Cullen, Deborah v. IN Univ Bd Trustees ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3043
DEBORAH CULLEN,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY BOARD
OF TRUSTEES,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 C 1107—Richard L. Young, Judge.
____________
ARGUED APRIL 10, 2003—DECIDED JULY 29, 2003
____________
Before BAUER, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. On July 6, 2000, Deborah Cullen,
Ed.D., filed a complaint against the Indiana University
Board of Trustees (the “University”), alleging violations of
the Equal Pay Act and of Title VII, based on sex discrimina-
tion and retaliation. The University filed a motion for
summary judgment, which the district court granted on
July 2, 2002. Dr. Cullen filed this appeal on July 29, 2002.
She appeals all of the district court’s determinations except
for its grant of summary judgment in favor of the Univer-
sity on the retaliation claim. For the reasons set forth in the
2 No. 02-3043
following opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
Deborah Cullen began her employment at Indiana Univer-
sity’s Indianapolis campus in May 1990. She was appointed
Director of the Respiratory Therapy Program, with the rank
of associate professor. She also was credited with three
years toward tenure. Her salary was $45,000. Dr. Cullen’s
male predecessor had been paid $36,742. The Respiratory
Therapy Program operates as a department of the School of
Allied Health Sciences (“SOAHS”), which has eighteen
programs, including Physical Therapy.
Dr. Cullen holds a Bachelor of Science degree in Respira-
tory Therapy, a Master of Arts in Education and a Doctor of
Education degree. She had fifteen years’ teaching experience
prior to arriving at the University, including serving as
Director of Grossmont College’s two-year Respiratory
Therapy Program from 1984-1990. In 1994, Dr. Cullen was
granted tenure at Indiana University; she was promoted to
full professor in April 1995. Dr. Cullen has chaired numer-
ous committees, authored articles and secured grants for the
Respiratory Therapy Program, including $150,000 of annual
funding from Clarian Health Providers. In 1997, acting
SOAHS Dean Mark Sothmann increased her salary from
approximately $58,000 to $62,000, so that she would be paid
more than a male associate professor whom she supervised.
From 1991 through 1998, Dr. Cullen’s annual salary in-
creases averaged 4.37%; the average of SOAHS faculty
increases was 3.25% per year.
No. 02-3043 3
In July 1998, Sandy Quillen, Ph.D. was hired by Dean
Sothmann as Program Director for Physical Therapy and as
a tenured associate professor at a salary of $90,000. His
predecessor, a woman, had been paid $85,696. Dr. Quillen
holds five degrees: a Bachelor of Science degree in Health
and Physical Education, a Bachelor of Science degree in
Physical Therapy, a Master of Education in Developmental
and Adaptative Physical Education, a Master of Public
Affairs in Health Services Management, and a Ph.D. in
Sports Medicine. Before he was hired by the University, Dr.
Quillen was Chair of the Department of Physical Therapy at
the College of Mount St. Joseph in Cincinnati, Ohio. In that
post, he was paid a comparable salary in the “high 80’s.”
R.68, Ex.2 at 125-26.
At the time of Dr. Quillen’s hiring, Dean Sothmann
conducted a national search, but received few applications
for the Physical Therapy Program Director position. The
Physical Therapy Program was on probationary accredita-
tion status and in danger of losing its accreditation. This
situation presented a major problem for the University be-
cause students must graduate from an accredited program
in order to be permitted to sit for the physical therapy
licensing exam. Upon assuming his responsibilities, there-
fore, Dr. Quillen was required to extricate the program from
probation and to create a graduate program in order to
maintain accreditation. Dr. Quillen has launched success-
fully a graduate program, which now offers the only
doctoral program in the SOAHS.
The Physical Therapy Program accounts for a significant
amount of tuition in the SOAHS; for example, in 1998-99, it
generated 29.3% of the SOAHS’ tuition revenue. In fact, the
SOAHS could not survive without a financially viable
Physical Therapy Program. In 1998-99, Physical Therapy
generated $567,771 to Respiratory Therapy’s $87,517. Phys-
4 No. 02-3043
ical Therapy also has twice as many students and faculty as
Respiratory Therapy (e.g., in 1999, 116 students as opposed
to 57 students and 6 faculty as opposed to 3 faculty).
Between 1995 and 2000, Physical Therapy awarded two and
a half times as many bachelor’s degrees as Respiratory
Therapy.
During 1998-99, Dr. Cullen was paid $63,240; Dr. Quillen
was paid $90,000. In 1999-00, the comparison was $67,114 to
$93,150; in 2000-01, $68,121 to $94,547; and in 2001-02,
$70,505 to $97,856. This disparity is in accord with the
average differential between directors in these positions at
other Midwestern schools. That disparity was $18,000 in
1999, more than $20,000 in 2000, and approximately $30,000
in 2001. Both Dr. Cullen and Dr. Quillen are compensated
within the range of salaries paid for their respective disci-
plines.
In the early 1990s, a University professor of economics,
Paul Carlin, conducted a pay equity study. The study found
a statistically significant gap between the salaries of male
and female faculty members, and Carlin could not rule out
discrimination as a cause. In 1997-98, Patrick Rooney,
Special Assistant to the Chancellor, and Paul Carlin con-
ducted a second study, which was controlled for a number
of factors. The results found a “statistically-significant” gap
between the salaries of male and female faculty members.
R.71, Ex.D at 25. Dr. Cullen was identified as an “outlier,”
which the study defined as more than one standard devia-
tion below her predicted salary for 1996-97. Her predicted
salary was $71,313.60. One standard deviation below this
figure is $61,774.29. Dr. Cullen actually earned $58,128. Paul
Carlin testified that he could not rule out gender discrimina-
tion as the cause of Dr. Cullen’s lower salary. It is notable
that approximately 60% of the outliers identified by the
study were male.
No. 02-3043 5
The University submits that, although the study is a
helpful tool, it fails to account accurately for the market at
the time of hire and for an individual’s productivity. The
study was not designed to ascertain the appropriate salaries
of professors, but was to be used as a first step in the
compensation analysis. It contemplated that committees in
each department would undertake a further assessment that
took into account individual factors. The University also
notes that, for purposes of academic research, a figure of
less than two standard deviations is not considered statisti-
cally significant; however, it identified individuals of
greater than one standard deviation as outliers in order to
ensure a thorough analysis. Dr. Cullen’s salary fell between
one and two standard deviations.
The SOAHS ad hoc review committee “strongly recom-
mend[ed]” that Dr. Cullen’s pay be increased to rectify
salary inequity, but concluded that her history of small
incremental salary increases was not significantly less than
the averages for SOAHS and Respiratory Therapy faculty.
R.71, Ex.11. Dean Sothmann informed Dr. Cullen that
he would recommend a raise to her “predicted salary of
$64,901.” R.71, Ex.10. This “predicted salary” is one stan-
dard deviation below the mean figure. Dean Sothmann also
informed the Chancellor’s office that Dr. Cullen’s salary
ought to be adjusted to the predicted level. Dr. Cullen’s
salary was then adjusted from $63,240 to $64,901.
B. District Court Proceedings
Before the district court, Dr. Cullen alleged that the
University discriminated against her in violation of the
Equal Pay Act and on the basis of her sex in violation of
Title VII of the Civil Rights Act of 1964. Dr. Cullen claimed
that the University employed a similarly situated male, Dr.
6 No. 02-3043
Quillen, to perform the same job as her own and paid him
a higher salary. Moreover, she argued that the University’s
actions constituted indirect evidence of an intent to pay her
less than male employees because of her gender. The
University moved for summary judgment on both claims.
The district court granted summary judgment for the
University on the Equal Pay Act claim because it deter-
mined that Dr. Cullen failed to establish a prima facie case.
See R.86 at 20. The court concluded that Dr. Quillen had
“substantially more additional responsibilities than Dr.
Cullen which justifi[ed] his higher salary.” Id.
Alternatively, the court concluded that, assuming a prima
facie case, Dr. Cullen’s evidence did not present a material
dispute to contradict the University’s affirmative defense
that the pay differential was based on factors other than sex.
See id. at 23. The court noted the significance of disparate
educational backgrounds and job responsibilities as reasons
for its conclusion that the University had carried its burden
of persuasion on the affirmative defense. See id. at 21-22. The
court also concluded that the University’s Pay Equity Study
was not prima facie evidence of wage-based discrimination
because it was not designed to prove or calculate discrimi-
nation alone but to identify cases that merited further
inquiry. See id. at 22-23.
With respect to the Title VII claim, the court concluded
that Dr. Cullen failed to establish a prima facie case because
she did not identify an adverse employment action (her
salary was increased) or present evidence of a similarly
situated male that was treated more favorably. See id. at 24-
25. The court also found it significant that there was no
evidence of intent to discriminate. See id. at 25.
No. 02-3043 7
II
DISCUSSION
A. Equal Pay Act
Dr. Cullen submits that the district court erred in granting
summary judgment in favor of the University on her Equal
Pay Act (“EPA”) claim; we review a district court’s grant of
summary judgment de novo. See Boyce v. Moore, 314 F.3d
884, 888 (7th Cir. 2002).
1. Prima Facie Case
To establish a prima facie case of wage discrimination
under the EPA, Dr. Cullen must show: “(1) higher wages
were paid to a male employee, (2) for equal work requiring
substantially similar skill, effort and responsibilities, and (3)
the work was performed under similar working condi-
tions.” Stopka v. Alliance of Am. Insurers, 141 F.3d 681, 685
(7th Cir. 1998). In determining whether two jobs are equal,
the crucial inquiry is “whether the jobs to be compared have
a ‘common core’ of tasks, i.e., whether a significant portion
of the two jobs is identical.” Fallon v. Illinois, 882 F.2d 1206,
1209 (7th Cir. 1989) (citations and quotation marks omitted).
Once the plaintiff establishes a common core, the court must
ask whether any additional tasks make the jobs “substan-
tially different.” Id. (citation and quotation marks omitted).
Significantly, the EPA does not require proof of discrimina-
tory intent. See Stopka, 141 F.3d at 685.
It is undisputed that in this case the first element is
established. In 1998-99, Dr. Cullen was paid $63,240 and Dr.
Quillen, a male, was paid $90,000. See R.71, Ex.27. The
disparity continued through the 2001-02 academic year
when Dr. Cullen earned $70,505 and Dr. Quillen earned
8 No. 02-3043
$97,856. See R.71, Ex.43. Nevertheless, Dr. Cullen must
establish that the jobs were equal. Although the “common
core” of the positions held by Dr. Cullen and Dr. Quillen
suggests equality, Dr. Quillen’s job entailed significant
additional responsibilities, making it substantially different.
The EPA specifies three separate elements that are to be
considered in comparing job duties: skill, effort and respon-
sibility. See 29 U.S.C. § 206(d)(1). Each of these elements
must be met individually to establish a prima facie case. See
1
29 C.F.R. § 1620.14. Moreover, the jobs must be performed
under similar working conditions. See 29 U.S.C. § 206(d)(1);
Stopka, 141 F.3d at 685.
First, we consider whether the positions required the same
level of skill. “Skill includes consideration of such factors as
experience, training, education, and ability.” 29 C.F.R. §
1620.15(a). Although Dr. Cullen and Dr. Quillen have
different educational credentials, the comparison at this
juncture is between positions, not individuals. See id.(“Possession of a skill not needed to meet the requirements
of the job cannot be considered in making a determination
regarding equality of skill.”); 4 Joseph G. Cook & John L.
Sobieski, Jr., Civil Rights Actions ¶ 20.15[B], at 20-123-24
(2003) (noting that the issue is comparison of jobs, individ-
ual qualifications are irrelevant at this point in the
2
analysis). Although different educational levels required by
1
The regulations are cast in very general terms in order to
ensure general applicability throughout the economy. Conse-
quently, in their application, a single factual consideration is
often relevant to more than one of the criteria established by the
regulations.
2
The actual differences between educational pedigree are rele-
vant in the affirmative defense of proving a pay differential based
(continued...)
No. 02-3043 9
different positions can be significant, there is no suggestion
that Physical Therapy Program Directors are required to
hold more degrees than Respiratory Therapy Program
Directors. However, the positions did require different
levels of ability, for the Physical Therapy Program Director
was required to create a new graduate program, which the
Respiratory Therapy Program Director position did not
require. See Horner v. Mary Inst., 613 F.2d 706, 714 (8th Cir.
1980) (finding different skill requirements between positions
of elementary school teachers when one teacher was
required to develop and implement a physical education
curriculum and the other was to teach courses selected by
someone else). Accordingly, the positions do not require
equal levels of skill.
The second inquiry is whether the two positions require
equal amounts of effort. Dr. Quillen was appointed when
the Physical Therapy Program was on probation, and he
was given the task of saving the program and creating a
graduate course of study. See R.68, Ex.2 at 124-26. Dr.
Cullen nevertheless submits that, although Physical Ther-
apy has a strong tuition base, she had to exert more effort to
secure outside funding to supplement her department’s
resources, an effort, she claims, that Dr. Quillen does not
match. See R.71, Ex.B at 49-53; R.71, Ex.42 at 8. Although
this consideration may decrease somewhat the significance
in the disparity between the effort required by the two
positions, we think the district court correctly concluded
that the effort required to create Master’s and Doctoral
courses of study in a program on probation to be greater
than that required to secure grants for the Respiratory
2
(...continued)
on “any factor other than sex.” See Covington v. Southern Illinois
Univ., 816 F.2d 317, 323 n.9 (7th Cir. 1987).
10 No. 02-3043
Therapy Department. See R.75, Ex.24 at ¶¶ 12-13 (stating
that Physical Therapy requires a graduate program to
maintain accreditation, and failure to do so would preclude
graduates from sitting for the licensure exam); R.68, Ex.2 at
124-26 & 137; R.68, Ex.20 at ¶ 12 (indicating that SOAHS
would not be able to operate without a viable Physical
Therapy Program); 29 C.F.R. § 1620.16(a) (“Job factors which
cause mental fatigue and stress . . . are to be considered in
determining the effort required by the job.”). The jobs do
not require equal effort; Dr. Cullen cannot establish her
prima facie case of equal positions.
Third, we must determine whether the two positions
impose the same level of responsibility. The Respiratory
Therapy Program at the University required Dr. Quillen to
create and launch a graduate program. Dr. Cullen is not
responsible for such a program. See R.68, Ex.2 at 124-26. Dr.
Cullen argues that the creation of the graduate program was
not an additional duty, for she was also required to meet
accreditation requirements. However, this argument places
too much emphasis on the job description or title of “estab-
lishing program accreditation,” see R.71, Ex.B at 45, instead
of considering “the duties actually performed by each
employee.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461
(7th Cir. 1994).
Dr. Quillen supervises more students and faculty mem-
bers. As of September 1999, Dr. Quillen was responsible for
116 students to Dr. Cullen’s 57, and Dr. Quillen supervised
six faculty members and two secretaries to Dr. Cullen’s
three faculty members and one secretary. See R.71, Ex.25 at
5. Dr. Cullen contends that the record contains no evidence
that Dr. Quillen exercises any supervision over students or
that the additional faculty members create a greater bur-den
in terms of responsibility. Supervisory responsibilities
“must be real, significant, regular, and recurring.” Mack A.
No. 02-3043 11
Player, Employment Discrimination Law § 4.11(b)(3), at 147-48
(1988). Nevertheless, it is reasonable to conclude that Dr.
Quillen’s management of a department twice the size of Dr.
Cullen’s is indicative of greater responsibility. See Howard v.
Lear Corp. Eeds & Interiors, 234 F.3d 1002, 1005 (7th Cir. 2000)
(“The additional skill, effort, and headache involved in
managing three to six times the number of workers in a
more complex employment environment rendered the []
positions . . . substantially different . . . .”); Orahood v. Board
of Tr. of Univ. of Arkansas, 645 F.2d 651, 655 (8th Cir. 1981)
(affirming a finding of unequal positions because male
employee supervised a much larger department with more
employees).
The most significant factor in this responsibility compari-
son is the differential in tuition revenue generated by each
program. Each school at the University must operate with
budgets based on the tuition resources generated within
the school. See R.75, Ex.27 at 31 & 56. Significantly, Physical
Therapy generates nearly 30% of SOAHS’ tuition revenue,
and the school would not be able to operate without a
viable Physical Therapy Program. See R.68, Ex.2 at 137;
R.68, Ex.20 at ¶ 12. In 1998-99, the Physical Therapy Pro-
gram produced more than six times the tuition generated by
Respiratory Therapy. See R.71, Ex.25 at 5. In Stanley v.
University of Southern California, 13 F.3d 1313 (9th Cir. 1994),
the Ninth Circuit concluded that the additional pressure to
win placed on the USC men’s basketball coach created a
different job under the EPA because the men’s program
generated ninety times more revenue than the women’s
program. See id. at 1322-23. The court found that “the
relative amount of revenue generated should be considered
in determining whether responsibilities and working
conditions are substantially equal.” Id. In this case, the
SOAHS’ dependence upon the revenue generated by the
12 No. 02-3043
Physical Therapy Program creates additional pressure and
responsibility on the Director of the Physical Therapy
Program, Dr. Quillen. Consequently, the positions do not
have equal levels of responsibility; therefore, Dr. Cullen
3
cannot establish a prima facie case.
2. Pay Equity Study
Dr. Cullen contends that the district court erred by failing
to consider the Pay Equity Study as evidence to prove her
prima facie case under the EPA. She argues that, because
she has identified a specific male comparator, Dr. Quillen,
this court should adopt the Second Circuit’s rationale in
Lavin-McEleney v. Marist College, 239 F.3d 476, 481 (2d Cir.
2001), and permit her to rely on statistical evidence to
support her prima facie case. In Lavin-McEleney, the Second
3
The district court did not reach the issue of similar working
conditions, but the University contends that Dr. Cullen cannot
meet this requirement because Dr. Quillen was hired to extricate
the Physical Therapy Program from probation, which is a dis-
similar working condition. In Corning Glass Works v. Brennan, 417
U.S. 188 (1974), the Supreme Court concluded that “working
conditions” refers to physical surroundings and hazards encoun-
tered on the job. See id. at 202; 29 C.F.R. § 1620.18 (“The term
‘similar working conditions’ encompasses two subfactors: ‘sur-
roundings’ and ‘hazards.’ ‘Surroundings’ measure the elements,
such as toxic chemicals or fumes, regularly encountered by a
worker, their intensity and their frequency. ‘Hazards’ take into
account the physical hazards regularly encountered, their
frequency and the severity of injury they can cause.”). In this
case, the parties have introduced no evidence that Dr. Cullen and
Dr. Quillen are exposed to different physical surroundings or
hazards in performing their duties, therefore they cannot be said
to work under dissimilar conditions.
No. 02-3043 13
Circuit held that “statistical evidence of a gender-based
salary disparity among comparable professors properly
contributed to plaintiff’s case in conjunction with her
4
identification of a specific male comparator.” Id. The court
specifically declined to decide whether statistical evidence
alone would be sufficient to establish a prima facie case
under the Equal Pay Act. See id. at 482. As we have dis-
cussed above, in Dr. Cullen’s case, Dr. Quillen is not a
comparable male. Therefore, if she is to prevail, she must
rely on statistics alone to support her prima facie case. We
have noted that, in the Title VII context, statistical evidence
4
The University contends that, even if the court should consider
statistics alone, the Pay Equity Study is not admissible under
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U.S. 579 (1993), in part, because certain critical
factors such as productivity are difficult to quantify. However,
this argument is not in accord with the Supreme Court’s discus-
sion of regression analyses in Bazemore v. Friday, 478 U.S. 385(1986). In Justice Brennan’s concurring opinion in Bazemore,
which was joined by all other members of the Court, he stated:
While the omission of variables from a regression analysis
may render the analysis less probative than it otherwise
might be, it can hardly be said, absent some other infirmity,
that an analysis which accounts for major factors “must be
considered unacceptable as evidence of discrimination.”
Normally, failure to include variables will affect the analysis’
probativeness, not its admissibility.
Id. at 400 (Brennan, J., concurring) (citation omitted). See
Rudebusch v. Hughes, 313 F.3d 506, 516 (9th Cir. 2002) (citing
Bazemore for the proposition that the “propriety of controlling for
particular variables in a regression analysis goes to weight rather
than admissibility”); Smith v. Virginia Commonwealth Univ., 84
F.3d 672, 676-77 (4th Cir. 1996) (finding that disputes over ex-
cluded variables in multiple regression analysis are questions of
material fact precluding summary judgment).
14 No. 02-3043
of discrimination may be very useful, but “it will likely not
be sufficient in itself.” Adams v. Ameritech Servs., Inc., 231
5
F.3d 414, 423 (7th Cir. 2000). We need not decide today
whether Dr. Cullen could base her prima facie EPA case
solely on statistical evidence because the Pay Equity Study
could not establish discrimination alone on these facts.
The study was designed as the initial step in a two-part
process of evaluating faculty for raises, not as a single
quantitative measure of appropriate salaries. In fact, in
order to ensure thoroughness, the University characterized
Dr. Cullen as an “outlier” even though generally accepted
principles of statistical modeling suggest that a figure less
than two standard deviations is considered an acceptable
6
deviation. See R.71, Ex.D at 28-29. Although the study
5
See also Rudebusch, 313 F.3d at 515-17 (concluding that a pay
equity study finding 2.0 standard deviation among salaries was
insufficient to establish discrimination in violation of Title VII in
light of evidence that salaries fell below predicted levels across
ethnic and gender lines); cf. Plemer v. Parsons-Gilbane, 713 F.2d
1127, 1135-36 (5th Cir. 1983) (stating “[i]t may well be question-
able whether in an action grounded on a classic unequal pay for
equal work claim, such statistics could ever suffice to make a
prima facie case, if the proofs were otherwise insufficient for pur-
poses of an individual Equal Pay Act or Title VII disparate
treatment suit”).
6
See Adams v. Ameritech Servs., Inc., 231 F.3d 414, 424 (7th Cir.
2000) (commenting that “[t]wo standard deviations is normally
enough to show that it is extremely unlikely . . . that the disparity
is due to chance, giving rise to a reasonable inference that the
hiring was not race-neutral; the more standard deviations away,
the less likely the factor in question played no role in the
decisionmaking process”). But see Kadas v. MCI Systemhouse Corp.,
255 F.3d 359, 362 (7th Cir. 2001) (rejecting bright-line rule that
(continued...)
No. 02-3043 15
sought to account for market forces by considering average
national salaries for a given position, see R.71, Ex.D at 26-28,
the study could not consider the significance of detailed
individual facts such as those surrounding the University’s
need to pay a premium to attract Dr. Quillen to accept a
position as the director of a distressed program. Because of
such particularized factors, the University determined that
the Pay Equity Study would serve as a rough starting point
to be followed by committee review. The Pay Equity Study
was instructive in identifying faculty members deserving
further review, but it cannot support a prima facie case of
discrimination under the EPA.
As a second step in the reevaluation of faculty pay, the
University directed each school to establish a review panel
to consider the individual characteristics of all outliers. In
the SOAHS, the ad hoc review panel consisted of four
women and one man, and it “strongly recommend[ed] that
an adjustment to [Dr. Cullen’s] base salary be made to
rectify the salary inequity.” R.71, Ex.11. The committee also
found that Dr. Cullen’s salary increments were not signifi-
cantly less than the averages for the SOAHS or Respiratory
Therapy Program faculty and concluded that her salary
increments reflected the school’s history of small salary
increases. See id.
3. Affirmative Defense
Assuming that Dr. Cullen had established a prima facie
case, which she did not, the burden of persuasion shifts to
the University to prove one of four statutory affirmative
defenses. See 29 U.S.C. § 206(d)(1); Dey, 28 F.3d at 1462
6
(...continued)
would find statistical evidence of less than two standard devia-
tions inadmissible).
16 No. 02-3043
(noting defendant bears burden of proof on affirmative
defense). The University relies on the defense that there
exists “a differential based on any other factor other than
sex.” 29 U.S.C. § 206(d)(1)(iv).
Education is a relevant consideration in determining
whether disparate salaries exist for reasons other than sex.
See Covington v. Southern Illinois Univ., 816 F.2d 317, 323 n.9
(7th Cir. 1987). Dr. Cullen holds three degrees, and neither
of her graduate degrees are in the field of Respiratory
Therapy. See R.71, Ex.A at 13-20. Dr. Quillen holds five
degrees, including a Ph.D. in Sports Medicine. See R.75,
Ex.D. It is possible for an individual to earn a Ph.D. in
Respiratory Therapy, but Dr. Cullen does not have such a
degree. See R.71, Ex.A at 20. Dr. Quillen clearly holds more
degrees with a focus in his respective discipline. This
consideration supports the University’s position that this
was a valid reason other than sex to pay Dr. Quillen more
than Dr. Cullen.
The University also focuses on market forces at the time
of Dr. Quillen’s hiring. See Stanley, 13 F.3d at 1322 (“An
employer may consider the marketplace value of the skills
of a particular individual when determining his or her
salary.”); Ross v. University of Texas at San Antonio, 139 F.3d
521, 526 (5th Cir. 1998) (commenting that disparities were
accounted for by market factors). At the time Dr. Quillen
was hired, the Physical Therapy Program was on probation
and any potential applicant for the position would be
required to take over a foundering department, extricate it
from probation by the accrediting body, and create a
graduate program. See R.68, Ex.2 at 124-26. Faced with these
responsibilities, the national applicant pool was small, and
the University found it necessary to offer Dr. Quillen a
significant salary to attract him to take the position.
No. 02-3043 17
It is also notable that in 1999 Physical Therapy directors
were paid $18,000 more than their peers in Respiratory
Therapy, a disparity that increased to approximately $30,000
in 2001. See R.75, Ex.I. Additionally, in establishing a
starting salary it is also appropriate to consider the salary a
newly hired employee was receiving elsewhere. See Dey, 28
F.3d at 1462. Dr. Quillen was compensated in the “high
80’s” in his previous position. R.68, Ex.2 at 125-26.
Moreover, as we have noted earlier, it is significant that
Dr. Quillen is responsible for a department that generates
six times as much revenue as Dr. Cullen’s and that is vital
to the operation of SOAHS. See R.68, Ex.2 at 137; R.68, Ex.20
at ¶ 12; R.71, Ex.25 at 5. See also Player, Employment Discrimi-
nation Law § 4.14(e)(2)(h), at 173-74 (“An employer may
provide different wage rates for the sale or production of
products based upon the relative economic benefit or
profitability of the product.”). The University’s decision to
compensate Dr. Quillen for the pressure imposed by this
added responsibility constitutes another reason other than
sex that explains his salary. Dr. Cullen has not provided
sufficient evidence to place a material fact in dispute
regarding the University’s affirmative defense that
Dr. Cullen and Dr. Quillen were paid different salaries
7
“based on any other factor other than sex.” 29 U.S.C.
§ 206(d)(l)(iv).
7
Because Dr. Cullen cannot establish a prima facie case and
because the University can establish an affirmative defense, we
need not address Dr. Cullen’s contention that the University’s
alleged violation of the EPA was willful.
18 No. 02-3043
B. Title VII
Having addressed Dr. Cullen’s arguments concerning
the Equal Pay Act, we turn to her Title VII claim, for “even
if the plaintiff’s Equal Pay Act and Title VII claims [are]
identical, Title VII is an independent remedy, in that it
may be pursued in conjunction with other remedies.”
Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 130 (7th
Cir. 1989) (citing Alexander v. Gardner-Denver Co., 415 U.S.
36, 48-49 (1974)); see County of Washington v. Gunther, 452
U.S. 161, 178-80 (1981) (commenting that Title VII’s coverage
of equal pay claims is broader than that of the EPA); Fallon
v. Illinois, 882 F.2d 1206, 1218 (7th Cir. 1989) (holding that
the EPA and Title VII are distinct remedies). Dr. Cullen
seeks to establish her Title VII claim by relying on indirect
8
evidence of discrimination. Therefore, the burden-shifting
paradigm of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), governs our analysis. See Haywood v. Lucent
Techs., Inc., 323 F.3d 524, 531 (7th Cir. 2003); Stone v. City of
Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002).
In this context, to establish a prima facie case of sex discrim-
ination under Title VII, Dr. Cullen must show that 1) she
was a member of a protected class, 2) she was meeting her
employer’s legitimate expectations, 3) she suffered an
adverse employment action, and 4) the employer treated a
similarly situated man more favorably. See Johnson v. Zema
Sys. Corp., 170 F.3d 734, 742-43 (7th Cir. 1999); Morrow v.
Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998). If Dr.
Cullen establishes a prima facie case, the burden shifts to
the University to provide legitimate reasons for the dispar-
8
Moreover, a Title VII plaintiff must prove the intent to discrimi-
nate, specifically the “actual desire to pay women less than men
because they are women.” Lloyd v. Phillips Bros., Inc., 25 F.3d 518,
525 (7th Cir. 1994) (emphasis in original).
No. 02-3043 19
ity. See Johnson v. University of Wisconsin-Eau Claire, 70 F.3d
469, 478 (7th Cir. 1995). If the University provides legitimate
reasons, then Dr. Cullen must establish that the proffered
reasons are pretextual. See id.Dr. Cullen cannot establish a prima facie case because she
has not presented evidence of a similarly situated male that
the University treated more favorably. Dr. Quillen is not a
similarly situated male and, as discussed above, the Pay
Equity Study is not sufficient to establish gender discrimina-
tion. Nevertheless, even if we assume that Dr. Cullen can
establish her prima facie case, Dr. Cullen has failed to
introduce sufficient evidence to create a material dispute
regarding pretext. The University has provided unrebutted,
nondiscriminatory reasons for the pay disparity, including
market forces at the time of Dr. Quillen’s hiring, different
educational credentials, and differences in responsibility
due to the larger amount of revenue generated by the
Physical Therapy Department. Consequently, Dr. Cullen
cannot prevail on her Title VII claim.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-29-03