Tagatz v. Marquette University

• Decision Date: 16 November 1988
• Docket Number: No. 88-1498,88-1498
• Citation: 861 F.2d 1040
• Parties: 50 Fair Empl.Prac.Cas. 99, 48 Empl. Prac. Dec. P 38,462, 50 Ed. Law Rep. 332 Glenn E. TAGATZ, Plaintiff-Appellant, v. MARQUETTE UNIVERSITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1040

861 F.2d 1040

50 Fair Empl.Prac.Cas. 99, 48 Empl. Prac.

Dec. P 38,462,

50 Ed. Law Rep. 332

Glenn E. TAGATZ, Plaintiff-Appellant, v. MARQUETTE UNIVERSITY, Defendant-Appellee.

No. 88-1498.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 29, 1988.

Decided Nov. 16, 1988.

Mark J. Rogers, Angermeier & Rogers, Milwaukee, Wis., for plaintiff-appellant.

John G. Hill, Jr., Marquette University, Milwaukee, Wis., for defendant-appellee.

Before BAUER, Chief Judge, and POSNER and COFFEY, Circuit Judges. ^*

POSNER, Circuit Judge.

Dr. Glenn Tagatz, a professor in the Marquette University education school, brought suit against Marquette under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sec. 626(c)(1). He charged that he had received smaller pay raises than colleagues who were either Catholic or under 40 years of age. Judge Warren, after a bench trial, entered judgment for Marquette, 681 F.Supp. 1344 (E.D.Wis.1988), and Tagatz appeals.

The case is remarkable because, for the first time ever so far as we know, the plaintiff testified as his own expert witness. (We have found a case where a party's employees testified as expert witnesses; the practice was criticized by the judge. See Rust Engineering Co. v. Lawrence Pumps, Inc., 401 F.Supp. 328, 334 (D.Mass.1975).) Dr. Tagatz, a specialist in statistical evidence in employment discrimination cases, prepared the statistical evidence on which his case rides, and was permitted to introduce the evidence as an expert witness. Rule 702 of the Federal Rules of Evidence, which governs the qualification of expert witnesses, is latitudinarian, and nothing in its language suggests that a party cannot qualify as an expert; nor did Marquette object to Dr. Tagatz's testifying as an expert witness. As Dr. Tagatz's counsel pointed out at argument, the fact that a party testifying as his own expert is not disinterested does not distinguish him from any other party who testifies in his own behalf; and hired experts, who generally are highly compensated--and by the party on whose behalf they are testifying--are not notably disinterested. There is a rule against employing expert witnesses on a contingent-fee basis (that is, against paying them more for their testimony if the party that hired them wins), and this rule might be thought to imply that a party--whose "reward" for testifying depends, of course, on the outcome of the suit--is not eligible to be an expert witness. But it is a rule of professional conduct rather than of admissibility of evidence. It is unethical for a lawyer to employ an expert witness on a contingent-fee basis, 3 Weinstein's Evidence p 706 at pp. 706-23 to 706-24 (1987), but it does not follow that evidence obtained in violation of the rule is inadmissible. See United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th Cir.1987) (en banc) (concurring opinion). The trier of fact should be able to discount for so obvious a conflict of interest. In any event, there was no objection to Dr. Tagatz's testifying as an expert witness, so we need not delve deeper into this intriguing subject.

Because the case was tried, the intricate issues concerning prima facie case that Dr. Tagatz presses on us are irrelevant. United States Postal Service v. Aikens, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Morgan v. South Bend Community School Corp., 797 F.2d 471, 480 (7th Cir.1986); Washington v. Electrical Joint Apprenticeship & Training Comm., 845 F.2d 710, 713-14 (7th Cir.1988). The only question is whether Judge Warren's determination that Dr. Tagatz had not proved that he received smaller raises than he would have if he had been either Catholic or young was clearly erroneous. Although Dr. Tagatz attempts to present a disparate-impact claim, he has not identified any specific employment practice that he contends has a discriminatory effect. See Watson v. Fort Worth Bank & Trust, --- U.S. ----, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). The only issue, therefore, is whether he proved deliberate discrimination either against non-Catholic, or against middle-aged, faculty.

Marquette is a Jesuit institution. See Maguire v. Marquette University, 814 F.2d 1213, 1214 (7th Cir.1987). It gives preference to Catholic applicants for teaching jobs in fields where Catholic doctrine is important, such as theology and philosophy, as it is permitted to do by the exemption in Title VII for religious institutions. See 42 U.S.C. Sec. 2000e-2(e)(2); cf. Pime v. Loyola University, 803 F.2d 351, 357-58 (7th Cir.1986) (concurring opinion). But its stated policy is not to discriminate against non-Catholics once they are hired; and whether because of this policy or otherwise, Marquette declined to plead the religious exemption as a defense to Dr. Tagatz's claim of religious discrimination.

Dr. Tagatz, who is 54 and an Episcopalian, received his doctorate in educational psychology from the University of Wisconsin and was hired by Marquette as an associate professor in 1968. In 1971 he was made chairman of the department of psychology in the education school but he was removed from that job in 1974. In 1976 he published a book that received a single, brutally unfavorable review, though the dean of the school of education said he rather liked it; since then Dr. Tagatz has published only one article in a professional journal. According to the Social Science Citation Index, Dr. Tagatz's book has never been cited in a scholarly publication; and none of his articles has been cited since 1982. Compare Weinstein v. University of Illinois, 811 F.2d 1091, 1093 n. 2 (7th Cir.1987).

Beginning in 1976 the dean placed annual raises on an explicitly meritocratic basis. Scholarly output (quality as well as quantity), teaching quality, and administrative and related service to the school or university are the criteria that the dean uses to determine how large a raise to give each member of the department. Between 1976 and 1981, Dr. Tagatz received average annual raises greater than some members of the department, but below the average. He brought this suit in 1982.

The evidence of discrimination is almost entirely statistical. It consists of a series of tables, prepared by Dr. Tagatz, that compare salary raises for Catholic and non-Catholic, over-40 and under-40 faculty members in the school of education. The samples are small, because the school of education has only a small faculty. In the table that Dr. Tagatz's counsel told us at argument contained the strongest evidence for his client, the salary raises between 1975 and 1985 of each of the 28 faculty members were compared with the faculty member's religion. The comparison showed that, on average, the Catholic members of the faculty received significantly larger annual raises than the non-Catholic ones. A similar table showed larger annual raises on a percentage basis for faculty members under 40 compared to those over 40. Marquette did not offer expert testimony, although Dr. Tagatz is incorrect to say that it offered no statistical evidence. It presented a table showing that the most productive scholars in the school of education, as measured by number of publications, happened to be Catholics. (Dr. Tagatz's own conspicuous lack of scholarly productivity--attributed by the school's dean to Dr. Tagatz's having "gone on strike" after he was fired as department chairman--helped depress the average for the non-Catholic members of the department.) Another table presented by Marquette compared Dr. Tagatz's numerical teaching evaluations with the average for the school's faculty, and showed that in the six periods for which comparable data were available the average score was 57.02, but his score was only 53.07. There was testimony that in addition to being a below-average teacher and at the bottom of the faculty in productivity, Dr. Tagatz was a poor citizen of the school--refusing an important committee assignment, failing to go through proper channels, enlisting students in his vendettas against other faculty members (the practice so memorably described in Mary McCarthy's novel The Groves of Academe ), and generally behaving in trying ways. Against this there was testimony that Dr. Tagatz is a prominent member of the department and leads it in the number and size of research grants received.

Dr. Tagatz's main argument is that if the plaintiff in a Title VII case presents evidence that passes standard tests of statistical significance, the defendant must present a statistically significant rebuttal or lose. This argument misunderstands the significance of statistical significance, both generally and in this case. One of Dr. Tagatz's tables comparing salary raises for Catholic and for non-Catholic faculty in the school of education reveals a difference (favoring the Catholics) that is significant at the .0048 level. This means (speaking very crudely -- see Kruskal, Tests of Significance, in 2 Int'l Encyclopedia of Statistics 944, 957 (1978)) that there is a probability of less than 5 in 1,000 that the difference is due to chance. But to infer as Dr. Tagatz would that there is a less than 5 in 1,000 chance (in the absence of contrary evidence) that the group that received the higher raises was favored because it was composed of Catholics is erroneous. All that the data show is that there is in all likelihood a real, not a spurious, difference between the means of the samples compared. The data do not show that the difference is due to a particular attribute (namely, being Catholic) which the members of the better-off group have and the members of the worse-off group lack. Correlation is not causation. Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d 395, 400 (2d Cir.1981) (Friendly, J.). Members of each group may have other things in common, and one or more of those other things, rather than religion, may...