Dorothy F. Donnelly, et al., Plaintiffs, Appellants, v. Rhode Island Board of Governors for Higher Education, Etal., Defendants, Appellees, 110 F.3d 2 (1st Cir. 1997)

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 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. 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, 133 L. Ed. 2d 27 (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 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 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, maledominated 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 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 (7th Cir. 1995) (citing Weiss v. Coca-Cola Bottling Co. 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. at 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.