
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                                         -2-            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).                                         -3-            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                                         -5-            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.                                         -6-            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.                                         -8-
