Penk v. Or. State Bd. of Higher Educ.
816 F.2d 458 (9th Cir. 1987)
U.S. Court of Appeals for the Ninth Circuit
GOODWIN, Circuit Judge:
After nine months of trial in which were examined 58 individual claims of sex
discrimination in salary, promotion, and tenure practices by the Oregon state system of
higher education, the court granted individual relief in three claims, but found against the
class plaintiffs and denied all other claims against the state board of higher education.
The plaintiffs appeal as a class, and individually. We affirm.
Twenty-two women faculty members sued the defendant board under 42 U.S.C. §§ 2000e
et seq. and 42 U.S.C. § 1983. The Title VII claims were tried. The § 1983 claims were
dismissed during pretrial proceedings. The case proceeded as a "pattern and practice"
disparate treatment case, comparing the board's treatment of women faculty and male
faculty in terms of rank, pay, promotion, tenure and administrative appointments.
Statistical evidence played a major part in the trial.
The trial judge prepared a 487 page memorandum addressing the factual and legal issues.
Within a document of that size, disappointed litigants are likely to find a number of
points with which to disagree. This case is no exception.
The plaintiffs' failures of proof were not for want of effort. The trial produced 25,000
pages of testimony and rooms full of exhibits. The subject matter ranged over the history
of women in academic callings. The court heard about the economics of supply and
demand, and the depressing effect of tenured, high salaried senior faculty, who are
frequently older males, upon the salaries of junior faculty, who are frequently females,
during times of taxpayer parsimony and shrinking budgets.
After the parties rested, the court determined that the state system of higher education had
not intentionally discriminated against women. There is no substantial dispute that
historical disparity existed. However, historical disparity does not give rise to a
successful Title VII claim. The court found that, at worst, the state's efforts to bring its
female employees into parity with its male employees had been impeded more by
external economic factors than by lack of effort by the board to redress historic
Because we are satisfied that the trial court's findings of fact are not subject to reversal as
clearly erroneous under Fed. R. Civ. P. 52(a), see Anderson v. City of Bessemer, 470 U.S.
564, 573-75, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985), and because we can conceive of
no useful purpose in detailed rehearsal of the evidence, we will take up as briefly as
possible the principal legal questions presented by the appeal.