Farrell, Grace v. Butler University ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2054
DR. GRACE FARRELL,
Plaintiff-Appellant,
v.
BUTLER UNIVERSITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02-0531-C B/S—Sarah Evans Barker, Judge.
____________
ARGUED JANUARY 4, 2005—DECIDED SEPTEMBER 1, 2005
____________
Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Dr. Grace Farrell, a tenured
professor of English at Butler University (“Butler”), claimed
sex discrimination under Title VII of the Civil Rights Act of
1964 § 701 et seq., as amended, 42 U.S.C. § 2000(e). The
issue before us is whether the district court erred by finding
that no genuine issue of material fact existed for trial on
either Dr. Farrell’s disparate treatment or disparate impact
claims. We affirm, and find that on Dr. Farrell’s disparate
treatment claim, she did not establish that Butler’s stated
nondiscriminatory reasons for its personnel decision were
a pretext for unlawful discrimination. Furthermore, we find
as to her disparate impact claim, that she failed to establish
2 No. 04-2054
that Butler’s selection of recipients for the academic award
at issue here had an adverse disparate impact on women on
the basis of their gender.
I. BACKGROUND
Dr. Grace Farrell was hired by Butler in 1987 as a
tenured full professor of English and served as the head of
the English Department until 1989. When she resigned
as head of the Department, she continued to earn the same
salary as she had when she was head of the English
Department, although non-administrative faculty at Butler
traditionally earned less than those faculty members in
administrative roles.
In 1996, in response to concerns about salary equity
with respect to gender, Butler created a Faculty Compensa-
tion Task Force (“Task Force”). The primary purpose of the
Task Force was to evaluate problems with gender inequities
at Butler, with a particular focus on salary parity. At the
conclusion of its review of salary data for male and female
professors, the Task Force reported that male professors
tended to have higher mean salaries than female professors
at all rank levels. Among its many initiatives, the 1997
Task Force report recommended that Butler create and
implement the Professional Excellence Program (“PEP”) to
reward professors who had been tenured full professors for
at least five years and who demonstrated sustained excel-
lence in scholarship, teaching and service.
Eligible Butler faculty were first able to apply for the PEP
award in 2000. Dr. Farrell applied both in the inaugural
year of the program and again in 2001. In both 2000 and
2001, Dr. Farrell was the only woman eligible in Butler’s
College of Liberal Arts and Sciences to apply, and indeed,
was the only woman to do so.
For both years the PEP was awarded only to male
professors—Paul Valliere, Professor of Religion and William
No. 04-2054 3
Neher, Professor of Speech & Communication in 2000,
Stephen Perrill from the Biology Department, George Geib
of the History Department, and Joseph Kirsch, a Professor
of Chemistry, in 2001. When Dr. Farrell failed to receive
the award for the second time in 2001, she filed a grievance
before the faculty appeals committee and eventually filed a
complaint with the Equal Employment Opportunity
Commission (“EEOC”). In her EEOC complaint, Dr. Farrell
charged Butler with gender discrimination. Dr. Farrell
ultimately filed a Title VII gender discrimination suit in the
United States District Court for the Southern District of
Indiana and now appeals the district court’s summary
judgment in favor of Butler.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s grant of summary
judgment. Ozlowski v. Henderson, 237 F.3d 837, 839 (7th
Cir. 2001) (quoting Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 692 (7th Cir. 1998)). Summary judgment is
properly granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). When determin-
ing whether a genuine issue of material fact exists, we
consider evidence in the light most favorable to the
nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Material facts are
facts that “might affect the outcome of the suit” under the
applicable substantive law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over material facts
is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.4 No. 04-2054
B. Disparate Treatment
Title VII prohibits employers from discriminating against
employees on the basis of sex or gender. 42 U.S.C. § 2000e-
2(a)(1). Claims of discrimination under Title VII for dispa-
rate treatment can be proven either through direct or
indirect evidence. O’Regan v. Arbitration Forms, Inc., 246
F.3d 975, 983 (7th Cir. 2001). Given that Dr. Farrell does
not provide any direct evidence of discrimination on the
basis of gender, she must proceed under the McDonnell
Douglas indirect burden-shifting method. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); O’Neal v. City
of Chicago, 392 F.3d 909, 911 (7th Cir. 2004).
Under the McDonnell Douglas scheme, the plaintiff bears
the initial burden of establishing a prima facie case. Id. at
802. To state a prima facie case of “disparate treatment”
gender discrimination under Title VII, a female plaintiff
must show that she: (1) is a member of a protected class, (2)
is performing her job satisfactorily, (3) suffered an adverse
employment action, and (4) was treated less favorably than
at least one similarly-situated male colleague. Lim v. Trus.
of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002); Paluck v.
Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000).
Once the plaintiff has established a prima facie case, the
burden of production shifts to the defendant to provide a
legitimate, nondiscriminatory reason for the decision.
McDonnell Douglas, 411 U.S. at 802; Paluck, 221 F.3d at
1009. Once the defendant satisfies its burden, the burden
shifts back to the plaintiff to show that the defendant’s
explanation was pretextual. Paluck, 221 F.3d at 1009.
Pretext requires more than showing that the decision
was “mistaken, ill considered or foolish, [and] so long as
[the employer] honestly believed those reasons, pretext has
not been shown.” Jordan v. Summers, 205 F.3d 337, 343
No. 04-2054 5
(7th Cir. 2000). Pretext “means a dishonest explanation, a
lie rather than an oddity or an error.” Kulumani v. Blue
Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000).
On appeal, Butler argues that we need not undergo a
McDonnell Douglas analysis because Dr. Farrell’s allega-
tions regarding the 2000 PEP award are untimely. How-
ever, this court has previously held that a plaintiff may
base her suit on conduct outside of the statute of limitations
if it would have been unreasonable to expect the plaintiff to
sue before the statute of limitations passed on the alleged
discriminatory conduct. Galloway v. Gen. Motors Serv. Parts
Operations, 78 F.3d 1164, 1167 (7th Cir. 1996). In the
present case, it would have been unreasonable for Dr.
Farrell to sue Butler in 2000 when she was first passed up
for the PEP award, since that was the first time that Butler
gave the award. Moreover, it is reasonable that Dr. Farrell
would have suspected Butler of discriminatory conduct
when she had failed to receive the award twice, and both
times the award had been given to a male professor.
We now proceed to a McDonnell Douglas analysis. First,
we find that Dr. Farrell has established a prima facie case
with respect to her claim of disparate treatment. Dr.
Farrell, a woman, is a member of a protected class under
Title VII. The record also shows that she was performing
her job satisfactorily. However, the third element of the
prima facie test, whether Dr. Farrell’s failure to “win” the
PEP award constituted an adverse employment action,
remains contested. We have adopted a generous defini-
tion of the phrase “adverse employment action.” See
Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th
Cir. 2003); see also Haugerud v. Amery Sch. Dist., 259 F.3d
678, 691 (7th Cir. 2001). In some cases, it is apparent that
an employee has suffered an adverse employment action,
for example, “when an employee is fired, or suffers a
reduction in benefits or pay.” Smart v. Ball State Univ., 89
F.3d 437, 441 (7th Cir. 1996). However, “adverse job action
6 No. 04-2054
is not limited solely to loss or reduction of pay or monetary
benefits. It can encompass other forms of adversity as well.”
Collins v. State of Ill., 830 F.2d 692, 703 (7th Cir. 1987).
Butler argues that the PEP award is not a raise, but
a bonus. We have held that the denial of a raise qualifies as
an adverse employment action, Hunt v. City of Markham,
219 F.3d 649, 654 (7th Cir. 2000), but that the denial of a
bonus does not, id.; Miller v. Am. Family Mut. Ins. Co., 203
F.3d 997, 1006 (7th Cir. 2000). In Hunt, we distinguished
bonuses from raises, noting that “bonuses generally are
sporadic, irregular, unpredictable, and wholly discretionary
on the part of the employer,” while “[r]aises are the norm
for workers who perform satisfactorily.” Hunt, 219 F.3d at
654.
Therefore, for Dr. Farrell to state a prima facie case, it is
both necessary and sufficient that the PEP award be
deemed a raise rather than a bonus. The district court
correctly noted that the PEP award does not fit cleanly into
either Hunt category, but rather “straddles the two classifi-
cations.” As the PEP award recognizes excellence
in scholarship, teaching, and service, employees cannot
expect to receive it as a matter of course. On the other
hand, Butler announces PEP awards not in some “sporadic,
irregular, unpredictable” fashion, but rather in a regular,
annual presentation. Furthermore, the fact that a PEP
award bestows upon its recipient a permanent increase in
base salary strongly suggests that the award is a raise, not
a bonus. See Power v. Summers, 226 F.3d 815, 821 (7th Cir.
2000) (finding that the “catch-up raise” at issue in this case
was a raise and not a bonus because it had continuing
effects when it was added to the recipients’ base salary). In
addition, under the unique facts of this program, an
opportunity for abuse exists on the part of the employer if
we held that the PEP program is a bonus. By holding that
this program is indeed a bonus, we fear that we might give
Butler a license to discriminate openly in its selection of
No. 04-2054 7
recipients for this program, knowing that an employee could
not successfully establish her prima facie case under any
circumstance. With all of these considerations in mind, on
the balance, we agree with the district court’s determina-
tion that the PEP award is best characterized as a raise. As
all the requirements for a prima facie case are thus satis-
fied, we hold that Dr. Farrell has met her initial burden
under McDonnell Douglas.1
Following Dr. Farrell’s establishment of a prima facie
case, the burden of production shifts to Butler to offer a
legitimate, nondiscriminatory reason for not awarding the
PEP to Dr. Farrell. Butler offered the following reasons
for not giving the PEP award to Dr. Farrell. First, the
2000 and 2001 PEP Selection Committees determined that
Dr. Farrell’s overall records in the areas of teaching,
scholarship and service were exceeded by other professors
in the applicant pool. Second, the 2000 and 2001 PEP
Selection Committees found Dr. Farrell’s record to be
weak in the area of service to the university.
In response, Dr. Farrell asserted that the reasons prof-
fered by Butler were pretextual and that the PEP award
was essentially meant to reward applicants with lifelong
service to Butler (thereby specifically excluding her from
consideration). Furthermore, Dr. Farrell asserted that the
existence of an “old boys’ club”—an informal exclusive
network of male faculty members—provided conclusive
evidence of discriminatory treatment. Dr. Farrell’s evidence
that an informal “old boys’ club” exists at Butler amounts
to a recommender’s acknowledgment that he and the PEP
1
We note our struggle with the determination of whether the
PEP award was more similar to a raise or a bonus. We also find
it ironic that the PEP program, created in response to a report
noting gender inequity at Butler, has never been awarded to a
woman in the two years the award was granted.
8 No. 04-2054
award candidate were lunch-time companions, one recom-
mender’s knowledge of a PEP award candidate’s home life,
and some coincidental overlap of a male faculty member’s
membership on the PEP award selection committee and his
status as an award recipient. Without more substantial
evidence, Dr. Farrell’s assertions of an “old boys’ club” fails
to rise to a level that shows pretext.
Similarly, we find no evidence in the record supporting
Dr. Farrell’s claim that the PEP award was designed to
reward lifelong service to Butler, thereby precluding her
from serious consideration. The selection criteria for the
PEP award included consideration of scholarship, teaching
and service at Butler and were applied to all of the candi-
dates. It is difficult to identify a more legitimate, nondis-
criminatory reason for awarding the PEP to one recipient
over another than adherence to the selection criteria for the
award itself.
Furthermore Dr. Farrell asserts that her record of
scholarship, teaching and service is “superior” to the records
of the actual winners. However, Dr. Farrell’s own opinion
that her record supercedes that of the PEP award recipients
is not enough in and of itself to establish pretext. In
Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002),
we held that “evidence of the applicants’ competing qualifi-
cations does not constitute evidence of pretext ‘unless those
differences are so favorable to the plaintiff that there can be
no dispute among reasonable persons of impartial judgment
that the plaintiff was clearly better qualified for the
position at issue.’ ” Although Dr. Farrell’s qualifications are
indeed very impressive,2 these qualifications do not rise
above the burden that Millbrook imposes. In fact, the record
reveals a thorough and fair selection process; the selection
2
Dr. Farrell’s 2000 PEP application listed over eighteen pub-
lished books, chapters, and essays that she authored.
No. 04-2054 9
committee diligently reviewed each application and held a
meeting to discuss each applicant’s qualifications. For
example, the deposition testimony of all members of the
2000 PEP selection committee indicates that each selection
committee member read the applicants’ dossiers on his or
her own time, and then met to discuss the applicants’
dossiers, and to provide the names of their choices for the
award. Also their testimony indicates that the committee
looked for balance in the areas of teaching, service, and
scholarship, and these were the same factors utilized by the
2001 committee. The 2000 PEP selection committee chair-
person Shannon Lieb stated that in assessing candidates,
the committee asked, “Is the person actively engaged in
scholarship, are they good teachers, are they contributing
service to the university.” Def.’s Br. in Supp. of its Mot.
for Summ. J. at 6 (quoting Lieb Dep. at 19). The deposition
testimony also reflects that gender was not one of the
factors that the 2000 or 2001 PEP selection committees
considered in rendering the award. The 2001 selection
committee made the assumption that the opportunities for
Butler science faculty to publish were limited, and less than
those Butler faculty in the humanities and this assumption
was factored into their analysis.
As nonobjective as the selection criteria for the PEP
award may have been, this circuit and others have been
reluctant to review the merits of tenure decisions and other
academic honors in the absence of clear discrimination. We
have previously recognized that scholars are in the best
position to make the highly subjective judgments related
with the review of scholarship and university service. See,
e.g., Vanasco v. National-Louis Univ., 137 F.3d 962, 968
(7th Cir. 1998); Zahorik v. Cornell Univ., 729 F.2d 85, 93
(2d Cir. 1984). In light of the foregoing, Dr. Farrell fails to
carry her burden of showing that Butler’s legitimate,
nondiscriminatory reasons were pretextual.
10 No. 04-2054
C. Disparate Impact
Under a disparate impact theory, an employer is held
liable when a facially neutral employment practice dispro-
portionately impacts members of a legally protected group.
Reidt v. County of Trempealeau, 975 F.2d 1336, 1340 (7th
Cir. 1992) (citing Dothard v. Rawlinson, 433 U.S. 321, 329
(1977)). Specifically, Title VII prohibits “employment
practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one
group than another and cannot be justified by business
necessity.” O’Regan v. Arbitration Forms, Inc., 246 F.3d
975, 986 (7th Cir. 2001) (internal citations omitted).
With regard to Dr. Farrell’s disparate impact claim,
Butler correctly points out that a Title VII plaintiff may not
bring a claim in her lawsuit that she did not include in her
EEOC charge. However, this Court has adopted a liberal
standard for reviewing the scope of an EEOC charge and
has held that “[a]ll claims of discrimination are cognizable
that are ‘like or reasonably related to the allegations of the
charge and growing out of such allegations.’ ” Babrocky v.
Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985) (internal
citations omitted). Dr. Farrell’s statements, reflected in the
EEOC’s Charge of Discrimination and in Dr. Farrell’s
Charge Questionnaire, encompass a disparate impact
complaint. In Dr. Farrell’s Charge Questionnaire, she
writes, “I believe that there is an inherent or deliberate bias
against women faculty and, in this case, only two women
from the entire faculty would have met the criteria for the
award, yet many more men would have been eligible.”
In order to advance a disparate impact claim, the plaintiff
must first establish a prima facie case by proving by a
preponderance of the evidence that the employment policy
or practice had an adverse disparate impact on women on
the basis of their gender. 42 U.S.C. § 2000(e)-2(k)(1)(A)(i);
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-87
No. 04-2054 11
(1988); Scherr v. Woodland Sch. Cmty. Consol. Dist. No. 50,
867 F.2d 974, 979 (7th Cir. 1988). The plaintiff must first
“isolate and identify ‘the specific employment practices that
are allegedly responsible for any observed statistical
disparities’ ”, and second demonstrate causation by offering
“statistical evidence of a kind and degree sufficient to show
that the practice in question has caused the exclusion of
applicants for jobs or promotion because of their member-
ship in protected group.” Bennett v. Roberts, 295 F.3d 687,
698 (7th Cir. 2002) (citations omitted); Vitug v. Multistate
Tax Comm’n, 88 F.3d 506, 513 (7th Cir. 1996).
Although Dr. Farrell identifies two practices which she
argues have a disparate impact against women faculty, she
fails to establish a prima facie case of disparate impact
discrimination. Specifically, Dr. Farrell asserts that the
eligibility requirements and the candidate evaluation
methods for the PEP award have a disparate impact against
women faculty members at Butler. With respect to the
eligibility requirements, Dr. Farrell has failed to show that
she was injured by Butler’s employment practice. To have
standing to bring a disparate impact claim, a plaintiff must
show that she was personally injured by the defendant’s
alleged discriminatory practice. Melendez v. Ill. Bell Tel.
Co., 79 F.3d 661, 668 (7th Cir. 1996); see also Carpenter v.
Bd. of Regents of the Univ. of Wis. Sys., 728 F.2d 911, 915
(7th Cir. 1984) (affirming dismissal of disparate impact
claim where plaintiff failed to show that the university’s
practice of considering candidates for tenure after seven
years of service affected him personally). In this case, Dr.
Farrell met the eligibility requirements for the PEP award,
and the PEP selection committee duly considered her
candidacy.3
3
In fact, if anything, the record reflects that the PEP selection
committee was willing to be flexible in its eligibility requirements
(continued...)
12 No. 04-2054
Dr. Farrell also argues that the methods Butler used
to evaluate the PEP applicants tended to favor male
professors over female professors. However, Dr. Farrell’s
purported evidence, that the selection committee failed to
consider her alternative and supplemental submissions
regarding her teaching activities, hardly amounts to a
disparate impact on women in general. Rather, these
allegations are specific to Dr. Farrell and in fact, specific to
her 2001 application. Given the singularity of the accusa-
tions, we find it too much of a stretch to say that the
selection committee’s procedures can be characterized as
employment practices having a disparate impact on women.
3
(...continued)
in order to accommodate Dr. Farrell’s own personal circum-
stances. Part of the requirements for applying to the PEP award
involved the candidate listing the previous five-year’s worth of
teaching and student evaluation summaries. However, the 2000
PEP Selection Committee Chairperson Lieb gave Dr. Farrell
permission to submit a separate, uninterrupted five-year period
for consideration, in addition to the previous five years. Chairper-
son Lieb gave Dr. Farrell permission to do this because the
unmodified requirement would have forced Dr. Farrell to include
two-and-a-half years of non-teaching time, including one year of
fellowship and three semesters of sick leave.
No. 04-2054 13
CONCLUSION
For the reasons stated above, we AFFIRM the district
court’s order granting summary judgment in favor of the
defendant, Butler University.
FLAUM, Chief Judge, concurring in part and concurring in
the judgment. Although I agree with the result reached by
the majority and join its opinion with respect to plaintiff’s
disparate impact claim, I disagree with the Court’s resolu-
tion of plaintiff’s disparate treatment claim. I would affirm
the district court’s entry of summary judgment in favor of
Butler on the ground that the denial of the PEP award is
not an adverse employment action.
While I agree with the Court that the PEP award has
characteristics of both a raise and a bonus, I conclude that
it much more closely resembles a bonus, and that the denial
of the award is not actionable under Title VII. See Hunt v.
City of Markham, 219 F.3d 649, 654 (7th Cir. 2000); Miller
v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1006 (7th Cir.
2000). Unlike most raises, the PEP award was not the
“norm for workers who perform satisfactorily.” Hunt, 219
F.3d at 654. Rather, the PEP program was conceived as a
way to reward a few distinguished faculty members “who
had demonstrated sustained excellence in scholarship,
teaching and service.” The discretionary raise at issue in
Power v. Summers, 226 F.3d 815 (7th Cir. 2000) is quite
different from the PEP award and helps highlight the
exceptional nature of the PEP award. Although the raise in
Summers was discretionary, most faculty members received
one; indeed, the university appropriated sufficient funds to
grant each faculty member an average raise of $1,000. Id.14 No. 04-2054
at 819. The PEP award, by contrast, was bestowed on only
a few professors who were selected by a faculty committee
after a rigorous application process. Neither the permanent
nature of the salary increase nor the announcement of the
PEP awards in a regular, annual presentation made the
award a “normal and expected element” of a faculty mem-
ber’s salary or entitled faculty members to count on receiv-
ing the award. Fyfe v. City of Fort Wayne, 241 F.3d 597, 602
(7th Cir. 2002).
I would therefore affirm the grant of summary judgment
in favor of Butler on the ground that plaintiff failed to
establish a prima facie case of disparate treatment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-1-05