Paul Palmer, Jr. v. Indiana University ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1634
PAUL PALMER, JR. II,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY
and THE TRUSTEES OF INDIANA UNIVERSITY,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-04610 — Jane Magnus-Stinson, Judge.
____________________
ARGUED DECEMBER 2, 2021 — DECIDED APRIL 14, 2022
____________________
Before FLAUM, EASTERBROOK, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. Paul Palmer, Jr. II, sued his employer
Indiana University and its trustees (collectively IU) under Ti-
tle VII of the Civil Rights Act of 1964, alleging discrimination
based on his race. Palmer, who is African American, claimed
that IU violated Title VII in two ways: (1) by failing to provide
him an early promotion and (2) by paying him less than one
of his white colleagues.
2 No. 21-1634
The district court granted summary judgment to IU. We
affirm. Palmer’s failure-to-promote claim is time-barred. And
his unequal pay claim fails on the merits. The undisputed ev-
idence shows Palmer enjoyed higher pay than all of his col-
leagues, except for one, who is not a proper comparator.
I
A
Indiana University hired Paul Palmer, Jr. II, as a lecturer in
the Kelley School of Business Marketing Department in Au-
gust 2010. A few years later in January 2013, during his third
year as a lecturer, Palmer inquired to his Department Chair,
Professor Hari Shanker Krishnan, about his potential for early
promotion to senior lecturer. Krishnan said that it was rare for
lecturers to apply for senior lecturer prior to their sixth year
and suggested that Palmer wait. Palmer opted not to apply for
early promotion after that conversation. In August 2016, IU
promoted Palmer to senior lecturer on the traditional six-year
timeline.
In addition to his role as a lecturer, IU had hired Palmer to
serve as Diversity Coach in the MBA program. This adminis-
trative position paid an additional $25,000 per year and per-
mitted Palmer to teach a reduced course load. By February
2017, IU had decided that the Diversity Coach position should
focus more heavily on recruiting, and, that same month,
Palmer sent an email saying, “I am not the person who should
be responsible for driving diversity recruiting at the [Kelley
School of Business], nor am I interested in being the person.”
In turn, Palmer decided to resign from his position as Diver-
sity Coach effective at the end of the 2016–2017 school year,
No. 21-1634 3
which resulted in Palmer losing his benefits from the position
going forward, including the teaching credit and the stipend.
In August 2016, the Marketing Department hired Josh
Gildea, who is white, as a new lecturer. Alongside his role as
lecturer, Gildea was hired as Director of the Business Market-
ing Academy (the BMA). For this administrative position,
Gildea earned a $30,000 annual stipend, plus a $7,500 annual
summer stipend, but did not also receive a teaching credit.
On July 19, 2018, Palmer emailed the Chair of the Market-
ing Department, now Professor Ray Burke (Krishnan’s suc-
cessor), complaining about the fact that Gildea’s base salary
had risen to nearly match Palmer’s base salary. At the time,
Palmer earned $98,750 and Gildea earned $94,000, with no
other lecturer or senior lecturer in their department earning
over $90,000. Though Palmer was still the highest paid in the
department at this time, his email to Burke said that Gildea’s
salary increase “from a URM [under-represented minority]
perspective … looks very biased.”
A few weeks later on August 7, 2018, Palmer emailed As-
sociate Dean Laureen Maines sharing his belief that “there
[were] a number of situations where [Krishnan] ha[d] been
actively biased and/or discriminated against [Palmer] as an
under-represented US minority.” On August 8, Palmer fol-
lowed up in a response email reiterating his concerns that he
had “a number of issues over the last 5 years, where I feel
[Krishnan] has acted in a … discriminatory manner against
me.” On August 10, 2018, Palmer and Maines spoke on the
phone. During that call, Palmer repeated his concerns about
Gildea’s pay. Palmer also discussed how Krishnan had ad-
vised Palmer not to apply for an early promotion in 2013.
4 No. 21-1634
On February 8, 2019, Burke announced that Gildea was
seeking an early promotion to senior lecturer. By that point,
Gildea had taught more than five years’ worth of credits (as
measured by a normal credit load) and had grown the BMA
into the largest academy in the MBA program.
On February 10, 2019, Palmer sent another email to
Maines, reiterating his concerns: “On August 10, we met via
phone, where I outlined to you that I had a number of signif-
icant concerns regarding racial discrimination and/or bias by
IU and [Krishnan] (as my department chair) against me.”
Palmer’s email said that “[d]uring the call,” he had detailed
for Maines “how racial discrimination had negatively im-
pacted” his salary and promotion to senior lecturer. He also
expressed his frustration with Gildea’s consideration for early
promotion: “Now I receive an email that Josh Gildea, the non-
minority, significantly junior colleague is going up for promo-
tion nearly 3 full years earlier than I was allowed … Early in
my tenure at IU, I had asked [Krishnan] about going up for
promotion early as well and was discouraged by him from
doing so.”
Throughout his time as a lecturer and senior lecturer at IU,
Palmer earned the highest base salary of any lecturer or senior
lecturer in the Marketing Department. But Palmer earned less
in aggregate than Gildea between 2017 and 2019. In sum,
Gildea earned $144,300 during the 2017–18 school year;
$213,925 during the 2018–19 term; and $215,360 in 2019–20,
while Palmer earned $141,000 during the 2017–18 term;
$127,550 in 2018–19; and $133,304 in 2019–20, or $171,731 in
total less than Gildea over the three-year period. Both Gildea
and Palmer earned more each year than their base salaries, in
variable additional amounts year to year, but neither party
No. 21-1634 5
provides an accounting to explain all of the reasons (such as
Gildea’s annual BMA stipend) that Palmer and Gildea earned
higher total pay per year compared to their base salaries. The
parties do agree that much of Gildea’s additional pay came
from his teaching “overload” classes, which are classes taught
beyond the required teaching load for a lecturer and for which
lecturers are paid per additional class taught. Additionally, it
is undisputed that Gildea received higher percentage raises
than Palmer in each of the three school years from 2017–2018
through 2019–2020.
B
On May 15, 2019, Palmer filed a charge with the Equal Em-
ployment Opportunity Commission (EEOC), alleging race
discrimination in violation of Title VII. In that filing, Palmer
stated that he had “outlined a significant number of concerns
regarding racial discrimination” in his August 2018 call with
Maines. The EEOC issued a Right to Sue Letter on August 21,
2019, and Palmer initiated this suit on November 19, 2019.
Before the district court, Palmer alleged race discrimina-
tion in two forms: (1) IU’s failure to promote him to senior
lecturer after his third year and (2) unequal pay. For both
claims, he presented Gildea as his only comparator, arguing
that IU had discriminated against him based on his race, be-
cause Gildea was promoted early to senior lecturer and
earned more than Palmer in aggregate between 2017 and
2019. The district court granted IU’s motion for summary
judgment on all claims.
II
Palmer appeals the district court’s ruling on both the fail-
ure to promote and unequal pay claims, and we consider each
6 No. 21-1634
in turn. We review the district court’s grant of summary judg-
ment de novo, reading the facts in the light most favorable to
the nonmoving party, which in this case is Palmer. See Vega v.
Chicago Park Dist., 954 F.3d 996, 1004 (7th Cir. 2020).
A
First, Palmer alleges a failure-to-promote violation be-
cause Krishnan deterred him from seeking an early promo-
tion due to his race. Title VII makes it unlawful for an em-
ployer to fail to promote an individual because of his race. 42
U.S.C. § 2000e-2(a)(1); see, e.g., Logan v. City of Chicago, 4 F.4th
529, 536 (7th Cir. 2021). IU contends Palmer has no claim be-
cause he never actually applied for the early promotion. But
we do not reach the merits of these arguments because
Palmer’s failure-to-promote claim is untimely.
Title VII race discrimination claims are time-barred if not
first filed with the EEOC within a statutorily-defined period
“after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1) (stating the deadline is at most 300
days); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002). Untimely claims may be saved by the doctrine of eq-
uitable tolling. Id. at 113. But claims may only be equitably
tolled when, “despite all due diligence, a plaintiff cannot ob-
tain the information necessary to realize that he may possibly
have a claim.” Beamon v. Marshall & Ilsley Tr. Co., 411 F.3d 854,
860 (7th Cir. 2005). In such cases, we start the equitable-tolling
clock when “a reasonable person in the plaintiff’s position
would have been aware of the possibility that he had suffered
an adverse employment action because of illegal discrimina-
tion.” Id. at 861. When applicable, equitable tolling does not
restart the clock entirely. Rather, we require that the plaintiff
file “within a reasonable time.” Thelen v. Marc’s Big Boy Corp.,
No. 21-1634 7
64 F.3d 264, 268 (7th Cir. 1995). We have previously recog-
nized a reasonable time to file an administrative complaint to
be “days, and at most weeks.” Id.Palmer’s failure-to-promote claim accrued in January
2013, when he discussed the possibility of early promotion
with Krishnan, who deterred him from applying. See Morgan,
536 U.S. at 110 (a § 2000e–5(e)(1) adverse act occurs on the day
that it happens). But Palmer filed his charge with the EEOC
over six years later, on May 15, 2019. Therefore, he definitely
missed the statutory deadline by several years (which he does
not dispute) and must rely on the doctrine of equitable tolling.
But equitable tolling cannot save Palmer’s claim. Palmer’s
stance is that he did not apply for early promotion in 2013 be-
cause it would have been a futile act, given Krishnan’s dis-
criminatory motivations in deterring him. However, Palmer
argues that his claim did not accrue until 2019 because it was
only after Gildea’s promotion that Palmer realized that dis-
crimination may have been involved in Krishnan’s deterring
his early application. Even if we were to accept Palmer’s ar-
gument that his claim did not accrue in 2013, it certainly ac-
crued before 2019 because in July and August 2018, Palmer
made allegations in several emails and then on a phone call to
Maines that Krishnan had discriminated against him. Then in
the email to Maines dated February 10, 2019, Palmer con-
firmed the timing of those earlier suspicions and reiterated his
ongoing belief that discrimination had affected his promotion
timeline. So under the doctrine of equitable tolling, his limita-
tions period began to run at the earliest in February 2013
and—at the latest—in August 2018 when he put his suspicion
of race discrimination in email.
8 No. 21-1634
Palmer insists that we should not start the equitable-toll-
ing clock until April 9, 2019, when Gildea actually received
his early promotion. But we are not permitted to wait for this
level of certainty. The Supreme Court has cautioned lower
courts to apply the doctrine of equitable tolling only “spar-
ingly” in order to preserve the procedural requirements set
by Congress. Morgan, 536 U.S. at 113–14. The rule in our cir-
cuit is that a plaintiff must file when he realizes that he may
possibly have a claim. “Possibly” does a lot of work in such
cases—"[u]nder this circuit’s case law, a plaintiff awakens to
the possibility of a Title VII claim far sooner than he achieves
any level of certainty that his rights have been violated.” Bea-
mon, 411 F.3d at 861. As indicated in emails that he wrote,
Palmer realized he may possibly have a claim of racial dis-
crimination at the latest by August 2018.
Palmer filed his EEOC claim nearly nine months later, on
May 15, 2019. This is far longer than the delayed filing period
we have allowed when applying equitable tolling in prior
cases, and comfortably falls outside of the meaning of a “rea-
sonable time.” See, e.g., Kren v. City of Springfield, 142 F.3d 440at *2 (7th Cir. 1998) (unpublished) (waiting just over nine
months to file an EEOC complaint was not “within a reason-
able time”); see also Thelen, 64 F.3d at 286 and Denney v. Eaton
Corp., 165 F.3d 31 at *2 (7th Cir. 1998) (unpublished) (both stat-
ing that waiting nearly ten months to file an administrative
complaint was not “within a reasonable time”). Palmer pro-
vides no case that would support a finding that the length of
time he waited to file his claim was reasonable—regardless of
whether that delay be counted as only three months (the
amount of time he waited to file after he accused IU of dis-
crimination over email in February 2019), nine months, or six
No. 21-1634 9
years. Therefore, Palmer’s claim cannot be saved by equitable
tolling, and his failure-to-promote claim is time-barred.
B
Next, we consider Palmer’s unequal pay claim. Title VII
bars race-discrimination with respect to compensation. 42
U.S.C. § 2000e-2(a)(1). This claim is indisputably not time-
barred under the Ledbetter Act, 42 U.S.C. § 2000e-5(e)(3), al-
lowing Palmer to challenge his pay starting from the two
years preceding his EEOC charge, so from May 2017. See, e.g.,
Poullard v. McDonald, 829 F.3d 844, 853 (7th Cir. 2016) (ex-
plaining that the statute of limitations for an unequal pay
claim resets with each paycheck affected and the plaintiff can
“recover up to two years of back pay so long as the unlawful
practice occurring during the charge filing period is ‘similar
or related to’ the unlawful compensation practices that oc-
curred outside that period.”) (quoting § 2000e-5(e)(3)(B)).
When pursuing an unequal pay claim, the plaintiff must
show that the protected grounds—here, race—caused the dis-
parity in compensation. Igasaki v. Ill. Dep't of Fin. & Pro. Regul.,
988 F.3d 948, 958 (7th Cir. 2021) (citing Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016)). In assessing such claims
at the summary judgment stage, we consider all the evidence
in the record, “eschewing any framework or formula.” Igasaki,
988 F.3d at 958 (citing Ortiz, 834 F.3d at 765); Purtue v. Wis.
Dep't of Corr., 963 F.3d 598, 601 (7th Cir. 2020) (a plaintiff is
permitted to make out a discrimination case without relying
on the burden-shifting framework set out in McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973)). All that matters at this
stage is whether the totality of the evidence permits a reason-
able juror to conclude that there would have been no disparity
in pay were Palmer a different race “and everything else had
10 No. 21-1634
remained the same.” Vega, 954 F.3d at 1004 (quoting Ortiz, 834
F.3d at 764).
Palmer argues that the totality of the evidence permits a
finding that IU paid him unequally during the 2017–18, 2018–
19, and 2019–20 terms because of his race. But an unequal pay
claim begs for some comparator evidence: unequal to what?
And here Palmer’s argument hits a glitch.
A suitable comparator is an employee who is directly com-
parable to the plaintiff “in all material respects.” Warren v. Solo
Cup Co., 516 F.3d 627, 630–31 (7th Cir. 2008). There must be
“enough common factors” between the plaintiff and his com-
parator “to allow for a meaningful comparison.” Coleman v.
Donahoe, 667 F.3d 835, 847 (7th Cir. 2012) (cleaned up). But
“[p]rofessors are not interchangeable like widgets,” so Palmer
merely showing that his comparator is also a lecturer in the
same department is not enough to meet his burden that the
two are comparable. Spencer v. Va. State Univ., 919 F.3d 199,
204, 208 (4th Cir. 2019), as amended (Mar. 26, 2019). Such a
showing is merely a “broad generalization about tasks and
skills, which appl[ies] virtually to all teachers, [and] fail[s] to
satisfy [the plaintiff’s] burden to show equal work.” Id.Palmer insists that we should compare his pay to that of
only one other lecturer in the Marketing Department, Josh
Gildea, and that, rather than compare their base pay, we
should compare their total income including stipends.
Palmer’s narrow argument fails because Gildea’s income does
not provide a proper framework for comparison. Looking be-
yond the fact that both Palmer and Gildea are lecturers in the
Marketing Department, “a litany of concrete differences un-
derscore that [Palmer] does not perform work equal to that of
[Gildea].” Id.No. 21-1634 11
Palmer has always earned a higher base pay than Gildea
(and, indeed, higher than every salaried lecturer in the de-
partment). But during the relevant timeframe (from the onset
of the 2017–18 school year to the end of the 2019–20 school
year), Gildea was paid $171,731 more than Palmer in total. Of
this sum, $105,000 was for Gildea’s role as Director of the
BMA, which Palmer concedes was separate from and addi-
tional to the role of lecturer. 1 Palmer still takes issue with the
remaining $66,731, which he attributes to two factors that he
says can only be explained by race discrimination: (1) Gildea
earned additional compensation for the overload classes that
he taught during this period and (2) Gildea received higher
raises than Palmer from 2017 onward. But neither provides
support for his unequal pay claim.
First, the stipends Gildea earned for the overload classes
he taught do not provide a basis for an unequal pay claim. At
the very heart of an unequal pay claim is the plaintiff’s burden
to show unequal pay for equal work. See, e.g., Poullard, 829
F.3d at 854. Gildea’s additional income from teaching over-
load classes that Palmer did not also teach cannot be the basis
of an unequal pay claim because the work performed was not
equal. See David v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846
1 Palmer’s briefs state that only $60,000 was for Gildea’s role as the Direc-
tor of the BMA, leaving a $111,731 difference after subtracting the BMA
payments. However, the undisputed facts show that Gildea earned the
$30,000 stipend for his BMA role for each of the three years in issue, 2017–
18, 2018–19, and 2019–20. Furthermore, Palmer argues that Gildea earned
two $7,500 summer stipends for his work in the BMA, which Gildea’s offer
letter in the record shows that he received through 2019. Therefore, the
total amount attributable to Gildea’s role as Director of the BMA is the
sum of three $30,000 stipends and two $7,500 summer stipends, or
$105,000.
12 No. 21-1634
F.3d 216, 227 (7th Cir. 2017) (declining to find evidence of un-
equal pay when the plaintiff’s alleged comparator was per-
forming duties similar to the plaintiff’s position plus addi-
tional duties in a different position).
Recognizing that Palmer’s duties were not all directly
comparable to Gildea’s, Palmer attempts to advance his une-
qual pay claim by arguing that he was denied similar oppor-
tunities to teach overload classes. While the denial of an op-
portunity may provide the basis for a Title VII claim, it pro-
vides no basis for Palmer’s unequal pay claim, which requires
unequal pay for equal work. Palmer cannot establish an une-
qual pay claim by arguing that a requirement for a successful
claim—equal work—can be excused in the event of unequal
opportunities. Denial of equal career opportunities is a sepa-
rate claim that Palmer has not made. See 42 U.S.C. § 2000e-
2(a)(2); see also Patt v. Fam. Health Sys., Inc., 280 F.3d 749, 753
(7th Cir. 2002) (concluding that “an employer's deliberate de-
nial of career opportunities could constitute an adverse em-
ployment action”). Palmer insists his claims on appeal are
limited to unequal pay and a failure to promote. So we take
this line of argument based on the alleged denial of equal op-
portunities no further.
What survives of Palmer’s unequal pay claim is only that
Gildea’s base pay climbed near to Palmer’s between 2017 and
2019 because Gildea earned higher annual raises than him.
But Gildea earned higher raises than everyone in the depart-
ment. Palmer does not dispute that it was uncommon for lec-
turers in the department to receive raises exceeding 5%, as
Gildea did, or that Palmer’s raises were in line with others in
the department. While Palmer highlights that both are lectur-
ers in the Marketing Department with good student ratings,
No. 21-1634 13
the record shows that beyond those broad similarities, Gildea
was an outlier in the department and not a proper compara-
tor.
Gildea taught so many overload classes between 2017 and
2019 that he completed five years’ worth of a lecturer’s teach-
ing load in his first three years at IU. And though he was sep-
arately compensated for completing each course, the district
court found that these overload courses increased not only
Gildea’s depth of experience (nearly double the hours of
teaching experience Palmer had under his belt at his three-
year mark) but also the breadth—spanning ten different
courses in several different subject areas across both the un-
dergraduate and graduate programs (compared to Palmer’s
experience at his three-year mark which was primarily in
three courses in the undergraduate program). In short,
Gildea’s overload courses enabled him to ramp up more
quickly to the experience level of a lecturer who had worked
for more years, and IU was entirely permitted to steepen his
raises to account for that. See Eaton v. Ind. Dep't of Corr., 657
F.3d 551, 556 (7th Cir. 2011) (“[T]he comparators must be sim-
ilar enough that any differences in their treatment cannot be
attributed to other variables.”). Moreover, IU stated that it
sought to compensate Gildea with raises for his success as Di-
rector of the BMA. After he started as Director, a position
which the undisputed facts show carried extensive responsi-
bilities atypical for any lecturer and the starting salary for
which would have been significantly higher than for a lec-
turer, Gildea grew the BMA into the largest academy in the
MBA program between 2017 to 2019. There is no available
comparison to Palmer’s administrative position because
Palmer resigned from his role as Diversity Coach in 2017, the
first year that Gildea was hired, explicitly declining to remain
14 No. 21-1634
in the role when it became more focused on growth through
recruiting. See Senske v. Sybase, Inc., 588 F.3d 501, 510 (7th Cir.
2009) (stating that a difference in performance history is a var-
iable that can explain differences in treatment of a plaintiff
and his alleged comparator). Palmer insists that IU gave too
much credit to Gildea for the growth of the BMA, but “we are
not a super-personnel board,” so we do not review compen-
sation committees for their business acumen. Guerrero v. Ash-
croft, 253 F.3d 309, 314 (7th Cir. 2001) (holding that “we may
not punish an employer for choices that constitute business
decisions alone”).
Without any comparator in the record against whom
Palmer was underpaid, the totality of the evidence simply
does not support a reasonable inference of race discrimination
against Palmer when it came to his pay.
AFFIRMED
No. 21-1634 15
EASTERBROOK, Circuit Judge, concurring. From 2017
through 2019 Josh Gildea was the highest-paid lecturer in the
marketing department of the Kelley School of Business. Paul
Palmer was the second-highest-paid lecturer. Palmer con-
tends that this difference proves racial discrimination. I agree
with my colleagues that it does not, because it does not imply
that Palmer would have fared better if he were white and all
else remained the same. See Ortiz v. Werner Enterprises, Inc.,
834 F.3d 760 (7th Cir. 2016). So I join the opinion for the court.
I add a few words about the sort of inference Palmer wants us
to draw.
In every distribution of numbers, one is highest. This is a
fact about numbers; it is equally true if the numbers concern
incomes, the weight of starlings, or the height of foam in beer
glasses. Most distributions are normal, with upper and lower
tails plus a bell-shaped middle. If every member of the faculty
at Indiana University were white, a distribution of incomes
still would exist, without any chance that it had been caused
by racial discrimination.
Suppose the third-highest-paid lecturer were to file a suit
and contend that Palmer’s higher pay shows discrimination.
That would make no more sense than Palmer’s contention
that being #2 shows discrimination. All the difference shows
is a distribution of incomes; it does not imply that, if Gildea
and Palmer were the same race, Palmer would be the highest-
paid lecturer. But if Palmer is right, then every lecturer at the
Kelley School (other than Gildea) is a victim of racial discrim-
ination, because all are paid less than some other lecturer of a
different race. Is Indiana University really engaged in ram-
pant discrimination in favor of non-white lecturers, shown by
16 No. 21-1634
the fact that Palmer’s income exceeds all but one of the other
lecturers?
Teachers are not fungible, as the court’s opinion observes.
To rest a claim of discrimination on levels of compensation it
would be necessary to compare the median income of one eth-
nicity or sex against the median of another, as in King v. Acosta
Sales & Marketing, Inc., 678 F.3d 470, 475 (7th Cir. 2012), or to
construct a statistical model that would reveal the weights the
Kelley School gives to teaching (quantity and quality), schol-
arship (quantity and quality), and community service such as
committee work, so that any effect of race or sex could be iso-
lated. Palmer did not try either of these approaches. He
stopped with the observation that Gildea had higher total
compensation, and that observation does not hint at racial dis-
crimination.