King v. Board of Regents of University of Wisconsin System

• Decision Date: 23 April 1990
• Docket Number: Nos. 88-3481,89-1381 and 89-1477,88-3482,s. 88-3481
• Citation: 898 F.2d 533
• Parties: 52 Fair Empl.Prac.Cas. 809, 53 Empl. Prac. Dec. P 39,770, 58 USLW 2635, 59 Ed. Law Rep. 335 Katherine KING, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, University of Wisconsin-Milwaukee, Stephen A. Sonstein and Franklin Stein, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 533

898 F.2d 533

52 Fair Empl.Prac.Cas. 809,

53 Empl. Prac. Dec. P 39,770, 58 USLW 2635,

59 Ed. Law Rep. 335

Katherine KING, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM,

University of Wisconsin-Milwaukee, Stephen A.

Sonstein and Franklin Stein,

Defendants-Appellants, Cross-Appellees.

Nos. 88-3481, 88-3482, 89-1381 and 89-1477.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 1989.

Decided March 22, 1990.

As Amended March 22, 1990.

Rehearing and Rehearing En Banc Denied April 23, 1990.

Walter Kelly, Sutton & Kelly, Milwaukee, Wis., for plaintiff-appellee, cross-appellant.

Nadim Sahar, Asst. Atty. Gen., Wisconsin Dept. of Justice, Michael D. Schuman, Sodos, Schuman & Pieper, Milwaukee, Wis., for defendants-appellants, cross-appellees.

Before CUMMINGS, FLAUM and MANION, Circuit Judges.

FLAUM, Circuit Judge.

This is a sex discrimination case against the University of Wisconsin-Milwaukee (UWM) and several of its employees filed by a tenure-track professor who was denied contract renewal. The suit was filed under both 42 U.S.C. Sec. 1983 and Title VII of the Civil Rights Act of 1964. A jury issued a special verdict under Sec. 1983, finding discrimination, harassment, and retaliation by three employees of UWM and vicarious liability of UWM. The district court granted judgment n.o.v. for all the defendants except Stephen Sonstein, a tenured professor at UWM. The district court also made parallel findings on the Title VII claim. Sonstein appeals the verdict against him and King cross-appeals the judgments n.o.v. We affirm on all counts.

I.

Katherine King was hired in 1980 as an assistant professor of occupational therapy at the School of Allied Health Professions at UWM. Her appointment consisted of a three-year term, renewable for a second three-year term, renewable again for either a tenured career appointment or a one-year, terminal appointment. Her contract was renewed for the second three-year term, but a unanimous committee voted not to renew her contract for a seventh year. Subsequent to her non-renewal, King brought this suit alleging that during her employment at UWM, various members of the faculty sexually harassed or otherwise sexually discriminated against her and that UWM is vicariously liable for their actions. Only the claims against two members of the faculty at UWM, Steven Sonstein and Franklin Stein, are appealed.

Steven Sonstein served as Assistant Dean and tenured member of the faculty in the School of Allied Health Professions. During the fall term of 1980, Sonstein, acting as Assistant Dean, approached King and discussed with her various problems faced by new professors and various aspects of the operation of the program. As the fall term of 1980 proceeded, King became concerned because Sonstein began making suggestive innuendos as well as leering at her in a sexually suggestive fashion. In October and November of 1980, Sonstein became progressively more bold and offensive with respect to his sexual behavior toward King. He repeatedly leered at King and would from time to time touch her, rub up against her, place objects between her legs, make suggestive remarks and comment upon various parts of her body. Sonstein's behavior was blatant enough for other faculty members to notice and comment upon. King eventually requested that Sonstein stop treating her as he was, but he ignored these requests.

In late December of 1980, King attended the department's annual Christmas party. During the party, King went into the bathroom and Sonstein followed her in. He told King that he "had to have her" and that "he would have her." King protested but Sonstein forcibly kissed and fondled her. Eventually, King's boyfriend entered the bathroom and Sonstein relented. After King left the party, Sonstein directed similar behavior towards other women, despite requests that he stop.

After this incident, King discussed the problem with Sonstein and during the next year and three months he refrained from touching her. Then, in February, 1982, Sonstein falsely accused King of using UWM's photocopying equipment for personal use. This accusation was quite serious and was made shortly before King's contract renewal hearing. She was eventually cleared of the charges, and her contract was renewed. King, by then, had filed a sexual harassment charge against Sonstein with the UWM office for Equal Opportunity and Affirmative Action. This charge was pursued until a settlement was reached. As part of the resolution of this charge, Sonstein abstained from voting on matters relating to King's appointment.

King also made allegations against Professor Franklin Stein, the Director of the Occupational Therapy Program. The facts in this allegation, as in many claims of subtle discrimination, were much more nebulous. King argued that Stein subjected her to salary and workload disparities, unprecedented student evaluations, and poor appraisals. In addition, King argued that Stein mistreated her at faculty meetings, limited her research time, and wrongfully interfered in the tenure process. King supported these allegations with a variety of incidents occurring over the six year period she was with UWM. For example, she argued that Stein attempted to limit her research time and increase her workload by trying to de-fund her "grant buy-out" time, which is research time created by receiving a grant to pay for a substitute to fulfill the teaching load. As a result of Stein's actions, King prepared a grievance to present to the departmental Executive Committee. Before submitting her grievance, King attempted to have Stein removed from the Committee that would hear the grievance. The Committee, however, refused to remove Stein until it could examine the nature and seriousness of the grievance. It did not, however, indicate that if the grievance was potentially serious, that Stein would not be removed from consideration of the grievance. Eventually the grievance was submitted to the University's Faculty Rights & Responsibilities Committee which found that King failed to present sufficient evidence to establish a viable claim.

King also alleged that Stein interfered with the contract renewal process. King had decided, for health reasons, that she did not wish to undergo renewal evaluations during her seventh year. She asked to go on a leave of absence with pay for the year and for a stay of the tenure clock. Stein refused on the basis that UWM had never before granted leave with pay. He maintained that standard UWM policy was only to allow leaves of absence without pay. King alleged that Stein's denial was motivated by sexual animus in that he could have created a special exception for her. She eventually refused to take the offered leave without pay, and thus came up for contract renewal. King's health problems prevented her from appearing at her scheduled consideration for renewal, so she submitted her candidacy on the basis of her record. Stein was chosen to present her materials in her absence because he was the person on the faculty most familiar with her work. King objected to his appointment as her presenter because she felt that he would sexually discriminate against her by not presenting her material in its best light.

When the decision came to vote on her contract renewal, Stein, along with a unanimous committee, voted not to renew her contract on the basis of lack of endeavor in the area of scholarly publications, lack of commitment in presenting theoretical, clinical or research papers, inability to make use of research time, and a lack of activity in professional associations. In short, the Committee found that King had wholly failed to meet the expectations made of faculty members, whether it was because of discriminatory treatment or her own failings. As a result, her contract was not renewed.

King raised a variety of legal claims based on these facts. She sued under both 42 U.S.C. Sec. 1983 and Title VII, claiming environmental sexual harassment, sexual discrimination, retaliation in the exercise of protected rights, and deprivation of a property interest without due process of law. These claims were made against Sonstein, Stein, UWM and two other members of the faculty. The case was tried to a jury on the section 1983 counts and simultaneously to the judge on the Title VII claims. The jury found, in a special verdict, that Sonstein subjected her to sexual harassment, sexual discrimination, and retaliation and that Stein subjected her to sexual discrimination, retaliation, and deprivation of a property interest without due process. In addition, it found UWM liable for sexual discrimination, deprivation of a property interest without due process and failure to protect her from sexual discrimination, and it found two other members of the department liable for discrimination. The jury awarded $65,000 for past compensation and benefits, $150,000 for loss of future earning capacity, and $60,000 in pain and suffering, with these amounts not allocated among the individual defendants. In addition, the jury awarded punitive damages of $30,000 against Sonstein and $40,000 against Stein.

The defendants moved for judgment n.o.v. or in the alternative, a new trial. They claimed that there was no evidence of discrimination or retaliation in the record, no property interest in contract renewal, and no harassment based on sex. The district court largely agreed and granted the defendants' motion for judgment n.o.v. on all of the counts except the harassment claim against Sonstein. With respect to discrimination, the court held that King was not subject to salary or workload disparities, discriminatory treatment with respect to grant buy-out time, or discrimination in the tenure/contract renewal process.

As to the retaliatory actions, the district court found that Sonstein did not partake in any vote or action taken against King, as per the agreement...