Rudebusch v. Hughes

District Court No.
CV-96-01077-RCB

          After 10 plus years of expensive litigation, 40 white male professors at Northern Arizona University have won an equitable pay settlement from the school.

Here is an email from one of the plaintiffs we received on June 9, 2006:

"We prevailed!  Federal [U.S. District Court] Judge Robert C. Broomfield has ruled in the damages trial.   He has ordered retroactive raises for the 40 white male plaintiffs in the Title VII violation!!!!   It looks like [it will be] $1.6 million.  He also noted NAU left the 85 women behind.  My calculation for that group is $2.2 million, but they will have to fight for it in court.  We will encourage them to do so."

See recent news stories about the case of Rudebusch v. Hughes below:

          "Senior [District Court] Judge Robert Broomfield ruled that NAU discriminated against those professors in 1993 when it gave raises to a group of minority and women professors but not them.

          "Jess Lorona, a Phoenix attorney who represented the plaintiffs, called Broomfield's decision significant.  'It will have an impact on any pay raise in the higher-education system,' he said.  'It will determine what factors have to be taken into consideration.'

          "The professors' individual awards will range from $1,464 to $132,021, Lorona said.

          "[District Judge] Broomfield has given NAU officials until June 27 to present evidence that could lower the awarded amount.

          "One of the plaintiffs, modern languages department Chairman Edward Hood, expects to receive $20,000 to $30,000.  'It was a battle of principle,' [Prof. Hood] said.  'I didn't go into it for the money.   It's been 13 years.  I'm just about ready to let it go at this point.   The legal system is slow, but it works."

          "[Judge] Broomfield found that the university had violated Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race or sex."

-- Excerpted from the Arizona Republic
article by Mike Cronin 06-14-06
Last known link:
Azcentral.Com

          "The 40 teachers, all white men, argued that they were discriminated against when the public university gave raises to minority and female faculty members in the early 1990s but not to white males.  Not only that -- the plaintiffs said in a Title VII civil-rights suit -- the salary bumps resulted in some favored faculty members earning more than white men in comparable positions.

          "The lawsuit and its outcome are yet another striking illustration of the perils of affirmative action, with its often contorted logic of redress and blame and its tendency to commit exactly the sort of discrimination that it was designed to prevent.

          "The university may persuade U.S. District Court judge Robert Broomfield to lower the bill for what is effectively back pay to the professors.  But the school is also facing a claim for the plaintiffs' legal expenses.  Their attorney, Jess Lorona, tells us that, with more than a decade of litigating on both sides totted up, the cost to Arizona taxpayers could soar to $2.5 million.

          "What got the school in trouble was not 'catch up' payments per se but the way it made them.

          "Even so, 'the reverberations are going to be tremendous,' [the NAU professors'] attorney Lorona predicts.  He explains that this decision 'sets out case law about what needs to be done when you're trying to cure pay inequity.'

          "Lesson One:  You should probably prove that discrimination exists rather than just infer it from dodgy statistics.   In 1993, the university's then-president, Eugene M. Hughes, assumed there had been discrimination, based partly on a study he'd commissioned.

          "As Judge Broomfield noted in 2004, the initial study ignored factors such as whether people held doctorates.  At any rate, the study's own figures indicated that white faculty were earning only about $87 a year more than minorities, and men were making about $751 more than women.

          "Mr. Hughes's solution: raises of up to $3,000 for minorities and $2,400 for women.  White men got nada.

          "So here's Lesson Two and the winning issue in this case: If you want to pay 'catch up' wages to some employees, don't overcompensate to the point where they draw ahead for no reason other than their race or gender.

          "As Andrew Kleinfeld, a judge on the U.S. Ninth Circuit Court of Appeals, wrote in his 2002 opinion lambasting Mr. Hughes: 'The scheme here was straightforward: Minorities are gold, women are silver, white men are bronze. . . . [E]veryone in America knows that the Constitution prohibits the government from treating some people better than others because they are of a preferred sex or ethnicity.'  Well, at least they now know in Arizona." [Emphasis added.]

-- Excerpted from the Wall Street Journal Editorial Jun 16, 2006
Last known link:
http://www.opinionjournal.com/taste/?id=110008521

          "Any competent university president would know that he can't pay people more or less than others based on their sex and race.  The scheme here was straightforward: minorities are gold, women are silver, white men are bronze.  It's been a long time in American since anyone thought the Constitution allowed governmental discrimination based on sex and race.  The law has been clearly established on this point for many years.  President Hughes wasn't entitled to pretend ignorance on this point because there was no case directly on point specifically on pay raises to 'predicted' salaries based on regression analyses with the peculiar flaws of the Chambers study."

-- United States Court of Appeals for the Ninth Circuit, Rudebusch v. Hughes, No. 01-15287 (D.C. No. CV-96-01077-RCB) Dec. 9, 2002, at bottom of p. 34 and top of p. 35.

          "The pay dispute arose out of what everyone agrees was a noble effort to right past wrongs.   Women and minorities, not just at NAU but at many universities, had long been underpaid, and in 1993, NAU officials paid out more than $200,000 to attempt the rectify the discrimination.

          "But white males, who received no raises that year, complained, and they subsequently received raises in 1994, but women received nothing.

          "Women were then given raises again in 1995.

          "After that, things got messy.   A total of 267 faculty members -- 192 white males and 75 women -- filed a class-action lawsuit, contending they had been discriminated against because of their race and/or gender.

          "But the university insisted it had made the two groups whole, salary-wise, with the 1994 and 1995 raises.  The federal Equal Employment Opportunity Commission said as much and so did a jury.

          "But 40 white males continued on, filing a claim under Title VII of the Civil Rights Act of 1964.  The 1994 pay raise was unilateral and [in] an equal amount, not based on individual performance and experience.  That, they said, was discriminatory.

          "A judge in 2004 agreed with the white male profs.  He said the original pay adjustments were overly generous and created a new inequity for those who were also entitled to raises but did not receive them.

          "Last week, the same judge awarded $1.4 million in back pay and interest to the 40 profs, with individual awards ranging between $10,000 and $130,000.  NAU has 20 days to show how subsequent raises might have mitigated the inequities.  But
the main issue remaining appears to be how the university is going to handle the sizable payout."

-- Excerpted from the Arizona Daily Sun article June 20, 2006
Last known link:
http://www.azdailysun.com

          "The professors alleged that the university had discriminated against them in a pay-equity plan by giving raises of up to $3,000 each to certain minority and female professors, but giving no raises to them.

          "At the same time, one of those professors, George H. Rudebusch, together with a group of about 200 other white male professors and 80 female professors, filed a class-action reverse-discrimination lawsuit against the university's president at the time, Eugene M. Hughes.

          "The suit against Mr. Hughes was later dismissed, and that dismissal was upheld by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in 2002.  But the appellate judges, who considered both lawsuits together, held in their opinion that the 40 professors were entitled to a jury decision on whether the raises given were higher than necessary to make up for past inequities.

          "The professors elected to have that decision made by a fact-finder instead of a jury.  The fact-finder in the case, Senior Judge Robert C. Broomfield, of the U.S. District Court for Arizona, agreed with the 40 white male professors that the raises 'went beyond attaining a balance'.

          "By overcompensating women and members of minority groups, Judge Broomfield ruled, the university had violated Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race or sex. He ordered a separate trial to decide damages.

          "Last Wednesday Judge Broomfield decided that the university, which said it had addressed the professors' concerns in the mid-1990s by providing $693,000 in retroactive pay increases to the white professors, had not gone far enough.  He instead concluded that the professors were still owed a combined total of $1.4-million.

          " 'We got what we wanted,' said Jess A. Lorona, a lawyer for the 40 professors, who said individual awards to the professors should range from $1,464 to $132,021.

          "The judge has not yet made the $1.4-million figure final. He gave the university 20 days to present evidence that could mitigate the damages.

          "But Mr. Lorona said that even if the university succeeded, damages would not be reduced by more than about $200,000. The issue of lawyers' fees has also not yet been decided, and the university could be ordered to pay them.

          "Edward Hood, one of the 40 professors, said he feels vindicated by the decision. 'I believe in equity; they don't,' he said, referring to university administrators.  Under the proposed damages, he said, he is due to obtain about $20,000.

          "Mr. Rudebusch, a professor of philosophy, said on Monday he would be eligible for a $5,000 annual adjustment, totaling $119,000 in back pay and interest. 'It's great,' he said. 'I was thrilled.' "

-- Excerpted from the Chronicle of Higher Education June 13, 2006
Link Not Available.
See Chronicle.Com (subscription required)