Markel v. Bd. Of Regents of the University of Wisconsin System

• Decision Date: 03 January 2002
• Docket Number: No. 01-1513,01-1513
• Parties: (7th Cir. 2002) Karla J. Markel, Plaintiff-Appellant, v. Board of Regents of the University of Wisconsin System, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 906

276 F.3d 906 (7th Cir. 2002)

Karla J. Markel, Plaintiff-Appellant, v. Board of Regents of the University of Wisconsin System, Defendant-Appellee.

No. 01-1513

In the United States Court of Appeals For the Seventh Circuit

Argued December 4, 2001

Decided January 3, 2002

Appeal from the United States District Court for the Western District of Wisconsin. No. 00 C 254--Barbara B. Crabb, Chief Judge. [Copyrighted Material Omitted] Alan C. Olson (argued), Alan C. Olson & Associates, Mew Berlin, WI, for appellant.

Michael J. Losse, Richard Briles Moriarty (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for appellee.

Before Bauer, Posner, and Easterbrook, Circuit Judges.

Bauer, Circuit Judge.

From October 1998 through June 1999, Karla Markel was employed on a fixed-term nine month contract by the University of Wisconsin Learning Innovations. A month prior to the end of Markel's contract she was dismissed from her position, but she was still paid in full until her contract expired. Markel later filed a complaint in the Western District of Wisconsin claiming that she was discriminated against on the basis of her gender, in violation of the Civil Rights Acts of 1964, as amended, 42 U.S.C. sec. 2000 et seq., and that she was paid less than her male counterparts for the same work, in violation of the Equal Pay Act of 1963, 29 U.S.C. sec. 206(d). The University of Wisconsin moved for summary judgment on both claims, and the district court granted the motion finding there was no genuine issue of material fact and that summary judgment was warranted as a matter of law. Markel filed a timely appeal with this court, and after briefing and oral argument we conclude that the district court correctly granted summary judgment and affirm.

BACKGROUND

The University of Wisconsin Learning Innovations (UWLI) is a division of the University of Wisconsin Extension. The mission of the Extension is to promote various University programs and resources to the citizens of Wisconsin not enrolled in the University. Karla Markel was hired by UWLI pursuant to a nine month fixed- term contract, which was to run from October 1998 until June 1999. The contract did not provide for renewal and disavowed any right to notice of nonrenewal. Included with the contract was a non-compete clause and an agreement not to disclose any proprietary information. As part of UWLI, which provided web-based services to corporations and governmental entities, her job duties included developing sales of web-based services to health care organizations. Markel was to receive a 3.5% bonus based on gross revenues generated, if certain conditions were met. Markel's supervisors were Michael Offerman, the Dean and Director of UWLI, and Philip LaForge, Marketing Manager.

In April 1999, Offerman and LaForge were informed that Markel, Richard Schafer, and Jeffery Sledge were involved with a competing company, called Learning W@rks, and were trying to recruit UWLI employees to staff it. A meeting occurred at a restaurant among the employees, supposedly to recruit John Ashley and discuss business strategy. Offerman, together with LaForge and Holly Breitkreutz, Associate Dean & Director of UWLI, went to the restaurant and saw four employees there, seated together. After the meeting, when Ashley returned to the office, Offerman confronted him. Ashley told Offerman the business plan and gave him some documents from the new business.

It seems that the employees intended to take advantage of Schafer's connection, through his wife, to an existing enterprise called Leadership Online, which performed services similar to that of UWLI. They also planned to use Sledge's involvement with a nonprofit company called Learning Works Group. Learning Works Group, because of its connections to former University regents, appeared to be affiliated with the University. Apparently, Leadership Online was supposed to take over Learning Works Group and use some of its' name recognition and inferred associations with the University to attract business.

In May 1999, armed with this information, Offerman and Breitkreutz confronted Markel. They asked Markel about her involvement with Learning W@rks, and gave her written notice of the charges of dismissal and a chance to respond. Offerman told her that in order to avoid dismissal she needed to either write out and sign a statement outlining what she knew about the new business or resign. Markel refused to sign a statement and said she would need to consult with an attorney before answering Offerman's questions. The meeting ended, and Markel was forced to cease work immediately and return all UWLI property. However, the next step in the process to terminate Markel was not taken, and she was paid in full until the end of her contract on June 30, 1999. Markel later filed an appeal of the dismissal and requested a hearing, but because her contract had already ended and it was nonrenewable, Offerman withdrew the dismissal charges.

ANALYSIS

We review a district court's grant of summary judgment de novo, to determine if there is a genuine issue of material fact that would necessitate a trial. Griffin v. City of Milwaukee, 74 F.3d 824, 826-27 (7th Cir. 1996). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The facts are viewed in a light most favorable to the nonmoving party and all reasonable inferences are drawn in favor of the nonmoving party. In the employment discrimination context, summary judgment is warranted where "the evidence, interpreted favorably to the plaintiff, could [not] persuade a reasonable jury that the employer had discriminated against the plaintiff." Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989).

A. Gender Discrimination Claim

A plaintiff in an employment discrimination action may prove discrimination either through direct evidence or indirect evidence, using the McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), burden shifting approach. See Randle v. LaSalle Telecom., Inc., 876 F.2d 563, 565-69 (7th Cir. 1989). In either case, the burden is on the plaintiff to demonstrate genuine issues exist for trial. Griffin, 74 F.3d at 827.

1. Direct Discrimination

As she did in the district court, Markel contends that several statements attributed to Offerman and LaForge are evidence of direct discrimination. Offerman, LaForge, and the University deny that the statements were ever made. At oral argument the University contended that these statements are more appropriately considered performance related, and even if they are believed, show an aversion toward age not gender. Either way, the statements are not worth repeating because they fail to show direct discrimination. In order to arrive at the conclusion Markel would have us reach, we would need to infer discriminatory animus into the statements, which we cannot do. See Randle, 876 F.2d at 569-70 (holding that "direct evidence, if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption") (emphasis added). Moreover, the statements were claimed to have been made between November 1998 and March 1999, and Markel was removed from her position nearly two months later in May 1999. Therefore, these statements were not made contemporaneously to the adverse employment action as required by our case law. See id.; Conley v. Vill. of Bedford Park, 215 F.3d 703, 711 (7th Cir. 2000) ("'To rise to the level of direct evidence of discrimination, this Court has stated that isolated comments must be contemporaneous with the [adverse action] or causally related to the [applicable] decision-making process.'") (citations omitted); Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000). The district court properly found Markel failed to demonstrate any potential claim of direct discrimination.

2. Indirect Discrimination

Under the McDonnell-Douglas burden shifting approach, in order to establish a prima facie case for gender discrimination, the plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was performing her job to her employer's legitimate expectations; (3) that in spite of her meeting the legitimate expectations of her employer, she suffered an adverse employment action; and (4) that she was treated less favorably than similarly situated male employees. See, e.g., Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998); Randle, 876 F.2d at 570-71.

Markel meets the first prong of the test because she is a member of a protected class. However, the district court found that Markel did not meet the second prong because she violated the non-compete clause in her contract. Thus, the district court did not reach the third prong of the test. Nevertheless, on appeal, Markel used a considerable portion of her brief to contend that she suffered an adverse employment action. This is an interesting legal question be cause Markel was not technically dismissed from her job; she was paid in full until the end of her contract, and her contract was nonrenewable. Typically, adverse employment actions are economic injuries such as dismissal, suspension, failure to promote, or diminution in pay. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998) ("A tangible employment action in most cases inflicts direct economic harm."); Hunt-Golliday v. Metro. Water Reclamation Dist. of Greater Chicago, 104 F.3d 1004, 1014-15 (7th Cir. 1997) (suspension and suspension pending termination); Hunt v. City of Markham, Illinois, 219 F.3d 649, 654-55 (7th Cir. 2000) (denial of a raise); Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999) (denial of a promotion). Markel could be considered to have been constructively discharged, though not in the traditional sense, or suspended pending...