Margaret Spaulding, and James Bush, Intervenors-Appellants v. University of Washington

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 special master's findings under a de novo standard or a clearly erroneous standard. 676 F.2d at 1234 n. 1.

Prior to our decision in Spaulding I, the transcript was prepared and used by the district judge as he reviewed the special master's factual findings under the clearly erroneous standard1 and adopted both the findings of fact and conclusions of law with minor modifications. The district judge then ordered dismissal under rule 41(b).

The district judge did not decide whether he had jurisdiction over the nursing faculty's claims, but went directly to the merits. This was incorrect.

Federal courts are courts of limited jurisdiction and may not resolve the merits of disputes if they lack jurisdiction. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3522 (1975). Although the district court failed to address the issue of its jurisdiction, we may affirm its decision on any basis supported by the record. E.g., Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957) (per curiam).

We first consider the district court's jurisdiction over the section 1983 claim. The eleventh amendment to the Constitution bars suit in federal court by citizens against a state or its agency under section 1983 unless the state has waived its immunity. Quern v. Jordan, 440 U.S. 332, 338-45, 99 S.Ct. 1139, 1143-47, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974); Bennett v. California, 406 F.2d 36, 39 (9th Cir.), cert. denied, 394 U.S. 966, 89 S.Ct. 1320, 22 L.Ed.2d 568 (1969); see Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations, 69 Calif.L.Rev. 189, 200-34 (1981).

The nursing faculty conceded in its amended complaint and in the pretrial order that the University is an agency of the State of Washington. Thus, we need not determine independently whether the University is a state agency. The nursing faculty does not assert that Washington waived its immunity. We therefore hold that the district court lacked jurisdiction over the nursing faculty's section 1983 claim.

The district court did, however, have federal question jurisdiction over the Equal Pay Act claims. The University comes within the Act because it is both an employer and an establishment within the meaning of the statute. 29 U.S.C. Secs. 203(d), 206(d)(1).2

The nursing faculty asserts that the district court erred in not reviewing the special master's factual findings de novo. It bases this assertion on its interpretation of the applicable statutes, as well as on article III of the Constitution. Further, it argues that we must engage in de novo review of the facts because the district judge failed to do so. The nursing faculty also contends that the reference to the special master was improper because 42 U.S.C. Sec. 2000e-5(f)(5) does not authorize referrals of Equal Pay Act claims.3

We first consider whether the nursing faculty waived any of these objections. In Spaulding I, we held that the nursing faculty had not waived its right to have the district judge review a transcript of the proceedings before the special master. 676 F.2d at 1235. The nursing faculty raised its objection to the use of the clearly erroneous standard of review at the same time that it raised its objection to the transcript provision. Thus, we must hold that the nursing faculty did not waive its right to contest the use of the clearly erroneous standard of review.

Spaulding I, however, does not affect our determination of whether the nursing faculty waived its objection to referral of the Equal Pay Act claims. The nursing faculty waited until this appeal to raise the argument that Equal Pay Act claims cannot be referred to a special master under 42 U.S.C. Sec. 2000e-5(f)(5). They are too late. Parties should object to a reference to a magistrate or a special master at the time the reference is made or within a reasonable time thereafter. See, e.g., Hayes v. Foodmaker, Inc., 634 F.2d 802, 803 (5th Cir.1981) (per curiam); Cruz v. Hauck, 515 F.2d 322, 331 (5th Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976); Diamond Door Co. v. Lane-Stanton Lumber Co., 505 F.2d 1199, 1206 (9th Cir.1974); 5A J. Moore & J. Lucas, Moore's Federal Practice p 53.05 (2d ed. 1982); 9 C. Wright & A. Miller, Federal Practice & Procedure Sec. 2606 (1971).

We therefore turn to the merits of the nursing faculty's claim that the district court erred in not reviewing the special master's factual findings de novo. The district judge referred sua sponte the nursing faculty's claims to the special master under the authority of 42 U.S.C. Sec. 2000e-5(f)(5)4 and pursuant to rule 53 of the Federal Rules of Civil Procedure and rule 21 of the local magistrates' rules.5 The order of reference provided that the magistrate would sit as a special master and that the master's report would be subject to review by the district court in accord with rule 53(e) of the Federal Rules of Civil Procedure. Rule 53(e) states that in a non-jury action, the district court shall accept the master's findings of fact unless clearly erroneous. Fed.R.Civ.P. 53(e)(2). After the master filed his report, the nursing faculty objected to the use of the clearly erroneous standard of review. The district judge rejected the nursing faculty's claim that de novo review was required, relying upon White v. General Services Administration, 652 F.2d 913 (9th Cir.1981) (White).

In White, we held that a reference to a special master pursuant to the same local magistrates' rule now before us was proper under 42 U.S.C. Sec. 2000e-5(f)(5). We also stated that:

Despite the statutory language providing for appointment of a master pursuant to Rule 53, it is clear that Congress intended to relax that Rule's stricture that reference shall be made "only upon a showing that some exceptional condition requires it." ... There would have been little reason for the statute had Congress merely wished to confine referrals to the extremely limited instances contemplated by Rule 53(b). We therefore view the citation to Rule 53 in Sec. 2000e-5(f)(5) as manifesting congressional intent to incorporate all of the rule except the severe restrictions upon reference.

White, 652 F.2d at 915 (citations omitted). By incorporating all of rule 53 except for part (b), White teaches that 53(e)(2) is applicable. That subdivision states in part "the court shall accept the master's findings of fact unless clearly erroneous." Thus, we agree with other courts which have held expressly that the clearly erroneous standard applies to review of a magistrate's or special master's factual findings in a Title VII case. Cockrham v. South Central Bell Telephone Co., 695 F.2d 143, 145 (5th Cir.1983) (per curiam); Hayes v. Foodmaker, Inc., 634 F.2d at 802-03 (reference under 28 U.S.C. Sec. 636(b)(2)); Livas v. Teledyne Movible Offshore, Inc., 607 F.2d 118, 119 (5th Cir.1979) (per curiam); Harden v. Dayton Human Rehabilitation Center, 520 F.Supp. 769, 770-71 (S.D.Ohio 1981) (reference under 28 U.S.C. Sec. 636(b)(2)); see also Oliver v. Allison, 488 F.Supp. 885, 888-89 (D.D.C.1980) (mem.) (consensual reference to magistrate).

The nursing faculty contends that de novo review is required in order to alleviate an "irreconcilable tension" between cases referred under sections of the Federal Magistrates Act requiring de novo review and cases referred pursuant to rule 53, but they cite only cases in which reference was under 28 U.S.C. Sec. 636(b)(1) or (b)(3). Subsection 636(b)(1) expressly states that a district judge is required to make a de novo determination of those portions of a magistrate's report to which a party objects. We require the same in references under subsection 636(b)(3). Coolidge v. The Schooner California, 637 F.2d 1321, 1325-27 & 1326 n. 5 (9th Cir.), cert. denied, 451 U.S. 1020, 101 S.Ct. 3011, 69 L.Ed.2d 392 (1981) (consensual reference). But these cases differ from those referred under 28 U.S.C. Sec. 636(b)(2). Further, the nursing faculty's argument that 28 U.S.C. Sec. 636(c), permitting a magistrate to hear and enter judgment in a civil matter upon consent of the parties, is implicit authority that de novo review is required unless the parties consent, lacks merit.

We hold that we should not undertake our own de novo review of the special master's factual findings. See Fed.R.Civ.P. 52(a); accord Pullman-Standard v. Swint, 456 U.S. 273, 285-90, 102 S.Ct. 1781, 1788-91, 72 L.Ed.2d 66 (1982); cf. Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317, 319 (5th Cir.1981); Coen v. Zick, 458 F.2d 326, 328 (9th Cir.1972) (findings of referee in bankruptcy which have been affirmed by district court not to be set aside unless clearly erroneous).

On the merits of the Equal Pay Act claim, the district court held that the nursing faculty had failed to establish that its members performed work substantially equal to that performed by male faculty members in other parts of the University. The nursing faculty attempted to establish this claim by comparing the job of nursing faculty members to that of male faculty members in other schools of the University such as health services, social work, architecture, urban planning, environmental health, speech and hearing, rehabilitative medicine, and pharmacy practice. The nursing faculty does not assert that male and female members of the nursing faculty are treated differently. Indeed, one plaintiff and one intervenor are male members of the nursing faculty. The district court also held that Fine failed to establish that she performed work substantially equal to that performed by either of the two male associate hospital administrators she identified as comparators.

The Equal Pay Act prohibits an employer subject to its provisions from discriminating in the payment of wages between employees on the basis of sex. In order to make out a prima facie case of an Equal Pay Act violation, the nursing faculty bears the burden of establishing that its members did not receive equal pay for equal work. Hein v. Oregon College of Education, 718 F.2d 910, 913 (9th Cir.1983) (Hein ); Gunther, 623 F.2d at 1309;6 see Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). If a prima facie case is established, the University may attempt to show that the payment of different wages is based on either a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a factor other than sex. 29 U.S.C. Sec. 206(d)(1)(i)-(iv); Corning, 417 U.S. at 196, 94 S.Ct. at 2229; Kouba v. Allstate Insurance Co., 691 F.2d 873, 875 (9th Cir.1982); Gunther, 623 F.2d at 1308-09.

The Act defines, at least in broad terms, what constitutes equal work by specifying that jobs are equal if their performance requires equal skill, effort, and responsibility and they are performed under similar working conditions. 29 U.S.C. Sec. 206(d)(1). A plaintiff may show that the jobs are substantially equal, not necessarily that they are identical. Gunther, 623 F.2d at 1309. Actual job performance and content, rather than job descriptions, titles or classifications, is determinative. Id. Thus, each claim that jobs are substantially equal necessarily must be determined on a case-by-case basis. Hein, 718 F.2d at 913; Gunther, 623 F.2d at 1309; Usery v. Columbia University, 568 F.2d 953, 958 (2d Cir.1977). We disagree, therefore, with the University's contention that jobs from different academic disciplines can never be substantially equal. The proper resolution of each case necessarily depends upon the actual content of the jobs. Gunther, 623 F.2d at 1309. The district judge's determinations on the issue of substantial equality are findings of fact. Hein, 718 F.2d at 913; Gunther, 623 F.2d at 1309; accord Horner v. Mary Institute, 613 F.2d 706, 713 (8th Cir.1980). We apply the clearly erroneous standard of review.

The nursing faculty argues that it need only demonstrate that the objective characteristics of the jobs are substantially equal. Then, according to the nursing faculty's argument, the burden shifts to the University to show whether any subjective differences between the jobs, such as the subject taught, are legitimate and actual bases for the disparity. The cases relied upon by the nursing faculty are not cases under the Equal Pay Act, but, rather, are cases arising under Title VII and involve the allocation of burdens in a disparate treatment claim. See, e.g., Lynn v. Regents of the University of California, 656 F.2d 1337 (9th Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 59 (1982) (Lynn ).

In attempting to meet its burden, the nursing faculty contends that nursing faculty members perform substantially equal work to that performed by specified comparator faculty members because both jobs require preparation and teaching of courses, research and publication, committee work, advising of students, and community service. The nursing faculty selected the departments relied upon for comparators because they are professional schools "with a degree mix similar to the school of nursing with practice related activities, where students are frequently put into clinical settings under faculty supervision." The nursing faculty introduced statistics attempting to compare 66 individual faculty members from the selected comparator departments with members of the nursing faculty based on degrees held, experience, and merit. In addition, the nursing faculty points to evidence describing various faculty positions and showing that its members taught courses in comparator departments, engaged in research on interdisciplinary issues, and worked on committees with comparator faculty members. Despite the facial similarity in the nature of the faculty positions relied upon by the nursing faculty, the special master concluded that the nursing faculty had not shown substantial equality. The district judge adopted that finding. We conclude that the district judge's finding on substantial equality is not clearly erroneous. See generally Horner v. Mary Institute, 613 F.2d at 714 (affirming finding that jobs of two physical education teachers were not substantially equal even though "superficially identical in that both involve teaching of physical education").

The evidence supports the finding of the special master and the district judge on substantial equality. It indicates that the different departments in the University which plaintiffs used for comparators placed varying degrees of emphasis on research, training, and community service, and that nursing historically had been considered a discipline distinct from those plaintiffs chose for comparison. Further, the statistical evidence submitted by the nursing faculty was deficient in several respects. It did not adequately account for prior job experience, rank, or multiple degrees, and, most important, it did not adequately evaluate the actual work performed by various faculty members. We agree with the district court's observation that the nursing faculty's statistical evidence "either ignores the central fact disputed in this lawsuit, which is whether or not the work done by plaintiffs is substantially equal to the work done by male faculty with whom they compare themselves, or it presumes equality." The statistical evidence may demonstrate a pay disparity, but a difference in pay between jobs which women primarily hold and jobs which men primarily hold does not state a prima facie Equal Pay Act case if the jobs are not substantially equal. See Horner v. Mary Institute, 613 F.2d at 715. The district court was not clearly erroneous in finding that the nursing faculty had not shown that the actual day-to-day responsibilities, skill, and effort required of the male comparators were substantially equal to that of the nursing faculty.

In reaching this decision, the district court adopted the special master's findings concerning the differences in training and education in academic fields. The nursing faculty argues that a difference in training and educational background is irrelevant to whether jobs are substantially equal. In brief, the nursing faculty contends that "teaching is teaching." The contention, although superficially appealing, lacks merit. As we stated previously, the determinative factor is actual job content. The Equal Pay Act specifies that equal skill is a component of equal work. 29 U.S.C. Sec. 206(d)(1). The administrative regulations interpreting the Equal Pay Act define skill as including "consideration of such factors as experience, training, education, and ability." 29 C.F.R. Sec. 800.125 (1983). Possession of skills irrelevant to the job requirements, however, cannot be considered in making a determination regarding substantial equality of skill. Id.; see Peltier v. City of Fargo, 533 F.2d 374, 377 (8th Cir.1976). Clearly, training in an academic field is necessary to a job as a university faculty member in that field. See Melanson v. Rantoul, 536 F.Supp. 271, 287 (D.R.I.1982) (refusing to compare plaintiff's salary to average salary of male associate professors absent showing that each associate professor's position requires equal skill). Some members of the nursing faculty had engaged in interdisciplinary teaching, research, or community activities, but the district judge did not err in adopting the master's finding that these were not job required although some individuals brought their unique skills to the work. At best, those activities were only a part of their duties and, thus, do not convince us that the district judge was clearly erroneous on the substantial equality issue.

The evidence on Fine's Equal Pay Act claim also shows that she did not prove substantially equal work. Fine was employed by the University of Washington Hospital from 1958 to 1976. She was director of nursing services from 1962 to 1976. From 1962 to 1968, she served as a clinical assistant professor in the School of Nursing. From 1968 to 1973, she was a part-time nontenured assistant professor in the School of Nursing and beginning in 1973, she was a part-time tenured associate professor. From 1969 to 1976, she also had the title of associate administrator. Since 1976, her exclusive position has been as an associate professor. She holds a master's degree in nursing and has some post-graduate training in business administration. She argues that she performed substantially equal work to that performed by Lang and Stein, two male associate hospital administrators.

During Fine's tenure at the hospital, she was responsible for supervising nursing personnel and for the respiratory therapy, central supply, medical records, and in-patient admitting departments. She testified that she reported directly to the hospital administrator, that in her capacity as associate administrator she was responsible for department development, program changes, and planning, and that she was responsible for the nursing department budget. She also testified that she chaired a committee which planned a computer program system for University Hospital and Harborview Medical Center (Harborview), was in charge of disaster plans, and served on various other committees. Harborview was also associated with the University. In addition, she at times had administrative responsibility for the entire hospital at night, on weekends, and on an on-call basis.

Lang holds a master's degree in public health and served as an assistant hospital administrator at University Hospital and then as an associate hospital administrator at Harborview. He was responsible for numerous hospital departments, in charge of labor negotiation, program development, and had a major role in hospital planning and administration. The special master concluded that Lang was responsible for administering more departments than Fine and that those departments were more complex. In the absence of the hospital administrator, Lang assumed complete responsibility.

Stein holds a master's degree in business administration and served as an associate hospital administrator from January 1974 to March 1978 at the University of Washington Hospital. He then served as acting hospital administrator for a time. As associate administrator, he was second in command. He had primary administrative responsibility for all major professional departments, represented the administration in labor negotiations, and coordinated hospital planning and budgeting.

The district judge was not clearly erroneous in finding that the jobs of Fine and Lang or Stein were not substantially equal.

The nursing faculty also claims sex-based wage discrimination by the University in violation of Title VII of the Civil Rights Act of 1964. Section 703(a) of Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" or to "limit, segregate, or classify his employees or applicants" because of sex. 42 U.S.C. Sec. 2000e-2(a).

The decision rendered at the end of the nursing faculty's case indicates a deter