Spaulding v. University of Washington

Decision Date26 November 1984
Docket NumberNo. 82-3038,82-3038
Citation740 F.2d 686
Parties35 Fair Empl.Prac.Cas. 217, 26 Wage & Hour Cas. (BN 1335, 34 Empl. Prac. Dec. P 34,496, 19 Ed. Law Rep. 92 Margaret SPAULDING, et al., Plaintiffs-Appellants, and James Bush, et al., Intervenors-Appellants, v. UNIVERSITY OF WASHINGTON, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Richard S. White, Lish Whitson, Pauline V. Smetka, and Karen J. Vanderlaan, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, Wash., for plaintiffs-appellants.

Sidney J. Strong, Halverson & Strong, Seattle, Wash., for intervenors-appellants.

John J. Aslin, Richard Ottesen Prentke, Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., Kenneth Eikenberry, Atty. Gen., Olympia, Wash., James B. Wilson, Jr., Elsa Kircher Cole, Asst. Attys. Gen., Seattle, Wash., for defendant-appellee.

Robert E. Williams, Douglas S. McDowell, Lorence L. Kessler, McGuiness & Williams, Washington, D.C., for amicus curiae Equal Employment Advisory Council.

Dennis J. Alessi, Kansas City, Mo., for American Nurses' Assoc.

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

Before WALLACE, ANDERSON, and SCHROEDER, Circuit Judges.

WALLACE, Circuit Judge:

Appellants are past and present members of the faculty of the University of Washington School of Nursing (the nursing faculty). One of them, Ruth Fine, has served as an associate administrator of the University's hospital, as the director of nursing services, and as an associate professor. The intervenors, also past and present members of the nursing faculty, join in this appeal.

The nursing faculty filed suit in the district court alleging that the University engaged in discriminatory compensation practices in violation of 42 U.S.C. Sec. 1983, the Equal Pay Act, and Title VII. The district court sua sponte referred the case to a United States Magistrate sitting as a special master. After the nursing faculty presented its case, the special master issued a report recommending dismissal of the action pursuant to rule 41(b) of the Federal Rules of Civil Procedure. The district court granted the motion for an involuntary dismissal. We have jurisdiction under 28 U.S.C. Sec. 1291.

The nursing faculty argues that the district court erred in not reviewing the special master's findings de novo, that we must consequently engage in de novo review, and that the district court erred in dismissing the action under rule 41(b). On its substantive claims, the nursing faculty contends that it demonstrated that the University violated section 1983 and the Equal Pay Act, that it made out a prima facie showing of discrimination prohibited by Title VII under both the disparate treatment and disparate impact models, that the University cannot rely on a "competitive marketplace" defense, and that the nursing faculty is entitled to recover attorneys' fees. We affirm.


For purposes of this appeal, we accept the facts agreed to by the parties, the evidence admitted during presentation of the nursing faculty's case, and the district court's factual findings. Because the case was dismissed under Federal Rule of Civil Procedure 41(b) after the nursing faculty presented its case, the University did not present its case.

Washington State created the University of Washington by statute. Wash.Rev.Code Ann. Secs. 28B.20.010-.20.820 (1982 & Supp.1983). The University consists of 16 separate schools, each under its own dean. Most schools are divided further into academic departments. The University functions under a very decentralized administrative scheme. Each school is responsible, subject to approval by the University's president, for faculty appointments, entry level of new appointees and their salary, promotions, and salary increases for individual faculty members. Generally, the University's president accepts departmental recommendations on these issues. The University's budget office allocates money to each school after receiving a salary allocation for the University from the state legislature. The budget office normally designates a portion of the funds for across-the-board salary increases. The remainder is then divided among the schools, sometimes in varying percentages, for distribution at the schools' discretion to their faculty.

In March 1972, members of the faculty of the School of Nursing filed a petition with Dr. Katz, Vice President for Academic Affairs and Provost of the University, alleging sex discrimination by the University. The University responded to the petition and provided certain salary data. Dr. Grayson, Vice President of the Health Sciences Center, and Dr. Katz met with representatives of the nursing faculty to discuss the petition. The University asserted that salary levels varied because each academic discipline commanded a salary based upon training, expertise, emphasis, subject matter, and the academic marketplace for that discipline. Thus, the University argued that it was inappropriate to compare the average salary in one discipline with the composite average salary paid University faculty members. Subsequently, the University undertook, and made available to the nursing faculty, a more sophisticated study of salaries in the School of Nursing. The study concluded that faculty salaries as a whole at the University of Washington lagged 9 percent behind the salaries paid by schools with which the University had traditionally compared its salaries. The study also concluded that average faculty salaries in the School of Nursing lagged 10.9 percent behind salaries paid by comparable schools of nursing, but that many other disciplines also lagged at least that much behind.

In September 1972, the University's budget office allocated a 3 percent merit increase to each school. In response to the salary study findings, the budget office allocated an additional 2 percent increase to the School of Nursing in order to align the nursing faculty salaries with the average deficit in salaries at the University. Between 1973 and 1978, the University's budget office gave an above average allocation to the School of Nursing in two budget years and an allocation equal to that given other schools in three budget years.

The nursing faculty remained dissatisfied. Throughout the summer and fall of 1972, members of the nursing faculty held meetings to discuss their petition and related issues. In November 1972, a group entitled the Women's Salary Inequity Committee (the Committee) sought support from faculty members and sent a complaint letter to the Office for Civil Rights of the United States Department of Health, Education, and Welfare. The Committee also filed a complaint with the Washington State Human Rights Commission. Thereafter, the Committee filed charges with the Equal Employment Opportunity Commission (EEOC) and the University's Human Rights Commission.

In February 1974, the United States Department of Justice issued a right to sue letter to Spaulding as head of the Committee and the nursing faculty filed this action. Although this suit was originally filed as a class action against officials at the University of Washington, the University was later substituted as the sole defendant and the class claims were dropped. The intervenors, after objecting to the dismissal of the class claims, were granted permission to intervene and their claims were stayed pending resolution of the named plaintiffs' claims.

In August 1977, after finding that he could not schedule the case for trial within 120 days after issue was joined, the district judge sua sponte referred the case to a United States Magistrate pursuant to 42 U.S.C. Sec. 2000e-5(f)(5), rule 53 of the Federal Rules of Civil Procedure, and Local Magistrates' Rule 21. The order of reference expressly stated that the magistrate was to sit as a special master, hear the case on the merits, and report recommended findings of fact, conclusions of law, and disposition. The order also stated that the special master's report would be subject to review by the district court in accordance with rule 53(e) of the Federal Rules of Civil Procedure.

After the nursing faculty presented its case before the special master, the special master stated that he planned to grant the University's rule 41(b) motion for involuntary dismissal. He concluded that the nursing faculty had failed to show that they performed substantially equal work compared to male faculty members in other departments and that the Equal Pay Act standard governed claims under Title VII and section 1983.

While the special master was preparing his findings and conclusions, we decided Gunther v. County of Washington, 623 F.2d 1303 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) (Gunther). We held that a plaintiff who fails to show that he performs substantially equal work is not precluded from suing under Title VII for relief from intentionally discriminatory compensation practices unless such practices are authorized under one of the four Equal Pay Act affirmative defenses. 623 F.2d at 1310-13. The special master requested memoranda from the parties on the effect of our decision in Gunther on his 41(b) ruling. He then concluded that Gunther did not alter the outcome of the case and recommended that the district court dismiss the case.

The nursing faculty requested that the district court direct the special master to file a transcript of the proceedings before him with the district court. The district court denied this request, but certified the issue for interlocutory appeal under 28 U.S.C. Sec. 1292(b). We granted permission to appeal and held that the district court was required to provide a transcript. Spaulding v. University of Washington, 676 F.2d 1232, 1235 (9th Cir.1982) (Spaulding I). We expressly declined to decide whether the district court was required to review the...

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