Reversed by published opinion. Senior Judge CHAPMAN wrote the opinion, in which Judge WIDENER joined. Judge MICHAEL wrote a dissenting opinion.
OPINION
Plaintiffs-appellants are five male professors at Virginia Commonwealth University (“VCU”) who filed claims under the Equal Pay Act and Title VII of the Civil Rights Act of 1964 in the Eastern District of Virginia. The appellants objected to pay raises that VCU gave to its female faculty in response to a salary equity study conducted at the university. Both parties moved for summary judgment. The district court denied the appellants’ motion and granted VCU’s motion. The district court also denied the appellants’ motion to alter or amend the judgment. Because we find that there remains a genuine issue as to material fact, we reverse the district court’s grant of summary judgment.
I.
VCU is a state institution of higher learning located in Richmond, Virginia. In the spring of 1988, several groups called on VCU to evaluate its pay structure to determine whether female professors were victims of sex based discrimination in pay. VCU appointed a Salary Equity Study Committee to investigate, and a Salary Equity Advisory
The Study Committee chose to employ a multiple regression analysis, which compares many characteristics within a particular set of data and enables the determination of how one set of factors is related to another, single factor. The VCU study controlled for such differences as doctoral degree, academic rank, tenure status, number of years of VCU experience, and number of years of prior academic experience. Any difference in salary after controlling for these factors was attributed to sex. The study included only tenured or tenure-eligible instructional faculty at the rank of assistant professor or higher. The first regression study in the summer of 1989 showed a $1,354 difference in salaries not attributable to permissible factors. A second analysis run in the summer of 1991 showed a difference of $1,982.
Until the study, the compensation system at VCU had been based on merit alone. A professor was awarded a pay increase after a detailed annual review, provided funds were available. Merit factors considered in the annual review were teaching load, teaching quality, quantity and quality of publications, and service to the community (the “performance factors”). The department chair recommended a pay raise to the dean, and the dean awarded a pay raise, subject to approval from VCU’s Board of Visitors. Salaries vary widely from department to department.
The multiple regression analysis did not include the performance factors because VCU contended that these would be too difficult to quantify. VCU maintained that indirect performance variables were already included in the study in the form of academic rank, status, and experience. The study also did not take into account a faculty member’s prior service as an administrator. Administrators are paid higher wages, and faculty members retain this increase in salary when they return to teaching, thus inflating faculty salaries. Most of the faculty that had previously served as administrators were men. Furthermore, the study did not include career interruptions when measuring academic experience. Finally, the Study Committee worked under the assumption that there was no reason to suspect that female faculty members were less productive on the average than male faculty members.
After the study was completed, VCU approved more than $440,000 in funding' to increase female faculty salaries. These funds were outside of the normal salary process. The pay increases were implemented by the Salary Equity Implementation Committee made up of three women. Female faculty members had to apply for a pay increase by submitting a curriculum vitae or a narrative statement and a vitae. Of the 201 women eligible for salary review, 172 requested it. All women who requested a review received an increase in salary.
After the district court’s denial of the plaintiffs motion for summary judgment and the grant of VCU’s motion, the plaintiffs filed a motion to alter or amend the judgment. In this motion, the plaintiffs offered the affidavit of expert witness Dr. Fred McChesney. McChesney contended that the performance factors VCU claimed it could not quantify had in fact been included in several studies of various faculty systems, and that the inclusion of the performance factors and other variables was necessary to ensure accurate statistical data. McChesney also contended that there was data to dispute VCU’s assumption that women were as equally productive as men. In response, VCU’s expert witness, Dr. Rebecca Klemm, stated that she ran several various statistical studies with VCU’s raw data and found a salary gap to be consistent with that found in the study. McChesney never conducted a pay study himself. The district court denied the motion to alter or amend the judgment.
II.
We review for the district court’s grant of summary judgment de novo. Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir.1992). The evidence must be viewed in the light most favorable to the nonmoving party. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985).
Title VII of the Civil Rights Act prohibits employers from, among other things, discriminating on the basis of.sex with re
According to Weber, an employer’s voluntary affirmative action plan is not a violation of Title VII if (1) its purpose is similar to that of Title VII, namely to “break down old patterns” of discrimination; (2) the plan does not “unnecessarily trammel” the rights of those outside the group that it is designed to protect; and (3) it is designed to eliminate a manifest racial or sexual imbalance. Id. at 208, 99 S.Ct. at 2729-30; Johnson v. Transportation Agency, 480 U.S. 616, 628-31, 107 S.Ct. 1442, 1450-51, 94 L.Ed.2d 615 (1987). The burden of establishing that an employer’s voluntary affirmative action plan violates Title VII is on the plaintiff:
Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer’s employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pretextual and the plan is invalid.
Johnson, 480 U.S. at 626, 107 S.Ct. at 1449.
A plan is invalid if it does not meet the Weber requirements as set forth above. The appellants assert that there is a material question of fact as to whether there was a manifest imbalance in pay between male and female faculty members, and as to whether the plan instituted by VCU unnecessarily trammelled the rights of male faculty; therefore, the appellants contend, the motion for summary judgment should not have been granted. We agree that there is a material question of fact as to whether there was a manifest imbalance in compensation between the male and female faculty. We do not reach the question of whether the plan unnecessarily trammelled the rights of the male faculty.
VCU relied on its multiple regression analysis in determining that there was a manifest imbalance and in instituting its affirmative action pay raises. Therefore, the validity of the plan stands or falls on the soundness and accuracy of the regression study. The appellants contend that the multiple regression study was flawed because of the inclusion of an inflated pool of faculty members, and the failure to account for significant variables that could have a bearing on wage differences between the male and female faculty members.
Statistics are often used to determine whether a manifest imbalance exists. See Johnson, 480 U.S. at 631-2, 107 S.Ct. at 1451-52. In Johnson, the court stressed that valid statistical analyses must include logical comparisons. The Court stated:
in determining whether an imbalance exists that would justify taking sex into account, a comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise_ Where a job requires special training, however, the comparison should be with those in the labor force who possess the relevant qualifications.
480 U.S. at 632, 107 S.Ct. at 1452. Because the instant case does not involve a simple question of whether women are underrepresented as compared to the available labor pool in a particular job, a more sophisticated statistical analysis was necessary to determine if female faculty members were paid less than male faculty members based solely on their sex. It is still necessary, however, to avoid illogical comparisons.
The appellants contend that the study used illogical comparisons by compar
More importantly, VCU did not include major factors that are legitimate reasons for wage disparity in its multiple regression analysis. Although failure to include some factors affects a study’s weight, not its admissibility, a study must include all major factors. Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986). Not only did the study fail to account for a professor’s status as a former administrator, but the study also failed to measure the amount of time actually spent in teaching as opposed to the lapse of time since the professor began teaching.
Most significantly, the study failed to include the performance factors. VCU maintains that it could not have included the performance factors because, due to their subjective nature, they are not suitable for statistical analysis. The appellants’ expert, nevertheless, stated that the study was not valid without adding the performance factors, and that studies performed by disinterested outside researchers “have regularly included productivity measures such as teaching loads and publications,” and these studies have shown that productivity has a positive effect on the level of faculty compensation. Because VCU’s pay system is based on merit, and the factors on which faculty pay scales are decided are the very performance factors left out of the regression analysis, it cannot be.said that VCU’s study included all major factors. The inclusion of the performance factors could very well alter the results of the multiple regression analysis, and there is a dispute of material fact as to whether inclusion of these factors is feasible.
Given the number of important variables omitted from the multiple regression analysis, and the evidence presented by the appellants that these variables are crucial, a dispute of material fact remains as to the validity of the study. Therefore, the decision of the district court granting VCU’s motion for summary judgment is
REVERSED.
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Of the 82 faculty members considered in the pool who were paid more because they had held administrative positions, 71 were male.