specially concurring.
I agree with the majority that the plaintiffs in this case did not prove any violation of the Equal Pay Act because they failed to show that their jobs were substantially equal to the comparator jobs used. Gunther v. County of Washington, 623 F.2d 1303 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). For the same reason, their Title VII claim based on alleged unequal pay must fail. Id.
I also agree that plaintiffs failed to prove a violation of Title VII on disparate treatment grounds. They made no prima facie showing that any university action was based upon an unlawfully discriminatory criterion. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977); Lynn v. Regents of the University of California, 656 F.2d 1337, 1340-41 (9th Cir.1981); Hagans v. Andrus, 651 F.2d 622, 625 (9th Cir.1981). Although plaintiffs established a discriminatory attitude on the part of one official of the University, through evidence of disparaging comments by the Vice President of the Health Sciences Center, the animus remained ephemeral. There was no connection between his attitude and any wage decisions suggesting disparate treatment.
I also agree that the nurses failed to make a prima facie case of discrimination *710using an adverse impact analysis. This is because they never attempted to show that any of the facially neutral practices of which they complain had a disparate impact upon women university faculty members as opposed to male faculty members. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). At best, they showed only that members of the nursing faculty were paid less than some male faculty members in other fields.
The plaintiffs’ fate in this appeal is more a product of history than of any demonstrated unworthiness of their cause. This case was filed in 1974 and tried in 1977. All of the evidence was received before this court’s historic decision in Gunther, the first appellate opinion to recognize that a sex based wage discrimination claim could be proved in any way other than a showing of unequal pay for substantially equal work. The magistrate’s and district court’s decisions were made years before the Supreme Court acknowledged the existence, if not the validity, of a comparable worth theory when it affirmed our decision. County of Washington v. Gunther, 452 U.S. 161, 166, 101 S.Ct. 2242, 2246, 68 L.Ed.2d 751 (1981).
Plaintiffs’ counsel cannot be faulted for a lack of prescience in this regard, for the explosion in debate over comparable worth began after our decision in Gunther. See County of Washington v. Gunther, 452 U.S. at 166 n. 6, 101 S.Ct. at 2246 n. 6. Thus, it is no surprise that this case, like most cases of its vintage, was tried only on the theory that the nurses’ work was substantially equal or, as plaintiff phrased it, sufficiently comparable, to establish wage discrimination on the basis of sex.
I therefore cannot join in the majority’s analysis of the adverse impact issue. It confusingly meshes adverse impact with varying concepts of comparable worth. The confusion is evident in footnote ten of the majority opinion, in which the majority fails even to define what it means by “comparable worth.” The parties did not present any evidence of the worth of nursing faculty jobs in comparison to the worth of other university employee jobs. The only comparisons were of "work” — not “worth.” The district court removed from its final findings of fact and conclusions of law the magistrate’s observation that nurses might well be being paid less than they were worth. In their brief to this court, the plaintiffs repeatedly disclaim having presented any comparable worth theory. It is thus not possible for this court in this case to render any definitive ruling on the validity of comparable worth as a tool in employment discrimination cases.
For similar reasons, I cannot join in the majority’s discussion of the appropriateness of a theory of “comparability plus” in a wage discrimination ease. A fair evaluation of that concept’s utility in this, or any other case, is impossible because the theory was presented neither to the magistrate when he considered the evidence nor to the district court when it reviewed the post trial briefs.
I concur in the majority opinion on the remainder of the issues.