The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
This class action was brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and to the Equal Pay Act of 1963, 29 U.S.C. § 206(d). This court has jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3), 29 U.S.C. § 216(b), and 28 U.S.C. §§ 1331 and 1343(3),(4). The named plaintiffs are: the American Federation of State, County and Municipal Employees, AFL-CIO, (AFSCME), an international labor union; the Civil Service Employees Association Inc., Region I/Local 1000, (CSEA), a regional affiliate of AFSCME which represents approximately 13,800 employees of the County of Nassau; and several female employees of the County of Nassau. These plaintiffs represent a class comprised of all women employed at any time since July 28, 1982 in a Nassau County civil service job title with respect to which at least 70% of the incumbents have been female. The defendants are the New York State County of Nassau, the Nassau County Executive, the Nassau County Comptroller, the members of the Nassau County Board of Supervisors, and the members of the Nassau County Civil Service Commission.
As filed, the first amended complaint alleged violations of Title VII and of the Equal Pay Act by the County as to its compensation system; more specifically, the unions and the individual plaintiffs alleged that the County "discriminates in compensation on the basis of sex by paying historically female job classifications less than historically male classifications which require an equivalent or lesser composite of skill, effort, responsibility and working conditions." Amended Complaint P3(D). These allegations were advanced on behalf of a class "of all employees, male and female, employed within the applicable limitations period by the County of Nassau in historically female sex-segregated job classifications in the classified service." Id. P3(B). The complaint defined "historically female sex-segregated job classifications" as those "classifications in an occupational group or job family for which the entry level classification is or ever has been 70% or more female." Id. Further, the individual plaintiffs alleged specific violations of Title VII and of the Equal Pay Act. Id. PP10-19. The amended complaint sought injunctive relief, back pay, liquidated damages, costs, and attorney's fees. Id. P24.
On motion of the defendants, this court on May 17, 1985 dismissed the Equal Pay Act claims of former plaintiffs Stephen Goldberg and Fred Jordan as well as the Equal Pay Act claim of plaintiff Lois Whitely; the court also dismissed the Title VII claims of all plaintiffs insofar as they sought relief under a disparate impact theory. AFSCME v. County of Nassau, 609 F. Supp. 695 (E.D.N.Y. 1985). On July 13, 1987, this court dismissed the Title VII claims of all the male plaintiffs. The court also certified at that time a class comprised of all female employees of the County of Nassau who, since July 28, 1982, have worked in Nassau County civil service jobs that have ever had at least 70% female employees. The court designated the named individual plaintiffs and the two union plaintiffs to represent the class. The certification did not apply to the Equal Pay Act claims. AFSCME v. County of Nassau, 664 F. Supp. 64 (E.D.N.Y. 1987). Subsequently, named plaintiff Odessa Colvin dismissed her Title VII claims with prejudice, and named plaintiffs Laurie Gillibertie and Erna Fluhr were removed by stipulation.
The parties stipulated to bifurcate the trial for this action; the liability segment began on November 27, 1989 and concluded with final arguments on May 11, 1990. For the reasons indicated below in the findings of fact and conclusions of law made pursuant to Federal Rule of Civil Procedure 52(a), this court holds that the plaintiffs have failed to prove violations of Title VII or of the Equal Pay Act by a preponderance of the evidence as to all claims except the Title VII claims of the class members employed as police detention aides. Accordingly, judgment shall be entered for the defendants on all other claims.
I. The Nassau County Compensation System
In order to consider the plaintiffs' claims of sex discrimination by the County of Nassau, it is necessary first to provide a coherent view of the system under which Nassau County classifies jobs, determines salaries, and incorporates changes into its compensation system. Accordingly, these findings of fact must begin with an overview of the present structure of the Nassau County compensation system; further, it is necessary to review the process by which the present system was created as well as the manner in which it has been modified since its inception.
One significant terminological observation must be made at the outset: The parties and the witnesses at trial employed the terms "female-dominated" to refer to job titles for which 70% or more of the incumbents are women, "male-dominated" to refer to job titles for which 70% or more of the incumbents are men, and "mixed" to refer to job titles that are neither female-dominated nor male-dominated. Although counsel at times introduced confusion as to whether or not they were observing rigorous distinctions in their phraseology (see, e.g., Plaintiffs, Post-Trial Brief at 1: counsel appear to equate the term "female-dominated" with "predominantly female") the court will, for the sake of clarity, use the terms "female-dominated", "male-dominated ", and "mixed" only as defined above. As used by the court, the terms "female-dominated" and "predominantly female" are not equated; as used by counsel, the possibility of equivalence between such phrases as "predominantly female" and "female-dominated" must be discerned from context.
A. Overview: The Present Structure
Nassau County, New York, employs over 19,000 people in approximately 1,500 job titles. As with all local governments in the State of New York, employment by the County is regulated through the New York State Civil Service Law. The Civil Service System -- administered by the Nassau County Civil Service Commission -- divides county employees into "classified" and "unclassified" service. Tr. 1231. "Unclassified" positions are those of elected officials, department heads, and board members. "Classified" positions -- the vast majority of County jobs -- are subdivided into an "exempt" class, a "competitive" class, a "non-competitive" class, and a "labor" class. Tr. 1231. The "exempt" class is generally comprised of deputy commissioners and of certain professionals. The "labor" class is that for which no training or experience requirements are established. The "non-competitive" class is that for which training and experience requirements are established but for which examinations are impracticable. Tr. 1231-32. Positions in non-competitive jobs are filled by discretionary hiring at individual County departments -- subject to confirmation by the Civil Service Commission that the hired applicant satisfies the training and experience requirements for the particular position. Tr. 1257-58. Finally, the "competitive" class (in which the greatest number of Nassau County jobs are found) is that for which competitive examinations are required by the New York State Civil Service Law. Tr. 1230-33. The Civil Service Commission posts and distributes notices of forthcoming examinations. Tr. 1254; see, e.g., DX UUU-4. Pursuant to state law, open positions in a competitive job must be filled from an "eligibility list" of applicants compiled and ranked on the basis of examination results. Tr. 1233. Candidates on the list must be selected in a modified rank order; that is, any open position must be offered to one of the top three eligible applicants. Tr. 1249. This is known commonly as the "one-in-three" rule. Tr. 1249.
The salaries of Nassau County employees are determined by job titles and by seniority. All job titles other than those of police personnel and of college faculties --and other than those which are either unclassified or exempt --are assigned to one of 27 salary "grades." PX 672. The minimum and maximum salaries for a particular grade are identical for all job titles at that grade. Further, an employee within a job title progresses through regular salary "steps" in a given grade; progression from one step to another is grounded on seniority. Tr. 1311-12. However, the number of steps through which a particular employee moves in the grade for her job title is not the same for all employees; rather, it is dependent on the first date of the employee's tenure with the County. Employees who were hired on or before June 30, 1967 move through seven steps for their grades ("Plan A"); employees who were hired after June 30, 1967 but on or before December 31, 1976 also move through seven steps for their grades ("Plan B"); and employees who were hired on or after January 1, 1977 have 15 steps for their grades ("Plan C"). DX ZZZ-2; Tr. 1311-12.
Compensation at each grade and step has increased through the years pursuant to "across-the-board" pay increases negotiated in collective bargaining agreements between the County and the plaintiff CSEA (which represents most of the employees whose jobs fall within this salary grade system, Tr. 1301). Tr. 1310-11. Also, individual job titles are at times "upgraded" either through the collective bargaining process or through actions taken by the Nassau County Board of Supervisors on the recommendation of the Civil Service Commission. The Nassau County Civil Service Commission has primary responsibility for evaluating proposed job titles and for reevaluating job titles or salary grades that are sought to be modified. The Civil Service Commission may recommend such additions or changes, but final authority to create a new title or to change the title or the grade of an existing job rests with the Nassau County Board of Supervisors. However, without a recommendation from the Civil Service Commission, a proposed modification is, for all practical purposes, formally rejected.
B. The 1967 Cresap Process
The job evaluation process began with the distribution of questionnaires to several thousand County employees. PX 621 at II-1; Tr. 295. The County team of four and the Cresap professionals then set out to create a taxonomy of County job titles and of job characteristics. PX 621 at II-1 to II-2; Tr. 298. To supplement the information provided through the questionnaires, the team members and the consultants conducted approximately 1,500 "desk audits"; these audits entailed interviews with employees, observation of their duties, and consultation with their supervisors. PX 621 at II-2; Tr. 362-66; but see Tr. 305. After all such information was gathered, the County team and the Cresap personnel together sorted jobs into occupational categories. Then, different jobs within occupational categories were distinguished and demarcated by hierarchical job titles. PX 621 at II-2; Tr. 307. Thus, for example, the Cresap process ultimately proposed the related job titles of Probation Officer Trainee, Probation Officer I, Probation Officer II, Probation Officer Supervisor I, Probation Officer Supervisor II, Probation Officer Supervisor III, Deputy Director of Probation, and Director of Probation. PX 621. The County team set out approximately 650 such job titles or "job classes." Tr. 307.
Next, the County team was trained by Cresap to write job descriptions or job specifications for each of the titles so created. PX 621 at II-3; Tr. 308 and 310; see PX 620 (instruction guide prepared by Cresap for Nassau County team, dated July 1965 and entitled: "Nassau County Class Specification Writers" Manual"). These job specifications were intended to set forth the essential characteristics of each title. PX 621; PX 620. The format developed by Cresap for the job descriptions required the following information: (1) a general statement of the duties of the job title; (2) a statement of the complexity of the duties of the job; (3) a statement of the typical duties of the job; and (4) a statement of the qualifications -- specifically, the knowledge, skills, abilities, and experience -- necessary for the job title. PX 620 at 6-8. The job specifications were not intended to be exhaustive descriptions of each aspect of the job; rather, the specifications were to set out the salient features of the particular title and to distinguish that job from other positions. PX 620; Tr. 309 and 1245. The job descriptions so drafted by the County team were reviewed and re-written both by the team members and by the Cresap professional staff. Tr. 308, 316, and 1452.
After the job specifications were completed, all Nassau County employees were notified of the proposed job titles and job descriptions. PX 621 at II-4; Tr. 366-67. At that time, neither salaries nor salary grades had been assigned to these job titles; nonetheless, the employees were permitted to appeal the classifications of their jobs to an independent classification appeals board. PX 621 at II-4 to II-5; Tr. 367-68. The decisions of this appellate board were binding on the County. Tr. 367-68. Over one thousand employees ultimately sought such review of the job reclassifications. PX 621 at II-4.
The Cresap process also entailed the assignment of job titles to salary grades. Toward this end, the County team evaluated the final job specifications on the bases of four factors: (1) the knowledge and the skills required by the job; (2) the complexity and the variety of the duties of the job; (3) the responsibility for independent action; and (4) the responsibility for supervision. PX 619 at 4 (instruction guide prepared by Cresap for Nassau County team, undated and entitled: "Nassau County: Job Evaluation Handbook"); PX 621 at III-2 to III-3. Each member of the County team rated designated jobs on each of these four factors. Again, the results of this process were reviewed and revised by the entire team and by the consultants from Cresap. Tr. 331; Tr. 333.
Cresap also conducted a labor market survey as an aid to the salary determination aspect of the job evaluation process. Cresap collected salary data on 63 separate "benchmark" job classes from such public employers as the City of New York, Suffolk County, Westchester County, the State of New York, and the United States Government as well as from employers in private industry. PX 621 at IV-1 to IV-4; see also DX LLL-1. This labor market data was used primarily to develop "salary trend lines" by which to compare the salaries of Nassau County jobs with the market rates for similar positions. PX 621 at IV-5 to IV-6. Although the salary survey was conducted at the same time as the grading process, Tr. 1612, the final report submitted to the County by Cresap does not indicate that the labor market salary data were ever used by Cresap as a basis on which to adjust the proposed grade of any particular job title. See Tr. 1609-10. Rather, the data formed the basis for general comparisons of the salaries paid by Nassau County for job evaluation point ranges. Thus, for example, a salary trend line drafted by Cresap indicates that the salary for Nassau County jobs with an evaluation point total of 250 compares favorably to the salaries offered by Suffolk County and by Westchester County for similar jobs; but the report does not specifically compare the salary offered by Nassau County for the particular job title of "Laborer I" with the salaries paid by those other counties for the job of "laborer." PX 621.
Nonetheless, it is clear from papers drafted by Cresap as early as 1964 that a primary objective of the reclassification and evaluation process undertaken by Cresap was to ensure that the salaries offered by the County would be competitive with those of nearby communities. PX 1104 at 2; see also Tr. 1448. It is also clear that Cresap regarded the results of its labor market survey as confirmation that the final proposed salary plan would guarantee the competitiveness of the County. Thus, Cresap concluded that "at the upper range of positions, the minimum Nassau County salaries are as high as, or higher than, the salaries of all of the public jurisdictions to which the County is compared." PX 621 at IV-6. Similarly, "at the middle range of positions, Nassau County salaries are higher than all but the New York City salary scale." PX 621 at IV-6. And, finally, "at the lower range of positions, the Nassau County minimum salary is slightly higher than the other salaries shown." PX 621 at IV-6. These facts indicated to Cresap that "Nassau County is in a strong competitive position, compared with other public jurisdictions and with private industry." PX 621 at IV-6.
C. Modifications since the Cresap Process
The Cresap system has continued to be the primary framework for the classification and for the evaluation of new and existing jobs in Nassau County. At the time of this trial, the County had not replaced the basic Cresap structure, and the County has retained most of the original job classifications and salary grades adopted in 1967. Tr. 397-98. Three-quarters of present Nassau County employees work in job titles that were established by the Cresap process, and the pay grades of three-quarters of those employees have not changed since 1967. Tr. 629-30. The Executive Director of the Civil Service Commission from 1966 through the time of this trial, Adele Leonard, indicated that the Cresap process was the "seed" for the entirety of the present Nassau County job classification and compensation system. PX 1096 at 56. Indeed, there have been only three principal mechanisms by which the results of the Cresap process have been altered: (1) the creation of new job titles through the Civil Service Commission; (2) upgrades of existing job titles through the Civil Service Commission; and (3) salary increases and upgrades through the collective bargaining process.
As to the first of these, when a Nassau County department requests the creation of a new classified position, the Civil Service Commission first reviews the request to ensure that the proposed title is not duplicative of an existing job. Tr. 1241-43. If tentative approval of the proposal is forthcoming, the Civil Service Commission establishes the new title and drafts a job specification; such specifications are intended to correspond in form and in function to those specifications originally drafted during the Cresap process. Information for the specifications is gathered from the requesting department, from other departments, and, at times, through a job audit that is similar to the desk audits of the Cresap process. Tr. 1243-45. The Civil Service Commission must formally adopt the new title specification. Tr. 1243-45. The Civil Service Commission recommends the new title to the County Executive; the County Executive then refers the title to the Nassau County Board of Supervisors. Final approval for the creation of a new title is granted by the Board of Supervisors through enactment as ordinance. Tr. 1259.
However, Civil Service Commission personnel specialists who began working for the County after the Cresap process have not received the training in job evaluation and grading that was given to the Nassau County team at the time of Cresap; accordingly, the specifications of new titles are not assessed on the four-factor system used by Cresap and by the Nassau County team in the 1960s. Tr. 388-89. Rather, salary grades for new titles are fixed by comparing the job specifications to those of existing County jobs. Tr. 389-90, 393, and 1282-84; see also PX 1096 at 10-13. In order to facilitate this assessment and comparison process, the Civil Service Commission personnel specialists have developed informal "rules of thumb"; thus, for example, a new position that requires a baccalaureate degree is typically -- although not invariably -- assigned a salary grade often. Tr. 391-92. These "rules of thumb" were developed by inferences from salary grades that were originally assigned through the Cresap process. Tr. 393. In evaluating new positions, the Civil Service Commission personnel specialists consider training and experience to be among the most significant factors. Tr. 1282; but see PX 1096 at 11. However, other criteria considered by the personnel specialists include recruitment difficulties, the working conditions for the new position, and the market rate for similar jobs. PX 1096 at 13-15, 57; Tr. 1246-1247. Again, the Board of Supervisors must enact by ordinance a proposed salary grade for a new job title. Tr. 402 and 1259.
As to formal upgrades through the Civil Service Commission, either an employee or the department in which that employee works may seek an upgrade of the employee's job title. DX UUU-1; Tr. 1259. Often, upgrades are sought because the duties of a particular title have changed over the years or because an employee is performing "out of title work" -- that is, work beyond the scope contemplated by the specification for that title. Tr. 1261. The upgrade request -- whether made by employee or by department -- is reviewed by the Civil Service Commission; additional information concerning the job title may be sought by Civil Service Commission personnel specialists from the department heads. Tr. 1263 and 1285. Not infrequently, Nassau County departments act as the primary advocates of their employees' desire for upgrades. Tr. 1264 and 1271.
The Civil Service Commission considers two principal factors in assessing upgrade requests: (1) significant changes in the duties of a job title; and (2) significant problems in recruitment or retention of employees in a job title. Tr. 403 and 1264-65. However, the Civil Service Commission also considers such factors as the working conditions of a title as criteria for upgrades. PX 1096 at 9. With respect to the retention-and-recruitment factor, the personnel specialists at the Civil Service Commission regularly undertake market surveys in order to determine whether salaries offered by the County are competitive with those of nearby communities. PX 1096 at 13-15; DX ZZZ-4 at 27. In some instances, the Civil Service Commission will seek to address recruitment or retention problems through means less extensive than an upgrade. For instance, the Civil Service Commission may authorize a department to hire new employees at a higher salary step than that at which new employees typically begin ("above-step hiring"), Tr. 1268 and PX 1096 at 60; or the Civil Service Commission may authorize mass promotions of employees in one title to a higher related title. Tr. 1271.
Finally, the Cresap system set in place in 1967 has also been modified through the vehicle of collective bargaining. Since 1969, the County and CSEA have entered into nine separate collective bargaining agreements. Tr. 1319. These agreements have at times provided for "across-the-board" wage increases; at times they have provided for higher wages for particular groups of employees. Tr. 1327-28; DX ZZZ-2 at 11. The County and CSEA have also entered into memoranda of understanding that secured upgrades for particular job titles. Tr. 1318 and 1320-23. Throughout these negotiations, both the County and CSEA have relied extensively on labor market surveys. Tr. 1314-17, 1377, and 1389. Both AFSCME and the County conduct comprehensive labor market surveys in order to present persuasive arguments at the bargaining table that particular salary increases or upgrades should or should not be granted. Tr. 1377-79.
II. Evidence of Discrimination by Nassau County
With these findings as background, the court may now turn to its findings of fact on the ultimate issue in this case: whether or not the County of Nassau has intentionally discriminated against women in female-dominated jobs with respect to compensation. Although the plaintiffs pursued several theories at trial, they ultimately determined that their "primary claim in this case is that the defendants engaged in intentional discrimination by systematically giving to predominantly female job titles lower salary grades than they would have received if they were not female-dominated." Plaintiffs' Post-Trial Brief at 1. That is, the plaintiffs argue that, during the Cresap job evaluation process, the "County selectively departed from [its wage-setting] methodology in a deliberate effort to favor male-dominated job titles while disfavoring the most significant female-dominated titles." Id. at 3. Further, the plaintiffs argue that, since the Cresap process, this intentional discrimination in setting salary grades has been both perpetuated by the failure of the County to redress these selective discriminatory departures as well as repeated by the County in its classification and grading of new titles. In addition to the evidence regarding discrimination in the setting of salary grades, the plaintiffs also sought to show that there are sex-related disparities between the current salaries of male-dominated job titles and of female-dominated job titles -- and that those disparities are the product of intentional discrimination. Finally, other evidence presented on the question of discriminatory intent concerned such matters as sex segregation of County job titles and specific instances of discriminatory behavior. The defendants presented evidence on all these matters as well as evidence concerning Nassau County affirmative action plans and the collective bargaining process between the County and its employees. Thus, on the critical question of discriminatory intent, the court makes the following findings of fact.
A. Discrimination during the Cresap Process
The plaintiffs presented no direct evidence of intentional discrimination against women in female-dominated Nassau County jobs during the Cresap process. Rather, every witness who had participated in that job classification and evaluation project credibly denied that any decision or determination was made during the Cresap process on the basis of the sex of Nassau County employees. See, e.g., Tr. 348, 377, 435, 1455, and 1464. Every witness associated with the Cresap process denied that they even had data as to the number of women in any particular job title. See, e.g., Tr. 377, 1455, and 1610. Confronted with such testimony as to the absence of any intentional discrimination by the Nassau County personnel team or by the Cresap personnel, the plaintiffs sought to prove their allegations indirectly.
1. The "Graduate Student" Study
The first element of evidence presented by the plaintiffs as to discrimination by the County in the conduct of the Cresap process was a study conducted by one of the plaintiffs' expert witnesses, Dr. Donald J. Treiman. Dr. Treiman, a sociologist from the University of California at Los Angeles, undertook "to determine whether Nassau County had applied its own job evaluation system in a consistent way." PX 1074 at 14 (report of Dr. Treiman to plaintiffs, dated September 1989 and entitled: "Job Classification and Salary Setting in Nassau County, N.Y. 1966-1986"); see also Tr. 583. His objective was to simulate the second half of the Cresap process with unbiased evaluators of job specifications.
Dr. Treiman hired five graduate students to rate Nassau County job specifications on the bases of the four factors used during the Cresap process, Tr. 589; through this exercise, Dr. Treiman sought to replicate the Nassau County job evaluation process. Because his aim was to achieve "unbiased" ratings, he gave the graduate students no information as to the Nassau County personnel system, no information as to the sex composition of the jobs that they were to score, and no information as to the existence and nature of this action. PX 1074 at 14; see also Tr. 590. Dr. Treiman reported that the results of this rating exercise by the graduate students were "unambiguous." PX 1074 at 16. More specifically, Dr. Treiman found that:
When ratings of 297 Nassau County jobs evaluated by three raters working independently are summed and averaged, and the resulting point scores plus whether the job is female-dominated are used to predict the salary grade assigned by Nassau County, it emerges that employees in female-dominated jobs are, on average 2.4 salary grades lower than employees in other jobs with the same evaluated worth according to the criteria used in Nassau County.
However, the court is unable to credit the testimony and the report of Dr. Treiman as to the conclusions of this study. First, the court found Dr. Treiman himself to be extremely evasive and not entirely credible throughout much of his testimony. See, e.g., Tr. 643-46 and 787-89. Second, Dr. Treiman in a subsequent report recanted part of his conclusions from this "unambiguous" evidence, see PX 1075 at 1. Further, the court found his methodology in the conduct of this graduate student exercise to be so flawed as to render it unreliable and of no probative value in this case.
Dr. Treiman hired five graduate students about whom he knew virtually nothing to perform this exercise. Tr. 758. After he discharged two of the students from the exercise (because he determined that they were not capable of satisfactory execution of the project), Dr. Treiman was left with only three raters for the study -- two of whom were in the first semester of their first year of graduate studies. Tr. 758. Dr. Treiman gave the graduate students minimal guidance in the exercise. Tr. 771-72.
More significantly, although Dr. Treiman instructed the students to rate each of 325 job specifications on the four factors used in the Cresap process, he did not give the students any information as to the number of employees supervised by the incumbents of these job titles. Tr. 768-69. Dr. Treiman told these students to do the "best that they could" without that information -- information that Dr. Treiman himself conceded was essential to scoring the "supervisory responsibility" factor. Tr. 769. Thus, Dr. Treiman's graduate students -- his standard assessors against which the results of the Cresap process could be measured -- were directed to improvise at least one-fourth of the data they needed for the project.
Next, Dr. Treiman instructed his students to spend no more than 50 to 60 hours on the evaluations. Tr. 761. The court cannot conceive that 50 to 60 hours devoted to this project could adequately replicate the efforts of the participants in the Cresap process who spent months evaluating these jobs. See, e.g., Tr. 333. Indeed, it became clear at trial that the time allotted by Dr. Treiman was terribly inadequate for any but the most hurried completion of this project. Tr. 762-67. Finally, in contrast to the procedure used in the Cresap process through which differences in point ratings among members of the County team were discussed and resolved by consensus, Dr. Treiman simply "averaged out" the different point ratings assigned by his graduate students. Tr. 781. Taken together, these procedural deficiencies significantly undermine the value of the graduate student exercise as a simulation of the original Cresap process.
The results of this exercise confirm that -- far from tracking the Cresap job evaluation process -- the exercise was a study in poor guidance, incomplete information, and inadequate time. The graduate students' ratings were remarkably inconsistent: For example, the graduate students assigned to the job title of Housekeeping Supervisor grades that ranged from 7 to 20. DX KKK-2. Also, two of his three students gave grades that differed on average by three grades -- a disparity greater than the two-and-one-half grade difference that Dr. Treiman identified between male-dominated and female-dominated jobs in the Cresap job process. See, e.g., Tr. 1561. Again, rather than investigate these disparities among his students, he simply "averaged out" their results. Indeed, ultimately, Dr. Treiman's graduate students rated the male-dominated job title of Custodial Worker I as equal to the female-dominated job title of Clerk-Stenographer I -- a result for which Dr. Treiman himself argued there was no "rational basis." Tr. 787-89. For all these reasons -- because of Dr. Treiman's problematic methodology and because of his less than persuasive testimony -- the court must disregard entirely the results of this graduate student exercise. It is wholly without probative value, and it does not provide any basis for inferring discriminatory intent in the execution of the Cresap classification and evaluation process.
2. The "Training and Experience" Study
The second item of evidence introduced by the plaintiffs on the question of intentional discrimination in the Cresap process was another study conducted by Dr. Treiman. In this study, Dr. Treiman sought to eliminate the subjectivity inherent in the grading exercise performed by the graduate students. Tr. 596; but see Tr. 688-89. To this end, he analyzed the job specifications prepared during the Cresap process for two "objectively measurable" factors: first, the amount of training and experience required by a particular position; second, whether or not the position entailed supervisory responsibility. Dr. Treiman testified that the first of these two factors constitutes a suitable proxy for the first three factors used by Cresap to evaluate jobs (that is, knowledge and skills, complexity of duties, and independence of action). Tr. 597-98. Thus, in conjunction with a measure for supervisory responsibility, Dr. Treiman believed he had two quantifiable variables that would permit objective evaluation of the Cresap job-evaluation process.
Dr. Treiman then analyzed Nassau County job specifications for these factors. He used data from 1967 as to the number and the sex of Nassau County employees, Tr. 598, and he weighted job titles by the number of employees in each title. PX 1074 at 10. As to training and experience alone, Dr. Treiman found that, "on average . . . employees in female-dominated jobs are 1.7 salary grades lower than employees in male-dominated jobs requiring the same training/experience." PX 1074 at 11; Tr. 598-99. When Dr. Treiman introduced the variable for supervisory responsibility into his study, he found that, on average, as to any given number of years for training and experience, non-female-dominated jobs without supervisory responsibility were better compensated than female-dominated jobs with supervisory responsibility. Tr. 606-07; PX 1074 at 14. From these comparisons, Dr. Treiman concluded that Nassau County could not have applied the Cresap job-evaluation procedures in a good faith manner. Tr. 607.
As with his graduate student exercise, however, this court again finds that Dr. Treiman's conclusions are not reliable. First, this "objective" analysis of Nassau County job specifications rests on the critical subjective judgment of Dr. Treiman that the first variable he used -- the training and experience variable -- was an adequate proxy for the first three Cresap factors. Dr. Treiman testified that he was confident as to the adequacy of the training and experience variable because it is "well known" to be the most important aspect in determining compensation for job titles. Tr. 596. This rationale completely ignores the fact that the two variables used by Dr. Treiman plainly account for only half the job evaluation factors used by Cresap; it also indicates that his study is only half complete. Along these lines, Dr. Treiman further testified that the first three Cresap factors are "very highly correlated" and are "alternative measurements of the same thing." Tr. 597-98; see PX 1074 at 33 n.9. He ultimately conceded, however, that this determination was entirely subjective. Tr. 695, 696.
Additionally, the fact that Dr. Treiman collapsed the first three Cresap factors into one variable resulted in his ignoring entire sections of the Nassau County job specifications. Tr. 749. And Dr. Treiman also weighted job titles by the number of employees -- even though the participants in the Cresap process had not done so. Tr. 742-43. The reasons stated by Dr. Treiman for this methodological move of weighting titles ("ultimately we are interested in what happens to people and not to jobs", PX 1074 at 34 n.11) is plainly inconsistent as well with the allegations of the plaintiffs' complaint. See Amended Complaint P3(D) (alleging discrimination on the basis of sex domination of jobs). Dr. Treiman conceded that this aspect of his study could be expected to yield results different from those of the Cresap process. Tr. 743. The court is deeply troubled that Dr. Treiman so readily and so regularly departed from the stated methodology of the Cresap process in order to determine whether or not the Cresap personnel and the Nassau County team had themselves departed from that methodology. The court simply cannot give any weight to this terribly flawed study.
The court is also unable to find that Dr. Treiman's conclusions as to the sex composition of job titles in 1967 are entirely reliable. Dr. Treiman himself had no data as to the sex composition of these job titles; rather, paralegals at the office of the plaintiffs' counsel reviewed the names of many of the incumbents of these job titles during the year 1967, and those paralegals drew inferences as to the sex of each employee from those names. Tr. 685; PX 1074 at 32 n.6. Indeed, the court notes in this regard that every data base used by Dr. Treiman in each of the studies he prepared for the plaintiffs was created by the plaintiffs' attorneys. Tr. 680-85. As to this data base, although the drawing of inferences as to sex from an individual's name is not very significant in itself, these paralegals appear to have proceeded on the assumption that only 6,000 people were employed by Nassau County in 1967, see PX 1075 at Table 1. But, at that time, there were between 8,300 and 10,000 people employed by Nassau County. See PX 621 at II-1 and V-2; compare with Tr. 714 (Dr. Treiman testifying that the number of Nassau County employees in 1967 "was somewhere between five and ten thousand"). There is no indication in the record as to how the subset of 6,000 employees was derived by the plaintiffs -- and there is no indication that those 6,000 employees are representative of the 1967 County work force as a whole. Indeed, the plaintiffs have provided precious little information as to how the sex domination of Nassau County jobs in 1967 was determined, Tr. 716-17, and that determination cannot now be adequately reviewed either by the defendants or by this court. Accordingly, to the extent that the conclusions as to the male or the female dominance of Nassau County job titles in 1967 is predicated on inferences made by agents of the plaintiffs from less than all the relevant data -- and to the extent this court has been given no basis on which to find that the method for selection of those 6,000 names was a trustworthy one -- the court finds that the reliability of Dr. Treiman's assumptions as to sex dominance of job titles in 1967 is somewhat limited. Ultimately, however, the reservations that this court may have as to these data are simply collateral concerns to the deep methodological flaws indicated above. It is on those grounds -- coupled with the evasive and unpersuasive testimony of Dr. Treiman -- that the court finds the "training and experience" study by Dr. Treiman to be of no weight.
The court must note as well, however, that the problematic aspects of Dr. Treiman's evidence are not found only in his written reports. His testimony before this court was consistently evasive -- particularly when he was asked about latent (or patent) flaws in his studies. Thus, it often required extensive questioning either by counsel or by the court to secure from Dr. Treiman a candid response about whether a particular methodological error on his part affected the results of his study. For example, after Dr. Treiman acknowledged that he had erroneously coded a job requirement of "elementary education" as six years rather than as eight years because he was drawing on his experience as "a boy in California" rather than on the actual school system in Nassau County, Tr. 700-09, Dr. Treiman was initially unwilling to admit that his mistake had skewed other aspects of his training and experience study:
THE COURT: Just let me see if I understand this for a minute. If your assumption is wrong with respect to elementary school being six when it should be eight, then the ten would be wrong, too, wouldn't it, or would it? How did you get to ten? You built in two more years of junior high and added on top of that two more years.
THE WITNESS: I am sorry, ten on page --
THE COURT: I am looking at footnote 33. You made no provision for what your experience was in California of junior high. Is that it?
THE WITNESS: Sir, that was what I was working from was the job specifications and the job specifications in Nassau County refer to elementary education. They refer to some high school. They refer to high school graduation. I made an error. It's now, obviously an error in coding elementary education as six instead of eight; but it would have no impact on the rest of the codes.
THE COURT: Okay. Well, if a person had eight years of elementary school education and two years of experience, where would you code that?
THE WITNESS: It's coded by the job. The job says elementary education and if it says elementary education plus two years of experience, I would have coded it as an eight on page ten.
THE COURT: Suppose that a person had an elementary school education and four years of experience, where would you code that?
THE WITNESS: That would be coded as ten.
THE COURT: It should be 12, right, assuming that an elementary school education should be an eight. So, it might affect some other numbers. Is that right?
THE WITNESS: Yes, that's correct.
Tr. 709-10. A colloquy such as this reveals either that Dr. Treiman is unable to appreciate and to assess the effects of the methodological defects in his study or that he is unwilling to testify candidly about those effects. Neither possibility secures the confidence of this court in his evidence.
For their part, the defendants attempted to demonstrate through one of their expert witnesses, Dr. David P. Jones, that Dr. Treiman's study would not have indicated a sex-related disparity in 1967 salary grades had he accounted for additional factors in the Cresap process. DX GGG-1 (report of Drs. Jones and Haworth to defendants, dated November of 1989 and entitled: "Summary of Statistical Employment and Compensation Patterns by Gender in the Nassau County Government: 1980 and 1986"). Specifically, Dr. Jones undertook to demonstrate that the salary grades assigned by Cresap were affected by the local labor market and by the number of hours worked each week for particular job titles; Dr. Jones concluded that, once these two factors are taken into consideration, the sex-related disparity in job grades is statistically insignificant.
Dr. Jones repeated Dr. Treiman's "training and experience" study with several modifications. First, in order to obtain statistically significant examples, Dr. Treiman restricted his own study to those Nassau County job titles that had 15 or more incumbents. Tr. 1583-84. That is, Dr. Jones wanted to eliminate the possibility that the sex of only two or three employees would radically alter the sex-dominance of a particular title. This restriction left Dr. Jones with 101 Nassau County job titles for his study. Tr. 1583-84. Next, Dr. Jones rated these 101 titles not only on the two factors used by Dr. Treiman but also on three factors derived from the Dictionary of Occupational Titles. Tr. 1581-82. Notably, Dr. Treiman was the staff director of the committee that developed the Dictionary of Occupational Titles. Tr. 581. These factors were used to provide Dr. Jones with a job description analysis that he expected to parallel that of Dr. Treiman. Tr. 1632-33. Dr. Jones then collected current labor market data for as many of these 101 titles as he could. Dr. Jones and his staff attempted to match Nassau County job specifications with jobs in the New York counties of Rockland, Suffolk, and Westchester as well as with jobs in New York City. Tr. 1593-96; DX GGG-4 and DX GGG-5. These procedures left Dr. Jones with 80 usable job titles. Tr. 1622-23. However, Dr. Jones used the same data as to the sex composition of Nassau County jobs in the year 1967 that Dr. Treiman had used. Tr. 1537.
Dr. Jones then conducted regression analyses without a variable for labor market data. Tr. 1625. He found that, on the bases of the variables from Dr. Treiman's "training and experience" study, there was a significant correlation between salary and sex in Nassau County jobs. Tr. 1626; DX GGG-1 at 45. Similarly, Dr. Jones found similar results when he considered the job characteristic variables derived from the Dictionary of Occupational Titles. Tr. 1632-33; DX GGG-1 at 47. Thus, whether he used the variables derived by Dr. Treiman or the variables from the Dictionary of Occupational Titles, Dr. Jones was able to confirm the conclusion of Dr. Treiman that the sex composition of Nassau County jobs does have a high correlation to the salary grade midpoints of those positions. Tr. 1633-34. However, Dr. Jones found that when he introduced into these regression analyses an independent variable to represent the market data he had gathered, the sex composition of jobs was of virtually no statistical significance as to the original salary grade disparity. Tr. 1635-36, 1641-42; DX GGG-1 at 54; DX GGG-1 at 57. Dr. Jones achieved similar results upon the introduction of a variable to represent the number of hours worked by employees of different Nassau County job titles: Again, Dr. Jones found that a variable for the length of the work week reduced the effect of sex on salary (although not as much as did the variable for labor market data). Tr. 1647-49; DX GGG-1. Thus, Dr. Jones concluded and testified that Dr. Treiman's "training and experience" study had omitted important variables and that, once those variables are considered, Dr. Treiman's study would not suggest any relationship between sex composition and the setting of salary grades during the Cresap process. Tr. 1655; see also DX GGG-1 at 60.
Although the court found Dr. Jones' study to be procedurally sound (with certain possible exceptions such as the use of the 1967 sex-composition data), the weight that the court is able to attribute to the conclusions of Dr. Jones is significantly limited by the paucity of corroborating evidence that the County of Nassau ever considered either the labor market or the length of the work week when it determined the initial Cresap grades. First, as to length of the work week, the County adduced absolutely no evidence that the participants in the Cresap process ever considered this factor -- or even had data as to it -- when they established salary grades. See, e.g., Tr. 326. Next, as to the labor market data, although the Cresap team did collect market salary information on 63 "benchmark" jobs, the final Cresap report does not indicate that the market data were used to set or to modify the salary grades of particular job titles. Rather, the report indicates that the market data were used to draft broad salary "trend lines" for comparisons as to the ranges of salaries offered by Nassau County and by other communities. PX 621 at IV-4 to IV-6; Tr. 1605-06. Further, no participant in the Cresap process testified that market data were used to adjust salary grades. See, e.g., Tr. 327-29 and 1609-12. On the other hand, concern with the competitiveness of Nassau County salaries recurs in almost every segment of every report from Cresap to the County. It would not be an implausible inference that the consultants whose task it was to design a competitive salary plan might have amended salary grades for certain job titles in order to ensure such competitiveness. However, there was no evidence introduced to support this conclusion beyond the findings of the regression analyses of the defendants' expert. Accordingly, the court is unable to conclude that the Cresap team actually considered market data in setting individual salary grades.
Because there is no satisfactory support for a finding that the variables introduced by Dr. Jones actually affected the assignment of salary grades to particular job titles during the Cresap process, Dr. Jones' conclusions are only marginally relevant to the question of discriminatory intent. Nonetheless, the court will note that it specifically rejects two challenges posed by the plaintiffs to Dr. Jones' methodology. First, the plaintiffs attacked the procedures followed by Dr. Jones and by his staff to collect labor market data, see, e.g., Tr. 1718-39; however, the court found these procedures to be both reasonable and reliable. Accordingly, the court credits the results of Dr. Jones' labor market survey to the extent those results are relevant to issues in this action. Second, the plaintiffs attacked Dr. Jones' restricted sample of 101 Nassau County job titles as unrepresentative of Nassau County job titles generally. Tr. 1748. However, the court found that the decisions made by Dr. Jones as to the bases on which job titles would be eliminated from his study were sound. The court also notes that Dr. Jones was able to obtain with that sample -- and with other data used by Dr. Treiman -- results that were similar to the results obtained by Dr. Treiman in his "training and experience" exercise. Tr. 1633-34. The plaintiffs thus stand in an awkward posture when they attack Dr. Jones' procedures.
Again, without even considering the refinements suggested by Dr. Jones' report, this court does not find that the "training and experience" analysis of Dr. Treiman provides evidence of discriminatory intent in the Cresap process. Rather, the questionable -- and poorly verified -- assumptions on which that study is based as well as the flawed methods with which it was executed erode completely what little confidence this court might have had in Dr. Treiman's conclusions after observing his testimony. This court credits neither Dr. Treiman's testimony nor the results of his "training and experience" analysis.
3. Plaintiffs' Exhibit 616/616-A
The next item of evidence introduced by the plaintiffs to demonstrate discrimination in the execution of the Cresap process was plaintiffs' Exhibit 616-A. This exhibit is a color photocopy of a thirty-three page document retrieved from the files of the Nassau County Civil Service Commission. See PX 1082 (stipulation of counsel that Exhibit 616-A was found in a Nassau County file folder marked: "CMP -- Point Evaluation to Determine Grades"); but see PX 1096 at 48-49 (exhibit retrieved from "junk" files). Exhibit 616-A contains job titles typewritten on the left side of each page; these job titles are grouped under general headings, and they are alphabetically arranged within each grouping. Next to these job titles are five columns that are headed (at least on page one of the exhibit): "K-S", "C-V", "IA", "S", and "T". Numerical values that correspond to job titles are handwritten in the columns under these headings. However, many of these numerical values have been crossed out by hand in different colors of ink; some columns show several numbers crossed out, rewritten, and recrossed out. Most of the crossed out values fall within the "T" column. Further, there are other job titles handwritten onto the document in red ink; many of these job titles do not have numerical values associated with them. Some of the typewritten job titles are crossed out, some are changed, and some have handwritten "check" marks next to them. Stray handwritten marks found on the document include question marks, dates, apparent deletions of entire sections, the letter "x", words such as "ok", "wrong", and "out", and illegible scribbling. Two of the pages have sections of yellow legal paper pasted or taped onto them; handwritten on those pieces of legal paper are job titles for which there are handwritten columns but no numerical values.
Vito Competiello -- a former employee of the Nassau County Civil Service Commission who participated in the Cresap job evaluation process, Tr. 288 -- testified that Exhibit 616 (a monochromatic photocopy of Exhibit 616-A, Tr. 838) is a draft for a master compilation of Nassau County job titles and of the job evaluation point scores for those titles. Tr. 334, 376. Accordingly, the notations at the tops of the columns on Exhibit 616-A denote the four Cresap evaluation factors: knowledge and skills ("K-S"), complexity and variety of duties ("C-V"), responsibility for independent action ("IA"), and supervisory responsibility ("S"). The "T" column is intended to represent the total of these point values for each job title. Competiello testified that he recognized some of the handwriting on Exhibit 616 as his own, but he could not identify many of the notations. He did not unequivocally indicate that he could identify when the information on Exhibit 616 was compiled or what use, if any, was made of it.
The plaintiffs have assumed that Exhibit 616-A contains the final results of the Nassau County job evaluation process -- that is, that it lists "the point scores assigned to Nassau County jobs in 1966 by the team that applied the four-factor job evaluation methodology" of the Cresap process. Tr. 613; see also PX 1075 at 1 (supplemental report of Dr. Treiman to plaintiffs, dated November 1989 and entitled: "Job Evaluation Points and Ordinanced Salary Grades: Discriminatory Changes in Salary Grade Assignments, Nassau County 1966-67"). On this assumption, Dr. Treiman, on behalf of the plaintiffs, calculated the salary grades "that would have resulted from the point scores" on Exhibit 616, PX 1075 at 1; he then compared these grades to the grades that were proposed by Cresap in its final report to the County and to the grades that were eventually enacted by the County in 1967. The purpose of this exercise was "to ascertain whether changes in salary grades subsequent to the evaluation reported in Exhibit 616 were related to the gender composition of jobs." PX 1075 at 1.
Again, Dr. Treiman found evidence of discrimination. He recanted the finding of his earlier report to the effect that "based on Exhibit 616, it now appears that the job evaluation procedure itself may have been carried out in good faith . . . but that subsequent to the evaluation procedure the salary grades of a large number of Nassau County jobs were altered in a discriminatory manner." PX 1975 at 2. That is:
Specifically, in the final report to Nassau County submitted to Nassau County by Cresap [Exhibit 621] the salary grade of the average employee in male-dominated jobs was increased by nearly two grades (1.9) while the salary grade of the average employee in female-dominated jobs was not increased at all. . . . Subsequent to the Cresap report, there was a minor reduction in this gender differential, so that the ordinanced salary grade for the average employee in a male-dominated job was 1.6 grades higher than the salary grade derived from the point scores in Exhibit 616, while the ordinanced salary grade for the average employee in a female-dominated job was one-tenth of a salary grade higher than the salary grade derived from Exhibit 616.
Dr. Treiman concluded that the existing differential in salary grades between male-dominated jobs and female-dominated jobs "is mainly attributable to changes in the salary grade of male dominated jobs between the [Exhibit] 616 point scores and the Cresap final report." Tr. 620. Finally, Dr. Treiman determined that these changes in mean salary grades strongly supported an inference of sex discrimination:
Although I do not know who is responsible for these alterations, their intent and effect are completely clear -- to increase the salary grades of the largest male-dominated jobs relative to what these jobs should have been paid on the basis of an application of Nassau County's own criteria for determining compensation.
PX 1075 at 2-3 (emphasis in original).
However, the court is unable to agree with the plaintiffs as to the nature of Exhibit 616-A. Most importantly, the court cannot find that Exhibit 616-A constitutes a master compilation of the final scores from the Cresap job evaluation process. Rather, Exhibit 616-A is clearly a working draft that was not a list of the ultimate scores from the job evaluation process but rather part of the job evaluation process itself. The lists in Exhibit 616-A are incomplete. For example, there are typewritten job titles with point values on Exhibit 616-A that do not appear at all in the final Cresap report. Compare, e.g., PX 616-A at 18 ("Hospital Administration Trainee") with PX 621. Conversely, there are approximately one hundred job titles handwritten onto Exhibit 616-A that have no point values assigned at all. The plaintiffs argue that these were jobs added to the Nassau County system after the classification process, and Competiello initially confirmed this view. Tr. 361. However, a comparison between these titles and the addendum to the final Cresap report that lists the titles created through the appellate process demonstrates that the plaintiffs' argument is groundless -- and that Competiello's recollection was inaccurate. Tr. 376.
Moreover, perhaps one-quarter to one-third of all the numerical values in the "T" column are crossed out; a small number of those have new values written in either above or next to the old values. Almost invariably, where new numbers are recorded in the "T" column, at least one of the values in the other four columns has been changed. This fact strongly suggests that Exhibit 616-A records many of the moments of review and revision in the job evaluation process. Similarly, numerous notations are scattered throughout Exhibit 616-A; entire groups of job titles are crossed out or are inserted; question marks, "stars", and "check" marks all indicate that Exhibit 616-A represents anything but the end of the job evaluation process.
Moreover, the court notes that Competiello could not recall clearly the nature and the purpose of Exhibit 616 -- a document that he had not reviewed in the 24 years between the Cresap process and this litigation. Competiello was unable to identify the document with confidence as anything more than a draft, and he did not satisfy the court that the numerical values recorded on Exhibit 616 were the "final results" of the job evaluation process. Tr. 333-34, 343; compare Tr. 356 with Tr. 376. Curiously in this regard, the plaintiffs never asked Competiello to identify Exhibit 616-A -- the color copy of the original document which clearly revealed different markings in different colors of ink. Rather, they asked him only to identify Exhibit 616, a monochromatic photocopy of that document. The reluctance of the plaintiffs to provide Competiello with an exhibit which more closely approximates the original document about which he was to testify is troubling to this court, and it underscores the degree to which Competiello was easily led by the questions asked of him as to the nature and the content of Exhibit 616. Compare Tr. 356 with Tr. 376. Quite frankly, the court found that Competiello improvised many of his "recollections" about Exhibit 616. Compare with Tr. at 305 (Competiello inaccurately recalling number of desk audits conducted during Cresap process). For this reason, the court does not credit Competiello's testimony as to the nature of Exhibit 616.
More credibly, Competiello testified that the job evaluation process -- through which points were assigned to job titles -- was a protracted undertaking. Tr. 333. He also testified that many of the early "results" were revised on the basis of information gathered during the desk audit phase of the classification process; for example, a member of the Cresap team who thought that a particular job had been inadequately scored might suggest aspects of the job that would merit a change in that score. Tr. 333. The markings of Exhibit 616-A confirm this testimony. In any event, Competiello testified that, after initial scores were assigned to jobs by individual members of the team, all four members reviewed and discussed the preliminary scores in order to make informed and consistent modifications. Tr. 333. Exhibit 616-A plainly captures one -- or perhaps many -- of the moments in that process; but the court has no satisfactory basis on which to conclude that 616-A is the last moment -- or even a significant moment of that process. Indeed, the fact that Exhibit 616-A was found in the files of Nassau County strongly suggests that it was not ever transmitted to Cresap for incorporation into the final report. Interestingly, the plaintiffs did not present the exhibit to those witnesses who had worked for the Cresap firm during the job evaluation process. The court simply cannot conclude that Exhibit 616-A is in any manner a reliable indication ...