Yatvin v. Madison Metropolitan School Dist.

• Decision Date: 05 February 1988
• Docket Number: No. 87-1462,87-1462
• Parties: 45 Fair Empl.Prac.Cas. 1862, 45 Empl. Prac. Dec. P 37,807, 56 USLW 2482, 45 Ed. Law Rep. 43 Joanne YATVIN, Plaintiff-Appellant, v. MADISON METROPOLITAN SCHOOL DISTRICT, a political subdivision of the City of Madison, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 412

840 F.2d 412

45 Fair Empl.Prac.Cas. 1862,

45 Empl. Prac. Dec. P 37,807, 56 USLW 2482,

45 Ed. Law Rep. 43

Joanne YATVIN, Plaintiff-Appellant, v. MADISON METROPOLITAN SCHOOL DISTRICT, a political

subdivision of the City of Madison, et al.,

Defendants-Appellees.

No. 87-1462.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 1987.

Decided Feb. 5, 1988.

David E. Lasker, Buffett, Dew, Blaney, Olson & Lasker, Madison, Wis., for plaintiff-appellant.

Gerald C. Kops, Isaksen, Lathrop, Esch, Hart & Clark, Madison, Wis., for defendants-appellees.

Before BAUER, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Joanne Yatvin, the principal of a public school in Wisconsin, brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, and section 1 of the Civil Rights Act of 1871, now 42 U.S.C. Sec. 1983, against a variety of public agencies and officials, complaining that the denial of two promotions that she sought violated her rights under Title VII and the Fourteenth Amendment. She lost, and appeals.

In 1983 Yatvin had applied for the position of Assistant Superintendent of Instruction for the Madison school district. Three men also applied. A committee interviewed all four but recommended only two (both of them men) to the hiring authority, Donald Hafeman, the superintendent of the school district. He picked Jerry Patterson, prompting Yatvin to file charges of sex discrimination with the relevant state and federal agencies. Shortly afterward she applied for the position of Director of Curriculum and Staff Development for the Madison school district. Again there were four applicants. After being interviewed, all were recommended to Hafeman, who delegated the hiring decision to Patterson, who after interviewing the four applicants chose a woman for the job--but not Yatvin. She claims that she was turned down the first time because she was a woman and the second time in retaliation for her action in filing sex discrimination charges growing out of her first application.

The judge ruled that Yatvin was entitled to a jury trial on her claim that the denial of her first application violated the equal protection clause of the Fourteenth Amendment, but not on her claim of retaliation, for he rejected her argument that retaliation for the filing of sex discrimination charges violates the Constitution rather than just Title VII, which confers no right to a jury trial. Nevertheless the judge submitted both of Yatvin's Title VII claims (sex discrimination for the first turn-down and retaliation for the second) to the jury, but for advice only, not decision. The jury brought in a verdict for the defendants on sex discrimination (both the claim under the equal protection clause and the claim under Title VII), but a verdict for Yatvin on retaliation. The judge then made his own findings of fact and conclusions of law on retaliation; finding no retaliation and thus rejecting the jury's advisory verdict, he entered judgment for the defendants on all counts.

When Yatvin applied for the job of Assistant Superintendent of Instruction, the Madison school district had an affirmative action plan which provided that "in cases where the position to be filled is for a job classification where a particular protected group is under-utilized or under-represented, if a member of the under-utilized or under-represented groups is as qualified as the other candidate(s), the member of the under-utilized or underrepresented group shall be offered the position." Yatvin contends that the defendants violated this provision by appointing Patterson, a white male, rather than her, the only female applicant, and that by violating it they discriminated against her on grounds of sex, contrary to the equal protection clause and to Title VII. The argument has two fatal flaws. First, the affirmative action plan was not violated. It awards the job to the applicant from the favored group only in the event of a tie, and there was no tie. The interview committee, composed of five men and three women, ranked Yatvin third out of four and forwarded to Hafeman only the two highest-ranked applicants, who had each received almost twice as many points as Yatvin.

In any event, the breach of a promise to give women favored treatment is not sex discrimination. Sex discrimination is treating a person worse because of her (or his) sex; it is not refusing to discriminate in favor of a person on grounds of her sex. See Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1084 (7th Cir.1987) (race). The Constitution and Title VII have been held, with exceptions irrelevant here, to permit affirmative action; they do not require it. See, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 1097, 67 L.Ed.2d 207 (1981). Granted, just as the establishment of a bona fide affirmative action plan might help rebut a claim of sex discrimination, see Coser v. Moore, 739 F.2d 746, 751 (2d Cir.1984), so the violation of such a plan might help support such a claim, see, e.g., id. at 751; Craik v. Minnesota State University Bd., 731 F.2d 465, 472 (8th Cir.1984); Chang v. University of Rhode Island, 606 F.Supp. 1161, 1183-84 (D.R.I.1985). Although we have found no case where such evidence played a significant role, we can imagine one. Suppose that a plan favoring women were adopted in settlement of a sex discrimination case and the defendant refused to follow the plan even though it had honored the commitments made in settlement of all its other cases; an inference of sex discrimination might arise from the violation of the affirmative action plan in those circumstances. Cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Yet even then, the violation of the plan would not be sex discrimination as such. We therefore disagree with the suggestion in Morman v. John Hancock Mutual Life Ins. Co., 672 F.Supp. 993, 995 (E.D.Mich.1987), that if an employer uses an affirmative action plan as a "shield from claims of discrimination, employees arguably protected by the plan can use it as a sword to challenge the propriety of their treatment" (footnote omitted)--if what this means is that a violation of the plan is a violation of Title VII rather than just possible evidence of such a violation.

And where there is substantial compliance with an affirmative action plan, occasional departures have no evidentiary significance at all. Cf. Coser v. Moore, supra, 739 F.2d at 751; Gray v. University of Arkansas, 658 F.Supp. 709, 726-27 (W.D.Ark.1987). The adoption of such plans would be discouraged if failure to achieve perfect compliance with them were treated as evidence of discrimination. The response in Morman to this argument--"then so be it," 672 F.Supp. at 997--is not compelling.

If the plan in this case is deemed a part of Yatvin's employment contract, then by analogy to cases such as Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill.2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314 (1987), which find implicit contractual entitlements in handbooks given employees by their employers containing rules of employment, Yatvin could argue that as long as the plan was in force and she satisfied its requirements the defendants broke their contract with her by refusing to appoint her. She would then have a pendent claim for breach of contract under state law. But she makes no such pendent claim. She does argue that by breaking the implied contract to give her favorable consideration, the defendants not only violated the equal protection clause and Title VII but also deprived her of property without due process of law, in violation of the due process clause of the Fourteenth Amendment. But this argument has a multiplicity of flaws. For one thing, it comes too late, having been raised for the first time on appeal; for another, it assumes contrary to fact that she satisfied the condition in the plan that she be as well qualified as the best-qualified white male applicant for the job sought; and finally it confuses contract rights with property rights.

The due process clauses of the Fifth and Fourteenth Amendments do not entitle a person to a federal remedy for every breach of contract by a state or federal agency. See Brown v. Brienen, 722 F.2d 360, 364 (7th Cir.1983), and cases cited there; Jett v. Dallas Independent School District, 798 F.2d 748, 754 n. 3 (5th Cir.1986). If they did, every breach of every public contract would be actionable in federal court. What is true is that a property right (or what the Supreme Court considers to be a property right for purposes of the due process clauses of the Fifth and Fourteenth Amendments) often is created by contract. A tenured professor in a public university has a Fourteenth Amendment property right in his job; the right is created by his tenure contract with the university. Thus, unless every breach of every public contract is to be actionable as a violation of constitutional rights, it is necessary to distinguish between "mere" contract rights and property rights created by contracts.

The problem is placed in focus by this court's decision in Vail v. Board of Education of Paris Union School District No. 95, 706 F.2d 1435 (7th Cir.1983), aff'd by an equally divided Court without opinion, 466 U.S. 377, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984). A school district had fired a coach in alleged violation of a one-year implied contract--a job right falling far short of tenure as that term is ordinarily understood. The question whether this job right was a property right divided both this court and (one assumes) the Supreme Court; fortunately we need not revisit it today, as there are two grounds on which to distinguish Vail.

The first is that there is no suggestion that the appointment which Yatvin sought was a tenure appointment even in the attenuated sense involved in Vail : that is, appointment under a contract as...