Maitland v. University of Minnesota

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1143

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Ian Maitland, *

*

Appellant, *

*

v. *

*

University of Minnesota; Regents of the *

University of Minnesota; Wendell R. *

Anderson; M. Elizabeth Craig; Jean B. * Appeal from the United States

Keffeler; Elton A. Kuderer; H. Bryan * District Court for the

Neel, sued as H. Bryan Neel III; Mary J. * District of Minnesota.

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. *

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Submitted: June 10, 1998

Filed: September 16, 1998

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Before BOWMAN, Chief Judge, BEAM and LOKEN, Circuit Judges.

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BOWMAN, Chief Judge.

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.

I.

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) (providing that an employment practice implemented

pursuant to the terms of a consent decree cannot be challenged by a Title VII lawsuit

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if certain procedures are in place to protect the rights of those who are not parties to the

decree). 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

II.

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

1

A § 1983 claim was in Maitland's original lawsuit but had been dismissed

without prejudice.

2

The court also held that "the Eleventh Amendment prohibits lawsuits requesting

monetary damages from the University of Minnesota and individual state officers in

their official capacities." Maitland v. University of Minn., Civil No. 4-93-25, Mem.

Op. and Order at 14 (D. Minn. Dec. 6, 1996). Maitland does not appeal this holding.

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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.

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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 (1987)

(quoting United Steelworkers, AFL-CIO-CLC v. Weber, 443 U.S. 193, 197 (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. 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 (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

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"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 salary imbalance of 6% or 10% might well be found to

be manifest and conspicuous, a statistically insignificant imbalance of 2% likely would

not.

The divergent outcomes of the studies are the result of the different variables

that were included in the models. Maitland claims certain variables should have been

included in the Striebel study, and that the failure to do so skewed the results. It is true,

as the University and the District Court point out, that a regression analysis does not

become inadmissible as evidence simply because it does not include every variable that

is quantifiable and may be relevant to the question presented. See Bazemore v. Friday,

478 U.S. 385, 400 (1986) (per curiam) (Brennan, J., concurring).3 But we are

3

In Bazemore v. Friday, 478 U.S. 385, 386, 387 (1986) (per curiam), the Court

held that "for the reasons stated in the concurring opinion of JUSTICE BRENNAN," the

court below erred "in holding that petitioners' regressions were unacceptable as

evidence of discrimination." Therefore, Justice Brennan's concurrence states the

position of the entire court.

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reviewing a decision to grant summary judgment, and the admissibility of the evidence

is not the question here; whether that evidence might be believed by a jury is, and

"failure to include variables will affect the analysis' probativeness." Id. (emphasis

added). That is, if a regression analysis omits variables, it is for the finder of fact to

consider the variables that have been left out of an analysis, and the reasons given for

the omissions, and then to determine the weight to accord the study's results--in this

case, whether those results show a manifest or conspicuous imbalance in salaries.

There were three comparative salary studies performed in connection with the

Rajender salary litigation, and three different results were reached because different

variables were used. Thus it was not "mere conjecture or assertion" by Maitland that

including certain variables that he believes to be relevant would give a different result

concerning the existence vel non of a manifest or conspicuous imbalance between male

and female academics. Palmer v. Shultz, 815 F.2d 84, 101 (D.C. Cir. 1987), quoted

in Catlett v. Missouri Highway & Transp. Comm'n, 828 F.2d 1260, 1266 (8th Cir.

1987), cert. denied, 485 U.S. 1021 (1988). By concluding that the Striebel study

"logically justified the non-use of variables," the District Court chose one study on

which to rely and thus was able to find the necessary salary imbalance to justify the

plan. Maitland, Civil No. 4-93-25, Mem. Op. and Order at 8. The court, however,

thereby resolved a genuine issue of material fact, and so summary judgment (for either

side) was inappropriate. Cf. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 676

(4th Cir. 1996) ("[Defendant] cannot rely on Bazemore at summary judgment to

establish as a matter of law that the multiple regression analysis was sufficient to

determine manifest imbalance.").4

4

In Smith v. Virginia Commonwealth University, the court particularly faulted

the regression analysis at issue (there was only one) for its "failure to account for the

performance factors," noting that "Bazemore and common sense require that any

multiple regression analysis used to determine pay disparity must include all the major

factors on which pay is determined." 84 F.3d 672, 676 (4th Cir. 1996). We do not

disagree, but note that none of the studies in this case, including the study on which

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Moreover, we conclude that the fact that the salary plan was implemented

pursuant to a court-approved consent decree is of little consequence here. In approving

the consent decree, the district court made it clear that the settlement was the result of

a compromise between the parties, and said, "[T]he agreement increases base salaries

of female academic employees in response to statistical studies which provide a basis

to find a possible imbalance between male and female academic salaries." In re:

Rajender Salary Settlement, Civil File No. 3-89-464, Order Approving Settlement

Agreement and Consent Decree ¶ 14 (D. Minn. Oct. 12, 1989) (emphasis added). It

is apparent that the court found no "manifest" or "conspicuous" salary imbalance. In

fact, the court acknowledged that the settlement left unresolved the same disputed fact

questions at issue in this case:

The two [statistical] reports raise significant questions about the proper

variables, the appropriate groups to include in an analysis, the theory of

statistical analysis, appropriate sample size and many other matters. It is

uncertain whether plaintiffs' statistical analysis and other evidence would,

in fact, establish an illegal disparity between men's and women's salaries.

It is also uncertain whether the University's statistical analysis and other

evidence would, in fact, establish that there is no illegal salary

discrepancy between men and women at the University of Minnesota.

Id. ¶ 13.a. In these circumstances, where the court frankly acknowledges there is an

open question as to whether discrimination even exists, the fact that the affirmative

action salary plan was implemented pursuant to a consent decree does not bolster the

Maitland relies, included a performance variable. Accordingly, it is not clear that

Maitland presents, as he suggests, a genuine issue of material fact on the issue of

whether performance variables should have been included in the models. Cf. id. at 677

(reversing summary judgment in part because of dispute about performance variables:

defendant said that such variables were "not suitable for statistical analysis" and

plaintiffs' expert "stated that the study was not valid without adding the performance

factors").

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District Court's conclusion at the summary judgment stage of this case that there was

a manifest imbalance in faculty salaries.

Maitland has demonstrated that there is a genuine issue of material fact on the

question of whether there was a manifest or conspicuous imbalance in faculty salaries

based on gender. We therefore do not consider the remaining steps of the analyses:

whether the salary plan unnecessarily trammeled the rights of male faculty and whether

it was designed to attain or maintain a balance (Title VII), or whether the plan was

narrowly tailored to meet the remedial objective (equal protection). The District Court's

grant of summary judgment in favor of the University on this issue is reversed.

III.

The District Court also granted summary judgment to the University on

Maitland's claim for damages under § 102(a) of the Civil Rights Act of 1991, 42

U.S.C. § 1981a(a). The court held that the allegedly discriminatory action by the

University was the implementation of the settlement according to its terms, which

predated the Act. Because § 102(a) is not retroactive, see Landgraf v. USI Film Prods.,

511 U.S. 244 (1994), the court concluded that summary judgment for the University

was appropriate. Maitland argues that he has established a "continuing violation" so

that, if he should prevail on the merits of his Title VII discrimination claim, he would

be entitled to recover compensatory damages, whatever he may prove them to be,

suffered after November 1991, the effective date of the Act. We review de novo.

All female academic employees at the University received a 3% across the board

salary increase in the first phase of the consent decree's affirmative action salary plan

and that, Maitland contends, was discrimination. According to Maitland, he has

suffered damages from that time forward. He describes his claim for damages this way:

"[E]ach University pay check since the implementation of the Settlement has paid less

to me than to similarly situated females. . . . The University has not taken any steps to

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undo the effects of the Settlement increases or to catch up my salary." Brief of

Appellant at 42. Thus, as far as we can discern from Maitland's argument, he is not

seeking compensatory damages as they are described in the 1991 Act. See 42

U.S.C. § 1981a(b)(3). Instead, he is hoping to recover backpay, equitable relief that

always has been available under Title VII to the successful plaintiff (at the discretion

of the court and with some limitations), and that is specifically not available under the

1991 Act. See id. § 1981a(b)(2) ("Compensatory damages awarded under this section

shall not include backpay, interest on backpay, or any other type of relief authorized

under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e-5(g)].") Because

Maitland filed a timely Title VII action challenging the 1989 settlement, he is entitled

to pursue his Title VII remedies, including backpay.

We vacate the ruling of the District Court, as the mischaracterization of the

monetary remedy Maitland seeks renders that ruling of no force in this case.5

IV.

Finally, Maitland argues that the District Court erred in holding that the

defendants are entitled to qualified immunity.6 We review de novo, considering whether

the facts Maitland cites in support of his § 1983 claim could result in a conclusion that

the defendants violated clearly established law. See Murphy v. State of Ark., 127 F.3d

750, 755 (8th Cir. 1997); Smith v. Arkansas Dep't of Correction, 103 F.3d 637, 648 (8th

Cir. 1996).

5

We express no opinion as to whether Maitland's failure to seek an increase in

salary using the procedures provided for by the consent decree would affect his ability

to recover equitable relief in the form of backpay, should he succeed on the merits of

his Title VII claim.

6

We are assuming for the purposes of addressing this argument on appeal that

Maitland in fact has sued the individual defendants in their personal capacities.

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Based on its "previous analysis discussing permissible gender based

classifications," the District Court held that "Defendants have not violated a clearly

established law." Maitland, Civil No. 4-93-25, Mem. Op. and Order at 13. Further, the

court concluded that the defendants were reasonable in believing "that entering into a

settlement agreement approved by a federal judge" would not "violate[] a clearly

established right of an employee." Id. at 13-14.

Our holding in Part II of this opinion requires reversal of the qualified immunity

decision. Maitland is challenging the legality of the consent decree under § 1983, and

we are remanding his claim for trial because there is a disputed issue of material fact

relating to whether there was a conspicuous imbalance in salaries that would justify the

salary plan. The same issue of fact affects the claim of qualified immunity. See Smith

v. Arkansas Dep't of Correction, 103 F.3d at 648-49. There is no question that the law

was clearly established when the salary plan was implemented: employment

discrimination based on gender may be a violation of the Constitution. The University

entered into the consent decree, and agreed to the salary plan, with knowledge that there

was a multiple regression analysis that showed no statistically significant salary

discrimination--in fact, it was the very study commissioned by the University for use in

resolving the Rajender plaintiffs' claim. We cannot say that it was objectively

reasonable, under clearly established constitutional law, for the defendants to agree to

a salary plan--notwithstanding a court's approval--when they had strong reason to

believe that a likely result of the plan would be to create a salary imbalance in favor of

female academic employees.

We reverse the District Court's decision to grant qualified immunity to the

defendants.

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V.

The judgment of the District Court is reversed in part and vacated in part, and the

case is remanded for further proceedings.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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