Freyd v. Univ. of Or.

• Decision Date: 15 March 2021
• Docket Number: No. 19-35428,19-35428
• Parties: Jennifer Joy FREYD, Plaintiff-Appellant, v. UNIVERSITY OF OREGON; Michael H. Schill; Hal Sadofsky, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

990 F.3d 1211

Jennifer Joy FREYD, Plaintiff-Appellant,

v.UNIVERSITY OF OREGON; Michael H. Schill; Hal Sadofsky, Defendants-Appellees.

No. 19-35428

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2020 Portland, Oregon

Filed March 15, 2021

BYBEE, Circuit Judge:

Jennifer Freyd is a Professor of Psychology at the University of Oregon ("the University"). Although she is a well-recognized academic and pioneer in trauma studies, the University pays Freyd several thousand dollars less per year than it does four of Freyd's male colleagues, despite their being of equal rank and seniority. Freyd alleges that this gender disparity in pay is department wide and is caused by the University's practice of granting "retention raises" to faculty as an incentive to remain at the University when they are being courted by other academic institutions. She further claims that female professors at the University of Oregon are less likely to engage in retention negotiations than male professors, and when they do, they are less likely to successfully obtain a raise.

Freyd sued the University alleging violations of, inter alia , the Equal Pay Act, Title VII, Title IX, and Oregon law. The district court granted summary judgment in favor of the University on all counts, finding that Freyd had failed to raise any genuine issue of material fact. Freyd v. Univ. of Or. , 384 F. Supp. 3d 1284 (D. Or. 2019).

We reverse in part and affirm in part.

I. FACTUAL AND PROCEDURAL HISTORY

A. Professor Freyd

Jennifer Freyd is a Professor of Psychology at the University of Oregon.¹ She holds a PhD from Stanford University and taught at Cornell University before moving to the University of Oregon in 1987. Professor Freyd is "a leader in the field on the psychology of trauma," where "[f]or two decades she has been one of the main theoretical contributors and intellectual forces." She has authored several books and written hundreds of articles, most in peer-reviewed academic journals, on the topic of institutional trauma. Her colleagues describe her as "one of the most esteemed members in the Psychology Department."

At the University, Freyd is the principal investigator at the Freyd Dynamics Laboratory where she conducts empirical studies related to the effects of trauma. In that position, she is responsible for running the laboratory and supervising doctoral candidates, undergraduate students, and the lab manager. She finances the laboratory through private donations. She also serves as the editor of the Journal of Trauma & Dissociation , "one of the most influential journals in the cross-disciplinary field of trauma research." In that role, she is responsible for writing editorials, selecting articles, and "supervis[ing] an editorial assistant, [seven] associate editors, 65 editorial board members, and dozens of ad hoc reviewers." She has also served on the editorial board for multiple other journals, and has worked as a guest reviewer for several foundations and journals.

Freyd has served in a variety of roles at the University. From 2014 through 2016, she served as a member of the University's Committee to Address Sexual and Gender Based Violence. In that role, she drafted policy proposals, administered campus-wide surveys, and wrote a substantive report on gender violence at the University. She was also the "central architect of the new reporting policy for sexual violence on campus." This service role "took an enormous amount of [her] time."

In addition, Freyd does "significant amounts of briefing, teaching, and consulting work for entities outside the higher education context, for example, for the United States Military and the National Park Service." She has worked as a consultant on twenty-two criminal and civil trials, and has consulted with a United States Senator and the White House.

B. How the University Sets Salaries

The Psychology Department of the University of Oregon adjusts tenure and tenure-track faculty salaries using two different mechanisms. First, faculty may seek a merit raise based on job performance. To obtain a merit raise, faculty must submit to a review of their performance over the preceding three years. During this review, faculty are assessed based on the contributions they have made in the areas of research, teaching, and service.

Second, professors may seek a retention raise if they are being recruited by another academic institution. In these instances, the University considers the following five factors in determining whether it wishes to extend the professor a retention raise:

• expected productivity and potential of the faculty member to make a significant contribution to the unit and the university,

• the weight of evidence indicating imminent departure in the absence of a salary adjustment,

• any previous retention increases awarded to the faculty member,

• implications for internal equity within the unit, and

• strategic goals of the unit, school or college, and university.

Freyd states that although she receives "initial probes" from other universities about once a year, she has never engaged in a retention negotiation nor received a retention raise. She was happy at the University, her husband was employed there, they were raising a family, and she was not willing to misrepresent her willingness to accept a position elsewhere and leave the University of Oregon.

C. Evidence of Gender Disparities in Pay

In 2014, as part of an unrelated public records request, Freyd unintentionally received salary information for the Psychology Department faculty. She noticed that she was making between $14,000 and $42,000 less per year than four of her male colleagues with whom she was of comparable rank and tenure.² The four men—referred to in the litigation as "the comparators"—were Ulrich Mayr, Gordon Hall, Phil Fisher, and Nicholas Allen.

1. Ulrich Mayr

Ulrich Mayr was the Psychology Department's Head between 2014 and 2017. In that role, he was responsible for "day-to-day personnel and human resource matters, misconduct investigations, managing the faculty review process, and negotiating with faculty seeking retention offers." Freyd , 384 F. Supp. 3d at 1291. As Department Head, Mayr did not teach classes. Mayr has editorial responsibilities on academic journals. Mayr has received two retention raises.

2. Gordon Hall

Gordon Hall has been a Professor of Psychology at the University since 2001. From 2008 until 2017, he served as the Associate Director of the Center on Diversity and Community (CoDaC). In that role, he was responsible for planning and presenting workshops, assisting faculty in obtaining financial and other support, and representing CoDaC in university-wide meetings. He reports that the role occupied "a significant and substantial amount of [his] time." Hall has editorial responsibilities on academic journals. Hall has received two retention raises.

3. Phil Fisher

Phil Fisher has been a Professor of Psychology at the University since 2008. He served as the Director of Clinical Training from 2014 through 2017. That position required him to oversee training in psychotherapy, organize weekly seminars, monitor curriculum, and interface with accrediting agencies. He is also the founding director of the University's Center for Translational Neuroscience. In that role, he is responsible for ensuring funding, managing and supervising staff, overseeing the budget, and making strategic decisions for the Center.

Much of Fisher's research is funded by federal grants, so Fisher also spends much of his time applying for and administering those grants. "Serving as a principal investigator or co-principal investigator of a grant imposes substantial administrative and professional responsibilities," including "obtaining appropriate institutional reviews and approval, performing the work, monitoring the work performed by others, exercising oversight on project personnel and sub-awards" and "manag[ing] submission of facilities and administrative charges to the funding agency." He has engaged in at least one retention negotiation.

4. Nicholas Allen

Nicholas Allen has been a Professor of Psychology at the University since 2014. He is the Director of the Center for Digital Mental Health, which, like Freyd's laboratory, is privately funded. Like Fisher, however, some of Allen's other research is funded through federal grants, for which he must prepare and submit annual progress reports, manage students and researchers, "do media," and manage "the ethical aspects of the research in accordance with federal requirements." His research involves use of brain scanning machinery and biological samples, which requires oversight from technical staff.

Allen has editorial responsibilities for academic journals. He has engaged in at least one retention negotiation.

D. Connecting Retention Raises to Pay Disparities

After obtaining the salary information and noticing the disparity in pay, Freyd conducted her own regression analysis on the data, comparing salary to years since PhD.³ She noticed a marked disparity in pay between the genders: out of fourteen full professors in the Psychology Department, six out of the eight male professors (75 percent) fell above the regression line, while five out of six female professors (83 percent) fell below it. In April 2015, Freyd and two other female psychology professors, Dare Baldwin and Holly Arrow, conducted a second regression analysis on this data. This second analysis presented similar results.

In the spring of 2016, the Psychology Department engaged in a mandatory annual self-study. The self-study revealed further information about the pay disparity. The study showed that the Psychology Department faced "a significant equity problem with respect to salaries at the Full Professor level," with an annual average difference in salary between male and female full professors of $25,000. The self-study concluded:

[T]his state of affairs appears to have emerged mostly as a result of retention raises playing a central

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