Cullen v. Indiana University Bd. of Trustees

• Decision Date: 29 July 2003
• Docket Number: No. 02-3043.,02-3043.
• Citation: 338 F.3d 693
• Parties: Deborah CULLEN, Plaintiff-Appellant, v. INDIANA UNIVERSITY BOARD OF TRUSTEES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

338 F.3d 693

Deborah CULLEN, Plaintiff-Appellant, v. INDIANA UNIVERSITY BOARD OF TRUSTEES, Defendant-Appellee.

No. 02-3043.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2003.

Decided July 29, 2003.

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Kenneth E. Lauter, Ryan C. Fox (argued), Haskins, Lauter, Cohen & Larue, Indianapolis, IN, for Plaintiff-Appellant.

Susan B. Tabler (argued), Ice Miller, Indianapolis, IN, for Defendant-Appellee.

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 discrimination 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 University on the retaliation claim. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

Deborah Cullen began her employment at Indiana University'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 Respiratory 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 numerous 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 increases averaged 4.37%; the average of SOAHS faculty increases was 3.25% per year.

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 accreditation status and in danger of losing its accreditation. This situation presented a major problem for the University because students must graduate from an accredited program in order to be permitted to sit for the physical therapy licensing exam. Upon assuming his responsibilities, therefore, 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 successfully 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. Physical 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 disciplines.

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 conducted 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 deviation 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 discrimination as the cause of Dr. Cullen's lower salary. It is notable that approximately 60% of the outliers identified by the study were male.

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 statistically 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 recommend[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 standard 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. 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 determined 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 discrimination 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.

II DISCUSSION

A. Equal Pay Act

Dr. Cullen submits that the district court erred in granting summary judgment in favor...