Appeal from the United States District Court for the Central District of Illinois, Springfield Division. Nos. 83 C 3379, 85 C 3183 - Richard Mills, Judge.
Cummings, Cudahy, and Posner, Circuit Judges.
Mary Riordan appeals from a judgment by the district court dismissing her consolidated complaints of sex discrimination. One complaint is based on section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983, and names as the defendants Shirley Randolph and William Kempiners. The other is based on the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1), and names only Kempiners as a defendant. The judge granted summary judgment for Kempiners on the section 1983 complaint. The section 1983 claim against Randolph was then tried to a jury, but at the close of the plaintiff's case the judge directed a verdict for Randolph. The judge then entered judgment for Kempiners on the Equal Pay Act complaint as well.
The evidence that was allowed in at trial (an important qualification, as we shall see) showed the following. Mary Riordan, a college graduate with a bachelor's degree in English, went to work in the Sexually Transmitted Diseases unit of the Illinois Department of Public Health in 1976, at the age of 22. Her starting salary was $10,000 a year. Promotion was rapid. By April 1981 she was running the unit and receiving a salary of $22,000 (we round off all dollar figures to the nearest thousand). Although she was a state employee and the unit was a part of the state department of public health, two of the workers in the unit were federal employees and both of them (Atkinson and another) earned considerably more than she did, as did one of the state employees in the unit. The reason for the admixture of federal employees is that the federal government supports state units for sexually transmitted diseases in one of two ways, at the state's choice -- by direct financial support, or by providing federal employees to work in the unit at federal expense -- and Illinois had chosen the second method of support.
Riordan proposed to reorganize the Sexually Transmitted Diseases unit by converting the federal employees to state employees and the mode of federal support from lending employees to giving money. The proposal was approved by Riordan's immediate supervisor, Dr. Martin (the chief of the Acute Disease Section of the Division of Disease Control), by Martin's immediate supervisor (the division chief), then by defendant Randolph, who was Assistant Director of the Public Health Department in charge of the Office of Health Services, and finally by Kempiners, the director of the entire department. The reorganization took place in 1982. Riordan's salary as administrator of the reorganized unit was set at $25,000, which represented a 15 percent raise for her. At her request, the two federal employees whom she supervised were hired as state employees. Despite her raise, and her higher grade, their salaries still were higher than hers ( $30,000 for Atkinson, $27,000 for the other); one of the state employees also had a higher salary than she, either $26,000 or $27,000 (the record is unclear which). All three were men. Dr. Martin told Riordan that within two or three years she would be receiving a higher salary than any of her subordinates by virtue of merit increases that she could expect.
But shortly afterward the State of Illinois, as an austerity measure, abolished merit increases, and instead gave all state employees a 5 percent increase. This left Riordan's salary below the salaries of the three men. She requested a special salary adjustment of $5,000 -- a 19 percent raise. Special salary adjustments are available to correct perceived inequities. Riordan's immediate supervisor, Dr. Martin, approved the request, as did his immediate supervisor. The request then went to defendant Randolph, who turned it down. This action, which blocked the request from going any higher, is the basis of Riordan's section 1983 claim.
Riordan eventually quit the department in disgust (she has since become a law student), and was replaced as head of the Sexually Transmitted Diseases unit by Atkinson, who by virtue of having thus been promoted was entitled under the Illinois' civil service rules to a raise of 10 percent, to $33,000. (This was, however, a smaller percentage raise than Riordan had received when she had been made head of the newly reorganized unit.) Riordan's claim under the Equal Pay Act is based on the disparity between the salaries that she and Atkinson received in the same job successively, and on the disparity between her salary and that of her three higher-paid male subordinates before she left.
Ordinarily when a woman complains about being paid less than a male co-worker for the same work, she sues the employer, in this case the Illinois Department of Public Health. For reasons unclear to us, Riordan's lawyer decided to name Kempiners, the director of the department, as the only defendant to her suit under the Equal Pay Act. The word "employer" is defined broadly enough in the Fair Labor Standards Act (of which the Equal Pay Act is an amendment) to permit naming another employee rather than the employer as defendant provided the defendant had supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation. See 29 U.S.C. § 203(d) (employer within the meaning of the Act includes "any person acting directly or indirectly in the interest of any employer in relation to an employee"); Patel v. Wargo, 803 F.2d 632, 637-38 (11th Cir. 1986); Koster v. Chase Manhattan Bank, 554 F. Supp. 285, 290 (S.D.N.Y. 1983). Yet at argument Riordan's counsel was emphatic in insisting that the Equal Pay Act complaint was against Kempiners in his official capacity, i.e., against the Department itself. See Brandon v. Holt, 469 U.S. 464, 471-73, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985); Kentucky v Graham, 473 U.S. 159, 165-67, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). But if so, why not have named the Department instead of Kempiners in that complaint and have made life a little easier for us judges?
Employees complaining about sex discrimination in pay can also bring suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., at least if they are willing to prove intentional discrimination ("disparate treatment") (the Bennett Amendment limits disparate-impact suits for sex discrimination under Title VII, see 42 U.S.C. § 2000e-2(h), though to what extent we need not consider here, see EEOC v. Madison Community Unit School District No. 12, 818 F.2d 577, 587, 590 (7th Cir. 1987); American Nurses' Ass'n v. Illinois, 783 F.2d 716, 723 (7th Cir. 1986)), and if the jobs being compared are the same (see id. at 718-23). Riordan did not file a Title VII claim, however. Finally, women complaining of pay discrimination can, and Riordan did, sue under 42 U.S.C. § 1983 for violation of the equal protection clause, provided, again, that the discrimination was deliberate, see Personnel Administrator v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979), and provided that the defendant was acting under color of state law (which Randolph and Kempiners were) but is not itself a state or a state agency, in which event the suit would be barred by the Eleventh Amendment. As Riordan's section 1983 complaint names Randolph and Kempiners in their personal rather than their official capacities, the suit really is against them and not (as Riordan's Equal Pay Act suit is) against the Illinois Department of Public Health.
There is another condition on suits under 42 U.S.C. § 1983, and it shows that the judge was right to grant summary judgment for Kempiners: the plaintiff cannot win on a theory of superiors' liability for the wrongs of the defendant's subordinates. Just as there is no doctrine of respondeat superior (employers' "vicarious" liability) under section 1983, so also there is no doctrine of superiors' liability. McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir. 1984). Riordan therefore had to prove that Kempiners had participated personally and substantially in the alleged discrimination against her, that is, in the refusal to grant her a special salary adjustment that would have brought her pay above that of any of her subordinates. There is no indication that Kempiners even knew about the request for the adjustment, let alone participated in the decision to turn it down. The request stopped with Randolph. And Kempiners can hardly be thought guilty of intentional discrimination because he approved Riordan's proposal to reorganize the unit she supervised an to award her a large pay raise. Finally, none of the evidence that the judge excluded was offered to show a link between Kempiners' actions and Randolph's refusal to give Riordan the special raise.
The judge granted Randolph's motion for a directed verdict on the claim that she had discriminated against Riordan in violation of section 1983. In defense of the directed verdict Randolph argues that a prima facie case of sex discrimination under the equal protection clause requires some evidence of discriminatory animus. Riordan replies that, as in a Title VII disparate-treatment (=intentional discrimination) case, all that is required to establish prima facie liability, and thus allow the plaintiff to get to the jury, is evidence of disparity in treatment between equally qualified workers of different sexes, from which discriminatory intent can be inferred. See, e.g., United States Postal Service Bd. of Governors v Aikens, 460 U.S. 711, 714 n. 3, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983).
Although as an original matter it seems odd that the pleading and proof of liability in a case under the Constitution would be the same as in a case under a statute passed in 1964, this is indeed the teaching of an unbroken phalanx of decisions by this and other courts. See, e.g., Dugan v. Ball State University, 815 F.2d 1132, 1135-36 (7th Cir. 1987); Guillory v. St. Landry Parish Police Jury, 802 F.2d 822, 824 (5th Cr. 1986); Molthan v. Temple University, 778 F.2d 955, 961 (3d Cir. 1985); Gairola v. Virginia Dept. of General Services, 753 F.2d 1281, 1285-86 (4th Cir. 1985); Craik v. Minnesota State University Bd., 731 F.2d 465, 468 n. 5 (8th Cir. 1984). These cases hold that the issue of liability and the method of proving liability are the same, through only in a disparate-treatment case; there is no disparate-impact liability under the Constitution, which requires, as we have noted, proof of intentional discrimination. (There are also differences regarding procedure, derivative liability, remedy, and scope.) So when a woman establishes that a public employer refused to hire her and instead hired a male who was no more qualified, she makes out a prima facie case of sex discrimination under the equal protection clause as well as under Title VII, and the burden shifts to the employer to produce evidence that the reason for treating the man and woman differently was not an invidious one. However, the application of this template to a case such as this, where the act of discrimination is not hiring or firing or failing to promote but is instead turning down a request for a raise designed to give a female supervisor a higher wage than her higher-paid male underlings, is not obvious. A prima facie case implies that, more likely than not, the plaintiff's rights have been invaded; yet there seems no reason to believe that a refusal to grant an extraordinary raise to a female supervisor is, more likely than not, the product of sex discrimination -- when by hypothesis the employer placed the woman over the men in the first place.
That, however, is only one way of looking at the facts. Another way is that this is a case where a woman was paid less not only than her male subordinates but also than her male successor; and perhaps this configuration is suspicious enough to throw on the employer a burden of producing some evidence that sex was not the determining factor in the wage disparities. But we need not pursue the interesting question of the elements of the prima facie case in unusual factual settings; as part of her case in chief Riordan called Randolph as an adverse witness, thus giving Randolph a chance to explain why she had turned down the request; so the parties were beyond the prima facie stage. The inquiry then became: (1) Was Randolph's proffered reason -- a noninvidious reason -- the true reason? (2) If not, was Riordan's sex the real reason? Only if the first question was answered "no," and the second "yes," was Randolph guilty of sex discrimination. See United States Postal Service Bd. of Governors v. Aikens, supra; Pollard v. Rea Magnet Wire Co., 824 F.2d 557 (7th Cir. 1987); Benzies v. Illinois Dept. of Mental Health & Developmental Disabilities, 810 F.2d 146 (7th Cir. 1987). Because the judge granted a directed verdict for Randolph, the issue for us becomes whether a rational jury, having heard both the plaintiff's case and the defendant's ...