USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1834
DOROTHY F. DONNELLY, ET AL.,
Plaintiffs, Appellants,
v.
RHODE ISLAND BOARD OF GOVERNORS
FOR HIGHER EDUCATION, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Aldrich and Campbell, Senior Circuit Judges.
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Lynette Labinger with whom Roney & Labinger, Robert B. Mann and
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Mann & Mitchell were on brief for appellants.
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Jay S. Goodman and Fidelma Fitzpatrick with whom William G.
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DeMagistris, Louis J. Saccoccio, General Counsel, The University of
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Rhode Island, Marc B. Gursky, Julie A. Thomas and Law Office of Marc
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Gursky, were on brief for appellees.
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April 7, 1997
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CAMPBELL, Senior Circuit Judge. This appeal is
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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
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Fair Employment Practices Act, R.I.G.L. 28-5-1 et seq.
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(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
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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
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(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
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Educ., 929 F. Supp. 583 (D.R.I. 1996). It denied relief on
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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
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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
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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
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E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d 594,
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601 (1st Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 65
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(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
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v. Polaroid Corp., 732 F.2d 1010, 1016 (1st Cir. 1984)
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(citing Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451
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(10th Cir. 1981).)2 Nor have they shown that they, or the
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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,
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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
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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
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at 356 ("Plaintiff carries the initial burden of proving that
a particular device or system adversely affects employment
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opportunities of a defined protected class when compared to
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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
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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
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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
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professors' choice of academic field and the workings of the
national market, and not Plan A, as such, are basically
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responsible for compensatory differences between tiers within
the Plan, these differences being generally established by
reference to nationwide faculty salaries within the various
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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,
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et al., 484 A.2d 893, 898 (R.I. 1984) (looking at the
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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.
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Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469,
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478 (9th Cir. 1995) (citing Weiss v. Coca-Cola Bottling Co.
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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
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Slowly These Days, The Orange County Register, October 11,
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1995, at Business Section.
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of Chicago, 990 F.2d 333, 338 (7th Cir. 1993)).5 The
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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
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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.
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5. Unlike the respondents in Connecticut v. Teal, 457 U.S.
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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),
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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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