  each academic  discipline starts  with an

            index number,  from  the Oklahoma  State  University  Survey,

            pegged to the average salary of assistant professors  in that

            discipline compared  to the average salary  for all assistant

            professors.  The disciplines  are then categorized into tiers



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sure, that failure to recalculate the  index numbers has kept



            a few  disciplines at  the University of  Rhode Island,  like



            nursing,  a predominately  female  discipline, in  tiers that



            currently  underestimate their  actual worth in  the national



            market.    But  there  is no  indication  that  other,  male-



            dominated disciplines  may not have suffered  a similar fate,



            and, in  any  event,  the fields  where  this  has  allegedly



            occurred  are not ones  within which appellants  teach at the



            University of Rhode Island.



                      The appellants'  proof of the  causation aspect  of



            their  prima facie case is  also deficient.   As the district



            court  found,   Donnelly,  929   F.  Supp.  at   591-92,  the
                            ________



            professors' choice of academic field and the workings of  the



            national  market, and  not  Plan A,  as  such, are  basically
                                   ___



            responsible for compensatory differences between tiers within



            the  Plan, these differences  being generally  established by



            reference to  nationwide faculty salaries  within the various



                                
            ____________________



            and  their index  numbers are  rounded off to  the relational

            factor assigned to their  particular tier.  Those disciplines

            relegated to the  lowest tier further  benefit from Plan  A's

            express goal of narrowing  the salary disparities among tiers

            as careers  progress.   This  goal  of convergence  has  been

            achieved  by allocating a higher portion of the Plan A raises

            to the faculty members in Tier B.



                 Plan A actually accounts for only a small percentage  of

            the salary  increases annually  awarded by the  University of

            Rhode Island.  The  collective bargaining agreements  provide

            for other salary increases,  like performance and merit based

            awards,   that  enable   exceptional   professors  in   every

            discipline to earn more than their peers.


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disciplines.  Most, if not all, higher education institutions



            in this country display similar discipline-based compensatory



            disparities; without Plan A, faculty members in Tier B would,



            on  the whole, continue to earn less (probably even less than



            currently) than those in the higher tiers.4



                      The  appellants take  the  disparate impact  theory



            beyond its logical boundaries  when they suggest that faculty



            members in Tier B  should be compensated at the  same minimum



            rates as those in the different academic disciplines embraced



            by Tier  D.   In  so doing,  they seem  to  be introducing  a



            comparable  worth  argument   into  Title  VII   and  RI-FEPA



            analyses.    To  make  out  a  prima  facie  case  of  salary



            discrimination under  Title VII, and also  under the RI-FEPA,



            see Newport Shipyard,  Inc. v. R.I. Comm'n  for Human Rights,
            ___ _______________________    ______________________________



            et  al.,  484  A.2d 893,  898  (R.I.  1984)  (looking at  the
            _______



            decisions  of the  federal  courts construing  Title VII  for



            guidance  in interpreting  the  RI-FEPA), a  female  claimant



            needs proof  that similarly situated males  were better paid.
                              __________________



            Johnson v.  University of Wisconsin-Eau Claire,  70 F.3d 469,
            _______     __________________________________



            478 (9th Cir.  1995) (citing Weiss v. Coca-Cola  Bottling Co.
                                         _____    _______________________



                                
            ____________________



            4.  One can  imagine similar scenarios  in other professions.

            For example, a hospital might set up a compensatory scheme in

            which, because of supply and demand dynamics, doctors in  the

            obstetrics  and  gynecology department,  a larger  portion of

            whom might  be female, get paid at a lower rate than those in

            the  field of  cardiology containing  a higher  proportion of

            males.   See  Jay  Green, Doctors'  Salaries Are  Rising More
                     ___              ___________________________________

            Slowly These  Days, The  Orange County Register,  October 11,
            __________________

            1995, at Business Section.



                                         -7-



of  Chicago,  990  F.2d 333,  338  (7th  Cir.  1993)).5   The
            ___________



            appellants  in this case have failed to surmount this initial



            hurdle  in the  disparate  impact analysis.    We affirm  the



            district  court's holding that they have failed to make out a



            prima facie case of disparate impact.



                      The district court, in  Section III of its opinion,



            went  on  to  address  the  issue  of  "business  necessity,"



            Donnelly, 929  F. Supp. 592-94.  As in the absence of a prima
            ________



            facie case there is no occasion to reach  that issue, we take



            no position  on it, nor  do we join  in the district  court's



            reasoning on that score.



                      Affirmed.  Costs for appellees.
                      ________   ___________________


____________________



            5.  Unlike the  respondents in Connecticut v.  Teal, 457 U.S.
                                           ___________     ____

            440 (1982), the appellants in this  case are in no way denied

            the  opportunity  to  compete   on  equal  terms  with  other

            professors, male and female, in their respective disciplines,

            nor, were they to satisfy the job-related criteria, to access

            positions in the higher-paying Tier D disciplines.



                 In  short,   contrary  to  the  situation  presented  in

            Liberles  v. County of Cook,  709 F.2d 1122  (7th Cir. 1983),
            ________     ______________

            the  University of  Rhode  Island,  through its  three-tiered

            scheme, is simply paying different people different  salaries

            for different, not similar, work.



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