Appeal from the United States District Courtfor the Central District of CaliforniaJohn G. Davies, District Judge, PresidingArgued and SubmittedOctober 7, 1996--Pasadena, CaliforniaSubmission withdrawn November 28, 1997Resubmitted May 24, 1999Filed June 2, 1999Before: Procter Hug, Jr., Chief Judge, Harry Pregerson andStephen Reinhardt, Circuit Judges.Opinion by Chief Judge Hug;Dissent by Judge PregersonSUMMARY
______________________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, LosAngeles, California for the defendants-appellees.
_____________________________OPINION HUG, Chief Judge:Appellant Marianne Stanley appeals from the districtcourt's order granting summary judgment in favor of defen-dants University of Southern California and Michael Garretton Stanley's claims of discrimination and breach of employ-ment contract. Stanley also appeals the denial of her motionto recuse Judge Davies, and her motion to re-tax costs. Appel-lants move for an award of sanctions against Stanley for filingthe latter two appeals.FACTUAL AND PROCEDURAL BACKGROUNDMarianne Stanley was hired as head coach of the women'sbasketball team for the University of Southern California("USC") in 1989. Her initial contract, signed in July of thatyear, was for a four-year term, expiring June 30, 1993. Thecontract provided that she would make a base salary of$60,000 per year. This base salary was increased to $62,000per year in 1992. The women's basketball program at USCenjoyed 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 tonegotiate a new contract. The parties disagree over what tookplace at this meeting. Stanley contends that on that date sheentered into a contract for a salary equivalent to that ofGeorge Raveling, the USC men's basketball coach. It isundisputed that Garrett expressly stated that USC could notpay her that salary, but that he would make her a formal offerin writing shortly after that meeting.On April 27, 1993, Garrett offered Stanley, in writing, athree-year contract providing $80,000 in year one, $90,000 inyear two, and $100,000 in year three, with a $6,000 per yearhousing allowance for each of the three years. The parties metagain on May 27, 1993, at which point Garrett claims thatStanley rejected the April 27 offer because she insisted thather compensation should be equivalent to Raveling's. Stanleyargues that she never rejected this offer, but simply disagreedas to the amount of compensation, because the April 27 offerwas 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 contractproviding $96,000 per year for the first eighteen months, anda salary equivalent to that of Raveling for the remainder of theterm. Garrett rejected this offer. Stanley then retained anattorney 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 foryear two, and $112,000 for year three, plus additional incen-tives. Garrett rejected this offer and withdrew the April 27offer.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 continuedto perform her duties. On July 13, while on a recruiting trip,Stanley asked Garrett if he would still offer her a multi-yearcontract. He indicated that his June 21 one-year contract offerwas USC's final offer, and that Stanley would have to acceptor reject it by the end of the day. Stanley did not respond, butsent a memo to Garrett on July 14 requesting additional timeto consider the offer. On July 15 Garrett revoked the offer,informed Stanley that he was seeking a new coach for theteam, and requested that Stanley perform no further servicesfor USC.On August 5, 1993, Stanley initiated this action in LosAngeles County Superior Court, making claims of sex dis-crimination and retaliatory discharge. On August 6, 1993, theSuperior Court granted Stanley's request for a temporaryrestraining order reinstating Stanley as head coach of thewomen's team at $96,000 per year pending the hearing onStanley's motion for preliminary injunction. On that sameday, defendants removed the action to federal court on theground that the complaint stated claims arising under federallaw.On August 30, 1993, the district court denied the motionfor preliminary injunction, and Stanley appealed. This courtaffirmed the denial of the preliminary injunction in an opinionfiled January 6, 1994. Stanley v. University of SouthernCalifornia, 13 F.3d 1313 (9th Cir. 1994) (" Stanley I").Between September 1993 and February 1994, Stanleyamended her complaint several times, and defendants'motions to dismiss were granted as to several claims. Stan-ley's Third Amended Complaint alleges the following causesof 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 CaliforniaConstitution; (3) violation of Title IX of the Civil Rights Actof 1972, 20 U.S.C. S 1681; (4) retaliation; (5) wrongful dis-charge in violation of public policy; (6) breach of expresscontract; (7) breach of implied-in-fact contract; and (8) breachof implied covenant of good faith and fair dealing. Stanleysought reinstatement, declaratory relief, injunctive relief pre-venting USC from further discriminating against her, backpay, three million dollars in compensatory damages, and fivemillion dollars in punitive damages.On October 17, 1994, defendants filed a motion for sum-mary judgment. After Stanley was allowed additional time toconduct discovery, on March 10, 1995, the district courtgranted summary judgment for USC and Garrett. This appealfollowed.DISCUSSIONI. Discrimination ClaimsWe review the district court's grant of summary judgmentde novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998).We address each claim in turn.A. Equal Pay Act ClaimThe 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 burdenof establishing a prima facie case of discrimination by show-ing that employees of the opposite sex were paid differentwages for equal work. The prima facie case is limited to acomparison of the jobs in question, and does not involve acomparison 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., 718F.2d 910, 914 (9th Cir. 1983). To make out a prima faciecase, the plaintiff bears the burden of showing that the jobsbeing compared are "substantially equal." See 29 C.F.R.S 1620.13(a); see also Spaulding v. University of Wash., 740F.2d 686, 697 (9th Cir. 1984), overruled on other grounds,Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477 (9thCir. 1987) (en banc). Significantly, under the Act, the plaintiffneed 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 evidencein the light most favorable to Stanley, and resolving all infer-ences in her favor, a genuine issue of material fact existsregarding 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 byour court in Stanley I, 13 F.3d 1313 (9th Cir. 1994), where weconsidered 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 Circuitdescribed this approach, writing that "[t]he crucial finding onthe equal work issue is whether the jobs to be compared havea `common core' of tasks, i.e. whether a significant portion ofthe two jobs is identical." When a plaintiff establishes such a"common core of tasks," the court must then determinewhether any additional tasks, incumbent on one job but notthe other, make the two jobs "substantially different." Id. Boththe Seventh and Fourth Circuits have also adopted thisapproach to Equal Pay Act cases. See Fallon v. State ofIllinois, 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'scoaching jobs share a common core of tasks. Garrett--U.S.C.'s athletic director and a defendant in this case -- hasacknowledged that the women's and men's coaches "have thesame basic responsibilities" with regard to recruiting athletesand 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 theadditional responsibilities borne by the men's coach, but notby 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 greaterrevenue generating responsibilities, that he is under greatermedia 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 areattributable to previous gender-based decisions on the part ofthe University. Essentially, Stanley claims that the differencesbetween the two jobs result from the University's historicallydisparate treatment of male and female teams; namely, itsdecisions to invest in and promote the men's program morethan the women's program. She then claims that because thedifferences between the jobs derive from previous gender-based decisions on the part of the University, the differencescannot be relied on to determine that the jobs are"substantially different."1The University, on the other hand, argues that the differ-ences between the two jobs are not attributable to anything ithas done or failed to do in the past. According to USC, thereason that women's basketball does not generate the sameamount of revenue as men's basketball, and that the women'scoach is not under the same pressure as the men's coach, isthat there simply is not a sufficient spectator or media marketfor women's basketball games. Accordingly, it contends thatthe differences in responsibilities in the two jobs legitimatelysuffice to make them "substantially different."[4] We need not decide which party is correct regarding thereason for the differences that exist. Even assuming that Stan-ley has succeeded in raising a genuine issue of fact as to thisquestion, the University is entitled to summary judgment onother grounds. A defendant may rebut a prima facie case byshowing that the disparity in pay is a "differential based onany . . . 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 andRaveling's markedly disparate levels of experience and quali-fications. The record convincingly supports their claim. WhenRaveling began coaching at U.S.C., he had thirty-one years ofcoaching experience. He had been the coach of the men'sOlympic basketball team. He had been twice named nationalcoach of the year, and twice named PAC-10 coach of the year.On top of his coaching experience, Raveling also had nineyears of marketing and promotional experience, and was theauthor of several books on basketball. When Stanley startedcoaching at U.S.C., three years after Raveling became headcoach of the men's team, she had seventeen years of experi-ence coaching basketball, or fourteen years less experiencethan Raveling. She never coached an Olympic team. She hadno marketing or promotional experience other than that shegained as a coach. She had never published a book aboutbasketball.2[5] The EEOC Notice cited above, on which the plaintiffrelies extensively, recognizes this type of affirmative defense,stating that "[s]uperior experience, education, and ability mayjustify pay disparities if distinctions based on these criteria arenot gender based." EEOC Notice at 23. In Stanley I, more-over, we wrote that "[e]mployers may reward professionalexperience and education without violating the EPA. " StanleyI, 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 greaterlevel of experience and qualifications. By alleging that thepay 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. Seealso, Harker v. Utica College of Syracuse Univ., 885 F. Supp.378 (N.D.N.Y. 1995) (nine year experience differentialbetween women's and men's basketball coaches justifies paydifferential).Garrett's testimony, moreover, supports the University'sexplanation. In explaining the disparity between Raveling andStanley'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 severalbooks on basketball. Garrett highlighted the fact that Ravelinghad been twice honored as national coach of the year, twicevoted PAC-10 coach of the year, and was "widely recognizedas one of the top basketball recruiters in the nation." Garrettthen contrasted Stanley's lesser experience and qualifications.While he mentioned some of Stanley's accomplishments, hepointed out that she had only seventeen years coaching expe-rience, had never coached an Olympic team, and had neverauthored 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 mayprevail 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 factregarding 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 eventhis minimal burden. In her briefs, Stanley disputes that Rav-eling had greater qualifications and experience than she.4 Forexample, 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 presentany meaningful evidence in support of her claim that she andRaveling had comparable levels of experience. Stanley pointsfirst to her deposition testimony that she was responsible forsecuring donors for the women's team. Such evidence, whileimportant in assessing Stanley's revenue raising responsibili-ties, says nothing of her relative level of experience. She nextpoints to her testimony that she worked briefly as a color ana-lyst on a Philadelphia cable station. Again, this evidence doesnot undermine the University's claim that Raveling possessedfar greater experience as a coach and marketer than Stanley.5Stanley also argues that Raveling's marketing abilities are indispute because "Raveling was not able to successfully pro-mote nor market a summer basketball [camp] during his entireemployment at USC." However, Raveling's ability to marketthis camp sheds no light on his previous experience in market-ing. Stanley, moreover, does not dispute the fact that Ravelinghas nine years of experience in marketing, while she had nowork experience outside coaching.In the end, therefore, we are left with these undisputedfacts: Stanley had far less relevant experience and qualifica-tions than Raveling. She had fourteen years less experience asa basketball coach. She, unlike Raveling, never coached theOlympic team. She had no marketing experience outsidecoaching. She had never written any books on basketball.Accordingly, Stanley has failed to raise a genuine issue of factas to Raveling's markedly "superior experience, " and qualifi-cations. EEOC Notice at 23. In short, she has failed to raisea 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 grantthe defendants' motion for summary judgment on the EqualPay Act claim.B. FEHA, Title IX, and California ConstitutionStanley also claims that the defendants' conduct violatedthree other statutory provisions. First, she asserts that thefailed contract negotiations constituted a violation of the FairEmployment Housing Act which provides that it is unlawfulfor an employer to "discriminate against the person in com-pensation or in terms, conditions or privileges ofemployment" on the basis of gender. Cal. Gov't CodeS 12940(a). Second, she claims a violation of Title IX of theCivil 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 CaliforniaConstitution 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 showany discriminatory conduct on the part of the defendants, allof these claims fail as well.C. Retaliation[9] Stanley's retaliation claim fails because, as the districtcourt concluded, the evidence does not support her assertionthat USC "retaliated" against her because she insisted thatUSC honor Garrett's "offer" of April 20, 1993, filed a dis-crimination claim with Department of Fair Employment andHousing, and filed a complaint in state court. USC's offer ofa multi-year contract remained open long after Stanleyinsisted that she be paid an amount equal to Raveling's salary.USC did not "discharge" Stanley in response to any of herarguably protected activity. Rather, Stanley's contract expiredand she was unable to renegotiate a new contract acceptableto her. The district court did not err in granting summaryjudgment for USC on this claim.D. Tameny Claim[10] Stanley claims that she was terminated, in violation ofpublic 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 shewas "terminated" from her coaching position, either directlyor 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 districtcourt 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 at852. As an initial matter, we conclude that the district courtwas correct to grant summary judgment for Garrett on thecontract claims, because he acted merely as USC's agent andwas not a party to the contract. We also affirm the districtcourt's grant of summary judgment in favor of USC on allthree contract claims.A. Express Employment ContractStanley contends that an express contract was formed at theApril 20, 1993 meeting between her and Garrett, which con-tract called for her to receive a salary equal to that earned byRaveling. However, Stanley herself stated in a declaration thatat that meeting Garrett told her, in response to her request fora salary equal to Raveling's, "that USC did not have themoney to pay [Stanley] that amount at that time. He indicatedthat he would get back to [Stanley] with an offer of a multi-year contract." This is consistent with Stanley's depositiontestimony as well.[12] The district court was correct to conclude that no ratio-nal trier of fact could have concluded from this evidence thatthere was a meeting of the minds between Garrett and Stanleyon 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 "theexistence 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 promisewhere the agreement and promise have not been expressed inwords." Silva v. Providence Hosp. of Oakland , 14 Cal.2d 762,773 (1939).[14] Stanley contends that USC led her to believe that, ifshe produced a successful basketball program, she would beawarded a multi-year contract with equal pay for equal work.However, as the district court noted, the express terms ofStanley's contract precluded such a modification to the termsof her employment. Paragraph 12 of the employment contractprovided that no prior or contemporaneous agreements not setforth 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 norational trier of fact could conclude that Stanley had a reason-able belief that her express written contract was modifiedsuch that she was guaranteed a multi-year contract so long asshe performed her job well. See Haggard v. Kimberly QualityCare, 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-contractimplied terms when contract required all modifications bewritten). 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 payher a salary equal to Raveling's, when it failed to negotiate ingood-faith to renew the contract, and when it refused toreduce to writing the "contract" that Garrett entered into onUSC's behalf at the April 20, 1993 meeting. However, aclaim for breach of an implied good faith covenant dependsupon 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 contractbased upon the April 20, 1993 meeting, her claim fails withrespect 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 thewritten contract that expired June 30, 1993. USC paid Stanleyaccording to the terms of that contract, and no rational fact-finder could conclude that USC acted in bad faith duringnegotiations for a new contract. Indeed, USC offered Stanleya new contract at a substantially higher salary than her previ-ous contract provided, and engaged in repeated negotiationsin an attempt to reach an agreement. Bad faith cannot beinferred from the mere fact that Stanley was unhappy withUSC's proposed terms. Summary judgment was properlygranted.III. Disqualification of Judge Davies[17] Stanley contends that it was an abuse of discretion forJudge Collins to deny Stanley's motion to recuse JudgeDavies 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 JudgeDavies. The only evidence that Stanley can point to in supportof her bias allegation is Judge Davies' rulings on defendants'summary judgment motion, and general allegations aboutgender discrimination in sports and in the judicial system.General observations about gender discrimination do not sup-port the disqualification motion, and Judge Davies' rulings inStanley's case do not present the rare and extreme circum-stances in which a judge may be recused on the basis of hisrulings 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 thanattorneys' fees shall be allowed as of course to the prevailingparty unless the court otherwise directs." Thus, Rule 54(d)creates a presumption in favor of awarding costs to prevailingparties, 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 courtawarded costs to defendants as "prevailing parties" pursuantto 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 infact was a "prevailing party" in the litigation due to her suc-cess in procuring the TRO in Superior Court; (3) that forcingcivil rights plaintiffs, like herself, to pay costs will have thechilling effect of dissuading other civil rights plaintiffs frombringing meritorious suits; (4) that she is unable to pay thecosts without being rendered indigent; and (5) that JudgeDavies exhibited gender-bias toward Stanley in the underly-ing proceedings.[19] The district court determined that Stanley's argumentsdid not overcome the presumption in favor of taxing costs tothe losing party. We review the district court's denial of amotion to re-tax costs for an abuse of discretion. Schwarz v.Secretary of Health and Human Servs., 73 F.3d 895, 900 (9thCir. 1995). We conclude that the district court abused its dis-cretion, particularly based on the district court's failure toconsider two factors: Stanley's indigency, and the chillingeffect of imposing such high costs on future civil rights liti-gants.[19] District courts should consider the financial resourcesof the plaintiff and the amount of costs in civil rights cases.See e.g., Wrighten v. Metropolitan Hosps., Inc., 726 F.2d1346, 1358 (9th Cir. 1984); Moore v. Hughes Helicopters,Inc., 708 F.2d 475, 486 (9th Cir. 1983). Stanley's argumentthat 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 NationalOrg. for Women v. Bank of California, 680 F.2d 1291, 1294(9th Cir. 1982); McGill v. Faulkner, 18 F.3d 456, 459 (7thCir. 1994). The mere fact that Stanley had not obtainedemployment 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 totalamount 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 civilrights litigation in this area. While we reject Stanley's claims,we also note that they raise important issues and that theanswers were far from obvious. Without civil rights litigantswho are willing to test the boundaries of our laws, we wouldnot have made much of the progress that has occurred in thisnation 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 andremand to the district court for reconsideration in light ofthese factors.CONCLUSIONWe affirm the district court's grant of summary judgmentin favor of USC and Garrett and its denial of the motion fordisqualification. However, we remand its denial of the motionto 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 waysin which gender discrimination insidiously affected the Uni-versity's treatment of the women's basketball program andStanley 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 formidableobstacles 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'sruling denying Stanley relief without a trial.Therefore, I dissent. the end
___________________________FOOTNOTES 1 In a recent EEOC Notice on sex discrimination in the compensation ofsports coaches in educational institutions, see EEOC Notice No. 915.002,the EEOC states explicitly that "pay discrimination cannot be justified ifthe differences relied on for the proposition that the two jobs are not sub-stantially equal are themselves based on discrimination in the terms andconditions of employment." See Notice at 5 (citing Burkey v. MarshallCounty 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 coachingjob. Stanley, on the other hand, was hired only after two other candidatesturned down the women's coaching job.3 Garrett concluded his explanation by noting that Raveling, the moreexperienced and qualified coach, had to be "sought out by USC and luredaway from his then-current employer, the University of Iowa, to accept thehead coaching job of the men's basketball team at USC." In contrast, Gar-rett continued, Stanley, the less experienced and qualified coach, "initiatedcontact 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 courtthat he was the author of several "bestsellers " on the subject of basketball.Stanley, conspicuously, does not dispute the fact that she has published nobooks on this or any other subject, while Raveling indisputably has.