Ende v. Board of Regents of Regency Universities, 83-2066
| Decision Date | 20 March 1985 |
| Docket Number | No. 83-2066,83-2066 |
| Citation | 757 F.2d 176 |
| Parties | 37 Fair Empl.Prac.Cas. 575, 28 Wage & Hour Cas. (BN 297, 36 Empl. Prac. Dec. P 35,081, 53 USLW 2499, 102 Lab.Cas. P 34,661, 23 Ed. Law Rep. 877 Russell S. ENDE, et al., Plaintiffs-Appellants, v. BOARD OF REGENTS OF REGENCY UNIVERSITIES, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mark D. McGuire, Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, Neb., Anthony R. Fabiano, Rockford, Ill., for plaintiffs-appellants.
Thomas Z. Hodson, Connolly, Hickey & Oliver, Rockford, Ill., for defendants-appellees.
Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.
Northern Illinois University (NIU) was confronted in late 1974 with a determination by the Regional Director of the Office of Civil Rights, Department of Health, Education, and Welfare that there was reasonable cause to believe NIU had discriminated against female faculty members with respect to promotion and salary. NIU discovered that salaries of female faculty members were in fact significantly lower than those of comparable male faculty members, and designed a formula for increasing the salaries of females to remedy that discrimination. Raises resulting from application of the formula were given to females as of September 1, 1975.
This action was brought by two male faculty members, suing on behalf of some 120 others. 1 Plaintiffs claim a violation of the Equal Pay Act, 29 U.S.C. Sec. 206(d), because the formula was applied, and raises given accordingly, to females only. The plaintiffs sought damages equal to the difference between actual salary received and the amount each would have received since September 1, 1975 had the formula been applied to each male, plus liquidated damages. 2
After trial on the issue of liability only, the district court entered judgment for NIU. Ende v. Bd. of Regents of Northern Ill. University, 565 F.Supp. 501 (N.D.Ill.1983). Plaintiffs appeal, arguing that NIU violated the Act by giving increases solely to women and denying them to men. 3
In January, 1973, Margaret Joyce Nelson, an employee of NIU, filed a complaint with the Regional Office of Civil Rights (OCR) of the Department of Health, Education, and Welfare alleging that NIU discriminated against female faculty personnel in matters of job assignment, promotion, transfer and salary. OCR is charged with administering Executive Order 11246, as amended by Executive Order 11375, prohibiting discrimination in employment by employers who contract with the Federal Government or utilize federal funds. Under the Executive Order and the regulations issued thereunder, OCR investigates a charge of discrimination, and on the basis of this investigation issues an administrative finding. If OCR finds there is reasonable cause to believe that the charge is true, it must afford the employer an opportunity to resolve the matter through conciliation.
On December 19, 1974 OCR informed NIU that its investigation revealed that there was "reasonable cause to believe" that NIU discriminated against females because of their sex in matters of salary and promotion. At the first conciliation meeting between NIU and OCR representatives, NIU was informed that if it failed to rebut the OCR finding or enter into a conciliation agreement OCR would move to enforce its finding and terminate existing federal contracts and eliminate future federal contracts with NIU.
In late 1974 NIU conducted its own investigation. It confirmed that salaries of female faculty members were significantly lower than those of males. It is undisputed here that before the 1975 adjustment the salaries paid female faculty members resulted from discrimination against them.
The University chose to remedy the discriminatory salary practices. NIU's investigation revealed that based on a multiple regression analysis the aggregate amount of the discrepancy between annual salaries of male and female faculty members was approximately $150,000. The University therefore set out to establish a salary formula which would, in the aggregate, pay female faculty members an additional $150,000 on a yearly basis. NIU devoted an additional $150,000 of its resources to this purpose, otherwise carrying on its usual procedures with respect to salaries and increases out of its normal salary budget.
A committee was appointed to devise a method for distribution of the additional amount to the women. The formula ultimately selected by the committee was called an "affirmative action equity adjustment formula." The mean monthly salary in each rank and the mean time in rank for a male NIU faculty member were computed. Then a point system was established. Each female faculty member accumulated points based upon the amount her salary fell below the University-wide mean male salary for her rank, on the difference between her years in rank and the male mean years in rank, and on her total years of service to the University. Presumably the sex-based discrimination which was found to exist at the University may have manifested itself in women having been initially employed at lower grades than men of equal potential, promoted later, comparatively, and given less favorable merit increases from time to time. To the extent the administration made an individual determination of salary for a person coming into a particular position, such salaries may well have been lower for women. Assigning points for below average salary, above average years without promotion, and longevity with the University would tend to compensate for factors of these types. The formula also tended to avoid excessive point awards in that negative points would be charged against a woman who received a salary above the male average for her rank or who had served fewer than the male average years in rank. Each female faculty member's point total was multiplied by sixty cents to arrive at the additional monthly amount she would receive. (Sixty cents, multiplied by the total points awarded to all females, equaled approximately the shortfall ascribed to discrimination against women.)
The adjustment was implemented with the first pay period of the 1975-76 year. NIU informed OCR of its adjustment formula. On October 30, 1975 a Regional Office Branch Chief wrote NIU noting that the University had taken action or presented acceptable commitments in several areas, including adjustment of female faculty salaries. Because of the actions taken and proposed, the Branch Chief recommended to the Washington office that the case be closed.
Between June 5, 1975 and May 12, 1977 a number of male faculty members filed complaints with the Equal Employment Opportunity Commission (EEOC) alleging that the formula adjustment discriminated against them. EEOC transferred the complaints to OCR. On November 11, 1977 the Regional Director of OCR wrote NIU that the Office had completed an investigation of these complaints and determined that there was no reasonable cause to believe that NIU had discriminated against complainants based upon sex. A detailed report was enclosed, concluding:
The above analyses demonstrates that Northern Illinois University has voluntarily cooperated with the Office for Civil Rights to create a currently non-discriminatory salary plan situation at N.I.U. The equalization formula was developed and implemented in response to a finding of discrimination at N.I.U. The formula was a one-time remedy that sought and established equity in the N.I.U. salary structure in a reasonable manner. Accordingly, there is no reasonable cause to believe that Northern Illinois University had discriminated against male faculty members in granting female faculty members equalization raises.
On August 24, 1978 plaintiffs Ende and Marsh filed this action alleging discrimination in that women received salary increases solely because they were women and the members of the plaintiff class would have received increases if the formula had been applied to males. They sought as damages "the monthly increment each member of the plaintiff class would have received had the salary adjustment formula been applied to them" and sought an equal amount as liquidated damages.
EEOC reasserted its jurisdiction over the charges which had been filed by the males. On March 5, 1979 the District Director at Chicago issued a determination, reading in part as follows:
The Commission concludes that the University salary adjustments and the resultant salary structure are consistent with Title VII. OCR found that female faculty members were underpaid. The formula provided a tailored, rational means of equalization. Before the salary adjustments, average female salaries were markedly below male salaries; after the adjustments, average salaries were very much on a parity.
Thus, the equity increase provides a measured remedy for a clear wage violation and as such is well within the classic concepts of Title VII relief.
The Charging Parties further claim that, even if female faculty salaries were properly adjusted, the salaries of those male faculty members below the average should also have been raised. The Commission does not agree. There is no evidence that male faculty members were the victims of sex discrimination. As such, they were not entitled to equity adjustments.
At trial there was persuasive evidence, based on statistical analysis, that women as a group had suffered discrimination which resulted in receiving a lower aggregate salary than received by comparable men, and that increasing the salaries paid to all women faculty members accomplished a remedy.
Professor Donna Brogan of Emory University, a highly qualified statistician, testified. She had been engaged by OCR in 1977 to examine the salary differential between men and women at NIU. After studying the data, she had answered four questions put to her by OCR.
A. In 1974-1975,...
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