Heagney v. University of Washington

Decision Date23 March 1981
Docket NumberNo. 78-3292,78-3292
Citation642 F.2d 1157
Parties26 Fair Empl.Prac.Cas. 438, 25 Empl. Prac. Dec. P 31,685, 7 Fed. R. Evid. Serv. 1713 Joanne M. HEAGNEY, Plaintiff-Appellant, v. The UNIVERSITY OF WASHINGTON, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Sidney J. Strong, Halverson, Strong, Moen & Chemnick, Seattle, Wash., for plaintiff-appellant.

Elsa Kircher Cole, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before VAN DUSEN, * Senior Circuit Judge, and ANDERSON and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

This is a sex discrimination case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Congress made the provisions of Title VII applicable to state and local governmental entities such as the University of Washington by the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, § 2(1), 86 Stat. 103, effective March 24, 1972. Heagney alleges that the University paid her an unfairly low salary because of her sex, and is seeking damages for the period subsequent to March 24, 1972. She seeks the difference between her estimate of a nondiscriminatory salary and her actual salary from March 24, 1972 until March 15, 1973, when she left the University. Heagney also claims that she should be awarded the full value of a nondiscriminatory salary for the period since her resignation because she was "constructively discharged" from her job. Finally, she requests reinstatement at the University.

The Equal Employment Opportunity Commission investigated her complaint and attempted to reach a settlement with the University. These efforts failed and the commission granted Heagney a "Notice of Right to Sue." A magistrate tried the case in 1977, and issued his findings and conclusions on November 3, 1977. In August 1978 the district judge adopted the magistrate's findings and conclusions in their entirety, and entered judgment for the University. Heagney then brought this appeal.

Because we conclude that a relevant statistical report was erroneously excluded from evidence the case must be remanded to the district court for reconsideration on the issue of whether Heagney proved that she was underpaid because of her sex. The evidence supports the finding that Heagney was not constructively discharged, however, and we affirm that portion of the district court's opinion.


Joanne Heagney has a bachelor's degree in chemistry from the University of Washington and has done some post-graduate work there. From 1962 until she resigned in 1973 she was employed at the Nuclear Physics Laboratory (NPL or the Lab), which is part of the University of Washington. Her primary duty at NPL was to design and fabricate targets used in nuclear physics experiments. Heagney initially held the job title of Radiochemist I; in 1965 she was promoted to Radiochemist II; and, finally, in November 1972 she was promoted to Materials Research Scientist.

Non-academic personnel at the University of Washington are categorized as either "classified" or "exempt." Exempt employees are those filling jobs with unique or unstandardized requirements. Although Heagney held titled positions, she was an exempt employee. Salaries of classified employees are covered by a Washington state personnel law and are set and adjusted by an administrative agency. Salaries for exempt employees were, during the time considered here, more discretionary. Heagney's salary was set by a supervisory committee of the NPL whose decisions were in turn approved by the College of Arts and Sciences and by the University's personnel department. The University provided the NPL with certain salary guidelines.

Heagney relied principally upon statistical evidence to prove her case of sex discrimination. First she attempted to show that as a group women exempt employees at the University received disproportionately lower salaries than men. She then attempted to show that this pattern carried over into her individual case at the Lab.

As part of her showing that women exempt employees generally received lower salaries than males, Heagney introduced the results of a study undertaken by the Equal Employment Opportunity Commission (EEOC). This study shows that among all 717 exempt employees at the University in 1973, 70 percent of the males made over $12,000, but only 28 percent of the females made over this amount.

Several witnesses also testified about statistics gathered by the Office of Civil Rights of the Department of Health, Education and Welfare. These statistics compared the pay of male and female exempt employees based on 1972-1973 data. Although never introduced into evidence, the data apparently show that women exempt employees, on average, made less than their male counterparts with similar job titles and occupational codes. Witnesses from both the University and the Office of Civil Rights agreed that the salary data was deficient because job titles were so broad that they were not an accurate indication of the actual work content. For this reason the statistics did not provide a reliable basis for comparing work performed by females with work performed by males. The University's Director of Personnel Services criticized the EEOC statistics on the same grounds.

To avert an enforcement action, in 1974 the Office of Civil Rights and the University signed a conciliation agreement concerning employment practices at the University. As one of three required steps concerning exempt employees, the University agreed to retain an outside consulting firm to undertake an in-depth analysis of the salaries paid to exempt employees, and to recommend changes. The University hired the consulting firm of Robert Hayes and Associates as a result of the agreement.

At trial, Heagney made several attempts to introduce the May 1975 Hayes final report into evidence. The University objected on the grounds that the Hayes study was based upon 1975 salary data and was therefore irrelevant to the question of whether there was salary discrimination during the 1972-73 period when Heagney was a University employee covered by Title VII. The magistrate sustained the University's objection and kept the Hayes study out of evidence.

Heagney has made the unadmitted Hayes report part of the record on appeal. The report indicates that the Hayes firm standardized exempt jobs by ranking each job according to a point scale using such factors as initial eligibility requirements, supervisory responsibility, creativity required and other indicia of skill, training and job importance. Based on 1975 data, the report describes a salary curve the firm prepared for the University that would insure that jobs with similar point rankings would receive comparable salaries. The report also includes a table showing how the salaries of exempt jobs in January 1975 actually compared with this curve. In relation to the salary curve, the University paid 39.2 percent of the women exempt employees below what the report established as a minimum salary. The comparable figure for male employees was 19.8 percent. The table shows that the University overpaid 14.5 percent of its exempt male employees, while it overpaid only 4.6 percent of its female employees. Thus approximately twice the percent of women were underpaid than men and more than three times the percent of men were overpaid than women. The study demonstrates a significant salary disparity between male and female exempt employees.

To show disparities in her own salary, Heagney introduced a survey prepared by Battelle Columbus Laboratories comparing salaries earned by scientists across the United States. The court found that Heagney's salary was about 73 percent of the national mean for an equivalent job description in the Battelle survey. Three male employees at NPL had salaries below, but closer to, the national mean than Heagney's salary for the type of work they did. Stowell had a salary that was 76 percent of the mean, Roth's was 78 percent, and Cheney's was 85 percent. In his oral opinion, the magistrate noted that the major problem he had with the use of this survey was classifying Heagney's job properly so she could be matched with the appropriate category in the survey.

Finally, Heagney introduced statistics showing the starting salary, rates of salary increase, and education and experience of male and female exempt employees at NPL. Tabulations showing the salary history of Heagney, three male employees, and Kellenbarger, another female employee, are summarized in the margin. 1 These statistics arguably indicate some inequity when Heagney's salary is compared with male employees at least during the period prior to the date that the Equal Employment Opportunity Act became applicable. 2

At various times the Lab requested salary increases for Heagney and other exempt employees. For example, in 1968 Professor Vandenbosch wrote David Williams, the University's personnel director:

                                  Heagney     Kellenbarger      Cheney       Roth      Stowell
                                                (Female)        (Male)      (Male)     (Male)
                Oct. 1962        $ 425 *
                Jan. 1966          630           $ 620 *
                July 1966          661             651         $ 900 *
                June 1969          802             788          1021       $ 740 *
                Jan. 1970          882             867          1196                  $ 845 *
                Mar. 1973 **      1070            1004          1375         985       1048

I will make one last attempt to impress on you the inequity in the Chemists' (Heagney and Kellenbarger) pay scale. In addition to the fact that we are about 20% low compared to other institutions, some comparisons within our own Laboratory are also shocking. 3

* Salary on date individual began working as an exempt employeeat the NPL.

** Salary on date Heagney resigned.

If the evidence summarized above...

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