Janet Wood v. City of San Diego, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, ANDREW J. KLEINFELD and MILAN D. SMITH, JR.) AFFIRMED. Judge: BBF Authoring,. FILED AND ENTERED JUDGMENT. [8170410]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANET M. WOOD, individually and
on behalf of all other similarly
situated,
Plaintiff-Appellant,
v.
CITY OF SAN DIEGO; DOES 1-20,
inclusive,
Defendants-Appellees.




No. 10-56826
D.C. No.
3:03-cv-01910MMA-POR
OPINION



Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
April 10, 2012—Pasadena, California
Filed May 9, 2012
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge B. Fletcher

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COUNSEL
Michael A. Conger, Rancho Santa Fe, California (argued),
Richard H. Benes, San Diego, California, for appellant Janet
M. Wood.
David B. Hopkins (argued), Candace M. Carroll, Robert P.
Allenby, Sullivan, Hill, Lewin, Rez & Engel, San Diego, California, for appellee the City of San Diego.

OPINION
B. FLETCHER, Circuit Judge:
Janet Wood (“Wood”) brought suit under Title VII of the
Civil Rights Act of 1964, alleging that the surviving spouse
benefit provided by the City of San Diego (“the City”) to its
retired employees discriminates on the basis of sex. The district court dismissed Wood’s disparate treatment and disparate
impact claims and entered judgment in favor of the City. We
affirm.

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I.
Wood retired in 2005 after over thirty-two years as an
employee of the City.1 Like all City employees, Wood participated in the City’s defined benefit pension plan, which is
administered by the San Diego City Employee Retirement
System (“SDCERS”). City employees are required to contribute a percentage of their salary to their pensions, see San
Diego Municipal Code (“SDMC”) § 24.0104(a), and the City
is required to make “substantially equal” contributions. San
Diego City Charter art. IX, § 143. City employees are also
required to contribute a percentage of their salary to fund survivor benefits as well as their pensions.2 SDMC § 24.0601.
Pension contributions and benefits are calculated by ordinance and are neutral with respect to sex (the characteristic
relevant to this case). See SDMC §§ 24.0201, 24.0601.
When a City employee retires, she must choose among several options for allocating the pension benefit and the survivor
benefit. We will refer to the option at issue in this case, codified at SDMC § 24.0601(c), as the “surviving spouse benefit.”
If a City employee is married (or has a registered domestic
partner) at the time of retirement and chooses the surviving
spouse benefit, the employee will receive her full monthly
pension benefit until her death. At that time, if the employee’s
spouse or registered domestic partner survives her, the spouse
1

Wood entered something called the Deferred Retirement Option Program (“DROP”), which allows an employee to begin receiving her pension while continuing to work for the City and receiving a normal
paycheck. In exchange, the employee agrees to leave City employment
within five years and the employee is considered “retired” on the day she
enters DROP for the purpose of calculating her pension benefit. While the
employee is in DROP, her pension benefits are paid to a DROP account,
which accumulates interest and is then paid to the employee upon leaving
City employment.
2
The parties dispute whether the City also makes contributions to fund
survivor benefits, but this fact is ultimately immaterial to the outcome of
the case.

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or partner will receive a monthly allowance equal to half of
the employee’s monthly pension benefit.3 SDMC
§ 24.0601(c).
If a City employee is single at the time of retirement and
has chosen the surviving spouse benefit, the City either
refunds the employee her contributions to the survivor benefit
(plus interest) as a lump sum, or treats the employee’s survivor contributions as voluntary additional contributions made
to provide a larger monthly pension benefit. SDMC
§ 24.0601(e). Wood was single when she retired and had chosen the surviving spouse benefit. She elected to have her survivor contributions treated as additional voluntary
contributions, adding to her monthly benefit.
On September 24, 2003, Wood filed this class action
against the City alleging that the surviving spouse benefit violates Title VII of the Civil Rights Act of 1964 (“Title VII”)
and California’s Fair Employment and Housing Act
(“FEHA”). Wood’s theory of liability is that because, in the
aggregate, the City pays a larger amount of money to the married retirees who select the surviving spouse benefits than it
does to single retirees who do the same, and male retirees are
more likely to be married, the surviving spouse benefit has an
unlawful disparate impact on female retirees. The City does
not dispute that, in the aggregate, it costs more to fund surviving spouse benefits for married retirees than it does to refund
the survivor contributions made by single retirees.
On May 19, 2004, the City filed a motion for summary
judgment arguing that Wood failed to state a claim for relief
3

The City refers to this option as the “maximum benefit” because it is
the only survivor benefit option that does not require the employee to
reduce her own monthly pension benefit. The other four survivor benefit
options allow the employee to choose a reduced monthly pension benefit
in exchange for a survivor benefit that will be paid to a named beneficiary
(not necessarily a spouse) or the employee’s estate upon the employee’s
death. See SDMC §§ 24.0603-24.0607.

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under Title VII and that she had failed to properly exhaust her
administrative remedies. After briefing on the summary judgment motion, the district court dismissed sua sponte Wood’s
Title VII claim for lack of Article III standing and declined
to exercise supplemental jurisdiction over her state law claim.
The district court reasoned that Wood had not suffered a concrete injury because she had alleged only that unmarried retirees as a group receive a smaller benefit, and had not alleged
that her pension benefit “has been impacted at all, adversely
or positively.”
On appeal, a different panel of our court reversed the district court in a memorandum disposition. Wood v. City of San
Diego, 239 F. App’x 310 (9th Cir. 2007). Our decision was
based in large part on the fact that “[n]either side was alerted
to the need to present evidence or argument about the concreteness or redressability of Wood’s injury.” Id. at 311. We
cautioned that “[i]f the district court determines to pursue the
standing issue sua sponte, then it should afford both parties
the opportunity to develop a factual and legal record.” Id. at
312. We also held that Wood had adequately exhausted her
administrative remedies. Id.
On remand in June 2008, the City filed a motion arguing
that intervening law required dismissal of Wood’s Title VII
claim for failure to exhaust administrative remedies.4 The district court denied the City’s motion and granted Wood’s
motion for class certification. The district court also granted
Wood leave to amend her complaint in order to, among other
things, add a claim for disparate treatment under Title VII in
addition to her claim based on disparate impact.
The City filed a motion to dismiss Wood’s amended complaint. The City’s sole argument with respect to the disparate
impact claim was that the surviving spouse benefit is part of
4

In November 2008 the case was transferred from Judge Benitez to
Judge Anello.

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a bona fide seniority system, which is permitted as a matter
of law under Title VII. See 42 U.S.C. § 2000e-2(h). The City
also argued that Wood failed to state a claim for disparate
treatment because she had not alleged discriminatory intent.
The district court denied the motion to dismiss with respect
to the disparate impact claim. The district court found that
while SDCERS as a whole is a bona fide seniority system, the
surviving spouse benefit is a “component of the system [that]
is not based on longevity of service.” Although the amount of
an employee’s monthly pension (and thus the surviving
spouse benefit) is based on seniority, the ability to receive the
surviving spouse benefit is based only on marital status at the
time of retirement.
The district court granted, however, the motion to dismiss
the disparate treatment claim. The district court observed that
Wood had alleged only that the City was aware of the disparate impact of the surviving spouse benefit at the time it
adopted the policy and failed “to allege any facts establishing
that the City deliberately adopted an employment practice . . .
in order to discriminate based on gender.” Citing Supreme
Court and Ninth Circuit case law, the district court ruled that
“[a] plaintiff alleging disparate treatment must allege facts
showing intentional discrimination. . . . The fact that an
employer was aware of, or totally indifferent to the discriminatory impact of, its policy is not sufficient to state a claim
for relief.” The district court also denied Wood further leave
to amend her complaint, finding that the any attempt to amend
her disparate treatment claim would be futile.
On August 2, 2010, the parties filed cross-motions for summary judgment on the federal and state law claims, and the
City filed a motion to dismiss the Title VII claim under Rule
12(b)(1) based on lack of Article III standing. On November
22, 2010, the district court granted the motion to dismiss, concluding that Wood “has not suffered an ‘injury in fact’ that is
neither ‘conjectural [n]or hypothetical.’ ” The district court

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explained that Wood’s allegation that she received a less valuable retirement benefit as a single employee “rests upon a
series of contingencies,” observing that “[i]f Wood had retired
married, the value of her [surviving spouse] benefit . . . would
have been unknown on the date of retirement because that
value was contingent upon a series of events: pre-deceasing
her spouse, her spouse surviving her for a period of years, and
her spouse’s eligibility for the benefit at the time of her
death.”
The district court also addressed Wood’s contention that
she suffered economic injury “by receiving a refund of only
her employee contributions . . . whereas married retirees
receive a benefit funded also by ‘substantially equal’ matching employer contributions.” First, after reviewing the applicable City ordinances, the district court determined that there
was no evidence that the City was required to make additional
matching contributions to the survivor benefit. Second, the
district court determined that Wood had no entitlement to any
portion of the City’s normal contributions that might fund the
surviving spouse benefit, because those benefits technically
belong to surviving spouses and not retirees.
The district court thus dismissed Wood’s disparate impact
claim, declined to exercise supplemental jurisdiction over her
remaining state law claims, and entered judgment in favor of
the City. Wood timely appealed the dismissal of her Title VII
disparate treatment and disparate impact claims.
II.
We have jurisdiction over the dismissal of Wood’s claims
under 28 U.S.C. § 1291. We review de novo the district
court’s decision to dismiss Wood’s disparate treatment claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). See
ASW v. Oregon, 424 F.3d 970, 974 (9th Cir. 2005). “We
accept as true all well pleaded facts in the complaint and construe them in the light most favorable to the nonmoving

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party.” Id. We review for abuse of discretion the district
court’s decision not to grant further leave for Wood to amend
her disparate treatment claim. See Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (en banc). The existence of jurisdiction over the disparate impact claim is also a question of
law that we review de novo. Bova v. City of Medford, 564
F.3d 1093, 1095 (9th Cir. 2009).
III.
[1] Before the Supreme Court’s decisions in City of Los
Angeles, Department of Water & Power v. Manhart, 435 U.S.
702 (1978), and Arizona Governing Committee for Tax
Deferred Annuity & Deferred Compensation Plans v. Norris,
463 U.S. 1073 (1983), pension plans often openly discriminated on the basis of sex, in order to account for the fact that
women as a class live longer than men. The pension plan at
issue in Manhart required female employees to make larger
contributions than male employees. 435 U.S. at 704. The
Supreme Court held that these contribution requirements constituted discrimination and were thus unlawful under Title
VII. Id. at 711, 717. Five years later, the Court considered the
pension plan at issue in Norris, which — rather than discriminating with respect to contribution requirements — paid
female retirees smaller monthly benefits than male retirees
who had made the same contributions. 463 U.S. at 1075. The
Court held that this too violated Title VII, and reaffirmed that
classification on the basis of sex is not permissible at either
the “pay-out stage of a retirement plan” or the “pay-in stage.”
Id. at 1081. Retirement contributions and benefits must be
facially neutral with respect to sex and other classifications
protected under Title VII.
Prior to Manhart, the City of San Diego’s retirement plan
required male employees to make larger contributions to the
surviving spouse benefit, based on the assumption that
because women live longer, male employees were more likely
to still be married when they retired and more likely to die

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before their spouses. After Manhart, the contribution amounts
were equalized. The current plan is facially neutral: similarly
situated male and female employees make the same contributions and receive the same benefits.
But according to Wood, the surviving spouse benefit continues to violate Title VII in two ways. First, because on average the City pays more in benefits to married retirees who
select the surviving spouse benefit than it does to single retirees who do the same, and male retirees are more likely to be
married, Wood claims that the surviving spouse benefit has an
unlawful disparate impact on women. Second, because the
City knew that male employees stood to gain more from the
surviving spouse benefit — as evidenced by the original policy requiring men to make larger contributions — Wood
claims that the City violated Title VII’s disparate treatment
provision when it equalized the contribution requirements
without otherwise changing the program. We address Wood’s
disparate treatment claim first.
A.
The district court dismissed Wood’s disparate treatment
claim pursuant to Rule 12(b)(6) because she failed to adequately allege discriminatory intent. On appeal, Wood argues
that her allegations were sufficient, and that in the alternative,
the district court should have granted leave for her to amend
her complaint a second time.
[2] Disparate treatment occurs “where an employer has
treated a particular person less favorably than others because
of a protected trait.” Ricci v. DeStefano, 129 S. Ct. 2658, 2672
(2009) (internal quotation marks and alterations omitted). “A
disparate-treatment plaintiff must establish that the defendant
had a discriminatory intent or motive for taking a job-related
action.” Id. (internal quotation marks omitted). A discriminatory motive may be established by the employer’s informal
decisionmaking or “a formal, facially discriminatory policy,”

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but “liability depends on whether the protected trait . . . actually motivated the employer’s decision.” Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993). “It is insufficient for a
plaintiff alleging discrimination under the disparate treatment
theory to show the employer was merely aware of the adverse
consequences the policy would have on a protected group.”
Am. Fed’n of State, Cnty., & Mun. Emps. v. Washington, 770
F.2d 1401, 1405 (9th Cir. 1985).
[3] Wood’s disparate treatment claim, found at paragraph
33 of her First Amended Complaint, alleges that the surviving
spouse benefit “discriminates against women intentionally,
within the meaning of Title VII, because it was adopted in
1971 with knowledge of its discriminatory effects.” We agree
with the district court that this does not adequately allege disparate treatment under American Federation, Hazen, or Ricci.
Wood does not claim that the City adopted the surviving
spouse benefit because it would benefit men more often than
women. Her only allegation is that, when the contribution
requirements were equalized to comply with Manhart, the
City was aware that male employees would disproportionately
benefit from the change.
[4] At oral argument, counsel for Wood argued that Manhart and Norris were decided as disparate treatment cases,
despite the absence of any allegation that the defendants were
motivated by animus towards their female employees. But the
policies challenged in those cases were facially discriminatory, and the Supreme Court has held that a discriminatory
motive may in some situations be inferred from reliance on “a
formal, facially discriminatory policy.” See Hazen, 507 U.S.
at 609-10. Where, as here, a plaintiff is challenging a facially
neutral policy, there must be a specific allegation of discriminatory intent. Am. Fed’n, 770 F.2d at 1405. We agree with the
district court that Wood’s disparate treatment claim must be
dismissed under Rule 12(b)(6).5
5

We are also unpersuaded by Wood’s argument that the district court
could not grant the Rule 12(b)(6) motion because it was bound by its ear-

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[5] We also conclude that the district court did not abuse
its discretion when it denied Wood leave to further amend her
complaint. Federal Rule of Civil Procedure 15(a) instructs
that before trial the court should “freely give leave” to amend
a pleading “when justice so requires.” We have held that a
district court should grant leave to amend “unless it determines that the pleading could not possibly be cured by the
allegation of other facts.” Lopez, 203 F.3d at 1130 (quotation
marks and citation omitted). Here, the district court thoroughly explained its reasons for not granting leave to amend:
[T]he Court finds that the Rule 15(a) factors weigh
against granting [Wood’s] request. . . . Almost seven
years after she filed this case, the Court granted
Wood leave to amend her complaint in order to give
her the opportunity to state a plausible claim for disparate treatment. Wood took that opportunity, but
failed to do so. Any attempt to amend her claim will
be futile. Wood cannot in good faith state any facts
to show that the City adopted the [surviving spouse
benefit] with discriminatory intent against female
employees . . . .
This decision was not an abuse of discretion. Wood still does
not suggest that she can allege any facts to show that the City
had a discriminatory intent. We affirm the district court’s dismissal of Wood’s disparate treatment claim without granting
leave to amend.
B.
The district court dismissed Wood’s disparate impact claim
for lack of Article III standing. On appeal, Wood argues that
lier decision allowing Wood to amend her complaint to include the disparate treatment claim. Wood cites no authority in support of this argument,
and the district court carefully explained that it rarely denies leave to
amend on futility grounds, noting that its earlier decision did not determine “whether Wood’s new allegations were necessarily pled in a manner
sufficient to withstand a motion to dismiss.”

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the City’s motion to dismiss pursuant to Rule 12(b)(1) was
untimely because it was made after the City filed a responsive
pleading; that the district court should not have dismissed her
claim on standing grounds because the jurisdictional and merits issues are intertwined; and that her allegations and evidence are sufficient to demonstrate Article III standing.
As a threshold matter, Wood’s assertion that the 12(b)(1)
motion was untimely is simply wrong. Wood correctly quotes
the language from Rule 12(b) that instructs: “A motion asserting any of these defenses must be made before pleading if a
responsive pleading is allowed.” But the deadline for making
a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction is prolonged by Rule 12(h)(3), which provides
that “[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Indeed,
“[t]he objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own
initiative, at any stage in the litigation, even after trial and the
entry of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500,
506 (2006).6
Wood’s more substantial arguments concern whether she in
fact lacks Article III standing and whether the jurisdictional
issues are so intertwined with the merits that the district court
should not have dismissed the case on jurisdictional grounds.
[6] Although federal courts take a broad view of constitutional standing in civil rights cases, a civil rights plaintiff
claiming discrimination “must satisfy the case or controversy
requirement of Article III by demonstrating [her] standing to
sue at each stage of the litigation.”7 Chapman v. Pier 1
6
We similarly reject Wood’s numerous assertions that the district court
somehow improperly relied on “independently obtained” evidence by
using cases and local ordinances that were not cited by the parties. These
types of legal authorities are perfectly within the district court’s competence to research and analyze on its own.
7
The district court did not address whether Wood satisfies the statutory
standing requirement under Title VII, which provides that “a civil action

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Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en
banc). In order to satisfy constitutional standing requirements,
Wood must demonstrate that she “has suffered an injury-infact, that the injury is traceable to the [City’s] actions, and
that the injury can be redressed by a favorable decision.” Id.
The Supreme Court has defined “injury in fact” as “an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (internal quotation marks and citations omitted).
Throughout this litigation, Wood has alleged that she satisfies the standing requirements of Article III because she has
suffered a pecuniary injury — namely, that “if married on the
day of retirement, a retiring City employee receives a retirement benefit [the surviving spouse benefit] worth far more
than the substitute benefit available to an unmarried employee.” The City challenged Wood’s standing in a 12(b)(1)
motion by disputing the truth of that allegation, also known
as a “factual” attack on jurisdiction.8
To support her allegation, Wood presented declarations
stating (1) that in the aggregate, married retirees who choose
the surviving spouse benefit receive a larger amount of money
than unmarried retirees; (2) that, in the private market, an
may be brought . . . by the person claiming to be aggrieved.” 42 U.S.C.
§ 2000e-5(f)(1). Title VII’s jurisdictional provision has been construed
broadly by the Supreme Court, but is “more narrow[ ] than the outer
boundaries of Article III.” Thompson v. N. Am. Stainless, LP, 131 S. Ct.
863, 869-70 (2011).
8
In a factual attack on jurisdiction, “the challenger disputes the truth of
the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). To resolve a factual attack, “the district court may review evidence
beyond the complaint without converting the motion to dismiss into a
motion for summary judgment. The court need not presume the truthfulness of the plaintiff ’s allegations.” Id. (internal citations omitted).

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annuity providing the benefit that married retirees receive
would cost more than an annuity providing the benefit that
unmarried retirees receive; and (3) that the City makes matching contributions to fund the surviving spouse benefit but
does not contribute to the benefit that unmarried retirees
receive. First, the district court found that Wood’s evidence
could not establish that the City in fact made matching contributions to fund the surviving spouse benefit. But regardless of
how the surviving spouse benefit is funded, the district court
concluded that Wood’s evidence could not establish more
than speculative, conjectural injuries that are insufficient to
satisfy Article III.
The district court’s analysis centered on the obvious fact
that the value of a pension is tied to the length of a retiree’s
life. Like every other retired City employee, Wood cannot
predict what the ultimate value of her pension will be, or
whether she and her hypothetical spouse would have received
more money had she been married. As the district court
observed, these values are based on the “unknown variables
of whether she would have pre-deceased her spouse, whether
her spouse would have lived long enough to receive benefits,
and whether the benefits received by her spouse would have
had a value greater than that which she received [as a single
employee] on the date of her retirement.”
In other words, when Wood retired as a single employee,
she received her monthly pension benefits plus a guaranteed
refund of her survivor contributions (or at least the option to
receive a guaranteed refund by taking them as a lump sum).
She has no way of knowing whether this benefit is greater or
less than what her hypothetical spouse would have received
had she retired married and predeceased her spouse. Some
married employees will have spouses who outlive them by
many years and end up receiving a pension benefit greater
than Wood’s; other married employees will outlive their
spouses, or they will die simultaneously, and thus receive no
benefit from their survivor contributions at all. Similarly,

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Wood’s evidence about the value of her retirement benefit as
a private annuity was based on assumptions about the age of
her hypothetical spouse and how long they both would have
lived. Wood simply cannot show that, because she was single,
she received a less valuable retirement benefit. The district
court concluded that this means she has not suffered a concrete, particularized injury.
On appeal, Wood challenges the district court’s analysis in
two ways. First, she continues to emphasize her argument that
the private, actuarial value of her retirement benefit (if purchased on the private market) is less than the actuarial value
of the benefit a similarly-situated married employee would
receive. Second, she points to a line of cases holding that a
“jurisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and substantive issues are
so intertwined that the question of jurisdiction is dependent on
the resolution of factual issues going to the merits of an
action.” Safe Air For Everyone, 373 F.3d at 1039 (quoting
Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 139 (9th
Cir. 1983)). Wood maintains that the factual question of
whether or not she was injured is intertwined with the merits
of her claim that she is a member of a protected group which
has been subject to an unlawful disparate impact. See Paige
v. California, 291 F.3d 1141, 1144-45 (9th Cir. 2002).
Because these factual issues are intertwined, Wood urges the
panel to “review the district court’s order below not as a dismissal for lack of subject matter jurisdiction but rather as a
grant of summary judgment on the merits for the [City].” Safe
Air for Everyone, 373 F.3d at 1040.
We note that, in the Title VII context, the Supreme Court
has made clear that its focus is on the compensation actually
paid as a retirement benefit rather than the actuarial value of
the policy. See Norris, 463 U.S. at 1081-82 (“We reject petitioners’ contention that the Arizona plan does not discriminate
on the basis of sex because a woman and a man who defer the
same amount of compensation will obtain upon retirement

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annuity policies having approximately the same present actuarial value.”). We also note that at oral argument, counsel for
the City seemed to agree that some of the jurisdictional and
merits issues in this case are intertwined.
[7] But we ultimately need not decide whether Wood satisfies the case or controversy requirements of Article III, or
even whether the question of standing is in fact intertwined
with the merits of her case. Even if we accept Wood’s argument, and review the decision below as a judgment on the
merits for the City, we must affirm the decision of the district
court, because Wood’s claim is foreclosed by the Supreme
Court’s opinion in Manhart. In that case, the Supreme Court
expressly recognized that facially neutral pension plans will
inevitably have a disparate impact on some protected groups
and concluded that such claims are not actionable under Title
VII. Thus, even if the district court had considered Wood’s
disparate impact claim on the merits, it should have dismissed
the claim.
As discussed previously, in Manhart the Court considered
a pension plan that required female employees to make larger
contributions than male employees in order to receive the
same benefits, on the basis that women live longer than men
and their pensions cost more. 435 U.S. at 704-05. Recognizing that “the parties accept as unquestionably true” the generalization that women live longer than men, the Court framed
its inquiry as “whether the existence or nonexistence of ‘discrimination’ is to be determined by comparison of class characteristics or individual characteristics.” Id. at 707-08.
After examining the text of Title VII, the Court held that
“[t]he statute’s focus on the individual is unambiguous. It precludes treatment of individuals as simply components of a
racial, religious, sexual, or national class.” Id. at 708; see 42
U.S.C. § 2000e-2(a)(1) (making it unlawful “to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of

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such individual’s race, color, religion, sex, or national origin”
(emphasis added)). Therefore, the Court concluded that, in
order to comply with Title VII, pension plan contributions
must be facially neutral with respect to sex (and presumably
any other class protected by Title VII). Id. at 711. In Norris,
the Court confirmed that pension plan benefits must be
facially neutral as well. 463 U.S. at 1075.
As part of the Manhart decision, the Court recognized that
facially neutral pension plans would necessarily have a disparate impact on certain groups, and it expressly considered the
very situation that Wood challenges here. The Court acknowledged, for example, that “unless women as a class are
assessed an extra charge, they will be subsidized, to some
extent, by the class of male employees.” Manhart, 435 U.S.
at 708-09. But, the Court noted, this type of subsidy is offset
somewhat by survivor benefits: “Since female spouses of
male employees are likely to have greater life expectancies
than the male spouses of female employees, whatever benefits
men lose in ‘primary’ coverage for themselves, they may
regain in ‘secondary’ coverage for their wives.” Id. at 709 n.
14. As a general matter, the Court explained:
Individual risks, like individual performance, may
not be predicted by resort to classifications proscribed by Title VII. . . . [W]hen insurance risks are
grouped, the better risks always subsidize the poorer
risks. Healthy persons subsidize medical benefits for
the less healthy; unmarried workers subsidize the
pensions of married workers; persons who eat, drink,
or smoke to excess may subsidize pension benefits
for persons whose habits are more temperate. Treating different classes of risks as though they were the
same for purposes of group insurance is a common
practice that has never been considered inherently
unfair.
Id. at 710 (emphasis added).

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The Court also specifically addressed a disparate impact
challenge based on these sorts of subsidies:
A variation on the Department’s fairness theme is
the suggestion that a gender-neutral pension plan
would itself violate Title VII because of its disproportionately heavy impact on male employees. This
suggestion has no force in the sex discrimination
context because each retiree’s total pension benefits
are ultimately determined by his actual life span; any
differential in benefits paid to men and women in the
aggregate is thus “based on [a] factor other than
sex,” and consequently immune from challenge
under the Equal Pay Act. Even under Title VII itself
— assuming disparate impact analysis applies to
fringe benefits — the male employees would not
prevail. Even a completely neutral practice will inevitably have some disproportionate impact on one
group or another. Griggs does not imply, and this
Court has never held, that discrimination must
always be inferred from such consequences.
Id. at 710 n. 20 (internal citations omitted).
[8] This last paragraph speaks directly to Wood’s claim.
Her argument is that a gender-neutral survivor benefit “itself
violate[s] Title VII because of its disproportionately heavy
impact on [female] employees.” Id. But this suggestion has
been firmly rejected by the Supreme Court, based both on its
own interpretation of disparate impact liability and on the
Bennett Amendment to Title VII, which provides that a compensation differential based on sex is not unlawful if it is
authorized by the Equal Pay Act. 42 U.S.C. § 2000e-2(h); see
Manhart, 435 U.S. at 711-12. The Equal Pay Act authorizes
differentials “based on any other factor other than sex.” 29
U.S.C. § 206(d); see Manhart, 435 U.S. at 712. While this
broad language has been subject to much interpretation, footnote 20 of Manhart clearly interprets it to cover the variations

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in pension benefits challenged here. Thus, even if the district
court had considered Wood’s disparate impact claim on its
merits, it should have dismissed it as a matter of law.
IV.
[9] We can affirm the district court on any basis supported
by the record. See, e.g., Dougherty v. City of Covina, 654 F.3d
892, 900 (9th Cir. 2011). We affirm the district court’s dismissal of Wood’s disparate treatment claim because she failed
to allege intentional discrimination. We affirm the district
court’s dismissal of Wood’s disparate impact claim because,
even assuming she has Article III standing, her claim fails as
a matter of law. See Morrison v. Nat’l Austl. Bank Ltd., 130
S. Ct. 2869, 2877 (2010) (“[A] remand would only require a
new Rule 12(b)(6) label for the same Rule 12(b)(1) conclusion.”). We AFFIRM the judgment of the district court.