
    Anna PENK, et al., Plaintiffs, v. OREGON STATE BOARD OF HIGHER EDUCATION, Defendant.
    Civ. No. 80-436.
    United States District Court, D. Oregon.
    Sept. 28, 1982.
    See also, D.C., 99 F.R.D. 495, D.C., 99 F.R.D. 501, D.C., 99 F.R.D. 508.
    Don S. Willner and JoAnn G. Reynolds, Willner, Bennett, Bobbitt & Hartman, Portland, Or., for plaintiffs.
    David B. Frohnmayer, Atty. Gen., James J. Casby, Jr., Asst. Atty. Gen., Eugene, Or., for defendant.
   OPINION AND ORDER

FRYE, District Judge:

Defendant Oregon State Board of Higher Education (OSBHE) has moved this court to modify its Order of Class Certification issued October 13, 1981 and December 16, 1981 by excluding certain types of faculty from membership in the class or in each represented subclass.

The parties agree that the following groups should not be in the class or in each represented subclass:

1. Faculty in the Chancellor's office.

2. Administrators at the level of Dean and above.

3. Visiting, adjunct, and courtesy faculty except where a visiting professor has been appointed for more than two years and would otherwise be a class member.

4. Faculty at the teaching research division at Western Oregon State College.

This motion to exclude certain types of faculty members is made by OSBHE in conjunction with a motion to modify this court’s original class certification order, which this court has on this date denied. The reasoning behind denying that motion applies here as well. The claim of the plaintiffs against OSBHE is that certain OSBHE policies and practices operate to discriminate against female faculty members. It may be that such policies do not operate discriminatorily upon some groups, or the operation may vary from group to group. The court believes this goes to the merits of the case, however, and the court is not prepared to eliminate certain groups from the class until further factual evidence is presented as to what OSBHE’s policies are and how they impact these groups.

Department Chairpersons and Program Directors

Defendant moves the court to exclude department chairpersons and program directors because they are the immediate supervisors of faculty members within their, departments or divisions and because they initiate employment decisions. Plaintiffs contend that department chairpersons and program directors have an identity of interest common with faculty rather than administration. It is irrelevant that female department chairpersons and program directors have supervisory and administrative duties, in light of plaintiffs’ claim that OSBHE has formulated policies which discriminate against women. Female department chairpersons and program directors also may be subject to and injured by such OSBHE policies. Whether or not OSBHE policies impact female department chairpersons and program directors discriminatorily is a question of fact. This court may change its class certification order before a decision on the merits to reflect such factual determinations.

The motion to exclude department chairpersons and program directors from the class is denied.

Researchers

Defendant claims that the named plaintiffs cannot represent the female research assistants, senior research assistants, research associates, or senior research associates because they have never been members of those categories. OSBHE also contends there has been no showing of discrimination as to the female researchers in any of the data before the court and that the researchers are limited to research and do not qualify as faculty members. All of these researchers are subject to the policies and dictates of OSBHE. The claims in this case are that OSBHE has promulgated policies which discriminate against women subject to its policies. Whether or not OSBHE policies impact female researchers discriminatorily is a question of fact. Defendant’s motion is denied.

OSU Employees with Faculty Rank in the Extension Service and Agricultural Experiment Station

OSBHE contends that because the named plaintiffs are not and have not been extension agents, they cannot have claims typical of extension agents. For the reasons stated above, female extension agents shall remain members of the ■ Oregon State University subclass. Defendant’s motion is denied.

Lecturers at Portland State University

For the reasons stated above, defendant’s motion to exclude lecturers from the Portland State University subclass is denied.

IT IS ORDERED that this motion is denied.  