Kovacevich v. Kent State University

• Decision Date: 09 December 1999
• Docket Number: No. 98-3678,98-3678
• Parties: (6th Cir. 2000) Dorothy Kovacevich, Plaintiff-Appellant, v. Kent State University, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 806

224 F.3d 806 (6th Cir. 2000)

Dorothy Kovacevich, Plaintiff-Appellant, v. Kent State University, Defendant-Appellee.

No. 98-3678

UNITED STATES COURT OF APPEAL FOR THE SIXTH CIRCUIT

Argued: December 9, 1999

Decided and Filed: August 25, 2000

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 95-00626--Donald C. Nugent, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Brian J. Williams, BRIAN J. WILLIAMS CO., Akron, Ohio, Dennis R. Thompson, THOMPSON LAW OFFICE, Akron, Ohio, for Appellant. Edward C. Kaminski, AMER CUNNINGHAM BRENNAN CO., Akron, Ohio, for Appellee.

Kathaleen B. Schulte, SPATER, GITTES, SCHULTE & KOLMAN, Columbus, Ohio, for Amici Curiae.

Edward C. Kaminski, Richard T. Cunningham, Michael S. Urban, AMER CUNNINGHAM BRENNAN CO., Akron, Ohio, for Appellee.

Before: JONES, COLE, and GILMAN, Circuit Judges.

JONES, J., delivered the opinion of the court, in which COLE, J., joined. GILMAN, J. (pp. 833-40), delivered a separate concurring opinion.

OPINION

NATHANIEL R. JONES, Circuit Judge.

This appeal follows a lengthy employment discrimination trial pitting a long-time professor at Kent State University ("KSU") against the University. After a trial and jury verdict in the plaintiff's favor on sex and age discrimination claims, the district court granted KSU's motion for judgment as a matter of law on these claims. The plaintiff appeals this decision, as well as other district court rulings in KSU's favor. We AFFIRM in part, and REVERSE in part.

I.

A.

After receiving her doctorate from KSU, Plaintiff-Appellant Dorothy Kovacevich began teaching at KSU's College of Education in 1973 as a non-tenure track, one-year Instructor. In 1975, at the age of 46, she was hired into a tenure-track position, working as an assistant professor in the College of Education's Special Education department. KSU offered her a $14,000 academic year salary, and she accepted. Her duties included teaching and coordinating the field experience of Special Education student teachers. In 1978, Kovacevich was granted tenure. Her fortunes at KSU over the ensuing fifteen years--and in particular her history of promotion and salary increases over those years--are the subject of this litigation.

1) Discrimination in Promotion

Kovacevich first contends that KSU discriminated against her by promoting her at a snail's pace due to her gender. Before considering her situation in particular, we will review KSU's general procedures for granting promotions.

KSU is organized into six academic colleges, which are divided into separate departments. There are three ranks of tenure-track professor positions at KSU: assistant, associate and full professor. A series of collective bargaining agreements governs the process and criteria used to grant promotions. Promotion applications proceed through a layer of reviews by KSU faculty and administrators. The first reviewing committee is the Faculty Advisory Committee (FAC), comprising faculty members of an applicant's own department who are elected for several-year terms. The FAC issues a recommendation to the chairperson of the department, who makes her own recommendation after independently reviewing the application. The College Advisory Committee (CAC), comprising faculty members from the entire college, performs the next review. The CAC makes a recommendation to the dean of the college in which the department belongs, and the dean makes another independent review and recommendation. Next, the University Advisory Board (UAB), made up of professors from across the university, reviews the application and makes a recommendation to the KSU provost. The provost then makes a recommendation to the president,¹ who makes a recommendation to the KSU Board of Trustees based on an assessment of the complete application, including all the recommendations. At any level, a favorable recommendation moves the application to the next level. Any unfavorable recommendation ends the process, barring a successful "appeal" at the next level. In sum, the levels of review are as follows:

1)Faculty Advisory Committee (FAC)

2)Department Chairperson

3)College Advisory Committee (CAC)

4)Dean of the College

5)University Advisory Board (UAB)

6)University Provost

7)University President

To be promoted, a faculty member must demonstrate outstanding work in one of three areas: 1) teaching and advising; 2) research and scholarship; or 3) service and creative effort. In addition, a candidate must meet minimum requirements in the other two areas. As part of the application procedure, an applicant must submit substantial paperwork and other materials that evince her professional accomplishments.

Kovacevich first applied for promotion to an associate professor position in 1978. Although the FAC and department chairperson recommended her promotion, the CAC denied her application. She did not appeal this decision. In 1980, Kovacevich once again applied for a promotion; she obtained the recommendation of the FAC, her department chairperson, the CAC and the dean of the College of Education, yet the UAB and the provost denied her application, citing a lack of sufficient scholarship. Kovacevich appealed that denial to then-President Brage Golding, who agreed with the denial. She did not appeal the decision further.²

In 1983, Kovacevich once again applied for promotion to associate professor. She acknowledged at trial that her documentation was "a mess." J.A. at 534-36. After receiving the recommendation of the FAC and department chairperson, the CAC recommended against promotion, as did the dean of the College. The appeals board, the provost, and the president all denied her appeals. Once again, they explained that her research and scholarship were weak.

In 1987, after serving as an assistant professor for fifteen years, Kovacevich applied once again to be an associate professor. Although she received recommendations from the FAC, the department Chairperson, the CAC and the dean of the College of Education, the UAB recommended against promotion. Nevertheless, the provost rejected that recommendation, and recommended granting the promotion, effective for the 1988-89 academic year. The KSU President agreed, concluding that although her scholarship remained weak, it had improved somewhat, and that Kovacevich had a long history of service to KSU.

2) Wage Discrimination

Kovacevich also argues that KSU discriminated against her, based on gender and age, when granting salary increases during her years there. There are four ways in which KSU faculty salaries are increased: 1) promotion; 2) merit awards; 3) fixed percentage across-the-board salary increases; and 4) equity salary adjustments. Kovacevich here challenges KSU's granting of her merit awards.

Merit awards are only available in those years when sufficient funds are available. They are analogous to a bonus in that they reward faculty members for achievement in teaching or scholarship. Unlike a bonus, however, a merit award becomes a permanent addition to a professor's base salary for future years. In years that merit awards are available, interested faculty members must submit an application documenting their achievements from that year. In the College of Education, the FAC reviews that application, with each FAC member rating the applicant's teaching and research/scholarship. Faculty members may earn merit in one or both categories. Based on the rank-orderings of the compiled FAC evaluations, the department chairperson (who does not know the names of the applicants) ranks the various applications and determines an amount to be awarded to each applicant. The chairperson then submits the list to the dean of the college, who makes the final determination of award amounts.

Since 1977, merit awards were available eleven times. Kovacevich applied for awards on at least eight occasions. KSU granted her merit increases seven times, providing her the minimum award each time. On two occasions, the dean of the College of Education reduced the award amount which Kovacevich's department chairperson had recommended she receive. On another occasion, the dean disallowed a recommended award. The following chart shows Kovacevich's merit award history:

1977-78:$350

1978-79:$300

1979-80:$0 (applied)

1980-81:$0³

1981-82:none available

1982-83:none available

1983-84: did not apply

1984-85: $500

1985-86:did not apply

1986-87:$500

1987-88: none available

1988-89: $500

1989-90:none available

1990-91:$250

1991-92:$350

(Merit awards were not available after 1991-92)

J.A. at 74-75, 974.

In 1989, Kovacevich formally requested a salary adjustment. The college dean appointed a committee to consider the request, and the committee ultimately concluded that Kovacevich's record of performance did not warrant the requested adjustment. Kovacevich submitted a second salary adjustment request in 1991, seeking an annual increase of $12,500. On this occasion, a CAC committee found compelling reasons to consider an adjustment when merit funds were available. Because merit funds were not available, Kovacevich and the American Association of University Professors ("AAUP") filed a grievance to gain the adjustment from another funding source. Concluding that her salary was appropriate based on her work record, the KSU provost denied the grievance in March 1993. Kovacevich never received her requested adjustment, and filed her EEO charge of discrimination on January 12, 1994.

3) Comparators

In both of her claims, Kovacevich argues that other similarly situated faculty members were treated more favorably.

a) Dr. Zuckerman

In support of her claims of gender-based wage discrimination, Kovacevich presented evidence that Dr. Robert Zuckerman was a similarly situated comparator who was treated more favorably. KSU hired Zuckerman in 1976 as an assistant...