Hein v. Oregon College of Educ.

• Decision Date: 28 December 1983
• Docket Number: No. 82-3491,82-3491
• Citation: 718 F.2d 910
• Parties: 33 Fair Empl.Prac.Cas. 1538, 26 Wage & Hour Cas. (BN 1005, 32 Empl. Prac. Dec. P 33,895, 100 Lab.Cas. P 34,530, 14 Ed. Law Rep. 21 Wilma HEIN, and others similarly situated, Plaintiff-Appellee, v. OREGON COLLEGE OF EDUCATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 910

718 F.2d 910

33 Fair Empl.Prac.Cas. 1538,

26 Wage & Hour Cas. (BN 1005,

32 Empl. Prac. Dec. P 33,895,

100 Lab.Cas. P 34,530, 14 Ed. Law Rep. 21

Wilma HEIN, and others similarly situated, Plaintiff-Appellee, v. OREGON COLLEGE OF EDUCATION, Defendant-Appellant.

No. 82-3491.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 4, 1983.

Decided Oct. 17, 1983.

As Amended on Denial of Rehearing and Rehearing En Banc Dec. 28, 1983.

Don S. Willner, Willner, Bennett, Bobbitt & Hartman, Portland, Or., Jeanne Paquette Atkins, Arlington, Va., Lawrence White, Ann H. Franke, Washington, D.C., Judity E. Kurtz, Nancy L. Davis, San Francisco, Cal., Lawrence Z. Lorber, Stephen L. Samuels, Breed, Abbott & Morgan, Washington, D.C., for plaintiff-appellee.

Sheldon Elliot Steinbach, Washington, D.C., Richard Wasserman, Asst. Atty. Gen., Salem, Or., Woodley B. Osborne, Friedman & Wirtz, Washington, D.C., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY, CHOY and CANBY, Circuit Judges.

CHOY, Circuit Judge:

The appellees in this action are six female teachers at the Oregon College of Education ("OCE") ¹ who have sued their employer under the Equal Pay Act of 1963, 29 U.S.C. Sec. 206(d). After a bench trial, judgment was granted in favor of the teachers. OCE appeals. We reverse in part and vacate and remand in part.

I BACKGROUND

OCE is a public college located in Monmouth, Oregon. Its predominantly female student body consists of both undergraduate and graduate students. The plaintiffs below come from two different departments. Dr. Wilma Hein, Dr. Lenore Campbell and Ms. Jacquelyn Rice teach in the Physical Education Department. Dr. Jean Ferguson, Dr. Gloria McFadden and Dr. Margaret Hiatt teach in the Elementary/Secondary Education Department. Each plaintiff sought to establish a violation of the Equal Pay Act by contrasting their remuneration with that of various male "comparators." ² Each plaintiff proffered three or four comparators. For each plaintiff, the district court selected one The court found that each of the six teachers established a prima facie case of discrimination by comparing their jobs and salaries to that of their comparators during the relevant school year of 1980-81. Furthermore, OCE failed to establish that the salary differentials were caused by a factor unrelated to sex. Lastly, the court found that the discrimination was willful, and enhanced the damages awarded accordingly. OCE contends that all three of these findings are clearly erroneous.

comparator. With one exception, discussed below in connection with the claim of Dr. Campbell, the court ruled that the excluded comparators did not have jobs substantially equal to those of the plaintiffs. Most of these exclusions were made on the ground that teachers of different academic disciplines do not have substantially equal jobs.

II THE STATUTE

The Equal Pay Act of 1963 reads in pertinent part:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

29 U.S.C. Sec. 206(d)(1). "The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve." Corning Glass Works v. Brennan, 417 U.S. 188, 208, 94 S.Ct. 2223, 2234, 41 L.Ed.2d 1 (1974). It embodies the deceptively simple principle that "employees doing equal work should be paid equal wages, regardless of sex." H.R.Rep. No. 309, 88th Cong., 1st Sess. 2, reprinted in 1963 U.S.Code Cong. & Ad.News 687, 688.

To make out a case under the Equal Pay Act, a plaintiff must prove that an employer is paying different wages to employees of the opposite sex for equal work. Corning Glass Works, 417 U.S. at 195, 94 S.Ct. at 2228. The jobs held by employees of opposite sexes need not be identical, but they must be "substantially equal." Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir.1979), aff'd on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). The question of whether two jobs are substantially equal is one that must be decided on a case-by-case basis. We review that finding under the "clearly erroneous" standard. Id. Once the plaintiff has established a prima facie case, the burden shifts to the employer to prove that the differential in wages is justified under one of the Equal Pay Act's four exceptions. Corning Glass Works, 417 U.S. at 196, 94 S.Ct. at 2229. Since this is a question of fact, it also is reviewed under the "clearly erroneous" standard.

The case before us actually consists of six separate cases. Each plaintiff's claim turns on separate factual considerations. We will examine each plaintiff's claim in turn. For organizational clarity, we will first consider the claims of the three plaintiffs from the Physical Education Department, and then those of the three plaintiffs from the Elementary/Secondary Education Department.

III THE PHYSICAL EDUCATION DEPARTMENT PLAINTIFFS

For each Physical Education Department plaintiff, we need only review the district court's finding that each made out a prima facie case of sexual discrimination under the Equal Pay Act.

All Physical Education Department plaintiffs established their prima facie cases by comparing their jobs and salaries with that of Mr. James Boutin, the men's varsity basketball coach. In 1979, Mr. Boutin was hired by OCE with an eye toward improving the fortunes of OCE's men's varsity basketball team. A special OCE committee was formed to select a new coach. Mr. Boutin was one of three finalists, and of these three finalists he demanded the lowest salary, $21,500. Dr. James Beaird, Provost at OCE, termed Mr. Boutin's hiring "a very key appointment." As an assistant professor at OCE during the 1980-81 school year, Mr. Boutin spent three-quarters of his time teaching and one-quarter of his time coaching.

A. Dr. Wilma Hein

Plaintiff Hein came to OCE in 1973 as an associate professor in the Physical Education Department. At the time of trial, she earned $20,347. Although Dr. Hein had previously coached tennis and bowling at OCE, during the period of comparison with Mr. Boutin, Dr. Hein spent 100% of her time teaching lecture classes. She did not coach at all.

The lower court's finding that Dr. Hein and Mr. Boutin performed substantially equal jobs is clearly erroneous. While inconsequential differences in jobs may be disregarded, Hodgson v. Corning Glass Works, 474 F.2d 226, 234 (2d Cir.1973), aff'd sub nom. Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974), the differences in job content between the positions held by Dr. Hein and Mr. Boutin were not inconsequential. A coaching job plainly requires skills that a noncoaching job does not. Under the Equal Pay Act, jobs requiring different skills are not substantially equal.

The district court's error in this regard can be traced to its finding that "Dr. Hein's skills are equal to or greater than those of Mr. Boutin." Hein v. Oregon College of Education, Civil No. 79-757, slip op. at 10 (D.Or. Jan. 22, 1982) (hereinafter "Slip op."). A prima facie case is not made by showing that the employees of opposite sex possess equivalent skills. The statute explicitly applies to jobs that require equal skills, and not to employees that possess equal skills. See Peltier v. City of Fargo, 533 F.2d 374, 377 (8th Cir.1976). The lower court may have been impressed by Dr. Hein's academic credentials, and considered them as a counterweight to Dr. Hein's lack of coaching duties. This sort of consideration is improper. The only comparison of skills that should be made in a prima facie case is a comparison of skills required by a job. See Salazar v. Marathon Oil Co., 502 F.Supp. 631, 636 (S.D.Tex.1980); 29 C.F.R. Sec. 800.125 ("Possession of a skill not needed to meet requirements of the job cannot be considered in making a determination regarding equality of skill."). ³

Since the finding that Dr. Hein made out a prima facie case under the Equal Pay Act was clearly erroneous, the judgment in her favor is vacated and the matter remanded for determining whether as to other men in the Physical Education Department Dr. Hein can establish a prima facie case under the Equal Pay Act in accordance with the guidelines we set forth infra in the cases of Dr. Lenore Camplbell and Mrs. Jacquelyn Rice.

B. Dr. Lenore Campbell

Plaintiff Campbell came to OCE as an assistant professor in the Physical Education Department in 1977, the same year she At the time of trial, Dr. Campbell was coaching two sports, volleyball and track. Coaching duties took up one-third of her duties; the other two-thirds were spent teaching physical education classes. Her salary was $17,485.

earned a doctorate degree from the University of Oregon. During her employment at OCE, Dr. Campbell coached women's volleyball, basketball, and track, and has taken OCE teams to the national finals in volleyball and track. Academically, Dr. Campbell has taught various upper and lower division courses, served on various OCE committees, supervised student...