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

_________________ _______________

Mann & Mitchell were on brief for appellants.

_______________
Jay S. Goodman
________________

and

Fidelma Fitzpatrick
___________________

DeMagistris, Louis J. Saccoccio,

___________ ___________________
Rhode

with

whom

William
_______

General Counsel, The University

_______________

Island, Marc B. Gursky, Julie A.

Thomas and Law Office of M

_____________

______________

________________

_______________

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

damages

in the

pursuant to

1964, 42 U.S.C.

Fair

district court for

Title VII

of the

an injunction

Civil Rights

2000e et seq. (1994) and the

__ ___

Employment Practices

Act,

(1997).

Plaintiffs contend that

faculty

salary plan

has

received by women faculty.1

R.I.G.L.

and

Act of

Rhode Island

28-5-1 et
__

seq.
___

the University's three-tier

a disparate

impact

upon the

pay

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)

complaining

party

demonstrates

that

respondent uses a particular employment practice that

a disparate impact
sex,

or

national

demonstrate that
the

on the

position

basis of

origin

and

race, color,

the

respondent

the challenged practice is

in

question

and

causes

religion,
fails

to

job related for

consistent

with

business

necessity; or
(ii) the complaining party makes
described in subparagraph (C)
employment practice and the

the demonstration

with respect to an alternative

respondent refuses to adopt such

alternative employment practice.

42 U.S.C.

2000e-2(K)(1)(A) (West 1994).

The

Island

Rhode

Fair

Employment

Practices Act,

as

amended in 1991, states, in relevant part:

(a) An unlawful employment
5-7

may be

established by

practice prohibited by

proof of

unlawful employment practice by

disparate impact.

28An

proof of disparate impact is

established when:
(1)
practice

A complainant demonstrates

results in a disparate impact on the basis of race,

color, religion,
country

that an employment

sex, sexual orientation, handicap,

of ancestral

demonstrate

that

the

origin,
practice

-2-

and the
is

age, or

respondent fails
required

by

to

business

provides

for

different salary

minimums

derived,

in large

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

professors

within

claim

in

that tier.

on

the

University's

faculty

the

fact

same

academic

Plaintiffs

that

clustered within

base their

while

entire faculty

the

disciplines

are

only

27

women, 31

disciplines

encompassed

disparate impact

percent

of

the

percent of

the

included in

the

lower

paying tiers are women,

percent of those in

while women make

up only ten

the disciplines included in the

highest

paid tier.

The

district

thereafter issued

published.

two

a comprehensive

Donnelly v.
________

Educ., 929 F.
_____

had

failed to

established,

burden of showing

(1) that

establish

It

trial

and

since

denied relief on

the plaintiff

prima

facie

that, even had such a

the

University

that the plan

business necessity.

bench

Opinion and Order,

Supp. 583 (D.R.I. 1996).

disparate impact; and (2)

case been

held

R.I. Bd. of Governors for Higher

___________________________________

independent grounds:

members

with

court

Id.

had

case

of

prima facie

sustained

it followed was

Because

faculty

we agree

the

consistent

with the

___

district court that the plaintiffs

burden that

have failed to meet their

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

substantially

and IV

the

district

court's judgment

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

of its Opinion and

Order.

As we

adopt the district

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

we

for

opinion)

do not undertake a separate statement of our views except

for the following brief comments.

Plaintiffs,

failed to

prima

as

establish all

facie

case of

the

(women), and

between the

plan and

court

shows,

the necessary ingredients

disparate

"disparateness" of the salary

group

district

impact,

have

of their

in particular

the

plan's impact on the protected

the existence

any purported

of a

causal relationship

disparate impact.

See
___

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

________
__________________________________

601 (1st

Cir.), cert. denied,

____________

___ U.S.

___, 116 S.

594,

Ct. 65

(1995).

Thus

plaintiffs have

challenged Plan A has

general

or

required in

v.

not

demonstrated

that

any adverse impact either on

themselves

in

particular

(the

women in

latter

being

this non-class disparate impact action, Robinson

________

Polaroid Corp., 732

_______________

F.2d

1010,

1016

(1st Cir.

(citing Coe v. Yellow Freight Sys., Inc., 646 F.2d

___
__________________________

(10th Cir.

the

1981).)2

Nor have

they shown that they,

1984)

444, 451

or the

____________________

2.

Contrary to

the appellants'

the authority, both

before and

contentions, the weight

after the

enactment of

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

under the

Tier B (or

Plan salaries that are

Tier C) receive

proportionately lower than

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

__________________

teaching in

the same or comparable

academic disciplines) at

the

University

around

that

the

of Rhode

the country.

Island

In fact,

without

paid tier,

Plan A

and

institutions

male and female,

are better

better

at other

the record strongly indicates

the faculty members, both

lowest

or

off

off

than

in Tier B,

than they

are

their

would be

academic

counterparts in the national market due to features of Plan A

that tend to improve

in

the compensation of professors teaching

the lower paid disciplines.3

The appellants argue, to be

____________________

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

a particular

device or

opportunities of
the effect that
classes."
with Walter
____

system adversely
_________

a defined protected class

device has upon

Connolly, Jr.

when compared to
_____________

the opportunities of

(emphasis added)), and

B.

affects employment

and

5.54, at
Michael J.

other

419-21 (1988)
Connolly,

Practical Guide to Equal Employment Opportunity

at

1-18.1

facially

(1996)

("Disparate

impact

neutral

employment

practices

disproportionately
__________________
groups . . . ."

It

is

statutes,

negative
________

effect

1.02[1][a],

. . . results

on

that
certain

from

have

protected

(emphasis added)).

also

common sense

like Title

VII

that,

and the

to

avail oneself

RI-FEPA,

which seek

of
to

redress the effects of discriminatory employment practices on

protected
an

injury

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

stemming from

(adverse impact)

one

or

more of

those

practices

disproportionately borne by members

of one

or more of those groups (disparate impact).

3.

Under

Plan A,

discipline starts

with an

State

University

Survey,

pegged to the average salary of assistant professors

in that

index number,

from

discipline compared
professors.

each academic
the Oklahoma

to the average salary

The disciplines

for all assistant

are then categorized into tiers

-5-

sure, that failure to recalculate the

a few

disciplines at

nursing,

the University of

a predominately

female

currently

underestimate their

market.

But

there

dominated disciplines

and, in

occurred

any

event,

are not ones

index numbers has kept

is no

Rhode Island,

discipline, in

actual worth in

indication

that

may not have suffered

the fields

where

like

tiers that

the national

other,

male-

a similar fate,

this

within which appellants

has

allegedly

teach at the

University of Rhode Island.

The appellants'

proof of the

causation aspect

of

their

prima facie case is

court

found,

the

professors' choice of academic field and the workings of

the

market, and

929

not
___

F.

Supp.

As the district

591-92,

national

Donnelly,
________

also deficient.

Plan A,

as

at

such, are

basically

responsible for compensatory differences between tiers within

the

Plan, these differences

reference to

being generally

nationwide faculty salaries

established by

within the various

____________________

and

their index

numbers are

factor assigned to their

relegated to the

particular tier.

lowest tier further

express goal of narrowing

as careers
achieved

rounded off to

progress.

the relational

Those disciplines

benefit from Plan

A's

the salary disparities among tiers

This

goal

of convergence

has

been

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

the salary

increases annually

Rhode Island.

The

that

University of

collective bargaining agreements

for other salary increases,

awards,

awarded by the

enable

of

provide

like performance and merit based

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

beyond its logical boundaries

members in Tier B

the

disparate impact

theory

when they suggest that faculty

should be compensated at the

same minimum

rates as those in the different academic disciplines embraced

by Tier

D.

In

so doing,

comparable

worth

argument

analyses.

To

make

discrimination under

out

they seem

into

prima

to

Title

facie

Title VII, and also

be introducing

VII

case

and

of

RI-FEPA

salary

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

guidance

federal

in interpreting

needs proof

Johnson v.
_______

courts construing

the

RI-FEPA), a

that similarly situated males

__________________

Title VII

female

claimant

were better paid.

University of Wisconsin-Eau Claire,

__________________________________

478 (9th Cir.

for

70 F.3d 469,

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
obstetrics

and

whom might

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

the

field of

males.

See
___

gynecology department,

cardiology containing
Jay

a larger

the

a higher

portion of

proportion of

Green, Doctors' Salaries Are Rising More

___________________________________

Slowly These Days, The

__________________

Orange County Register,

1995, at Business Section.

-7-

October 11,

of Chicago,
___________

appellants

hurdle

990

338

(7th

Cir.

1993)).5

The

in this case have failed to surmount this initial

in the

district

F.2d 333,

disparate

impact analysis.

We affirm

the

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

prima facie case of disparate impact.

The district court, in

went

on

to

address

the

issue

Section III of its opinion,

of

"business

necessity,"

Donnelly, 929
________

F. Supp. 592-94.

As in the absence of a prima

facie case there is no occasion to reach

no position

on it, nor

do we join

in the district

reasoning on that score.

Affirmed.
________

____________________

that issue, we take

Costs for appellees.

___________________

court's

5.

Unlike the

respondents in Connecticut v.
___________

Teal, 457 U.S.

____

440 (1982), the appellants in this

case are in no way denied

the

equal

opportunity

to

compete

on

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
Liberles
________
the

short,

contrary

to

v. County of Cook,
______________

University of

Rhode

the

situation

709 F.2d 1122

Island,

presented

(7th Cir. 1983),

through its

three-tiered

scheme, is simply paying different people different

for different, not similar, work.

-8-

in

salaries