Wilkins v. University of Houston (654 F.2d 388, 1981)

GEE, Circuit Judge:

Jeanine Wilkins and Sharon Hill, employees of the University of Houston, brought this Title VII suit against the university and KUHT — TV on behalf of themselves and a class of women, alleging that the university discriminated against women in a variety of its employment practices. The class certified by the district court included all past, present, and future female employees on the faculty or in a professional or administrative staff position, as well as unsuccessful female applicants for such employment. After a trial on the merits, the district court rendered judgment for the university on both the individual and class claims. As to the claim that the university discriminated against its women employees in the academic division of the professional and administrative staff with respect to compensation, we reverse the district court’s judgment for the defendants. 471 F.Supp. 1054. In all other respects, we affirm.

I. STANDARD OF REVIEW

The standard by which we review a factual finding of a district court depends upon whether the finding at issue is one of ultimate fact or subsidiary fact. The ultimate fact at issue in a Title VII action is whether the defendant unlawfully discriminated against the plaintiff. That finding is not subject to the clearly erroneous standard of review; rather, the reviewing court must make an independent determination of the ultimate fact issue of discrimination. In doing so, however, the appellate court is bound by the trial court’s findings of subsidiary facts that are not clearly erroneous. Danner v. United States Civil Service Commission, 635 F.2d 427 (5th Cir. 1981).

II. INDIVIDUAL CLAIMS A. Jeanine Wilkins.

Ms. Wilkins was employed by KUHT-TV (“KUHT”), an auxiliary enterprise of the University of Houston, in August of 1973. In April of 1974, Ms. Wilkins notified the university that she was terminating her employment effective July 31, 1974. Plaintiff Wilkins claims that she was constructively discharged by defendants in violation of her Title VII rights. As we recently reiterated, a “[cjonstructive discharge occurs when the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1077 (5th Cir. 1981). The question is not whether the employer’s purpose was to force the employee to resign; rather, the issue is whether “a reasonable person in the employee’s position and circumstances would have felt compelled to resign.” Id. It is clear from our review of the record that Ms. Wilkins was not constructively discharged by sexually discriminatory employment practices committed by defendants.

When Ms. Wilkins was hired, the film production unit at KUHT had been virtually shut down for more than a year, and efforts were underway to revitalize the department. This situation, and the small size of the station’s film operation, dictated that employees of the department perform a variety of tasks. While Ms. Wilkins replaced the station’s only film editor, it is undisputed that there was not nearly enough film editing to be done, to justify the employment of a full-time film editor and that her duties were to extend considerably beyond merely editing films. In fact, both Jim Bauer, the station manager, and Bob Cousins, a producer-director at KUHT and Ms. Wilkins’ immediate supervisor, testified that Ms. Wilkins expressed a strong desire to engage in a wide variety of activities at the station and that their decision to hire her was based in part on that desire.

Shortly after Ms. Wilkins was hired, the film unit began working on a mass transit film with a rather short deadline entitled “Getting There.” While plaintiff testified that she did not edit the major portion of this film, the trial court found on the basis of substantial evidence that she edited some 97 percent of it. The remaining segment of the film was edited by a Mr. Brian Beasley, a film editor who had worked with Mr. Cousins on other films not related to KUHT. This 3 percent segment involved cutting the film to music, a process that is somewhat more difficult than the typical editing of film. Beasley, who had more than ten years’ experience as a film editor and who was then employed elsewhere, edited the film on a Saturday on a voluntary, noncompensatory basis apparently as a favor to Cousins.

The mass transit film was finished in late September or early October 1973. From that date until at least the following January, Beasley was completely uninvolved with KUHT. According to Ms. Wilkins, she learned in January 1974 that Beasley was going to be hired on a free-lance basis to edit a film the station was going to make for Rice University later in the spring. Plaintiff testified that the station’s decision to use Beasley on the Rice film — conceded by all to be the most important project that had come into the film production unit— was a major factor in her decision to terminate her employment at KUHT. Her Title VII claim is that Cousins could not accept women working with him in positions of authority; that this attitude was reflected not only in the decision to use Beasley on the Rice film but also in the fact that Cousins assigned various clerical, routine, and relatively menial tasks to Wilkins; and that this situation made working conditions so intolerable that Wilkins was forced into an involuntary resignation. We reject this argument for a number of reasons.

First, it is clear that Beasley had considerably more experience and skill as a film editor than did Wilkins. Cousins testified that Beasley had been editing films for some twenty to twenty-two years and that he (Cousins) considered Beasley “probably the best film editor in Houston and the southwest.” Cousins and Beasley had worked together on films for the National Aeronautic^ and Space Administration; from that experience Cousins had developed “every confidence” in Beasley as a film editor. Producing and directing films is a creative process the ultimate success of which is highly dependent upon the work of the film editor, with whom the producer-director must work closely. Cousins testified that his decision to hire Beasley to edit the Rice film was based on his belief that Beasley was an excellent editor and his desire to make certain that the very important Rice film was produced and edited properly. While Cousins stated that Wilkins had competently edited the other films to which she had been assigned, he also testified that her limited experience editing films — prior to coming to KUHT Wilkins had one year of film experience in which she had edited two films — was a factor in his decision to hire Beasley for the Rice film. Cousins’ decision to use the best possible people on the Rice film was also reflected in his hiring a freelance cameraman to shoot the film rather than using the station’s male staff cameraman. We agree with the district judge’s finding that Cousins’ decision to hire Beasley to edit the Rice film, rather than using Wilkins, was not sexually discriminatory.

Other factors supporting our decision that Wilkins was not constructively discharged include the following: Wilkins was hired to perform a variety of tasks other than editing films. While she testified that she edited, partially or wholly, at least seven films, the evidence also indicates that she was involved in researching film ideas, writing proposals, producing a film, and assisting in the production of several other films. At the time the Rice film was being produced, KUHT was involved in its annual auction from which it derived a major portion of its operating funds for the next year. Wilkins was assigned to produce and edit a number of short commercial films for the auction. While the Rice film may have been the station’s most important film project from a creative standpoint, the auction generated more than forty times as much revenue for the station than did the Rice film. Finally, we note that near the beginning of 1974 Ms. Wilkins told Cousins that her salary was too low; soon thereafter she began interviewing for other employment. As there is no serious contention that Wilkins was discriminated against with respect to pay, the effect of her dissatisfaction with her salary on her decision to resign indicates a reason other than sexual discrimination for that decision. Our review of the record indicates that Wilkins was assigned a variety of tasks of varying degrees of importance and difficulty at KUHT and that sexually discriminatory practices committed by the station, if any, did not make her working conditions so intolerable as to force her into an involuntary resignation.

B. Sharon Hill.

In late 1973, Ms. Hill worked for the university in a computer laboratory that serviced the College of Engineering by providing computer programming and access to computers primarily to faculty and students within the college. At that time David Lowell was the lab employee with technical proficiency in the computer services offered by the lab. Ms. Hill’s duties involved such tasks as scheduling users’ access to the computers, billing, budgeting, hiring and supervising student computer operators, |and ordering supplies; the extent of her supervisory authority over Lowell is the subject of some dispute and is discussed below. In late 1973, Ms. Hill formally requested that her job be reclassified and that she be given a raise. At that time her job title was research assistant, and she was earning $7,878 per year. Her application was approved: effective January 1, 1974, her annual salary was raised to $9,120, and she was given the title coordinator of operations.

In the fall of 1974, Lowell left the lab and was replaced on a temporary basis by David Killough, who was then a full-time employee of Exxon. Killough, on the verge of retirement and seeking part-time computer-related work, agreed to fill the vacancy left by Lowell on a voluntary, noncompensatory basis until a permanent replacement could be found and trained. That replacement was an electrical engineer named Lew Folkerth; he was hired by the university in November of 1974 at an annual salary of $14,500. Problems between Hill and Folkerth arose immediately; before Folkerth arrived for his first day at the lab, Hill notified the university’s equal employment officer that the situation with Folkerth created a “glaring inequity" because Folkerth, whom she assumed would be under her supervision, would be paid some $5,000 per year more than she was being paid. Shortly thereafter — before Hill’s complaint had been processed by the university — she filed a formal charge with the Equal Employment Opportunity Commission alleging that the salary differential was attributable to sex discrimination.

The university responded to Hill’s complaint by having a representative of the personnel office, Mr. Silber, investigate the charge by “auditing” Hill’s job. Silber visited the lab, watched it in operation, and had a discussion with Hill concerning her duties. He concluded that her job was a relatively low level administrative position; that it could not be compared with managerial positions at the university’s other two computer facilities because those positions required technical skill and the administrative management of a much larger operation; that Folkerth’s technical computer competence justified his higher salary; but based on salaries being paid to other administrative personnel, Ms. Hill should be given a raise to $10,750 or $11,000 per year. While Hill testified that the dean refused to approve her raise, the district court found— consistent with computer printouts introduced by plaintiff listing employees and their salaries — that in February of 1975, just one month after Silber’s job audit and recommendation, Hill was being paid at an annual rate of more than $10,800.

Meanwhile, the working relationships between Hill on the one hand and Killough and Folkerth on the other were deteriorating. The prime sources of these problems were apparently a difference in opinion between the three concerning Hill’s supervisory authority over Folkerth and a personality conflict between Hill and Folkerth. On several occasions Hill’s attempts to exercise supervisory powers over Folkerth were ignored by him, exacerbating the problem. The situation continued to deteriorate until it became evident that Killough, and probably Folkerth, would quit if Hill was not fired. After discussing the problem with the lab personnel, Dean Kirkpatrick fired Hill; that decision resulted in this lawsuit. The district court found that sex was not a factor with respect to either Hill’s termination or her salary and that the university had not terminated her in retaliation for her filing a charge with the EEOC. We agree.

Hill’s salary claim is disposed of easily. Folkerth had a degree in electrical engineering and one or two years’ — the testimony was inconsistent — experience with computers in industry. Uncontroverted testimony established that his $14,500 annual salary was below market value for persons with his qualifications. Hill had taken one IBM course covering a wide range of topics relating to computers; while she apparently had some understanding of computer languages, it is undisputed that she lacked the technical competence to develop and maintain computer systems or to assist users in programming. Her duties were administrative in nature; on the basis of the personnel department’s job audit, a recommendation was made that Hill’s salary be raised to $10,750 or $11,000. The district court found on the basis of credible evidence that just one month after this recommendation Hill was making more than $10,800 per year.

The issues of whether Hill was terminated because of her sex or in retaliation for her having filed a charge with the EEOC will be considered together. Hill claims that after she filed the EEOC charge she was demoted and ultimately fired. While the university argues strenuously that Hill was not demoted, it is clear that her duties changed when Lowell was replaced by Killough and Folkerth. The issue, however, is whether her duties were curtailed because of her sex or in retaliation for her having filed the EEOC charge; we agree with the district judge that they were not.

The fundamental problem appears to have been a difference in opinion between Hill and the others involved with the lab about the extent of Hill’s supervisory authority. It is clear that Hill had supervisory authority over Lowell — Dr. Motard, the lab director, so testified, and an organizational chart for the lab and job descriptions for Hill’s and Lowell’s positions bear this out. When Lowell left and Killough and Folkerth arrived, Hill attempted to exercise supervisory authority over Folkerth; Dean Kirkpatrick responded to the resulting problem by issuing a new organizational chart that essentially provided that Killough was in charge of the technical side of the lab and thus was to be Folkerth’s supervisor. Hill argues that this action was made in retaliation for her having filed the EEOC charge; while the new chart was issued only a month after Hill filed the charge, we find that the dean did not do so with a retaliatory motive.

Dr. Motard and Dean Kirkpatrick testified that Lowell, who was in the process of completing his degree requirements, needed supervision in scheduling projects, meeting deadlines, not taking on too many outside projects, and staying within the budget. To this extent Hill was Lowell’s supervisor; she did not supervise his systems development and programming work. Lowell’s replacement, Killough, had many years of experience at Exxon in both the technical and managerial aspects of a computer operation; that he required no supervision is not contested. Rather, Hill’s complaint goes to her position in the lab with respect to Folkerth. Defendants’ argument is that Killough was in charge of the technical aspects of the lab; that it was reasonable for Killough to supervise Folkerth, whom Killough essentially was training to take Lowell’s job; that Folkerth did not have the same difficulties as Lowell in administering his work load so that he simply did not need the kind of supervision that Hill exercised over Lowell; and that neither Hill’s sex nor the EEOC charge had anything to do with her “demotion.” We find this argument entirely reasonable, supported by the evidence, and in fact largely uncontroverted by any.

While the source of the problem that lead to Hill’s termination appears to have been her dissatisfaction with her salary relative to Folkerth’s and the misunderstanding as to her supervisory authority, the discontent in the lab manifested itself in a variety of ways. Communications between Folkerth and Hill apparently were strained from the date Folkerth was hired. While Killough apparently made efforts to mediate, his patience was limited; at a meeting between Dr. Motard, Hill, and Killough concerning Folkerth, Killough became very angry, stormed out of the meeting, and said that he had had enough and was quitting. At that point it was evident that a choice had to be made between Killough and perhaps Folkerth on the one hand and Hill on the other. For this and a number of other reasons, Dean Kirkpatrick decided to fire Hill. She spent inordinant amounts of time on the telephone for nonbusiness reasons; she had begun spending most of her time in her office with the door shut and often locked, making it difficult to communicate with her; she had become belligerent and hostile toward coworkers in the lab; and her position would be much easier to fill than would Killough’s or Folkerth’s. In short, the trial court was correct in finding that “Ms. Hill was terminated for good cause . .. that sex was not a factor in said termination .... and [that she] was not a subject of .... retaliation because of the filing of an EEOC claim.” 471 F.Supp. at 1058.

III. CLASS CLAIMS

A. Introduction.

Plaintiffs Wilkins and Hill sued not only for themselves but also on behalf of a class consisting of all past, present, and future female employees on the faculty or in a professional or administrative staff position and unsuccessful female applications for such employment at the University of Houston. Initially, we note that, the class having been certified prior to trial, the district court’s dismissal of the named plaintiffs’ claims and our affirmance of that decision do not negate the need for consideration of the class claims. Thurston v. Dekle, 531 F.2d 1264, 1271 (5th Cir. 1976).

Plaintiffs essentially allege that the university treats women less favorably than men because of their sex; there is no claim that employment practices of the university that are facially neutral in their treatment of male and female employees fall more harshly on females than on males. Accordingly, plaintiffs have stated a “disparate treatment,” as opposed to a “disparate impact,” claim and must therefore prove discriminatory motive. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977); Lee v. Conecuh County Board of Education, 634 F.2d 959, 961 n.3 (5th Cir. 1981). Furthermore, plaintiffs’ class claims, alleging that the university engaged in a systemwide pattern or practice of discriminating against women, cannot succeed on the basis of proof of “the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. [Rather, plaintiffs] had to establish by a preponderance of the evidence that [sex] discrimination was the [university’s] standard operating procedure — the regular rather than the unusual practice.” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855.

Plaintiffs introduced a substantial amount of statistical evidence in an attempt to meet their burden of proving that the university acted with a discriminatory motive and engaged in a pattern or practice of discriminating against women. In Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977), also a Title VII disparate treatment class action, the Supreme Court did not discuss explicitly the discriminatory motive issue but stated that “[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Accordingly, where the statistical showing is sufficiently strong in a disparate treatment action, plaintiffs’ prima facie case can be made without additional evidence establishing that defendant purposefully treated minorities protected under Title VII less favorably than other persons.

Because of the significant role that statistics can play in discrimination cases and of their inherently slippery nature, it is imperative that they be used properly. While gross statistical disparities may alone establish a prima facie case of employment discrimination in a proper case, the Supreme Court has cautioned “that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” Teamsters, 431 U.S. at 340, 97 S.Ct. at Í856-57. (footnote omitted.)

B. Faculty.

The claims made on behalf of female faculty members challenge various employment practices engaged in by the university during the 1973 through 1978 school years. In particular, plaintiffs allege that the university discriminated against women with respect to (1) hiring, (2) recruiting, (3) compensation, and (4) promotion. After full consideration of each claim, we conclude that plaintiffs have failed to establish a prima facie case of unlawful discrimination in regard to the application of any of the challenged practices to women.

1. Hiring.

The statistical evidence in support of plaintiffs’ faculty hiring claim was introduced in an attempt to establish that from 1973 through 1978 a significantly smaller number of women were hired to faculty positions than were available for hire. The key components in this showing obviously are the number of women faculty members hired in the relevant time period and the number of women available for hire to such positions. The seemingly simple and straightforward task of comparing the number of women hired with the number of women available is complicated by the fact that the availability component is to a significant extent dependent upon the subject matter field in which the faculty person is hired. Further, the number of available women qualified to hold faculty instructor or assistant professor positions may be significantly different from the number qualified to hold positions as associate or full professors, as the latter positions generally require a number of years of experience in teaching or research in addition to an advanced degree.

Plaintiffs’ statistical evidence on the hiring claim does not reflect a consideration of the number of faculty persons hired by different colleges within the university. Similarly, with respect to the availability issue, no explicit attempt has been made t