Maitland v. University of Minnesota
| Decision Date | 12 November 1998 |
| Docket Number | No. 97-1143,97-1143 |
| Citation | 155 F.3d 1013 |
| Parties | 77 Fair Empl.Prac.Cas. (BNA) 1661, 74 Empl. Prac. Dec. P 45,563, 129 Ed. Law Rep. 608 Ian MAITLAND, Appellant, v. UNIVERSITY OF MINNESOTA; Regents of the University of Minnesota; Wendell R. Anderson; M. Elizabeth Craig; Jean B. Keffeler; Elton A. Kuderer; H. Bryan Neel, sued as H. Bryan Neel III; Mary J. Page; Lawrence Perlman; Thomas R. Reagan; David K. Roe; Darrin M. Rosha; Stanley D. Sahlstrom; Ann J. Wynia; Julie Bleyhl, sued as Julie A. Bleyhl; William E. Hogan, III; Hyon T. Kim; William Peterson, sued as William R. Peterson; Nils Hasselmo, University of Minnesota President, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ian Maitland, St. Paul, MN, argued, pro se.
Julie A. Sweitzer, Minneapolis, MN, argued, for Appellees.
Before BOWMAN, Chief Judge, BEAM and LOKEN, Circuit Judges.
Ian Maitland, a member of the faculty at the University of Minnesota, appeals pro se from the order of the District Court granting summary judgment to the University, its president, and present and former members of its Board of Regents (collectively, the University) on Maitland's claim under Title VII, 42 U.S.C. §§ 2000e to 2000e-17 (1994 & Supp. II 1996), that he was subjected to employment discrimination based on his gender, and on his claim under 42 U.S.C. § 1983 (Supp. II 1996) that the University violated his equal protection rights. We reverse in part, vacate in part, and remand.
This case has its genesis in what is known as the Rajender consent decree. The settlement therein was entered into in 1980 by the University and a class of women academic employees at the University to settle a gender discrimination class action lawsuit that began in the 1970s. During the 1980s, female faculty members filed a number of claims of salary discrimination pursuant to the procedure set forth in the Rajender decree. In 1989, the University entered into a second consent decree in order to settle those claims. Although Maitland was not a party to the decree, he was permitted to express his objections to it. This decree provided for the distribution of three million dollars in salary increases, in three phases, to class members--all of whom were women. Any academic employee, male or female, was permitted to file a claim to seek a salary increase under the "manifest inequity" provision of the settlement. Maitland did not avail himself of this opportunity.
Instead, Maitland filed an administrative claim, and then brought suit in federal court alleging that the University was discriminating against him on the basis of his gender. The district court granted summary judgment to the University, holding that Maitland's action was barred by § 108 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(n)(1) (1994) (). The court further held that Maitland was estopped from pursuing his claims. We reversed. See Maitland v. University of Minn., 43 F.3d 357 (8th Cir.1994).
On remand, Maitland amended his complaint to seek damages under § 102(a) of the Civil Rights Act of 1991, 42 U.S.C. § 1981a (1994), and to advance an equal protection claim under 42 U.S.C. § 1983. 1 The District Court again granted summary judgment for the University, this time on the merits of Maitland's claims. The court held that there remained no genuine issue of fact to be decided at trial and that the University was entitled to judgment as a matter of law. The court further held that, in any case, Maitland would be ineligible to recover the damages he sought under the Civil Rights Act of 1991. Finally, the court held that "Defendants" (presumably the individual defendants acting in their personal capacities) were entitled to qualified immunity. Maitland v. University of Minn., Civil No. 4-93-25, Mem. Op. and Order at 13 (D.Minn. Dec. 6, 1996). Maitland appeals. 2
We review the District Court's decision to grant summary judgment de novo. See Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998). We view the record in the light most favorable to Maitland, giving him the benefit of all reasonable inferences that may be drawn from the evidence. We will affirm the District Court only if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
During the course of the second stage of the Rajender litigation, that which led to the salary settlement, the parties prepared a database that included salary and other personnel information from the files of the University's academic employees, both male and female. Each side then prepared its own statistical pay study using multiple regression analysis, but the results differed because the parties disagreed on the relevance of certain variables such as rank, retention, length of service, and market forces. The Striebel study, prepared for the plaintiffs, demonstrated a disparity in the salaries of male and female faculty members of between 4.1% and 10.3%. This model excluded factors such as rank and market (that is, how the University's faculty salaries compared with those of people in similar positions at other institutions). The statistician preparing the study felt that these factors themselves reflected employment discrimination on the basis of gender and therefore would distort the results if included. The study commissioned by the University, the Goodman study, showed a statistically insignificant difference in pay (2%), but included the suspect factors. Neither study included a performance variable per se.
The parties, together with the special masters conducting the settlement negotiations, agreed to use a compromise model, which included some of the contested variables, in order to resolve the litigation. That model reflected a 6% differential between the salaries of male and female academic employees and provided the basis for the affirmative action salary plan set forth in the consent decree, although the University never acknowledged that it had discriminated against its female faculty members in setting salaries. Maitland contends that the University discriminated against him when it implemented the plan because there was no salary disparity that required remediation.
An affirmative action hiring plan may be successfully challenged as a violation of Title VII unless the consideration of an otherwise improper factor (the gender of the prospective employee) "was justified by the existence of a 'manifest imbalance' that reflected underrepresentation of women in 'traditionally segregated job categories.' " Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616, 631, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) (quoting United Steelworkers, AFL-CIO-CLC v. Weber, 443 U.S. 193, 197, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979)). Further, to pass muster under Title VII, such an employment plan must not "unnecessarily trammel[ ] the rights of male employees" and it must be "intended to attain" a balance, "not to maintain one." Id. at 637, 639, 107 S.Ct. 1442. We think this analysis applies equally to an affirmative action salary plan, that is, a plan that favors one gender over another in awarding salary increases in order to correct an allegedly historical imbalance.
Similarly, in equal protection jurisprudence, the test for the constitutionality of an affirmative action plan is whether "a purportedly remedial affirmative action plan is bona fide," that is, whether it "is indeed remedial." Donaghy v. City of Omaha, 933 F.2d 1448, 1458 (8th Cir.1991) (hiring case), cert. denied, 502 U.S. 1059, 112 S.Ct. 938, 117 L.Ed.2d 109 (1992). The plan's defender is required to demonstrate a "conspicuous [gender] imbalance" if the plan is to be held constitutional. Id. Further, the plan must be narrowly tailored to achieve the remedial goal. See id. Again, we see no reason why this test for the constitutionality of an affirmative action hiring plan should not be the same for an affirmative action salary plan.
This case is a bit complicated because the plan in question was implemented pursuant to a consent decree; it cannot be characterized as an entirely voluntary affirmative action plan, but neither can it be said to have been "imposed after making a formal finding of intentional discrimination." Id. at 1459. The question is what difference, if any, it might make to our analysis that the plan had a court's imprimatur. Our Court has held, in an equal protection case, that the employer's required showing in defense of its plan remains the same notwithstanding the court's sanction, and that "the entry of an affirmative action consent decree does not guarantee that the decree serves a remedial purpose or is narrowly tailored." Id. Nevertheless, "the heightened judicial oversight inherent in a properly entered decree" may help the employer meet his burden. Id. Although Donaghy was an equal protection hiring case, we think similar consideration is due an affirmative action salary plan implemented pursuant to a consent decree and challenged under Title VII.
We now zero in on the specific--and undeniably material--question raised by this appeal: whether there is undisputed evidence that shows, at this stage of the litigation, that in 1989 when the salary plan was implemented there existed a "manifest" (Title VII) or "conspicuous" (equal protection) imbalance in the salaries of male and female faculty members at the University. It is clear that the relevant evidence is far from undisputed. In the record are the widely varying conclusions of three different statistical models and, while a...
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