|
|
http://laws.findlaw.com/9th/9555466.html |
U.S. 9th Circuit Court of Appeals
STANLEY v USC
9555466
MARIANNE STANLEY, Plaintiff-Appellant, Nos. 95-55466 v. 95-56250 96-55004 UNIVERSITY OF SOUTHERN CALIFORNIA and MICHAEL L. D.C. No. GARRETT, individually and in his CV-93-4708-JGD official capacity as Athletic OPINION Director, Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John G. Davies, District Judge, Presiding
Argued and Submitted
October 7, 1996--Pasadena, California
Submission withdrawn November 28, 1997
Resubmitted May 24, 1999
Filed June 2, 1999
Before: Procter Hug, Jr., Chief Judge, Harry Pregerson and
Stephen Reinhardt, Circuit Judges.
Opinion by Chief Judge Hug;
Dissent by Judge Pregerson
SUMMARY
_________________________________________________________________
_________________________________________________________________
COUNSEL
Robert L. Bell, Law Offices of Robert L. Bell, Washington,
D.C. for the plaintiff-appellant.
J. Al Latham, Jr., Paul, Hastings, Janofsky & Walker, Los
Angeles, California for the defendants-appellees.
_________________________________________________________________
OPINION
HUG, Chief Judge:
Appellant Marianne Stanley appeals from the district
court's order granting summary judgment in favor of defen-
dants University of Southern California and Michael Garrett
on Stanley's claims of discrimination and breach of employ-
ment contract. Stanley also appeals the denial of her motion
to recuse Judge Davies, and her motion to re-tax costs. Appel-
lants move for an award of sanctions against Stanley for filing
the latter two appeals.
FACTUAL AND PROCEDURAL BACKGROUND
Marianne Stanley was hired as head coach of the women's
basketball team for the University of Southern California
("USC") in 1989. Her initial contract, signed in July of that
year, was for a four-year term, expiring June 30, 1993. The
contract provided that she would make a base salary of
$60,000 per year. This base salary was increased to $62,000
per year in 1992. The women's basketball program at USC
enjoyed much success during Stanley's tenure.
Defendant Michael Garrett is the Athletic Director at USC.
On April 20, 1993, two months prior to the expiration of Stan-
ley's contract, Stanley and Garrett had an initial meeting to
negotiate a new contract. The parties disagree over what took
place at this meeting. Stanley contends that on that date she
entered into a contract for a salary equivalent to that of
George Raveling, the USC men's basketball coach. It is
undisputed that Garrett expressly stated that USC could not
pay her that salary, but that he would make her a formal offer
in writing shortly after that meeting.
On April 27, 1993, Garrett offered Stanley, in writing, a
three-year contract providing $80,000 in year one, $90,000 in
year two, and $100,000 in year three, with a $6,000 per year
housing allowance for each of the three years. The parties met
again on May 27, 1993, at which point Garrett claims that
Stanley rejected the April 27 offer because she insisted that
her compensation should be equivalent to Raveling's. Stanley
argues that she never rejected this offer, but simply disagreed
as to the amount of compensation, because the April 27 offer
was inconsistent with the April 20 offer -- for Raveling's sal-
ary level -- that she already had accepted.
On June 7, 1993, Stanley proposed a three-year contract
providing $96,000 per year for the first eighteen months, and
a salary equivalent to that of Raveling for the remainder of the
term. Garrett rejected this offer. Stanley then retained an
attorney who, on June 18, 1993, proposed to Garrett a three-
year contract with an automatic two-year renewal provision,
and total compensation of $88,000 for year one, $97,000 for
year two, and $112,000 for year three, plus additional incen-
tives. Garrett rejected this offer and withdrew the April 27
offer.
On June 21, 1993, Garrett sent to Stanley's attorney a writ-
ten offer for a one-year contract for $96,000. Stanley's exist-
ing contract expired on June 30, 1993, but Stanley continued
to perform her duties. On July 13, while on a recruiting trip,
Stanley asked Garrett if he would still offer her a multi-year
contract. He indicated that his June 21 one-year contract offer
was USC's final offer, and that Stanley would have to accept
or reject it by the end of the day. Stanley did not respond, but
sent a memo to Garrett on July 14 requesting additional time
to consider the offer. On July 15 Garrett revoked the offer,
informed Stanley that he was seeking a new coach for the
team, and requested that Stanley perform no further services
for USC.
On August 5, 1993, Stanley initiated this action in Los
Angeles County Superior Court, making claims of sex dis-
crimination and retaliatory discharge. On August 6, 1993, the
Superior Court granted Stanley's request for a temporary
restraining order reinstating Stanley as head coach of the
women's team at $96,000 per year pending the hearing on
Stanley's motion for preliminary injunction. On that same
day, defendants removed the action to federal court on the
ground that the complaint stated claims arising under federal
law.
On August 30, 1993, the district court denied the motion
for preliminary injunction, and Stanley appealed. This court
affirmed the denial of the preliminary injunction in an opinion
filed January 6, 1994. Stanley v. University of Southern
California, 13 F.3d 1313 (9th Cir. 1994) (" Stanley I").
Between September 1993 and February 1994, Stanley
amended her complaint several times, and defendants'
motions to dismiss were granted as to several claims. Stan-
ley's Third Amended Complaint alleges the following causes
of action: (1) violation of the Equal Pay Act, 29 U.S.C.
S 206(d)(1) and California Fair Employment and Housing Act
("FEHA"); (2) violation of Article I, S 8 of the California
Constitution; (3) violation of Title IX of the Civil Rights Act
of 1972, 20 U.S.C. S 1681; (4) retaliation; (5) wrongful dis-
charge in violation of public policy; (6) breach of express
contract; (7) breach of implied-in-fact contract; and (8) breach
of implied covenant of good faith and fair dealing. Stanley
sought reinstatement, declaratory relief, injunctive relief pre-
venting USC from further discriminating against her, back
pay, three million dollars in compensatory damages, and five
million dollars in punitive damages.
On October 17, 1994, defendants filed a motion for sum-
mary judgment. After Stanley was allowed additional time to
conduct discovery, on March 10, 1995, the district court
granted summary judgment for USC and Garrett. This appeal
followed.
DISCUSSION
I. Discrimination Claims
We review the district court's grant of summary judgment
de novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998).
We address each claim in turn.
A. Equal Pay Act Claim
The Equal Pay Act provides in relevant part:
No employer having employees subject to any provi-
sions of this section shall discriminate, within any
establishment in which such employees are
employed, 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 in such establishment for equal work on
jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed
under similar working conditions . . . .
29 U.S.C. S 206(d)(1).
[1] In an Equal Pay Act case, the plaintiff has the burden
of establishing a prima facie case of discrimination by show-
ing that employees of the opposite sex were paid different
wages for equal work. The prima facie case is limited to a
comparison of the jobs in question, and does not involve a
comparison of the individuals who hold the jobs. See, e.g.,
Brock v. Georgia Southwestern College, 765 F.2d 1026, 1032
(11th Cir. 1985) (citing Hein v. Oregon College of Educ., 718
F.2d 910, 914 (9th Cir. 1983). To make out a prima facie
case, the plaintiff bears the burden of showing that the jobs
being compared are "substantially equal." See 29 C.F.R.
S 1620.13(a); see also Spaulding v. University of Wash., 740
F.2d 686, 697 (9th Cir. 1984), overruled on other grounds,
Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477 (9th
Cir. 1987) (en banc). Significantly, under the Act, the plaintiff
need not demonstrate that the jobs in question are identical;
she must show only that the jobs are substantially equal.
Because we are reviewing an appeal from the grant of sum-
mary judgment, the question is whether, viewing the evidence
in the light most favorable to Stanley, and resolving all infer-
ences in her favor, a genuine issue of material fact exists
regarding the substantial equality of the jobs. See, e.g., Cor-
dova v. State Farm Ins. Cos., 124 F.3d 1145, 1150 (9th Cir.
1997). This analysis is quite different from that conducted by
our court in Stanley I, 13 F.3d 1313 (9th Cir. 1994), where we
considered an appeal from the denial of a mandatory prelimi-
nary injunction.
[2] Circuit courts employ a two-step "substantially equal"
analysis in Equal Pay Act cases. In Brobst v. Columbus Srvs.
Int'l, 761 F.2d 148, 156 (3d Cir. 1985), the Third Circuit
described this approach, writing that "[t]he crucial finding on
the equal work issue is whether the jobs to be compared have
a `common core' of tasks, i.e. whether a significant portion of
the two jobs is identical." When a plaintiff establishes such a
"common core of tasks," the court must then determine
whether any additional tasks, incumbent on one job but not
the other, make the two jobs "substantially different." Id. Both
the Seventh and Fourth Circuits have also adopted this
approach to Equal Pay Act cases. See Fallon v. State of
Illinois, 882 F.2d 1206, 1209 (7th Cir. 1989); Brewster v.
Barnes, 788 F.2d 985, 991 (4th Cir. 1986).
[3] Here, we may assume that the men's and women's
coaching jobs share a common core of tasks. Garrett--
U.S.C.'s athletic director and a defendant in this case -- has
acknowledged that the women's and men's coaches "have the
same basic responsibilities" with regard to recruiting athletes
and administering the basketball programs. In his declaration,
Garrett also stated:
Both the women's and men's head basketball
coaches have the following general duties and
responsibilities: basketball program; coaching and
discipline of team members; general supervision
over the personal and academic lives of the student
athletes; and supervision over assistant coaches,
part-time coaches and other athletic department per-
sonnel involved in the women's and men's basket-
ball programs.
The parties are in serious dispute, however, as to whether the
additional responsibilities borne by the men's coach, but not
by the women's coach, suffice to make the two jobs
"substantially different." See, e.g., Fallon, 882 F.2d at 1209.
The defendants point out that the men's coach bears greater
revenue generating responsibilities, that he is under greater
media and spectator pressure to produce a winning program,
and that he actually generates more revenue for the Univer-
sity.
Stanley claims that the differences between the two jobs are
attributable to previous gender-based decisions on the part of
the University. Essentially, Stanley claims that the differences
between the two jobs result from the University's historically
disparate treatment of male and female teams; namely, its
decisions to invest in and promote the men's program more
than the women's program. She then claims that because the
differences between the jobs derive from previous gender-
based decisions on the part of the University, the differences
cannot be relied on to determine that the jobs are
"substantially different."1
The University, on the other hand, argues that the differ-
ences between the two jobs are not attributable to anything it
has done or failed to do in the past. According to USC, the
reason that women's basketball does not generate the same
amount of revenue as men's basketball, and that the women's
coach is not under the same pressure as the men's coach, is
that there simply is not a sufficient spectator or media market
for women's basketball games. Accordingly, it contends that
the differences in responsibilities in the two jobs legitimately
suffice to make them "substantially different."
[4] We need not decide which party is correct regarding the
reason for the differences that exist. Even assuming that Stan-
ley has succeeded in raising a genuine issue of fact as to this
question, the University is entitled to summary judgment on
other grounds. A defendant may rebut a prima facie case by
showing that the disparity in pay is a "differential based on
any . . . factor other than sex." 29 U.S.C. S 206(d)(1). Defen-
dants here assert an affirmative defense (that is, a nondiscrim-
inatory reason for the pay differential) based on Stanley and
Raveling's markedly disparate levels of experience and quali-
fications. The record convincingly supports their claim. When
Raveling began coaching at U.S.C., he had thirty-one years of
coaching experience. He had been the coach of the men's
Olympic basketball team. He had been twice named national
coach of the year, and twice named PAC-10 coach of the year.
On top of his coaching experience, Raveling also had nine
years of marketing and promotional experience, and was the
author of several books on basketball. When Stanley started
coaching at U.S.C., three years after Raveling became head
coach of the men's team, she had seventeen years of experi-
ence coaching basketball, or fourteen years less experience
than Raveling. She never coached an Olympic team. She had
no marketing or promotional experience other than that she
gained as a coach. She had never published a book about
basketball.2
[5] The EEOC Notice cited above, on which the plaintiff
relies extensively, recognizes this type of affirmative defense,
stating that "[s]uperior experience, education, and ability may
justify pay disparities if distinctions based on these criteria are
not gender based." EEOC Notice at 23. In Stanley I, more-
over, we wrote that "[e]mployers may reward professional
experience and education without violating the EPA. " Stanley
I, 13 F.3d at 1322. Coaches with substantially more experi-
ence and significantly superior qualifications may, of course,
be paid more than their less experienced and qualified coun-
terparts, even when it is the male coach who has the greater
level of experience and qualifications. By alleging that the
pay differential at issue here was due to Stanley and Ravel-
ing's markedly different levels of experience and qualifica-
tions, the defendants have proffered a factor "other than sex,"
29 U.S.C. S 206(d)(1), to explain the difference in pay. See
also, Harker v. Utica College of Syracuse Univ., 885 F. Supp.
378 (N.D.N.Y. 1995) (nine year experience differential
between women's and men's basketball coaches justifies pay
differential).
Garrett's testimony, moreover, supports the University's
explanation. In explaining the disparity between Raveling and
Stanley's salaries, Garrett referred extensively to the coaches'
divergent levels of experience and differences in qualifica-
tions. He stressed Raveling's thirty-one years of experience,
his experience as an Olympic coach, his nine years in market-
ing and promotion positions, and his authorship of several
books on basketball. Garrett highlighted the fact that Raveling
had been twice honored as national coach of the year, twice
voted PAC-10 coach of the year, and was "widely recognized
as one of the top basketball recruiters in the nation." Garrett
then contrasted Stanley's lesser experience and qualifications.
While he mentioned some of Stanley's accomplishments, he
pointed out that she had only seventeen years coaching expe-
rience, had never coached an Olympic team, and had never
authored any books on basketball.3
[6] Where the defendant demonstrates that a pay differen-
tial was based on a factor other than sex, the employee may
prevail by showing that the employer's proffered nondiscrimi-
natory reason is a "pretext for discrimination. " Maxwell v.
City of Tucson, 803 F.2d 444, 446 (1986). On this appeal,
Stanley bears the burden of demonstrating a material fact
regarding pretext in order to survive summary judgment. See,
e.g., Texas Dep't of Community Affairs v. Burdine , 450 U.S.
248, 256 (1981).
[7] Stanley's pretext argument, however, fails to meet even
this minimal burden. In her briefs, Stanley disputes that Rav-
eling had greater qualifications and experience than she.4 For
example, Stanley states that "Mr. Raveling does not have sub-
stantially different qualifications and experience than Ms.
Stanley." Unsupported allegations made in briefs are not suf-
ficient, however, to defeat a motion for summary judgment.
See, e.g., Anderson v. Liberty Lobby, Inc.,
477 U.S. 242
, 249
(1986). Stanley has conspicuously failed, moreover, to present
any meaningful evidence in support of her claim that she and
Raveling had comparable levels of experience. Stanley points
first to her deposition testimony that she was responsible for
securing donors for the women's team. Such evidence, while
important in assessing Stanley's revenue raising responsibili-
ties, says nothing of her relative level of experience. She next
points to her testimony that she worked briefly as a color ana-
lyst on a Philadelphia cable station. Again, this evidence does
not undermine the University's claim that Raveling possessed
far greater experience as a coach and marketer than Stanley.5
Stanley also argues that Raveling's marketing abilities are in
dispute because "Raveling was not able to successfully pro-
mote nor market a summer basketball [camp] during his entire
employment at USC." However, Raveling's ability to market
this camp sheds no light on his previous experience in market-
ing. Stanley, moreover, does not dispute the fact that Raveling
has nine years of experience in marketing, while she had no
work experience outside coaching.
In the end, therefore, we are left with these undisputed
facts: Stanley had far less relevant experience and qualifica-
tions than Raveling. She had fourteen years less experience as
a basketball coach. She, unlike Raveling, never coached the
Olympic team. She had no marketing experience outside
coaching. She had never written any books on basketball.
Accordingly, Stanley has failed to raise a genuine issue of fact
as to Raveling's markedly "superior experience, " and qualifi-
cations. EEOC Notice at 23. In short, she has failed to raise
a genuine issue of fact as to the University's non-
discriminatory reason for paying Raveling a higher salary.
Accordingly, we affirm the district court's decision to grant
the defendants' motion for summary judgment on the Equal
Pay Act claim.
B. FEHA, Title IX, and California Constitution
Stanley also claims that the defendants' conduct violated
three other statutory provisions. First, she asserts that the
failed contract negotiations constituted a violation of the Fair
Employment Housing Act which provides that it is unlawful
for an employer to "discriminate against the person in com-
pensation or in terms, conditions or privileges of
employment" on the basis of gender. Cal. Gov't Code
S 12940(a). Second, she claims a violation of Title IX of the
Civil Rights Act of 1972, 20 U.S.C. S 1681(a), which pro-
vides in relevant part:
No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under
any educational program or activity receiving Fed-
eral financial assistance . . . .
Third, she claims a violation of Article I, S 8 of the California
Constitution which provides:
A person may not be disqualified from entering or
pursuing a business, profession, vocation, or
employment because of sex . . . .
[8] Because, as we have held above, Stanley fails to show
any discriminatory conduct on the part of the defendants, all
of these claims fail as well.
C. Retaliation
[9] Stanley's retaliation claim fails because, as the district
court concluded, the evidence does not support her assertion
that USC "retaliated" against her because she insisted that
USC honor Garrett's "offer" of April 20, 1993, filed a dis-
crimination claim with Department of Fair Employment and
Housing, and filed a complaint in state court. USC's offer of
a multi-year contract remained open long after Stanley
insisted that she be paid an amount equal to Raveling's salary.
USC did not "discharge" Stanley in response to any of her
arguably protected activity. Rather, Stanley's contract expired
and she was unable to renegotiate a new contract acceptable
to her. The district court did not err in granting summary
judgment for USC on this claim.
D. Tameny Claim
[10] Stanley claims that she was terminated, in violation of
public policy, in response to her complaints about sex dis-
crimination and her demands for equal pay. See Tameny v.
Atlantic Richfield Co., 610 P.2d 1330 (Cal. 1980). However,
as explained above, Stanley failed to present evidence that she
was "terminated" from her coaching position, either directly
or constructively, after her complaints. The evidence estab-
lishes that her contract expired and she was unable to renego-
tiate a new contract with terms acceptable to her. The district
court properly granted summary judgment on this claim.
II. Contract Claims
[11] We review the district court's grant of summary judg-
ment on the contract claims de novo. Margolis , 140 F.3d at
852. As an initial matter, we conclude that the district court
was correct to grant summary judgment for Garrett on the
contract claims, because he acted merely as USC's agent and
was not a party to the contract. We also affirm the district
court's grant of summary judgment in favor of USC on all
three contract claims.
A. Express Employment Contract
Stanley contends that an express contract was formed at the
April 20, 1993 meeting between her and Garrett, which con-
tract called for her to receive a salary equal to that earned by
Raveling. However, Stanley herself stated in a declaration that
at that meeting Garrett told her, in response to her request for
a salary equal to Raveling's, "that USC did not have the
money to pay [Stanley] that amount at that time. He indicated
that he would get back to [Stanley] with an offer of a multi-
year contract." This is consistent with Stanley's deposition
testimony as well.
[12] The district court was correct to conclude that no ratio-
nal trier of fact could have concluded from this evidence that
there was a meeting of the minds between Garrett and Stanley
on the terms Stanley proposed. Summary judgment was prop-
erly granted.
B. Implied-in-Fact Employment Contract
[13] Under California law, an implied contract is one "the
existence and terms of which are manifested by conduct."
Cal. Civil Code S 1621. An implied contract "consists of obli-
gations arising from a mutual agreement and intent to promise
where the agreement and promise have not been expressed in
words." Silva v. Providence Hosp. of Oakland , 14 Cal.2d 762,
773 (1939).
[14] Stanley contends that USC led her to believe that, if
she produced a successful basketball program, she would be
awarded a multi-year contract with equal pay for equal work.
However, as the district court noted, the express terms of
Stanley's contract precluded such a modification to the terms
of her employment. Paragraph 12 of the employment contract
provided that no prior or contemporaneous agreements not set
forth in the written agreement would have any force or effect,
while Paragraph 14 precluded any modification of the agree-
ment unless it was in writing and signed by both parties.
Therefore, the district court was correct to conclude that no
rational trier of fact could conclude that Stanley had a reason-
able belief that her express written contract was modified
such that she was guaranteed a multi-year contract so long as
she performed her job well. See Haggard v. Kimberly Quality
Care, Inc., 46 Cal.Rptr.2d 16, 21-24 (Cal. Ct. App. 1995)
(plaintiff cannot rely on pre-contract implied terms when con-
tract was integrated; plaintiff cannot rely on post-contract
implied terms when contract required all modifications be
written). Summary judgment was properly granted.
C. Good Faith and Fair Dealing
[15] Stanley contends that USC breached an implied cove-
nant of good faith and fair dealing when USC failed to pay
her a salary equal to Raveling's, when it failed to negotiate in
good-faith to renew the contract, and when it refused to
reduce to writing the "contract" that Garrett entered into on
USC's behalf at the April 20, 1993 meeting. However, a
claim for breach of an implied good faith covenant depends
upon the existence of a valid contract. Careau & Co. v. Secur-
ity Pacific Bus. Credit, Inc., 272 Cal.Rptr. 387, 397 (Cal. Ct.
App. 1990). Thus, because Stanley had no valid contract
based upon the April 20, 1993 meeting, her claim fails with
respect to that alleged contract.
[16] Moreover, the record evidence does not support Stan-
ley's claim that USC acted in bad faith with respect to the
written contract that expired June 30, 1993. USC paid Stanley
according to the terms of that contract, and no rational fact-
finder could conclude that USC acted in bad faith during
negotiations for a new contract. Indeed, USC offered Stanley
a new contract at a substantially higher salary than her previ-
ous contract provided, and engaged in repeated negotiations
in an attempt to reach an agreement. Bad faith cannot be
inferred from the mere fact that Stanley was unhappy with
USC's proposed terms. Summary judgment was properly
granted.
III. Disqualification of Judge Davies
[17] Stanley contends that it was an abuse of discretion for
Judge Collins to deny Stanley's motion to recuse Judge
Davies for gender bias. Judge Collins was correct to conclude,
in denying Stanley's recusal motion, that Stanley had not sup-
ported her allegations of gender bias on the part of Judge
Davies. The only evidence that Stanley can point to in support
of her bias allegation is Judge Davies' rulings on defendants'
summary judgment motion, and general allegations about
gender discrimination in sports and in the judicial system.
General observations about gender discrimination do not sup-
port the disqualification motion, and Judge Davies' rulings in
Stanley's case do not present the rare and extreme circum-
stances in which a judge may be recused on the basis of his
rulings alone. Liteky v. United States,
510 U.S. 540
, 556
(1994).
IV. Re-taxing Costs
[18] Fed. R. Civ. P. 54(d)(1) provides that "costs other than
attorneys' fees shall be allowed as of course to the prevailing
party unless the court otherwise directs." Thus, Rule 54(d)
creates a presumption in favor of awarding costs to prevailing
parties, and it is incumbent upon the losing party to demon-
strate why the costs should not be awarded. National Info.
Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471-72 (9th Cir.
1995).
At the conclusion of this litigation, the district court
awarded costs to defendants as "prevailing parties" pursuant
to Rule 54(d)(1). Stanley made a motion to re-tax costs, argu-
ing: (1) that many of the costs were excessive; (2) that she in
fact was a "prevailing party" in the litigation due to her suc-
cess in procuring the TRO in Superior Court; (3) that forcing
civil rights plaintiffs, like herself, to pay costs will have the
chilling effect of dissuading other civil rights plaintiffs from
bringing meritorious suits; (4) that she is unable to pay the
costs without being rendered indigent; and (5) that Judge
Davies exhibited gender-bias toward Stanley in the underly-
ing proceedings.
[19] The district court determined that Stanley's arguments
did not overcome the presumption in favor of taxing costs to
the losing party. We review the district court's denial of a
motion to re-tax costs for an abuse of discretion. Schwarz v.
Secretary of Health and Human Servs., 73 F.3d 895, 900 (9th
Cir. 1995). We conclude that the district court abused its dis-
cretion, particularly based on the district court's failure to
consider two factors: Stanley's indigency, and the chilling
effect of imposing such high costs on future civil rights liti-
gants.
[19] District courts should consider the financial resources
of the plaintiff and the amount of costs in civil rights cases.
See e.g., Wrighten v. Metropolitan Hosps., Inc., 726 F.2d
1346, 1358 (9th Cir. 1984); Moore v. Hughes Helicopters,
Inc., 708 F.2d 475, 486 (9th Cir. 1983). Stanley's argument
that payment of the costs would render her indigent is com-
pelling. Indigency is a factor that the district court may prop-
erly consider in deciding whether to award costs. See National
Org. for Women v. Bank of California, 680 F.2d 1291, 1294
(9th Cir. 1982); McGill v. Faulkner, 18 F.3d 456, 459 (7th
Cir. 1994). The mere fact that Stanley had not obtained
employment at the time of the filing of the cost bill is persua-
sive evidence of the possibility she would be rendered indi-
gent should she be forced to pay $46,710.97 -- the total
amount that the district court awarded against her. The perti-
nent time, of course, is the time the costs were initially taxed;
whatever may have occurred since that time is of no conse-
quence.
[21] Furthermore, the imposition of such high costs on los-
ing civil rights plaintiffs of modest means may chill civil
rights litigation in this area. While we reject Stanley's claims,
we also note that they raise important issues and that the
answers were far from obvious. Without civil rights litigants
who are willing to test the boundaries of our laws, we would
not have made much of the progress that has occurred in this
nation since Brown v. Board of Educ.,
347 U.S. 483
(1954).
We therefore hold that the district court abused its discre-
tion in failing to re-tax costs awarded to defendants and
remand to the district court for reconsideration in light of
these factors.
CONCLUSION
We affirm the district court's grant of summary judgment
in favor of USC and Garrett and its denial of the motion for
disqualification. However, we remand its denial of the motion
to re-tax costs. We deny appellees' motions for sanctions.
Each side shall bear its own costs on appeal.
_________________________________________________________________
PREGERSON, dissenting:
By focusing on the differences between Stanley's and Rav-
eling's qualifications, the majority skips over the many ways
in which gender discrimination insidiously affected the Uni-
versity's treatment of the women's basketball program and
Stanley as its Head Coach. The University's half-hearted pro-
motion of the women's basketball program, its intensive mar-
keting of the men's basketball program, and the formidable
obstacles Stanley faced as a woman athlete in a male-
dominated profession contributed to this disparate treatment.
It is hard for me to square these realities with the majority's
ruling denying Stanley relief without a trial.
Therefore, I dissent. the end
_______________________________________________________________
FOOTNOTES
1 In a recent EEOC Notice on sex discrimination in the compensation of
sports coaches in educational institutions, see EEOC Notice No. 915.002,
the EEOC states explicitly that "pay discrimination cannot be justified if
the differences relied on for the proposition that the two jobs are not sub-
stantially equal are themselves based on discrimination in the terms and
conditions of employment." See Notice at 5 (citing Burkey v. Marshall
County Bd. Educ., 513 F. Supp. 1084, 1092 (N.D. W. Va. 1981).
2 Michael McGee, USC's athletic director at the time Raveling and Stan-
ley were hired, testified that, due to his stellar qualifications and experi-
ence, Raveling was the only candidate considered for the men's coaching
job. Stanley, on the other hand, was hired only after two other candidates
turned down the women's coaching job.
3 Garrett concluded his explanation by noting that Raveling, the more
experienced and qualified coach, had to be "sought out by USC and lured
away from his then-current employer, the University of Iowa, to accept the
head coaching job of the men's basketball team at USC." In contrast, Gar-
rett continued, Stanley, the less experienced and qualified coach, "initiated
contact with USC and actively pursued the employment opportunity."4 Stanley does not argue, however, that the University did not, in fact,
rely on experience and qualification levels when setting the coaches' sala-
ries.
5 Stanley also contends that Raveling misrepresented to the district court
that he was the author of several "bestsellers " on the subject of basketball.
Stanley, conspicuously, does not dispute the fact that she has published no
books on this or any other subject, while Raveling indisputably has.
Ads by FindLaw