Freyd v. University of Oregon

Filing 93

ORDER: Defendants' Motions for Summary Judgment 56 and 65 are granted. Signed on 5/2/2019 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JENNIFER JOY FREYD,

Plaintiff,
v.

Case No. 6:17-cv-00448-MC
OPINION AND ORDER

UNIVERSITY OF OREGON, MICHAEL
H. SCHILL and HAL SADOFSKY,

Defendants.
_____________________________
MCSHANE, Judge:
As a concept, pay equity seems simple in its application—men and women performing
the same job function are entitled to the same pay without regard to their gender. The Equal Pay
Act, among other state and federal laws, requires employers to adopt compensation practices to
ensure that female workers are paid the same as their male counterparts for work of comparable
value. It would be a violation of the law, for example, to pay a male elementary school teacher

1 – OPINION AND ORDER

more than a female elementary school teacher if both are of the same tenure, work the same
number of hours, and perform the same function of educating children.
When applied to a university setting, the notion of “equal pay for equal work” has unique
complexities that are not found in other institutions. First, the notion of academic freedom
spawns an environment where those working in the same discipline may choose to follow
different paths of knowledge and pursue endeavors that create unique value to the institution.
While education is core to the function of each department within a university, individual
professors are given broad latitude to pursue research, obtain and manage grants, publish written
work, and take on leadership roles in the university and the broader community.
A second hurdle facing pay equity in the university setting is the need of the institution to
offer competitive salaries in order to attract top faculty, while at the same time being fair to
senior professors whose salaries are often tied to a pay scale or a plan that has not kept up with
the market. Colleen Flaherty, Decompressing Salaries, Inside Higher Ed. (February 11, 2013),
http:www.insidehighered.com/news/2013/02/11/university-tries-deal-salary-compressionamong-facutly-members (last visited May 1, 2019). The need to attract top faculty is
unfortunately reciprocated by the need to prevent other institutions from poaching top faculty,
particularly those who bring substantial grant money to the university. In this respect, a
university is more akin to the National Baseball League than it is to a traditional employer. As a
result, the academic job market is made up of those who are in demand (and can command more
money during contract or retention negotiations) and those who are not. As to the latter group,
this situation “means that good campus citizens who take on the introductory courses or devote
extra time to advising—in other words, those who do the work that makes a college education
meaningful for students—can feel they are taken for granted.” Id.

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Underlying all of this, of course, exists cultural and historical norms that have
traditionally worked against women in the workplace. A university cannot claim that a man is
getting paid for offering more value when equal access to the types of research, grant-writing,
and leadership roles that create value have been denied to women.
By all accounts, the plaintiff in this case, Professor Jennifer Freyd, is a remarkable
teacher and a well-respected scholar. She has been a professor of psychology at the University of
Oregon (the “University”) for more than thirty years. She is a national leader in the field of
trauma and sexual violence, she has authored extensive publications, she attracts excellent
graduate students to the psychology department, and she has won numerous awards. She is the
sixteenth highest paid faculty member in her department of ninety professors.
Professor Freyd has brought numerous claims against the university, its president, and its
Dean of the Natural Sciences Department, alleging gender discrimination in the establishment of
her salary when compared to four male colleagues. Professor Freyd, in opposing defendants’
summary judgement motion states, “This case at its core is simple: the University of Oregon . . .
pays one of its most distinguished female professors . . . far less than men in her department who
do the same job and are many years junior to her. That is the essence of pay discrimination.”
Defendants move for summary judgement, maintaining that it is undisputed that the four
male professors chosen by Professor Freyd as comparators perform work duties that are
significantly different than those performed by Professor Freyd. As a result, they argue that
Professor Freyd has failed to present evidence of gender discrimination to support her claims.
Even when viewed in the light most favorable to Professor Freyd, the evidence
establishes that her four male colleagues perform significantly different work than that done by
Professor Freyd. It would require the broadest of brush strokes to suggest that the work done by

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each of the professors is simply teaching; the work and the value of that work varies greatly from
professor to professor. Because Professor Freyd cannot establish that she performs substantially
similar work in the unique setting of a university to that of her comparators, her claims fail.
Professor Fryed’s disparate impact claims fail because (1) she lacks statistical evidence sufficient
to demonstrate the University’s practice results in a disparate impact on women and (2) the
University’s practice is consistent with business necessity. The individual defendants are entitled
to qualified immunity and, as discussed below, her claim in contract also fails. The Defense
Motion for Summary Judgement is GRANTED.
BACKGROUND
Professor Freyd is a tenured professor in the University’s Psychology Department.
Professor Freyd was hired by the University in 1987 as an associate professor. She was promoted
to full professor in 1992. Freyd Decl. ¶ 3, ECF No. 72. At the time of her hire, Professor Freyd
was employed by Cornell University. She left Cornell for the University of Oregon because the
University made her “an extremely attractive offer,” including a tenured position, a job for her
husband at the University, a large lab, and a corner office. Cornell attempted to retain Professor
Freyd by offering her a larger salary, higher even than what the University offered, but Professor
Freyd declined Cornell’s retention offer and moved to Oregon. Barran Decl. Ex. B, at 17, ECF
No. 57-2. Since 2013, Professor Freyd is a member of a collective bargaining unit of faculty
members represented by United Academics union.
Professor Freyd is a highly respected member of the Psychology Department and is
known as a national leader in the field of trauma psychology. Professor Freyd has published over
30 peer-reviewed manuscripts and is well regarded as both a teacher and a member of the
University community for her engagement with students and service.

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Professor Freyd became concerned that salary inequities in her department were related
to gender. Specifically, Professor Freyd was concerned that her salary was below that of male
professors in the Psychology Department who had less seniority than she did. She conducted her
own analysis of the Psychology Department and expressed her concerns to Professor Ulrich
Mayr, the head of the Psychology Department. Professor Mayr consulted administrators in the
University’s College of Arts and Sciences, which houses the Psychology Department. Professor
Freyd requested a raise to bring her salary in line with her expected salary, predicted as a
function of seniority.
The University decided not to offer Professor Freyd a raise after concluding that
Professor Freyd was compensated at a higher rate than the majority of professors in the College
of Arts and Sciences and that any discrepancy between Professor Freyd’s salary and her male
colleagues was attributable to retention raises (which Professor Freyd never sought) and
significant differences in job duties. Professor Freyd then initiated this litigation.
STANDARD OF REVIEW
A court must grant summary judgment if there is no genuine issue of material fact and if
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is
“genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The
court reviews evidence and draws inferences in the light most favorable to the non-moving party.
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v.
Cromartie, 526 U.S. 541, 552 (1999)).

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DISCUSSION
Professor Freyd’s Claims With Respect to Pay Discrimination
Professor Freyd brings claims of gender-based pay discrimination against the University
under the following federal and state laws: The Equal Pay Act, Title VII, Title IX, the Oregon
Equal Rights Amendment, ORS 659A.030, and ORS 652.220. Professor Freyd asserts that the
University paid her less than four male colleagues in her department and that the University’s
policy surrounding retention raises has a disproportionate impact on the University’s female
psychology professors.
I.

Pay Equity Claims

ORS 652.220, Title VII, ORS 659A.030, Title IX, the Equal Pay Act, and the Oregon
Equal Rights Amendment all prohibit an employer from discriminating between similarly
situated employees on the basis of gender.
a. ORS 652.220
To establish a wage discrimination claim under Oregon law, Professor Freyd must
demonstrate that she has been discriminated against on the basis of her gender for work of
comparable character that requires comparable skills. ORS 652.220(1). This standard is broader
than the “substantially similar” standard of claims under Title VII and ORS 659A.030, and
requires that the compared work have “important common characteristics.” Bureau of Labor &
Indus. v. City of Roseburg, 75 Or. App. 306, 309 n.2 (1985). In determining whether jobs are
comparable, courts look at several aspects of the jobs, including the description, the
requirements, and the responsibilities.
While all full professors in the Psychology Department have the same broad job duties of
research, teaching, and service, they also have significant freedom in how they accomplish those

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duties. Full professors are accorded academic freedom to direct their research to fit their
individual interests, including decisions about the particular areas in their field of study they
wish to pursue and whether they seek out federal grant funding for their research. For example,
professors are able to “buy out” of teaching classes by getting grant funding that will support
their salary, which reduces their teaching load and increases their time for research and service.
Barran Decl. Ex. C, at 6, ECF No. 57-3. Professors may also serve in administrative capacities,
like department head, that greatly reduce the amount of time they spend on teaching and research
but increase their time spent in service. Barran Decl. Ex. A, at 10, ECF No. 57-1. By choosing to
pursue optional roles, such as acting as the principal investigator of a federally funded research
grant, directing a center of research, or serving as department head, full professors change their
job duties and increase the amount of responsibility that their role requires. The University does
not mandate that full professors take on these additional responsibilities, but it recognizes
professors’ freedom to do so and to “remake their job” into what they want to do, whether
through outside funding or community roles. Barran Decl, Ex. A, at 3.
Professor Freyd names four male comparators, all full professors within the Psychology
Department: Ulrich Mayr, Gordon Hall, Phil Fisher and Nicholas Allen.
First, Professor Freyd names Professor Ulrich Mayr as a comparator. Professor Mayr is
the current head of the Psychology Department. As department head, Professor Mayr performs
both financial and supervisory duties. These duties include day-to-day personnel and human
resource matters, misconduct investigations, managing the faculty review process, and
negotiating with faculty seeking retention offers. Barran Decl. Ex. A, at 8, ECF No. 57-1; Barran
Decl. Ex. A, at 30; Barran Decl. Ex. A, at 17. Professor Mayr did not have to do, or worry about,
any of the above responsibilities when he was “just a regular professor.” Barran Decl. Ex. A, at

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17. As Professor Freyd admits, the job duties between a department head and a teaching
professor are very different: “one couldn’t be a department head and also still teach. There just
wouldn’t be enough time.” Barran Decl. Ex. B, at 13, ECF No. 57-2. Additionally, as department
head, Professor Mayr is not part of the bargaining unit for faculty members. Barran Decl. Ex. C,
at 11, ECF No. 57-3. Because the bulk of Professor Mayr’s time is consumed by his management
and supervisory duties as an administrator and he is not currently teaching, his job is not
comparable to Professor Freyd’s, and he is not a suitable comparator.
Second, Professor Freyd names Professor Gordon Hall as a comparator. From 2015-2017,
Professor Hall held an appointment within the Psychology Department but was externally
appointed to the Center on Diversity and Community (“CoDaC”) as an interim director, a
university-wide role. Hall Decl. ¶ 4, ECF No. 61. While working for CoDaC, Professor Hall split
his time between that appointment and his activities as a psychology professor, reporting to both
the Vice President for Diversity, Equity, and Inclusion and the Psychology Department. Barran
Decl. Ex. C, at 11, ECF No. 57-3. As director of CoDaC, Professor Hall spent a significant
amount of time working with faculty across campus to support equity and inclusion initiatives.
This included assisting faculty in writing statements about their contributions to diversity and
inclusion as part of their bids for promotion. Barran Decl. Ex. C, at 10. Accordingly, Professor
Hall’s teaching and research time was reduced during this period. Hall Decl. ¶ 4. As stated by
Professor Hall, although he continued to hold a position in the Department of Psychology, his
“CoDaC responsibilities occupied a significant and substantial part of my time.” Hall Decl. ¶ 4.
Professor Hall worked out of the CoDaC offices (at a different campus location than the
psychology offices) and Professor Hall “estimate[d] that my work with CoDaC occupied half of
my time, sometimes more.” Hall Decl. ¶ 4.

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Professor Hall also served as the Director of Clinical Training within the Psychology
Department; the director of clinical training is responsible for “curriculum development, staffing
of the curriculum, and organizing the supervision of practica.” Barran Decl. Ex. A, at 11. The
role of director of clinical training also requires leading periodic accreditation review processes,
during which the director must complete a self-study document and a site visit with the
American Psychological Association. Barran Decl. Ex. A, at 11. The daily work and
responsibilities of the Director of Clinical Training are “very different from what a regular full
professor would be doing.” Barran Decl. Ex. A, at 11. Both Professor Hall’s role in CoDaC and
his role as director of clinical training required work very different from that of a regular
professor, and the amount of time Professor Hall spent in those capacities changed the character
of his overall job such that his job was not comparable to Professor Freyd’s.
Third, Professor Freyd names Professor Phil Fisher as a comparator. Professor Fisher also
served as the Director for Clinical Training for the Psychology Department and, like Professor
Hall, served through an accreditation process. His duties in that position were the same as those
described above with reference to Professor Hall. For this reason alone, Professor Fisher is not a
suitable comparator to Professor Freyd. Additionally, a significant portion of Professor Fisher’s
time is spent completing the administrative requirements of the national grants that fund his
research. While securing grant funding is not a requirement of the job of full professor,
professors may choose to pursue grants to support their research, both in resource costs and to
pay their graduate students. Barran Decl. Ex. A, at 5, ECF No. 57-1. In addition to the money
itself, obtaining nationally-funded grants lends legitimacy and prestige to a professor’s research
because national grant applications are subject to “very rigorous review committees.” Barran
Decl. Ex. A, at 5. Conducting research funded by a national grant changes a professor’s job

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duties by imposing responsibilities for managing the budget of the project (including negotiating
budget changes with the agencies funding the grants), supervising the staff conducting the grantfunded work, and completing detailed reports of grant activities. Barran Decl. Ex. A, at 32-33.
The added accountability to sign off on required reporting for federal grants adds significant
responsibilities above and beyond those of professors (such as Professor Freyd) who receive no
federal funding. After all, the failure to fulfill obligations from federal grants could result in a
loss of federal funding to the entire University. Barran Decl. Ex. A, at 33.
Professor Fisher also founded the Center for Translational Neuroscience (“CTN”), of
which he is the current co-director. In that role he supervises employees and contributes to the
strategic integration of CTN into the Psychology Department. Barran Decl. Ex. C, at 9.
Moreover, Professor Fisher’s salary is offset by Harvard University because he performs work
for Harvard, a role for which he reports to that university directly.1 Barran Decl. Ex. A, at 9.
Because Professor Fisher performs substantial administrative duties in his role as co-director of
CTN and in his grant management work, his work is sufficiently different to Professor Freyd’s to
make the jobs non-comparable.
Fourth, Professor Freyd names Professor Nicholas Allen as a comparator. Professor
Allen, like Professor Fisher, has significant daily responsibilities that stem from managing large
federal grants. These grants, during both the application process and the administrative process,
are the focus of a significant amount of Professor Allen’s work at the University. He uses funds
from the grants to buy out of some of his teaching load. Barran Decl. Ex. C, at 9, ECF 57-3.
Professor Allen is responsible for the submission of several detailed and complex grant
applications each year to maintain funding, and, as a principal and co-investigator on federal

1

Specifically, grant funding provided 25% of Professor Fisher’s salary for 2011-13, 35% for 2013-14, 49% for 201415, 80% for 2015-17, and 100% for 2017-18. Sandofsky Decl. ¶ 6(d).

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grants, Professor Allen is responsible for annual reports and other administrative requirements.
Allen Decl. ¶ 5, 7, ECF No. 59. The additional responsibilities stemming from Professor Allen’s
are “significant and a very big part of my work.” Allen Decl. ¶ 7. Federal “[g]rant administration
responsibilities are complex, time consuming, and an important part of doing funded research.”
Allen Decl. ¶ 7. Professor Allen submits applications for 3-4 grants per year. In those
applications, Professor Allen “take[s] overall responsibility for the preparation of those
submissions,” which “require the preparation of complex and detailed documents” that may run
500 pages. Allen Decl. ¶ 5. Additionally, Professor Allen is the director of the Center for Digital
Mental Health, a role with requires him to supervise staff and fulfill the administrative
requirements of maintaining external funding. Barran Decl. Ex. C, at 9. In his research, Professor
Allen uses brain imaging and scanning technology, which requires specialized expertise and the
supervision of technological staff. Allen Decl. ¶ 9. By contrast, Professor Freyd conducts her
research through administering surveys, Freyd Decl. ¶ 16, which does not require advanced
technology. Professor Allen’s extensive grant management duties, as well as the technological
differences in his research methods, render the day-to-day activities of his job sufficiently
different to Professor Freyd’s so that Professor Allen’s job is not comparable to Professor
Freyd’s.
Professor Freyd argues that because she is not evaluated on the amount of federal grant
money she does or does not bring in, that factor cannot qualify as a basis to distinguish her job
from those of full professors who successfully receive such grants. This argument is meritless.
When determining whether two jobs are substantially similar, “[a]ctual job performance and
content, rather than job descriptions, titles or classifications, is determinative.” Spaulding v.
Univ. of Washington, 740 F.3d 666, 697 (9th Cir. 1984). Depending on the requirements of the

11 – OPINION AND ORDER

grant in question, federal grant recipients may have substantial additional duties and
responsibilities above and beyond those borne by full professors who receive no federal funds.
As with all comparisons between jobs, the court must evaluate the positions on a case by case
basis. Id. Professor Freyd’s argument that a professor’s job duties are limited to service, research,
and teaching misses the mark. By focusing only on the alleged job duties, Professor Freyd
overlooks the actual day-to-day work and responsibilities of her alleged comparators.2 The
record clearly establishes that, at least as to Professors Fisher and Allen, the additional burdens
of applying for, receiving, and complying with federal grants creates significant additional duties
and responsibilities that are not shouldered by Professor Freyd. For example, the record indicates
that the administrative responsibilities of federally funded research consumes approximately
42% of the principal researcher’s time. Conover Decl. ¶ 3, ECF No. 58. These administrative
responsibilities, outlined above, take a proportionately larger amount of a researcher’s time the
more grant activity the researcher has. Id. Administrative responsibilities that take nearly half of
a professor’s working time substantially change the nature of the professor’s duties such that
they are no longer an appropriate comparator to a professor who does not perform federal grant
administration work.
For the fiscal years 2008 through 2018, Professor Freyd received one award of federal
funding, for $25,000. Conover Decl. ¶ 13. During that same time, Professor Fisher received 34
awards of federal funding for $12,359,571. Conover Decl. ¶ 13. Despite not joining the
2

I note that limiting the comparison, as urged by Professor Freyd, to a full-professor’s general duties of service,
teaching, and research does not in fact help Professor Freyd. Taking such a “bird’s eye” view of day-to-day duties
and responsibilities would significantly increase the number of comparators. The focus, as always, is on the actual
duties and responsibilities (as opposed to the job title or description) of the positions. Nearly all UO full-professors,
and certainly most in the Natural Sciences Department, have the general job duties of service, teaching, and
research. But out of the 90 full-professors in that department, Professor Freyd is the 16th highest paid, and her
salary is 20% higher than that of the average full-professor in the Natural Sciences Department. Sadofsky Decl. ¶
6(c). Freyd cannot have it both ways. She cannot brush aside other full-professors in the department earning less
while sweeping in those Psychology professors making more.

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University until 2014, Professor Allen received two awards of federal funding for $786,109.
Conover Decl. ¶ 13. Additionally, Professor Allen was recently advised he “will be awarded
another large NIH grant on which I am the primary investigator.” Allen Decl. ¶ 5. Even when
employees perform superficially the same function, in this case research, a court must look
beyond the surface to the underlying skills and responsibilities required of each employee’s
specific job. See Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1415 (9th Cir. 1988). More
so than in any other field, academia provides the opportunity for full professors to design their
own jobs; two full professors in the same department do not have the same job if they have
chosen different skills to develop and responsibilities to bear to carry out their work. Professor
Freyd’s assertion that she can accomplish her research goals effectively without federal grant
money does not negate the fact that she performs different job duties, and shoulders different
responsibilities, than her federally funded colleagues. Professor Freyd fails to establish that any
of her alleged comparators perform work of a comparable character to her own.

b. Equal Pay Act

The Equal Pay Act provides, in relevant part, that:
No employer . . . shall discriminate . . . between employees on the basis of sex by paying
wages to employees . . . at a rate less than the rate at which he pays wages to employees
of the opposite sex . . . for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under similar working
conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earning by quantity or quality of production;
or (iv) a differential based on any other factor than sex.
29 U.S.C. § 206(d)(1). To establish a claim under the Act, Professor Freyd must establish “a
prima facie case of discrimination by showing that employees of the opposite sex were paid
different wages for equal work.” Stanley v. Univ. of Southern Cal., 178 F.3d 1069, 1073-74 (9th

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Cir. 1999). The Equal Pay Act “creates a type of strict liability; no intent to discriminate need be
shown.” Maxwell v. City of Tucson, 803 F.2d 444, 446 (9th Cir. 1986) (citation omitted).
To establish her prima facie case, Professor Freyd must show that her job is
“substantially equal” to the jobs performed by her colleagues of the opposite sex. Stanley, 178
F.3d at 1074. Professor Freyd need not establish that the jobs are identical, id.; instead, she must
demonstrate that the jobs have a “common core” of tasks and do not have additional tasks so
extensive that they make the jobs substantially different from each other. Wachter-Young v. Ohio
Cas. Grp., 236 F. Supp. 2d 1157, 1161 (D. Or 2002) (citations omitted). The determination of
whether two jobs are substantially equal is a fact-specific, case-by-case analysis. Hein v. Oregon
College of Educ., 718 F.2d 910, 913 (9th Cir. 1983).
The Ninth Circuit has set out the test for a prima facie case under the Equal Pay Act:
“whether the plaintiff is receiving lower wages than the average of wages paid to all employees
of the opposite sex performing substantially equal work and similarly situated with respect to any
other factors, such as seniority, that affect the wage scale.” Hein 718 F.2d at 916. Because
Professor Freyd’s four named comparators are not similarly situated under the broader
comparable standard of ORS 652.220, they necessarily fail the stricter “substantially equally and
similarly situated” test required by the Equal Pay Act.
Title VII, ORS 659A.030, Title IX, and Oregon Equal Rights Amendment
Both Title VII and ORS 659A.030 expressly prohibit discrimination in compensation on
the basis of a protected classification, including sex. 42 USC § 2000e-2(a)(1); ORS
659A.030(1)(b). To establish a claim under Title VII for disparate treatment, Professor Freyd
must either demonstrate evidence of the University’s discriminatory intent or establish a prima
facie case under the McDonnell Douglas framework, which requires Professor Freyd to show

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that (1) she is a member of a protected class, (2) she performed her job satisfactorily, (3) she
suffered an adverse employment action, and (4) she was treated differently than a similarly
situated employee who is not a member of the same protected class. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (describing requirements with reference to racial
discrimination). Professor Freyd has not provided evidence of discriminatory animus.
Prima facie claims for discrimination under Oregon law are evaluated using the same
standard as federal claims. Dawson v. Entek Int'l, 662 F. Supp. 2d 1277, 1284 (D. Or.
2009), rev'd, 630 F.3d 928 (9th Cir. 2011). To satisfy the fourth element of the McDonellDouglas framework, that she was treated differently than similarly situated employees who are
not members of her protected class, Professor Freyd must meet the same standard of substantial
similarity as required by the Equal Pay Act claim discussed above. Gunther v. Washington Cty.,
623 F.2d 1303, 1313 (9th Cir. 1979), aff'd, 452 U.S. 161, 101 S. Ct. 2242, 68 L. Ed. 2d 751
(1981). Professor Freyd’s claims under Title VII and ORS 659A.030 fail for the same reason that
her Equal Pay Act claim fails.
Title IX claims also require a showing of discrimination, and Professor Freyd concedes
that the standard is the same as that of Title VII claims. Pl.’s Opp. to Def.’s Mo. for Summ. J., at
42, ECF No. 68. The Ninth Circuit has not yet addressed whether Title IX and Title VII claims
may proceed together or whether Title VII displaces Title IX in the employment context. I need
not decide that issue here: assuming the claim could be made, Professor Freyd’s Title IX claim
fails because, as I have held above, Professor Freyd’s Title VII claim fails.
Similarly, the Oregon Equal Rights Amendment codifies equality of rights under the law
regardless of sex, but does not set out a standard different from those already discussed under

15 – OPINION AND ORDER

which to evaluate a claim of pay discrimination on the basis of sex. This claim fails under the
standards discussed above.
II.

Impact Claims

Title VII and ORS 659A.030 prohibits an employer from implementing a policy that has
a disparate impact on members of a protected class. This is so even if the policy is facially
neutral, unless the policy is job-related and consistent with business necessity, and there is not a
viable alternative presented to effectuate the employer’s legitimate goals.
To establish a disparate impact claim under Title VII, Professor Freyd must first show
that the University employs a practice, the consequences of which “fall more harshly on one
group than another and cannot be justified by business necessity.” Raytheon Co. v. Hernandez,
540 US 44, 52–53 (2003) (quoting Int’l Bhd. Of Teamsters v. United States, 431 US 324, 335–
335 n.15 (1977)). There is no requirement for Professor Freyd to show that the University had
discriminatory intent in order for her to establish a disparate impact claim. Stout v. Potter, 276
F3d 1118, 1123 (9th Cir 2002).
Professor Freyd alleges that the University’s practice of awarding retention raises causes
a disparate impact on female professors in the Psychology department. Professor Freyd supports
her assertion with evidence that suggests a salary gap of at least $15,000 and as much as $25,000
between male and female full professors that is the product of the University’s practice of
offering retention raises. Cahill Decl. ¶ 5, ECF No. 71. Professor Freyd also offers evidence that
the University has offered retention raises sufficient to keep female professors who have outside
offers 40% of the time, while they have offered sufficient raises to keep male professors with
outside offers 62% of the time, which indicates that the University retained women at a rate of
only 65% of the rate that they retained men. These figures reflect a very small pool: the sample
16 – OPINION AND ORDER

included 21 negotiations with men and 5 with women, and Professor Freyd has not offered any
evidence that the University made retention offers to a smaller percentage of women who
requested negotiations than men, only that the University’s negotiations with men were
successful for the University’s goal of retention more frequently. Additionally, there are fewer
than a dozen full professors in the Psychology Department. Stark Decl. Ex. 7, at 5, ECF No. 76.
Professor Freyd’s data reflects such a small sample size as to render the statistical
significance of Professor Freyd’s analysis suspect. The Ninth Circuit has recognized that
“statistical evidence derived from an extremely small universe, as in the present case, has little
predictive value and must be disregarded.” Morita v. S. California Permanente Med. Grp., 541
F.2d 217, 220 (9th Cir. 1976) (quoting Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412
(8th Cir. 1975)). In Stout, six female applicants for a company-wide promotion alleged gender
discrimination. The court noted the small sample size limited the probative value of the
plaintiffs’ statistical argument in support of a disparate impact claim. See Stout, 276 F.3d at 1124
(“A sample size involving 6 female applicants in a pool of 38 applicants is likely too small to
produce statistically significant results.”). Regardless of what Professor Freyd’s expert says as to
the reliability of the sample size, the rule in the Ninth Circuit is that “Statistics are not
trustworthy when minor numerical variations produce significant percentage fluctuations.”
Contreras v. City of Los Angeles, 656 F.2d 1267, 1273 n.4 (9th Cir. 1981). Here, had three
female professors (rather than two) accepted the University’s retention offers, the female
retention rate would be 60% (rather than 40%) versus the male retention rate of 62%. It is
samples like these that have “little predictive value and must be disregarded.” Morita, 541 F.2d
at 220 (quoting Harper, 525 F.2d at 412). Professor Freyd has not provided sufficient statistical

17 – OPINION AND ORDER

evidence to establish a prima facie case that the University’s practice of offering retention raises
has a disparate impact on women and does not make out a claim under either federal or state law.
Even if Professor Freyd had made out a prima facie case for disparate impact, summary
judgment would still be appropriate. There is no genuine issue of material fact about whether the
University is entitled to an affirmative defense and Professor Freyd has not put forth an
alternative practice that would effectuate the University’s legitimate business goal of retaining
top talent in its Psychology Department. “Disparate-impact liability may only condemn practices
or policies that are ‘artificial, arbitrary, and unnecessary.’” Hardie v. NCAA, 876 F.3d 312, 319
(9th Cir. 2017) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)). The burden here
shifts to the University to offer any business justification for the practice of offering retention
raises. Id. “The defendant’s practice need not be ‘essential’ or ‘indispensable’ to achieving its
stated goal, but the relationship between the practice and its purpose must be more than
‘insubstantial.’” Id. at 320 (quoting Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 659
(1989) (superseded by statute on other grounds, 42 U.S.C. § 2000e-2(k), as recognized in Tex.
Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., —U.S.—, 135 S.Ct. 2507, 2523
(2015)). The University must show that the employment practice is both job-related and
consistent with business necessity. 42 U.S.C.A. § 2000e-2(k)(1)(a)(ii).
As an initial matter, the University easily meets the business necessity prong of the
affirmative defense. The record shows that offering retention raises to faculty who are being
recruited by other universities is justified by business necessity. The University must retain its
faculty who are being recruited by other institutions, especially those who secure federal
funding, because they help the University to maintain its status as a top tier research institution,
expand its research footprint, and provide funding for the training of graduate students. Barran
18 – OPINION AND ORDER

Decl., Ex. C, at 15. Professor Freyd herself acknowledges the importance of retaining world
class scientists at the University so it can continue its membership in American Association of
Universities as an R1 institution. Barran Decl., Ex. B, at 7. Engaging in negotiations with
professors who have received offers from other universities is vital to retaining talent at the
University, which is necessary to its mission of conducting world class research.
Professor Freyd argues that, even if the practice of engaging in retention negotiations is
consistent with the University’s business necessity, it does not satisfy the “job-related” prong of
the affirmative defense analysis. Professor Freyd asserts that receiving offers from competing
universities and engaging in retention negotiations is not related to the work of being a professor
because it does not further the professors’ teaching, research, or service. Freyd Decl. ¶ 27. This
argument is misguided because professors, including the named comparators in this case, receive
competing offers directly because of their job performance, including their ability to attract
federal grant funding. Barran Decl., Ex. C, at 15. Her own experience in leaving Cornell in 1987
speaks to this reality. Universities regularly seek out faculty who will add to the institution’s
academic profiles, whether through the prestige of their research or the grant funding they attract.
Finally, Professor Freyd claims that the University could adopt a different practice, such
as distributing salary funds to ensure that all professors fall along the regression line of salary as
predicted solely as a function of seniority or time in service or otherwise “creat[ing] a system
that was based on doing the job well and rewarding it for doing the job well.” Barran Decl., Ex.
B, at 20. However, Professor Freyd does not provide any specific suggestions for how to create a
system in which professors would be compensated solely on the basis of their time in rank that
would address retention issues, and she does not present evidence that there is an alternate
employment practice that would ameliorate the difference in male and female full professor

19 – OPINION AND ORDER

salaries in the Psychology Department while effectuating the University’s legitimate business
need to negotiate with professors who have received competing offers.
Professor Freyd’s Claim with Respect to Equal Protection
Professor Freyd brings individual claims against Defendants Michael Schill, President of
the University of Oregon, and Hal Sadofsky, Dean of the Natural Sciences Department of the
University of Oregon, for violating Professor Freyd’s rights under the Equal Protection Clause of
the 14th Amendment. Professor Freyd alleges that defendants Schill and Sadofsky discriminated
against her by paying her less money than her male colleagues. To hold a state official personally
liable for an equal protection claim, a Professor Freyd must show that the defendant intentionally
discriminated against the Professor Freyd as a member of a protected class.
Defendants Schill and Sadofsky each assert that they have qualified immunity because
they are government officials performing discretionary functions. Qualified immunity for each
defendant depends on whether he violated a clearly established constitutional right in their
individual capacities as university officials. An official's conduct will only violate a “clearly
established” right when “at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he is doing
violates that right.” Ashcroft v. Al–Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149
(2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987)) (internal bracketing and quotations omitted). Existing precedent “must have placed the
statutory or constitutional question beyond debate.” Id. at 741, 131 S.Ct. 2074. The Supreme
Court, in analyzing qualified immunity and the “clearly established” requirement, looks to
whether precedent that directly establishes a right exists, and does not account for emergent or
theoretical rights. Id.
20 – OPINION AND ORDER

Professor Freyd asserts that defendants Schill and Sadofsky intentionally discriminated
against her because she brought her concerns about her compensation to their attention through
complaints to her department head, Ulrich Mayr, and neither Schill nor Sadofsky took action to
bring her salary in line with the four male colleagues the University paid more than Professor
Freyd. Further, Professor Freyd claims that defendants Schill and Sadofsky were not performing
discretionary functions in paying her less than her four proposed comparators because it is not a
discretionary issue whether to pay some employees less than others. Ultimately the question of
whether the pay differential resulted from discretionary actions is the same inquiry as whether
the law was clearly established. If the payment of retention raises or differentials in payment
resulting from grant administration and other duties was not in violation of clearly established
law, it falls within the discretionary functions of supervisors and university administrators.
It is clearly established law that employers may not discriminate against similarly situated
employees on the basis of gender. Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).
Variations in salary between employees alone, however, do not indicate discrimination, and there
are no cases in Oregon or the Ninth Circuit that clearly establish a prohibition on retention raises.
Further, defendant Sadofsky, when confronted with Professor Freyd’s equity concerns,
conducted his own analysis and decided that, because Professor Freyd was paid more than the
average of the full professors in her department, including at times her chosen comparators, an
extra 4% equity raise was not appropriate. Professor Freyd disputes that defendant Sadofsky used
appropriate comparators to make this determination, but does not offer evidence of
discriminatory animus. There is no evidence in the record that demonstrates that either defendant
Schill or defendant Sadofsky made a decision in violation of clearly established law; thus, both
individual defendants are entitled to qualified immunity.

21 – OPINION AND ORDER

Professor Freyd’s Claim With Respect to Breach of Contract
Professor Freyd alleges that the University violated the implied covenant of good faith
and fair dealing arising from an employment contract between Professor Freyd and the
University. Professor Freyd alleges that this violation occurred when the University did not pay
her wages equal to four of her male colleagues, thereby violating the terms of the University’s
anti-discrimination policy incorporated by reference into her employment contract.
To establish a breach of contract claim under Oregon law, Professor Freyd must
demonstrate, inter alia, the existence of a contract. Slover v. Oregon State Bd. of Clinical Soc.
Workers, 144 Or. App. 565, 570, 927 P.2d 1098, 1101 (1996). Generally, every contract has an
implied covenant of good faith and fair dealing, and a plaintiff may assert a violation for a
violation of this covenant regardless of whether express contract terms have been violated.
Klamath Off-Project Water Users, Inc. v. Pacificorp, 237 Or. App. 434, 445, 240 P.3d 94, 101
(2010). The implied covenant of good faith and fair dealing “serves to effectuate the objectively
reasonable expectations of the parties.” Id.
To determine whether a claim for violation of the implied duty of good faith and fair
dealing has been established, the threshold question is whether there is a contract from which an
implied covenant of good faith and fair dealing may be properly inferred. Professor Freyd is a
member of a collective bargaining unit, and all claims regarding the terms and conditions of
employment in a job subject to a collective bargaining agreement (“CBA”) are preempted by the
CBA. Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 997-998 (9th Cir. 1987). For rights
derived through the CBA, Professor Freyd does not have individual standing to bring suit.
Professor Freyd asserts that she and the University are bound by an employment contract
that is separate from the CBA (Second Am. Compl. ¶83), (P’s Opp. to M/S/J p. 47). However,

22 – OPINION AND ORDER

the only employment agreement other than the CBA in the record is Professor Freyd’s Notice of
Appointment and Contract, which was the initial hiring document between Professor Freyd and
the University in 1987. The Notice of Appointment and Contract was for Professor Freyd’s
initial position with the university, that of an associate professor, and the document indicates on
its face that it covers the terms of Professor Freyd’s appointment to that position specifically.
(Stark Decl. Ex. 15).
Since the time of her appointment as an associate professor over 30 years ago, Professor
Freyd has been promoted to a full professor position and, in that position, she has been part of a
collective bargaining unit. The terms of the CBA provide that the CBA is the governing
document for the terms and conditions of employment of the bargaining unit members.3 Because
Professor Freyd’s claim regarding bad faith and unfair dealing is related to the University’s
purported failure to follow its own policies, and those policies are incorporated by reference into
the CBA, Professor Freyd’s contract claim falls under the CBA.
CONCLUSION
Defendants’ Motions for Summary Judgment are GRANTED.
IT IS SO ORDERED.

DATED this 2nd day of May, 2019.
_______/s/ Michael McShane________
Michael McShane
United States District Judge

3

Recognizing she lacks standing under the CBA, Professor Freyd acknowledges that her breach of contract claim is
not based on the CBA. Resp., at 47-48; ECF No. 54.

23 – OPINION AND ORDER