Johnson v. University of Wisconsin-Eau Claire

• Citation: 70 F.3d 469
• Decision Date: 15 November 1995
• Docket Number: No. 95-1361,WISCONSIN-EAU,95-1361
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 644, 67 Empl. Prac. Dec. P 43,790, 104 Ed. Law Rep. 1046 Laurel A. JOHNSON, Plaintiff-Appellant, v. UNIVERSITY OFCLAIRE, Thomas F. Miller, Donald F. Reynolds, Marjorie R. Smelstor, Bernard Duyfhuizen, Douglas A. Pearson, and Allen L. Curtis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 469

70 F.3d 469

69 Fair Empl.Prac.Cas. (BNA) 644,

67 Empl. Prac. Dec. P 43,790, 104 Ed. Law Rep. 1046

Laurel A. JOHNSON, Plaintiff-Appellant, v. UNIVERSITY OF WISCONSIN-EAU CLAIRE, Thomas F. Miller, Donald F. Reynolds, Marjorie R. Smelstor, Bernard Duyfhuizen, Douglas A. Pearson, and Allen L. Curtis, Defendants-Appellees.

No. 95-1361.

United States Court of Appeals Seventh Circuit.

Argued Sept. 18, 1995.

Decided Nov. 15, 1995.

Douglas O. Johnson (argued), Eau Claire, WI, for Plaintiff-Appellant.

David C. Rice, Asst. Atty. Gen., Jennifer Sloan Lattis, Asst. Atty. Gen. (argued), Monica Burkert-Brist, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before FLAUM, KANNE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

Laurel Johnson sued the University of Wisconsin-Eau Claire pursuant to both 42 U.S.C. Sec. 1983 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e-2(a) and 2000e-3(a). Johnson claimed 1) that she was subject to wage discrimination for academic years 1990-91 and 1991-92 because of her sex and 2) that she was retaliated against for protesting the wage discrimination in June of 1991, for complaining about her 1991-92 appointment letter, and for filing a complaint in January 1992 with the Equal Employment Opportunity Commission. Johnson alleged that the University, through the named defendants, retaliated against her by limiting the number of classes she was assigned, reducing her wages, giving her a low performance rating, and ultimately terminating her employment. The district court granted summary judgment for the defendants, and Johnson appealed. We affirm.

I.

From 1984 until 1993 Laurel Johnson worked for the University of Wisconsin-Eau Claire ("UWEC") teaching composition courses in the Department of English. Throughout this period, Johnson was employed under successive, one-year, fixed-term, "Option 2" contracts. ¹ Unlike faculty members, who generally hold PhD degrees and either have tenure or are being considered for tenure, academic staff like Johnson rarely have PhD degrees and are given only one-year contracts, with no expectation of renewal. According to the UWEC Faculty and Academic Staff Handbook, such "fixed-term" appointments are "renewable solely at the option of the University, and carry[ ] no expectation of re-employment beyond the stated term, regardless of how many times renewed." Furthermore, all of Johnson's contracts contained the following language: "Please note that it is not intended at present to renew this fixed term appointment." The contracts also expressly noted that tenure was not possible under her contract.

Roger Anderson was also hired in 1984 by the English Department under an Option 2 contract. Anderson and Johnson both had masters degrees. Johnson's initial salary "base rate" was $800 higher than Anderson's apparently because Johnson had two years prior experience teaching high school. At the time, base rates for academic staff were established through a recommendation by the relevant department, which would have to be approved by the Dean of the School of Arts and Sciences and the Chancellor's office. Actual compensation each year was determined by multiplying the base rate by the percentage of a full teaching load that was taught. A full teaching load was 12 credits per semester, 24 credits per year.

A. 1990-91 Academic Year

In succeeding years, Johnson and Anderson were rehired annually under similar one-year, fixed-term contracts. While their appointment percentages varied, they received incremental raises annually, and Johnson's base rate remained approximately $800 higher than Anderson's until the 1990-91 academic year. Johnson's base rate for 1990-91 was raised incrementally to $19,450, and she was given a 100% teaching appointment for both semesters. Anderson's base rate for the year was raised incrementally to $19,000, but he was allotted only a 83.33% (10 credits) fall teaching load and a 41.67% (5 credits) spring teaching load. As a result, Anderson would have made $7916.35 for the fall and $3958.65 for the spring, for a total of $11,875 for the year. Teaching 15 credits for this salary amounts to a rate of $791.67 per credit. (Since Johnson taught a full load, she was effectively paid $810.42 per credit.)

Since occasional or one-time temporary teachers were paid $800 per credit, Anderson complained to Lee Grugel, Dean of the School of Arts and Sciences. Dean Grugel then wrote a letter to the Acting Vice Chancellor, Patricia Ostmoe, recommending that for the 1990-91 school year Anderson be paid at the $800 per credit rate, stating that this rate should be "the absolute minimum for a person of Mr. Anderson's experience and qualifications." The per credit approach was approved, and Anderson was paid $8000 for the fall term (10 credits) and $4000 for the spring term (5 credits). ² This would have increased his academic year salary by only $125, from $11,875 to $12,000. Because Anderson's spring appointment was later increased to 8 credits, he ended up being paid $14,400 for the year (18 credits at the $800 per credit rate). ³ It should be noted that even teaching a full load at the $800 per credit rate amounts to a yearly salary of $19,200, i.e., $250 less than Johnson's base rate and actual salary for the 1990-91 academic year.

B. 1991-92 Academic Year

On May 13, 1991, Nadine St. Louis, Chair of the English Department, recommended an "equity" raise in the base rates of both Johnson and Anderson to $21,000 for the 1991-92 academic year. ⁴ The procedure for establishing salary levels at the time was that the chair of the department would make a recommendation, which could be accepted, rejected, or altered by the dean of the college. The college dean would then send a final salary recommendation to the vice chancellor, who would review the request and prepare an appointment letter for the chancellor's signature. St. Louis's recommendations for both Johnson and Anderson were approved and signed by Dean Grugel on May 20, 1991 and by Vice Chancellor Marjorie Smelstor on May 23, 1991.

These salary recommendations eliminated the previous base-rate differential between Anderson and Johnson. St. Louis notes in her affidavit that Johnson's high school teaching experience did not affect her recommendation, since her primary aim was to improve the very low salary of both within the budget limitations of the department and to establish base rates exceeding the $800 per credit that temporary teachers received. Dean Grugel likewise states in his affidavit that it would not have been uncommon at UWEC for minor pay distinctions, like one premised on such a small differential in experience, to be eliminated during subsequent pay increases.

When the actual contract letters were sent on June 10, 1991, however, Anderson's base rate was $21,000, while Johnson's was only $19,450. Upon learning of the situation shortly thereafter, the new Acting Chair of the Department of English, Bernard Duyfhuizen, phoned Dean Grugel about the discrepancy. When Duyfhuizen requested that Johnson's base rate be changed, however, he mistakenly used the term "equity" to describe the problem. Consequently, Dean Grugel apparently understood Duyfhuizen to be requesting an additional equity increase for Johnson (rather than the correction of an error) and told Duyfhuizen that any such adjustment would have to wait until all salary decisions had been made, when the remaining budget could be determined.

Duyfhuizen reported this conversation to Nadine St. Louis. And on June 13, 1991, St. Louis wrote a letter to Dean Grugel about the disparity and requested that Johnson's contract be rewritten with a $21,000 base rate. St. Louis stated that "I don't believe any sex discrimination was intended here, knowing you as I do," but pointed out that Ms. Johnson understands "forms of discrimination" and is married to a lawyer. St. Louis also noted that the situation looked like "the nicest grounds for a sex-discrimination suit that have come across my desk in a long time." On June 25, 1991, Johnson personally wrote Dean Grugel, accusing the University of sex discrimination and requesting either an explanation in writing why the department's salary recommendation was not followed or an amended contract.

After receiving all of these contacts, Dean Grugel wrote the Vice Chancellor for Academic Affairs, Marjorie Smelstor, on July 1, 1991 and "strongly recommend[ed]" that Johnson's base rate be made equal to that of Anderson for the up-coming school year. The letter was forwarded to Thomas Miller, the Associate Vice Chancellor, whose office had prepared the earlier contract letters. Miller, who had just assumed the post, could not find any documentation that anyone had actually rejected the English Department's recommendation for Johnson (approved by the dean and the vice chancellor), so he assumed that offering Johnson the same base rate as the previous year had simply been a clerical error. On July 17, 1991, Miller sent a letter of apology to Johnson, stating that the whole thing was a "purely unintentional clerical mistake," and a new contract with a base rate of $21,120. Thus Johnson's base rate was changed before any work was performed under the new contract, and all of her checks for the 1991-92 academic year were based on the $21,120 base rate.

C. 1992-93 Academic Year

English 110-Freshman Composition is a required course for all undergraduates at UWEC. (Honors students take a parallel course within the Honors Program.) In order to promote equality within the English Department, all academic faculty within the department teach one section of English 110 each semester that they are in residence. Nevertheless, in the years preceding the 1992-93 academic year, a backlog developed of undergraduates needing this staple course, which upset parents, students, and school administrators. Articles appeared...