Rudolf Winkes v. Brown University

PETTINE, Senior District Judge,

dissenting.

As the majority states in its opinion, this case has presented difficult questions. The majority has found that the district court’s findings of fact were clearly erroneous and that affirmative action was not somehow involved in this case. I disagree.. Rather than reverse the district court, I would remand the case for a new trial.

As the majority states, after Winkes put in his prima facie case, the burden of proof under the Equal Pay Act switched to defendants Brown and Glicksman. Corning Glass Works v. Brennan, 417 U.S. 188, 195-97 , 94 S.Ct. 2223, 2228-29 , 41 L.Ed.2d 1 (1974); Melanson v. Rantoul, 536 *798 F.Supp. 271, 286 (D.R.I.1982). The district court opinion appears to hold that any consideration of sex in response to the Northwestern offer was illegal; for the reasons stated infra, I do not agree with this analysis. However, the thrust of the district court opinion’s findings of fact is that, in comparison to former responses to offers from outside institutions, the defendants acted unusually and unreasonably when they responded to Professor Zerner’s offer — both in terms of the procedure used and the eventual substantive bid.

My brothers believe that these findings are clearly erroneous. Nevertheless, as there was no evidence that any other Brown professor had ever gotten such a high response to an outside offer, whether measured as a percentage of the salary the individual was slated to receive or measured in comparison to the amount of the outside offer, as there was no evidence that Brown had ever responded to an outside offer so easily, as the evidence showed that Brown did not always try very hard to keep the individual, and finally, as it is uncontradicted that these events happened soon after the entry of the Lamphere consent decree, I cannot share my brothers’ conclusion that these findings were clearly erroneous. I do believe that they are incomplete and tainted with an erroneous perception of whether it is permissible to consider sex at all in these circumstances. A remand is therefore in order. See Guzman v. Pichirilo, 369 U.S. 698, 701 , 82 S.Ct. 1095, 1097 , 8 L.Ed.2d 205 (1962) (“If we were convinced, as was the Court of Appeals, that the trial court’s action was colored by a misunderstanding of such legal principles, we would have to remand, as the Court of Appeals should have, for further findings by the trial court on the credibility of the owner’s witness.”).

I agree with the majority that the sixty-four percent salary-hike figure which the district court used may not be precise in that it included a normal yearly raise and a standard raise for reaching tenured status. However, the district court used this figure to compare to a similar figure — a raise of “close to forty percent” which Professor Fishman received in response to an outside offer. The close to forty percent given Fishman, like the sixty-four percent given Zerner, included a promotional raise and may have included a standard yearly raise.

Moreover, Professor Fishman’s outside offer was not met. Similarly, although Brown did “substantially” meet salary demands from Professor Champa during negotiations after he had received outside offers, there was no evidence that Brown actually met the offers or met what the offers were worth given differences in the positions, rather than merely met lower amounts representing a minimum to keep Champa from leaving.

Perhaps Zerner would have left Brown if the Northwestern offer were not met head-on. Professor Champa certainly did believe this. However, responses to outside offers at Brown varied considerably. Some professors did leave Brown after receiving outside offers which did not trigger sufficient raises.

Finally, although in reality there may have been nothing to negotiate, the speed and lack of negotiations in responding to the Northwestern offer do have some probative value. In an area in which examination and negotiation were the norms, one wonders why Brown did not try to offer a lower amount; even if just to test Zerner’s inflexibility. Instead, Brown purports to have relied on Champa's impression from a phone call informing him of the offer that Zerner was willing to leave if the offer were not met.

Given what is not a clearly erroneous finding that Brown’s response to Zerner’s outside offer was unusual, see Guzman, supra 369 U.S. at 702 , 82 S.Ct. at 1097 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542 , 92 L.Ed. 746 (1948)), the district court examined when these actions happened. Faced with an extraordinary response to an outside offer to a female faculty member so soon after the consent decree, it was not clearly erroneous to find that the' consent decree caused the re *799 sponse. Besides finding little significance in the facts that the response to Zerner’s offer was the highest and fastest, my brothers do not appreciate its timing. It is this timing and these actions, combined with the timetables in the decree, which inject affirmative action into this case. Any acts involving affirmative action carry a reasonableness requirement. I believe my brothers have misapplied this factor.

Under the Lampkere consent decree, Brown was to try to meet certain goals for numbers of female faculty members. Since the loss of a female faculty member would hurt meeting those goals, Brown was entitled to take sex into consideration in responding to outside offers even though this may violate the specific language of the Equal Pay Act. Giving Brown some latitude is necessary to enable Brown to fulfill its obligations under ■ the decree. However, courts have not allowed employers to exercise unbridled discretion in implementing affirmative action plans because of conflicts with other federal policies. In this case, the implementation of a Title VII consent decree and the dictates of the Equal Pay Act conflict. Therefore, especially because of the strict liability nature of the Equal Pay Act, Brown should be required to show not only that 1) a de facto policy of responding to outside offers existed; and 2) that Zerner’s raise was an application of that policy; but also 3) that Brown acted reasonably in its response.

In both Weber and Regents of the University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978), the Supreme Court recognized that there are limits on what constitutes a permissible affirmative action scheme. In Bakke , the Court held that some consideration of race in a medical school’s admissions criteria was permissible, but that the use of a rigid quota was not. In Weber, the Court considered a temporary plan under which a company and union voluntarily agreed to allocate 50% of the positions in a craft training program to black workers with less seniority than whites eligible for the program. The Court stated:

We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USWA affirmative action plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to “open employment opportunities for Negroes in occupations which have been traditionally closed to them.”

At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hirees. Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkers in the Gramercy plant approximates the percentage of blacks in the local labor force.

443 U.S. 208 -209, 99 S.Ct., 2729 -30 (footnote and citation omitted).

Two courts have interpreted this language in cases similar to this one. They reached opposite results. In the first, Lyon v. Temple University, 543 F.Supp. 1372 (E.D.Pa.1982), a group of male professors challenged Temple’s implementation of a plan under which it gave female professors salary increases to compensate for past inequities. The court found that although some pay readjustment for women was permissible, Temple’s plan resulted in “an unnecessary and permanent salary disadvantage____” Id. at 1376 (emphasis in original). Additionally, the court found the principles of flexibility which under-girded Weber’s endorsement of reasonable affirmative action plans under Title VII inapplicable to the stricter Equal Pay Act. *800 Id. at 1375-76 . As a result, the court held that the plan violated the Equal Pay Act.

In the other case, Ende v. Board of Regents, 565 F.Supp. 501 (N.D.Ill.1983), female faculty members were given additional salary to adjust for past inequities according to a formula which took into account the difference between their salaries and the mean salary of males with the same rank, the amount of time the woman had had that rank, and the amount of time that that woman had been at the university. The Ende court found that although this plan violated the literal mandates of the Equal Pay Act, it was permissible. The court stated that “[p]ost Bakke and Weber decisions have uniformly interpreted Bakke and Weber as authorizing affirmative action programs which are ‘reasonable’ efforts to eliminate discrimination against minorities.” Id. at 507 (footnote omitted). Since it found that the university’s plan was reasonable, even though not the most preferable plan, the court ruled that Northern Illinois University had not violated the Equal Pay Act.

I agree with the Ende court that the Lyon opinion both reads Weber too narrowly and underestimates the chilling effect on voluntary action of employing a standard stricter than reasonability to judicial review of affirmative action programs. Ende, supra, at 510-11 . I therefore also agree with Ende and other opinions which set forth a standard of reasonableness for judging whether an affirmative action plan is permissible under Weber. See, e.g., Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.1981). However, given the ad hoc and unique nature of the affirmative action “program” employed here by Brown, and given its great possibilities for abuse, I believe that it is necessary to examine not just the reasonableness of their general method, but also the reasonableness of individual decisions. I think that an examination of the reasonableness of the program only, and not individual results, is warranted only when the program is less subjective than the one here. See, e.g., Ende, supra, at 503 (Northern Illinois University employed a precise mathematical formula which utilized only objective variables).

The reasonableness of any additional compensation would be determined by Brown’s ability to meet Lamphere without paying the individual an anomalously high salary when compared to other salaries at Brown. Lamphere does not require that any specific position be filled by any specific individual. Brown may hire another experienced female scholar directly into a tenured position. Therefore, among the relevant inquiries for a court would be: 1) how much it would need to pay to lure another female professor with credentials of the same quality as Zerner’s to a tenured position in the Art History Department at Brown; 2) Brown’s normal inquiry when responding to an outside offer, which is determining the minimum amount of salary increase necessary to keep that particular individual at Brown; and 3) how much does it want to retain this particular individual because of particular credentials or because of the type of subjective considerations allowed by the first amendment academic freedom setting of this case.

In addition, I do not believe that this approach would place Brown in a “no-win” situation, or one in which a double-edged sword is placed over the university’s head. The criteria I propose are based on reasonableness, fairness, and allow full consideration of first amendment concerns. Rational behavior, rather than emotional overreaction, is all that this approach would require from Brown.

Returning to the majority opinion, my brothers, after recognizing a standard of reasonableness, find that was met by evidence that Zerner was worth the money. I agree — Zerner may well have been worth more money than she was being paid, as every other faculty member at Brown may have. Universities often pay notoriously low salaries. However, the question under the Equal Pay Act is not whether her abilities merit her pay, but rather whether her abilities merit her pay when compared to the pay other individuals re *801 ceive for their level of abilities at Brown, with, in this case, the additional questions of how much it would cost Brown to replace the individual and how much Brown wants the particular individual, rather than merely one with similar credentials. There is little evidence on either of these last points.

Brown could violate the Equal Pay Act not only through willful and intentional actions, but also through negligent ones and ones with a benign purpose. Because the district court erred in finding a violation because of any consideration of sex and because it is unclear from the court’s findings whether Brown acted unreasonably in responding to Zerner’s offer, I would remand the case for a new trial.