Winkes v. Brown University, 83-1649

• Decision Date: 26 October 1984
• Docket Number: No. 83-1649,83-1649
• Citation: 747 F.2d 792
• Parties: 36 Fair Empl.Prac.Cas. 120, 26 Wage & Hour Cas. (BN 1533, 35 Empl. Prac. Dec. P 34,726, 102 Lab.Cas. P 34,608, 21 Ed. Law Rep. 42 Rudolf WINKES, Plaintiff, Appellee, v. BROWN UNIVERSITY et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 792

747 F.2d 792

36 Fair Empl.Prac.Cas. 120,

26 Wage & Hour Cas. (BN 1533,

35 Empl. Prac. Dec. P 34,726,

102 Lab.Cas. P 34,608, 21 Ed. Law Rep. 42

Rudolf WINKES, Plaintiff, Appellee, v. BROWN UNIVERSITY et al., Defendants, Appellants.

No. 83-1649.

United States Court of Appeals First Circuit.

Argued Jan. 4, 1984.

Decided Oct. 26, 1984.

Beverly E. Ledbetter, Providence, R.I., with whom Christopher H. Little and Tillinghast, Collins & Graham, Providence, R.I., were on brief for appellants.

William A. Poore, Providence, R.I., with whom Hodosh, Spinella & Angelone, Providence, R.I., was on brief for appellee.

Lawrence Z. Lorber, Stephen L. Samuels and Breed, Abbott & Morgan, Washington, D.C., on brief for Princeton University, Stanford University, Yale University, Johns Hopkins University and Harvard University, amici curiae.

Before CAMPBELL, Chief Judge, ALDRICH, Circuit Judge, and PETTINE, ^* Senior District Judge.

BAILEY ALDRICH, Senior Circuit Judge.

This action by a male plaintiff claiming that a raise in salary given a female co-employee was in violation of the Equal Pay Act, 29 U.S.C. Sec. 206(d), presents difficult questions, as the length of time taken by a normally prompt court must indicate. Even the district court's views expressed during trial varied somewhat from its ultimate conclusions. We have decided that these conclusions were mistaken, and that the finding for the plaintiff must be reversed.

In September, 1977, in a Title VII action against Brown University, defendant there, and here, charging a policy of discrimination in failing to hire tenured female professors, a consent decree was entered under which defendant agreed to exercise all reasonable means to remedy the deficiencies. The decree contained a hoped-for improvement schedule, with dates and numbers. See Lamphere v. Brown University, 491 F.Supp. 232 (Appendix) (D.R.I.1980). The decree did not authorize paying unequal salaries based upon gender; nor does defendant claim that it did. The present is not, in other words, an affirmative action case.

By what has proved to be an unfortunate coincidence, six months after the entry of the decree Catherine Wilkinson-Zerner, an associate professor in the Art Department, who had just recently been awarded tenure, received an offer from Northwestern University (Chicago) to an equivalent position, at a salary of $25,000, a substantial amount, 36%, more than what Brown was to pay her for the coming year. The only other associate professor in the art history division was plaintiff Rudolf Winkes. He and Zerner were both budgeted salaries of approximately $18,000. The Art Department chairman, Professor Champa, following a conference with Zerner in which the terms and conditions of the Northwestern offer, and her reaction thereto, were discussed, informed defendant's provost, Glicksman, ¹ of the offer and her qualifications, and recommended that the offer be matched, in order to keep her. Glicksman reported to Brown's president, and a matching salary was agreed to, and accepted. Winkes was given a raise to $19,500, and in all years since, although with a decreasing differential, has received less than Zerner.

In May, 1980, Winkes brought suit under the Equal Pay Act, challenging the pay differential between him and Zerner as based solely on gender. After discovery the court conducted a bench trial at which Brown defended on the ground that the differential was based on merit, on market forces, and a policy of responding to outside offers. The court, finding that Winkes had established a prima facie case under the Equal Pay Act, rejected Brown's proffered defenses, and entered judgment for Winkes.

The Equal Pay Act provides,

"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: ..." 29 U.S.C. Sec. 206(d)(1).

Winkes established his prima facie case by demonstrating that he and Zerner were paid different salaries for jobs that were comparable with respect to skill, effort, responsibility, and working conditions. The burden was on Brown, therefore, to prove the applicability of any one of the four exceptions in the Act. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974).

Defendant could not succeed as to the first three. There was no seniority system; no merit system in the strict sense of the word, and no quantity or quality system in that same sense. The sole question, accordingly, was whether it met the general one, a differential based on any other factor other than sex. For this defendant offered evidence of a de facto policy of responding to outside offers from other universities when it desired to keep the professor and his or her qualities merited such action. We find that it succeeded, for reasons we will come to.

The thrust of the district court's opinion was that Professor Zerner's raise was a precipitate and seemingly unconsidered, unusual, and unmerited, response due to gender, induced by the Lamphere decree. It said,

"Without any formal bargaining sessions or negotiations Professor Zerner's salary for 1978-79 was increased to $25,000;" "a sixty-four percent (64%) salary increase which created the salary differential which is the subject of this lawsuit."

* * *

Defendant Glicksman stated that he did not even know if the employment offer was gratuitous or solicited by Professor Zerner. Further, the Provost was not aware of the salary structure at Northwestern. The offer was met after only a slight delay, with little research conducted and no negotiations undertaken."

After stating that "[t]he plausibility of Defendants' position is undercut by the existence of the Lamphere Consent Decree," the court returned to Zerner's "meteoric rise in earning capacity," and "the unusual speed in responding to the offer, the exceptional dollar for dollar match [and] the invasion of the University's contingency fund."

Passing, for the moment, the matter of the Lamphere decree, the full record greatly reduces the strength, and hence significance, of these observations. In the first place, as a result of previous action promoting Zerner to tenure, she was already due a tenure raise, as well as an annual raise. The raise attributable to the Northwestern offer was 36%, not the 64% increase twice mentioned by the court as "creat[ing] the salary differential" without once mentioning the lesser figure. With respect to his ignorance of what had sparked the offer, Glicksman stated it was irrelevant. The court did say why it thought otherwise. To us, the weight of an offer is its content. ²

The statement that Glicksman was ignorant of Northwestern's salary schedule is to be measured against Champa's testimony that he told Glicksman that "[t]he Northwestern program in the area that she worked in was quite strong, the library was strong, the research report (sic) was strong." Even more is it to be read against Glicksman's testimony that he "had evidence of salaries including those of Northwestern average (sic) for all associate professors available in charts that are published." None of this was unreasonable, contradicted, or found unbelievable.

If the rise was "meteoric," so, too, concededly, was the offer "high." Whether only two weeks consideration was unusual, and negotiations absent or minimal compared with other cases, requires a more detailed examination of the evidence. We start with Champa's testimony that he did discuss with Zerner the various aspects of the Northwestern position and found them comparable in all respects, except salary; that she seemed entirely willing to move, and that he formed the conclusion that the offer would basically have to be met to keep her. In other words, there was believed to be nothing to negotiate. Nor was it the fact that meeting an offer was exceptional, and that all other cases resulted in trading down. It is true that in other instances of outside offers there was shown to have been a deeper examination and discussion. However, this was because it had appeared that there were inequalities, rendering further examination essential. In the case of Champa himself an outside offer was ultimately met. The court found that when "analyzed ... Brown substantially met ... Dr. Champa's financial and benefit demands." The fact that this meeting was not "dollar for dollar" was due to the fact that the initial dollar figure, on analysis, was not comparable. In this circumstance to say there was no other dollar for dollar match is meaningless.

While in the case of Professor Fishman the offer was not met (although Glicksman testified it was more than met nine months afterwards), the court's suggestion that in considering outside offers the university could not appraise the (there lower) quality of the offering institution is, with due respect to the court, contrary to common experience. ³

Finally, the significance of the fact that Zerner's raise exceeded the budget, and hence had to come from the contingency fund, escapes us.

Completing the circle, the testimony of both Champa and Glicksman was to the effect that merit raises were customarily, and almost exclusively, triggered by outside offers. Champa testified that an outside offer "is about the only way, in my experience, that substantial merit increases were ever allocated to [the]...