Dugan v. Ball State University

• Decision Date: 06 April 1987
• Docket Number: No. 86-1139,86-1139
• Citation: 815 F.2d 1132
• Parties: 43 Fair Empl.Prac.Cas. 833, 43 Empl. Prac. Dec. P 37,026, 55 USLW 2583, 38 Ed. Law Rep. 922 Gloria M. DUGAN, Plaintiff-Appellant, v. BALL STATE UNIVERSITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1132

815 F.2d 1132

43 Fair Empl.Prac.Cas. 833,

43 Empl. Prac. Dec. P 37,026, 55 USLW 2583,

38 Ed. Law Rep. 922

Gloria M. DUGAN, Plaintiff-Appellant, v. BALL STATE UNIVERSITY, et al., Defendants-Appellees.

No. 86-1139.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1986.

Decided April 6, 1987.

Ivan E. Bodensteiner, Valparaiso, Ind., for plaintiff-appellant.

Scott E. Shockley, DeFur, Voran, Hanley, Radcliff & Reed, Muncie, Ind., for defendants-appellees.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Gloria M. Dugan, an assistant professor at Ball State University, brought this action against the university, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, Sec. 701 et seq., codified as amended, 42 U.S.C. 2000e et seq. and under 42 U.S.C. Sec. 1983. She claimed discrimination in the denial of a promotion to associate professor, in the denial of a salary increase, and in the payment of a lower salary than a similarly situated male professor. The district court granted summary judgment to defendants on all counts. We have jurisdiction under 28 U.S.C. Sec. 1291. We will affirm.

I.

Dugan began at the Department of Mathematical Sciences (the "Mathematics Department") at Ball State as a temporary faculty member in 1968. She retained that status until 1971, working under one-year employment contracts with the university. In the fall of 1971, she became an assistant professor, a "regular," tenure-track faculty member. She attained tenure in 1973 and has remained at Ball State.

During the academic year 1979-1980, Dugan applied for a promotion to associate professor. The Mathematics Department denied her application on the basis that Dugan was ineligible for the position because she did not have a doctorate degree or fit the requirements of an "equivalency." An equivalency, according to the Faculty Handbook, which sets out university policies and rules, describes conditions under which "other educational experiences and/or professional experiences are as appropriate as formal academic work." An equivalency is initiated by a department. The handbook names several committees that must approve an equivalency before a faculty member may be promoted under it.

Dugan had applied under the "Higgins equivalency." In 1976, Higgins, a long-time member of the Mathematics Department, was terminally ill. Several members of the department, including Dugan, proposed an equivalency that would make it possible for him to become a full professor. It required "full-time employment in the Mathematical Sciences Department of Ball State University prior to October 1, 1951 [Higgins joined Ball State in 1951], and twenty-five (25) years of loyal service to the profession." The equivalency, although not approved by the necessary committees, remained on file as part of the "Promotion and Tenure Guidelines for the Department of Mathematical Sciences." In that document, however, the date "1951," is rendered "1971." The seven is typed somewhat above the line and in a different typeface than the rest of the document. Dugan conceded in the court below that the date was originally 1951. Higgins was recommended for promotion by the department but died before the recommendation was acted upon.

Dugan followed the complete course of appeals available: review by committees of faculty members at the department, college, and university levels; by the president of the university; and finally by the Board of Trustees (the "Board"). Each affirmed the denial of her application for promotion, the Trustees acting on March 26, 1982. That autumn, Dugan wrote to Michael Gemignani, Dean of the College of Sciences and Humanities. Gemignani replied in a letter dated October 11, 1982, that without a doctorate, Dugan could not advance to associate professor.

In 1983, Ball State gave certain faculty members raises in pay from a "salary retention fund." The idea was that if the university increased the stipends of the more "marketable" members of its faculty, they would be less likely to be enticed elsewhere. An initial group of awards was made without the use of any published criteria or formal application process. This evidently caused a measure of discontent among the faculty. Subsequently, an application process was formulated and criteria for the awards were announced:

(1) the individual's expertise is in a high demand area;

(2) the individual has credentials that make him/her highly marketable; and,

(3) there are documentable current salary inequities relating to any individuals who meet the first two tests.

Faculty members were to apply to their respective chairperson, who was to make recommendations to the college dean, who would cull from those recommendations the applications that he would pass on to the provost.

Dugan applied for a retention fund increase. The chairman of the Mathematics Department endorsed her application. Dean Gemignani responded in his decision letter that he would not recommend her further because he did not "believe that the documentation provided presents a clear case that she is significantly underpaid as compared with others in academia with similar rank and credentials."

Dugan filed a charge against Ball State with the EEOC on July 13, 1983. As amended, it alleged sex discrimination in violation of Title VII in the denial of a promotion, in the denial of a salary increase, and in the payment of a salary less than that of a similarly situated male faculty member.

Dugan filed her complaint in the Southern District of Indiana on February 12, 1985, alleging sex discrimination in violation of Title VII and Section 1983. She also charged several causes of action based on the same events that are not on appeal: sex discrimination in violation of Title IX, a due process claim under Section 1983, and state contract claims.

The trial court granted summary judgment to Ball State on all counts. It held that the claims regarding the denial of promotion were time-barred. The Title VII claim was barred because Dugan failed to file a charge with the EEOC within 300 days of the Board's affirmance of the promotion denial. The 1983 claim was barred by the statute of limitations. The court, applying Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), retroactively, held that Indiana's two-year period for personal injury claims applied. The court also held that even if the claims were not time-barred, Ball State would be entitled to judgment as a matter of law. The court similarly held on the merits that Ball State was entitled to judgment on the claims of sex discrimination regarding the denial of a salary increase and lower pay than a similarly situated male faculty member. Dugan appeals each of these holdings. The court also granted Ball State summary judgment on the Title IX, due process and state contract counts; Dugan does not appeal from these last-mentioned decisions.

II.

The trial court ruled that Dugan's Title VII claim relating to the promotion denial was untimely because she failed to file her charge with the EEOC within 300 days of the Board's affirmance of the decisions below. The Title VII claims regarding the denial of a salary increase and less pay than a similarly situated male were timely. Dugan argues that the time should be measured from the subsequent letter to her from Dean Gemignani advising her that she could not be promoted to associate professor without a doctorate. She thus claims that his denial was a continuing violation of her rights.

The Supreme Court has held that the limitations period runs from when an employee is notified of an adverse employment decision. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Thus, although the decision has subsequent adverse effects, the time is measured not from when the employee is affected, but from when the employee learns of the discriminatory acts. In Ricks, a faculty member alleged discrimination in the denial of tenure, a decision which at Delaware State College inevitably lead to his termination. The Court held that the limitations period ran not from when he was terminated but from when he was notified of the decision to deny him tenure. In United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), a stewardess was discriminatorily fired; the airline later rehired her but refused to reinstate her seniority. Again, the time ran from the decision to fire her; once that was done, the implementation of the decision in another employment action was not a separate discriminatory act. See also Hemmige v. Chicago Public Schools, 786 F.2d 280 (7th Cir.1986).

Because Dugan did not make her submission to Gemignani part of the record, we can only infer its content from his response to her. He wrote that he had perused the material that she sent him and had to conclude that she could not be promoted without a doctorate. He complimented her presentation to the Board. He expressed his sympathy with her "understandable disappointment at the lack of promotion" and suggested that she take pride in her other achievements.

Gemignani clearly relied on the Board's decision in informing Dugan that she did not meet the requirements for an associate professor. She had already made every appeal available. The decision process was over; the university had unambiguously informed her of its decision. Dugan evidently wrote to Gemignani to make her case once again. But the fact that an employee continues to argue an employment decision does not make the decision any less final, particularly here where the final decision has been made by the governing board of the university and the employee appeals to a subordinate official. Any other holding would mean that a plaintiff could always resuscitate a stale claim by asking for reconsideration.

Dugan seeks to avoid Ricks by characterizing...