578 F.Supp. 846 (1983)

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, et al., Plaintiffs,
v.
STATE OF WASHINGTON, et al., Defendants.

No. C82-465T.

United States District Court, W.D. Washington, at Tacoma.

December 14, 1983.

*847 *848 *849 *850 Winn Newman, Lisa Newell, Washington, D.C., Edward Earl Younglove, III, Olympia, Wash., for plaintiffs.

Richard A. Heath, Clark J. Davis, Chris Gregoire, Olympia, Wash., for defendants.

OPINION AND DECLARATORY JUDGMENT

TANNER, District Judge.

I. STATEMENT OF THE CASE

On September 16, 1981, Plaintiff's filed charges with the Equal Employment Opportunity *851 Commission (EEOC).^[1] The EEOC took no action on Plaintiff's charges. On April 31, 1982, the U.S. Department of Justice issued Notices of Right to Sue to Plaintiffs.

On July 20, 1982 two Unions, the American Federation of State, County and Municipal Employees (AFSCME) and the Washington Federation of State Employees (WFSE), on behalf of some 15,500 workers in jobs held primarily by females, filed the complaint initiating this Class Action against the State of Washington. Plaintiffs seek a declaratory judgment and money damages pursuant to Title 28 U.S.C. §§ 2201 and 2202, concerning Defendant's discriminatory implementation and application of its compensation system, and injunctive relief to provide enforcement of a nondiscriminatory compensation system as it previously has been or herein may be judicially determined.

Venue is properly laid in this Court under Title 28 U.S.C. § 1391(b). This Court has jurisdiction in this matter by virtue of Title VII of the Civil Rights Act of 1964, as amended on March 24, 1972, Title 42 U.S.C. § 2000e, et seq., and Title 28 U.S.C. § 1331.

By order of the Court, dated April 1, 1983, this case was bifurcated into two phases (i.e., liability and remedy). By later order of the Court dated November 2, 1983, the remedy phase was bifurcated into two more phases (i.e., injunctive relief and back pay). Pretrial conferences were held prior to each trial to clarify the issues in the case. Unfortunately the parties were never able to agree upon a pretrial order at any phase of this litigation. The Court proceeded to try each phase of the case on two proposed pretrial orders, as submitted by the parties.

In the liability phase, or Stage I of this litigation, both pretrial orders were remarkedly similar in content as to the ultimate issues. The liability phase was tried to the Court commencing August 30, 1983, and continued over a period of eight days, concluding on September 14, 1983, with oral argument by counsel for both parties.

The injunctive relief phase of this litigation was tried to the Court commencing November 14, 1983 and concluding on November 17, 1983, again with oral arguments. Following the Court's determination that injunctive relief was appropriate and would issue herein, the back pay hearing was scheduled for and commenced on November 30, 1983. The back pay hearing, the last phase of this lengthy and complex lawsuit, concluded on December 1, 1983, with the Court's determination that back pay was appropriate and would be so awarded.

Throughout the course of this litigation several witnesses were called by both parties, more than 200 exhibits comprising several thousand pages were offered into evidence, and numerous depositions and affidavits were submitted to the Court. At the conclusion of each phase of the litigation, both parties submitted proposed findings of fact and conclusions of law.

The ultimate objective of this decision is to determine every issue of fact and law presented and thereby finally settle the divisive problems of gender-based discrimination in compensation in the State of Washington.

II. RULINGS ON MAJOR ISSUES

1. Class Certification:

On November 1, 1982, Plaintiffs moved the Court for Class Certification. The Class sought to be certified included male and female employees under the jurisdiction of the Department of Personnel (DOP), and the Higher Education Personnel Board (HEPB), who have worked or do work in positions that are or have ever been 70% or more female. This Court, by order dated *852 March 31, 1983, found that the prerequisites to certification of a Class were satisfied, Fed.R.Civ.P. 23, and the Class above described was certified.

There are seven (7) prerequisites that a Plaintiff seeking to maintain a Class Action must meet, two implicit and five explicit. See Southern Snack Foods v. J & J Snack Foods, 79 F.R.D. 678, 680 (D.N. J.1978). The implicit prerequisites are that a Class exist and the Class representatives be members of that Class. Defendant, State of Washington, argued that the Class definition the Plaintiffs were requesting would create a Class whose membership probably could not be ascertained. It was Defendant's contention that the certified definition should be limited to include only classifications that are currently 70% or more female, thereby excluding employees in jobs which were formerly predominately female but have since been integrated. Plaintiffs responded that employees in job categories which were predominately female during the period covered by this action had suffered the same discrimination as employees in jobs which are still predominately female. Because the employees in the jobs that were both currently 70% or more female and were at one time 70% or more female, were readily identifiable in Defendant's records, the Court found there was no reason why they should be excluded from the Class. There was no question that the Class representatives were members of the Class. Accordingly, this court found that the implicit prerequisites were met.

The explicit prerequisites are that the Plaintiff Class meet all four requirements of Fed.R.Civ.P. 23(a)—numerosity, commonality, typicality, and adequacy of representation, —and that the Class fulfill the conditions of any one of the three subsections of Fed.R.Civ.P. 23(b). See Davis v. Avco Corporation, 371 F.Supp. 782, 790 (N.D.Ohio 1974); see also Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 617 (E.D.La.1972).

(a) Numerosity: Defendants did not contest certification upon this basis. It was uncontroverted that the numerosity requirement was met.

(b) Commonality: Defendant argued that certification should be denied because of great factual diversity in the individual claims. See Montgomery v. Rumsfeld, 572 F.2d 250 (9th Cir.1978). However, this court found "questions of law or fact common to the Class." Fed. R.Civ.P. 23(a)(2). The alleged existence of a sexually discriminatory compensation policy presents questions of both fact and law, which are common to all employees in all of the predominately female classifications, notwithstanding any differences between the jobs.

(c) Typicality: Defendants did not contest the typicality of the individual Class representatives with regard to Plaintiff's discrimination in compensation claim. Defendant's opposition with respect to the "working out" of Class and other related claims was rendered moot by later rulings of the Court.

(d) Adequacy of Representation: This fourth requirement, which incorporates due process, is imposed for the purpose of protecting absent Class members from the effect of an adverse judgment resulting from representation at trial by parties whose interests are not the same as their own. Defendants contended that the individual Plaintiffs could not adequately represent the interests of the Class so long as they continued to be represented by the Union attorneys because of a potential conflict at the remedy stage of the litigation between the interests of the Class and the interests of the members of the Plaintiff's Union who are not in the Class. In Social Services Union, Local 535 v. County of Santa Clara, 609 F.2d 944, 948 (9th Cir.1979), the Court of Appeals held that "[m]ere speculation as to conflicts that may develop at the remedy stage is insufficient to support denial of initial Class certification." Finding no basis in the record to support Defendant's contention that the Plaintiffs could not protect the interests of the Class which they sought to represent; *853 finding that the Unions herein had, in the past, been responsive to Class interests; and finding that the Unions herein were conducting the lawsuit vigorously, this court held that those seeking to represent the Class had the kind of personal stake in the litigation that would insure adequate representation of the interests of the Class members.

(e) Rule 23(b): Plaintiffs elected to proceed under Fed.R.Civ.P. 23(b)(2).

"... that the party opposing the Class has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole."

Defendants conceded that the Class the Plaintiffs sought to certify met the requirements of subsection (b)(2) of Rule 23, and did not oppose such maintenance of this action.

In summary, having found the Plaintiffs met the seven prerequisites to maintenance of a Class action, this court found this case appropriate for certification under Fed.R.Civ.P. 23.

Subsequent to the litigation of Phase I, (i.e., the liability trial), this Court modified the Class definition in accordance with facts elicited at trial. The Class, as redefined, is as follows:

Male and female employees of all job classifications under the jurisdiction of DOP and HEPB which were 70% or more female as of November 20, 1980^[2] or anytime thereafter.

2. Exhaustion of Administrative Remedies:

Plaintiff's EEOC claims and complaint were based on Title VII of the Civil Rights Act of 1964, as amended on March 24, 1972. Title VII requires Plaintiffs to file their claims with the EEOC as a jurisdictional prerequisite to filing suit in District Court. In September of 1981 the individual Plaintiffs^[3] in this Class Action each filed claims with the EEOC charging that:

The State of Washington has and is discriminating on grounds of sex in compensation against women employed in State service by establishing and maintaining wage rates or salaries for predominately female job classifications that are less than wage rates or salaries for predominately male job classifications that require equal or less skill, effort, and responsibility.

EEOC charge Number XXXXXXXXX.^[4] The Defendant, relying on Ong v. Cleland, 642 F.2d 316 (9th Cir.1981), argued that the Plaintiffs herein filed a charge with the EEOC based on one theory of discrimination and then attempted to sue in Federal Court based on additional theories.

This Court, after a careful review of relevant case law, determined that Defendant's reliance upon Ong was misplaced. The Ong Court held that a Federal court should not permit a complaint to proceed when the "fit" with the administrative charge is so loose that it would "circumvent the Title VII scheme which contemplates agency efforts to secure voluntary compliance before a civil action is instituted." Id. at 319. This Court found that the "fit" between the administrative charge and the judicial allegation was not too loose. The administrative charge and the whole gambit of allegations of discrimination were sufficiently related factually to have put the EEOC on notice of the subsequent judicial allegations.

3. Plaintiff's Claims Based on State Law:

Plaintiff's alleged violations of a number of State provisions, in addition to alleged *854 Title VII violations, as jurisdictional basis for the present action and sought pendent jurisdiction. The State provisions were— the Washington State Law Against Discrimination, Wash.Rev.Code § 49.60.010 et seq; the Washington State Equal Pay Law, Wash.Rev.Code § 49.12.175; the State Civil Service Law, Wash.Rev.Code § 41.06.010 et seq; the State Higher Education Personnel Law, Wash.Rev.Code § 28B.16.010 et seq; the Washington State Equal Rights Amendment, Wash.Rev.Code Const. Amendment 61, Article XXXI; and several Governor's Executive Orders. Recognizing the duty of federal courts to avoid needless decisions on issues of State law, United Mineworkers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), this Court exercised its discretion in refusing pendent jurisdiction. In so ruling, this Court weighed carefully the considerations of judicial economy, convenience, and fairness to litigants. Id., 383 U.S. at 726, 86 S.Ct. at 1139. This case is basically a Title VII action, and the Court considered only Title VII issues and cases.

4. Tenth and Eleventh Amendment Claims:

In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under Section 5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor of private individuals against a State government found to have subjected the complaining individuals to employment discrimination on the basis of sex. See Title 42 U.S.C. § 2000e-5(g) (1970 ed. and Supp. IV), and Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).

"There is no dispute that in enacting the 1972 Amendments to Title VII to extend coverage to the States as employers, Congress exercised its power under Section 5 of the Fourteenth Amendment. See, e.g., H.R.Rep. No. 92-238, p. 19 (1971); S.Rep. No. 92-415, pp. 10-11 (1971). Cf. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976)."

Fitzpatrick, 427 U.S. at 453 n. 9, 96 S.Ct. at 2670 n. 9.

Defendant's argument to the contrary is without merit in that its reliance upon the rulings developed in National League of Cities v. Usery; Hodel v. Virginia Surface Mining to Reclam. Ass'n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); and EEOC v. Wyoming, ___ U.S. ___, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), is misplaced.^[5]

The Fitzpatrick decision, read in conjunction with Hodel, 452 U.S. at 287, n. 28, 101 S.Ct. at 2366, n. 28, makes it perfectly clear that Congress has power, under Section 5 of the Fourteenth Amendment, to prohibit sex discrimination in employment; that federal courts have authority to formulate appropriate remedies once such discrimination is found; and that such power and authority extends to the State as an employer, the Tenth and Eleventh Amendments notwithstanding.

*855 5. Plaintiff's Sex Segregation Claim:

Throughout their pleadings Plaintiff alleged the Defendant discriminated against the Plaintiff's Class by maintaining historically sex segregated job classifications. At trial, it became apparent that the alleged sex-segregation was not an independent claim, but an element of Plaintiff's claim based on discrimination in compensation. A careful reading of the voluminous pleadings herein reveals the Plaintiff's use of the term "sex-segregation" merely refers to sexual predominance, either male or female, in various job classifications. Plaintiff conceded this interpretation at trial.

This Court determined that sex-segregation was in issue, but only as an element of probative evidence supporting Plaintiff's disparate impact and disparate treatment arguments. Accordingly, Plaintiff's sex-segregation claim was dismissed.

6. Abstention:

Employing the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), this Court denied Defendant's request that this Court abstain until the State Courts had attempted a resolution of the controversy. As the United States Court of Appeals for the Ninth Circuit recently held, "[t]o determine whether Pullman abstention is appropriate, the district court must apply a three-prong test...."^[6]Badham v. U.S. Dist. Ct. For N.D. of Cal., 721 F.2d 1170, 1172 (9th Cir.1983). This Court found that the complaint did not "touch a sensitive area of social policy upon which the federal courts ought not to enter ...." Thus the first prong of the Pullman test was not met.^[7]

III. ESTABLISHED BASIC FACTS & LAW

The standards generally applicable to claims of discrimination under Title VII of the Civil Rights Act of 1964, section 701, et seq, Title 42 U.S.C. § 2000e et seq, were first articulated by the United States Supreme Court in Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (Disparate Impact), and in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (Disparate Treatment). Since then, decisions on this same subject matter have been rendered in that court and other Federal courts in a considerable number to the present time. All of the decisions that appear to have direct or indirect application to the present case have been closely reviewed and analyzed, individually and in relation to each other. Based thereon this Court finds and holds that the following statements are now well established in fact and law.

1. Title 42 U.S.C. sec. 2000e-2(a)(1) and (2) provides:

(a) It shall be an unlawful employment practice for an employer—(1)... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals ...sex...; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals ...sex....

2. The provisions of Title VII do not prohibit Plaintiffs in this case from suing Defendants for sex based wage discrimination, and other discriminatory compensation practices. In County of Washington *856 v. Gunther, the U.S. Supreme Court, addressing this very question, stated:

Title VII's prohibition of discriminatory employment practices was intended to be broadly inclusive, proscribing "not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). The structure of Title VII litigation, including presumptions, burdens of proof, and defenses, has been designed to reflect this approach.

County of Washington v. Gunther, 452 U.S. 161, 170, 101 S.Ct. 2242, 2248, 68 L.Ed.2d 751.

3. The plain language and broad remedial policy behind Title VII should not be limited in the absence of a clear congressional directive. "As Congress itself has indicated, a `broad approach' to the definition of equal employment opportunity is essential to overcoming and undoing the effect of discrimination. S.Rep. No. 867, 88th Cong., 2d Sess., 12 (1964). We must therefore avoid interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate." County of Washington v. Gunther, 452 U.S. at 178, 101 S.Ct. at 2252.

4. The four affirmative defenses of the Equal Pay Act are available to Defendants in a sex-based wage discrimination case brought under Title VII. See, e.g., County of Washington v. Gunther, 452 U.S. at 176, 101 S.Ct. at 2251. Only the fourth affirmative defense—"payment made pursuant to ... (iv) a differential based on any factor other than sex," Title 29 U.S.C. § 206(d)(1)(iv)—is relevant to this case.

5. In Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), the Supreme Court addressed and dismissed the applicability of a cost-justification defense in Title VII cases by explicitly stating," ... neither congress nor the Courts have recognized such a defense under Title VII." Id., 435 U.S. at 717, 98 S.Ct. at 1379-1380.

This Court is cognizant of the relevance of cost in determining the propriety of back pay under the rationale articulated in the Manhart and Norris^[8] decisions. The relevance of cost at that juncture of a case is clearly distinguishable from the application of a cost-justification defense at the liability phase of Title VII litigation.

6. Title VII prohibits two types of employment discrimination. First, it prohibits disparate treatment: intentional, unfavorable treatment of employees based on impermissible criteria. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Second, it prohibits practices with a discriminatory impact: facially neutral practices that have a discriminatory impact and are not justified by business necessity. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. See also Teamsters, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396. The same set of facts may give rise to a claim under both disparate impact and disparate treatment theories. Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15; Bonilla v. Oakland Scavenger Company, 697 F.2d 1297 (9th Cir.1982); Heagney v. University of Washington, 642 F.2d 1157 (9th Cir.1981).

7. Until recently, the availability of the disparate impact analysis in section 703(a)(1) cases, was unclear. However, the Ninth Circuit in Wambheim v. J.C. Penney Company, Inc., 705 F.2d 1492, 1493-1494 (9th Cir.1983) (per curiam), held that the disparate impact analysis is appropriate in Section 703(a)(1) cases. See also Bonilla v. *857 Oakland Scavenger Company, 697 F.2d 1297, 1302-04 (9th Cir.1982), petition for cert. filed, 51 U.S. Law Week 3775 (U.S. April 15, 1983), (No. 82-1699). The applicability of the disparate impact analysis in Section 703(a)(2) cases is well established. See Griggs, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158.

8. Establishment of a prima facie case under the disparate impact theory requires Plaintiff to show, by a preponderance of the evidence, that the challenged practice has a significantly discriminatory impact. Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982). It is not necessary to establish discriminatory intent. Griggs, 401 U.S. at 432, 91 S.Ct. at 854.

A prima facie showing shifts to Defendant the burden of justifying its policy. As articulated by the Ninth Circuit Court of Appeals in Wambheim v. J.C. Penney Company, Inc.,

[t]he standard applied in section 703(a)(2) cases is business necessity, see Griggs, 401 U.S. at 431, 91 S.Ct. at 853, manifest relationship to the employment, see Connecticut v. Teal, 102 S.Ct. at 2531, or necessity for the efficient operation of the business. See Peters v. Lieuallen, 693 F.2d 966, 969 (9th Cir.1982). Because none of these measures is particularly applicable to the section 703(a)(1) employment (compensation) case, we adopt the standard articulated in Bonilla: (Defendant) must "demonstrate that legitimate and overriding business considerations provide justification." Bonilla, 697 F.2d at 1303.

Wambheim, at 1495.

In assessing the viability of the Defendants business justifications in a section 703(a)(1) case, this court is obliged to balance said considerations against the countervailing national interest in eliminating employment discrimination. See Bonilla, 697 F.2d at 1303, quoting Griggs, 401 U.S. at 430, 91 S.Ct. at 853. Only if Defendant's business justification overrides this national interest will the defense be considered sufficient. The Supreme Court has admonished that under Title VII, "practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to freeze the status quo of prior discriminatory employment practices." Griggs, 401 U.S. at 430, 91 S.Ct. at 853.

Assuming Defendant's could carry the burden of justifying its compensation system, the Plaintiff's could still prevail by showing that the practice was used as a pretext for discrimination. Connecticut v. Teal, 102 S.Ct. at 2531; Wambheim, at 1494. Evidence that the defense was a pretext might include proof of past intentional discrimination, or proof that an alternative practice would serve the Defendant's legitimate interests with less disparate impact. Id. at 1494; see also Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir.1981).

9. The United States Supreme Court in Texas Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), articulated the basic allocations of burdens and order of presentation of proof in a Title VII case alleging disparate treatment.

First, the Plaintiff has the burden of proving by the preponderance of the evidence, a prima facie case of discrimination. Second, if the Plaintiff succeeds in proving the prima facie case, the burden shifts to the Defendant, "to articulate some legitimate, non-discriminatory reason for the employees rejection". McDonnell Douglas, [411 U.S.] at 802 [93 S.Ct. at 1824]. Third, should the Defendant carry this burden, the Plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Defendant were not its true reasons, but were a pretext for discrimination.

Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. The Burdine court further defined the nature of the burdens in a disparate treatment case. In the first instance, the Plaintiff has the burden of establishing a prima facie case of disparate treatment. *858 This burden is not onerous. Id, at 253, 101 S.Ct. at 1093. Establishment of a prima facie case under a disparate treatment theory requires Plaintiff to show facts supporting an inference of intent to discriminate. "... It is settled that a prima facie showing of disparate treatment may be made without any direct proof of discriminatory motivation." Gay v. Waiters Dairy Lunchmen's Union, 694 F.2d 531, 546 (9th Cir.1982). A Plaintiff may make such a showing with a combination of direct, circumstantial and statistical evidence of discrimination. It is now well settled that proof of the four McDonnell Douglas criteria is not the only way to establish a prima facie case of disparate treatment, and that the McDonnell Douglas approach is to be applied flexibly. See Gay v. Waiters Dairy Lunchmen's Union, 694 F.2d at 550.

... the best prima facie case utilizing statistical date, one allowing the strongest inference of intentional discrimination outside of the McDonnell Douglas framework, is that in which the Plaintiff's statistical proof is "bolstered" by other circumstantial evidence of discrimination bringing "the cold numbers convincingly to life." Teamsters, supra, 431 U.S. at 339,

Additional Information