Tagatz v. Marquette University

• Decision Date: 29 February 1988
• Docket Number: No. 82-C-812.,82-C-812.
• Citation: 681 F. Supp. 1344
• Parties: Glenn E. TAGATZ, Plaintiff, v. MARQUETTE UNIVERSITY, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

681 F. Supp. 1344

Glenn E. TAGATZ, Plaintiff, v. MARQUETTE UNIVERSITY, Defendant.

No. 82-C-812.

United States District Court, E.D. Wisconsin.

February 29, 1988.

COPYRIGHT MATERIAL OMITTED

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

John G. Hill, Jr., Gen. Counsel, Milwaukee, Wis., for defendant.

DECISION

WARREN, Chief Judge.

This discrimination action was filed on July 2, 1982. This case has almost become tenured in the Court. Plaintiff, Glenn E. Tagatz is a professor for defendant, Marquette University, and alleges that Marquette unlawfully discriminated against him in the following areas:

1. Between 1975 to 1985, Marquette discriminated on the basis of religion in the setting of salaries,

2. Between 1976 and 1981, Marquette discriminated on the basis of age in the setting of salaries,

3. Marquette discriminated on the basis of providing fringe benefits to Jesuits,

4. Marquette discriminated on the basis of age and sex in the scheduling of sabbaticals, and

5. Marquette's requirement that professors teach Catholicism is an unlawful condition of employment.

Tagatz also alleged that Marquette discriminated on the basis of religion when it filled the position of dean for the School of Education because it limited its search to Jesuits. This Court granted summary judgment to Marquette University on the position of dean issue because Marquette was entitled to discriminate on the basis of religion when filling the position for dean. A trial to the Court was held on the five remaining issues and after hearing and carefully considering the testimony adduced at trial, examining with care the exhibits, and after applying the relevant statutory and judicial authority, and Court hereby renders its findings of fact and conclusions of law.

I. FINDINGS OF FACT

Plaintiff, Dr. Glenn Tagatz, a male, Episcopalian by religion, and born 1-27-34, received a Ph.D. in educational psychology from the University of Wisconsin-Madison in 1963. Plaintiff was hired as an associate professor in the School of Education by defendant Marquette University in 1968. He received tenure in 1970, was promoted to full professor in 1981, and served as a department chairman from 1971 to 1974.

Plaintiff is an expert in statistics and measurement. He has served as a consultant numerous times and as an expert witness in discrimination lawsuits. He has taught measurement and statistics courses.

Plaintiff is also an expert in the analysis of the validity of merit systems used for hiring, licensure and other employment decisions for purposes of compliance for Title VII of the Civil Rights Act of 1964. Many of plaintiff's consultancies involved the use of his expertise in this area including a number of consultancies with state governments.

Defendant Marquette University, is an institution of higher education, constituted under the laws of the State of Wisconsin, located in Milwaukee, Wisconsin.

On June 1, 1971, the plaintiff was appointed Chairman of the Department of Psychology in the School of Education.

On July 15, 1974, the plaintiff was removed from this Chairmanship by Dr. Edward D. Simmons, Vice President for Academic Affairs, because of tension within the School.

A. Statistics

1. Religion

Plaintiff's case consisted primarily of statistical evidence compiled by the plaintiff himself. Tagatz found that by rank, the Catholics as a group received greater average yearly raises than non-Catholics for 1975 to 1985. The distribution by rank was statistically significant because the probability that the ranking would place Catholics versus non-Catholics on this distribution simply by chance (that is, without the factor of Catholicity making a difference) is less than one in one-hundred.

Tagatz also found that using the statistical technique of Analysis of Variance (ANOVA) there is a statistically significant difference between the yearly average salary increases awarded to Catholics versus non-Catholics such that the probability of this variance occurring by chance is less than .0048.

Tagatz then took the salaries of five Catholic and five non-Catholic professors who have been continuous employees since 1969 and developed the following graph demonstrating the average salary of each group for each year:

The following graph was developed demonstrating the differences between the five Catholics' average salaries who have been continuous employees since 1969 and the five non-Catholics' average salaries who have been continuous employees since 1969:

2. Age

Regarding the claim of age discrimination, Tagatz found that there is a statistically significant difference in the average salaries awarded to faculty over forty versus those under forty such that the probability of this variance occurring by chance is less than .05.

Applying a Chi-Square analysis of a ranking of professors by average percentage of salary increase for 1976 to 1981 shows that there is a statistically significant difference in the percentages between those over forty versus those under forty because the probability of these percentages occurring by chance is less than .05. The following graph demonstrates the year-by-year differences in the average salaries between the age groups:

By use of ANOVA or Chi-Square, Tagatz found a statistically significant difference in the average percentage of salary increases awarded to those under forty versus those over forty for 1977 to 1981.

3. Conclusions

Based upon the above analyses, Tagatz concluded that a faculty member's status as a Catholic versus being a non-Catholic was a factor in the setting of salaries during 1975 to 1985. Likewise, Tagatz also concluded that being under forty versus being over forty was a factor in the setting of salaries for those persons in the Marquette University School of Education faculty during 1976 to 1981.

B. Other Evidence

Dr. Nordberg, a Catholic, served as Dean of the School of Education from 1975 to 1981, and as such was principally responsible for setting salaries which were subject then to review and occasional change by the academic vice-president, Dr. Simmons. Dr. Nordberg was succeeded as dean by Father Hennessey, a Jesuit priest, also a Catholic, who served in this post in 1981 to 1986.

During a faculty meeting in September of 1979, Dean Nordberg told faculty members that when he had set salaries for academic year 1979-80 he had given greater increases to junior in rank faculty members because of their greater productivity.

Dr. Ivanoff testified that Dr. Nordberg had favored younger faculty members in committee assignments as well during this time period.

Dr. Nordberg made a statement to Dr. Sargent approximately mid-way through her term at Marquette University (1972-77) that she should not wear her Eastern Star ring — a ring signifying membership in a Masonic-type organization. Nordberg testified that such a statement would have been an improper comment on a religious matter and at trial denied that he made it. Nordberg stated, however, that he may have commented on the ring. Nordberg also stated to faculty members his directive that Catholic doctrine should be taught to the extent possible "in every course," in a Report for External Evaluation, Spring, 1980, sent to faculty by memo, dated November 27, 1979.

On January 26, 1976, Dr. Robert B. Nordberg, Dean of the School of Education, advised the faculty by memorandum that all increases would be on the merit principle. Dean Nordberg in this communication also offered to talk with any faculty member who felt their raise was inappropriate.

Communications similar to that described above were sent by Dean Nordberg to the faculty each year that he was Dean. The merit principle utilized by Marquette evaluated faculty in the categories of teaching, research and service.

In evaluating faculty for raises, Dean Nordberg developed a FACULTY PRODUCTIVITY REPORT, which reflected the record of faculty in the academic years 1974/75 through 1978/79. Dean Nordberg related that he considered this data when reviewing scholarship performance.

In evaluating faculty performance in the service category, Dean Nordberg took into account, among other things, service within the school as well as for outside groups. In assessing the plaintiff's performance in the service category, Dean Nordberg took into account his activities which detracted from the orderly operations of the school. These include the following:

a) On April 30, 1976, and May 11, 1986, Dean Nordberg wrote to the plaintiff criticizing him for not following channels in regard to the preparation of a new handbook for doctoral students.

b) On November 17, 1970, the plaintiff wrote directly to Father Raynor regarding tenure for a faculty member. Vice President Simmons replied to this letter criticizing plaintiff for not following channels.

c) On September 21, 1977, plaintiff wrote directly to Vice President Simmons complaining about his parking arrangements.

d) On another occasion in 1979, the plaintiff angrily presented the Dean with a parking ticket and directed him to take care of it.

e) In September 1978, Dean Nordberg appointed the plaintiff to a committee which would have the responsibility to appoint other faculty to the various committees of the School of Education. The plaintiff neglected to perform his obligations on this committee and thereby caused its dissolution.

f) The plaintiff refused to file a faculty activity report for 1978/79 despite being directed to do so by the Dean.

g) On January 22, 1980, plaintiff failed to appear for registration as was required giving only about one-hour's notice for this neglect.

h) On November 1, 1979, a graduate student by the name of John Palmer wrote to the University Board of Graduate Studies complaining of improper pressures placed upon him by the plaintiff in order to get him to take plaintiff's side in a dispute with Dean Nordberg. John Palmer conveyed the substance of this communication to Dean Nordberg.

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