Hildebrandt, Reinee v. IL Dept Natural ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3064 & 01-3690
REINEE HILDEBRANDT,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF NATURAL RESOURCES
and RICHARD LITTLE,
Defendants-Appellees.
__________
Appeals from the United States District Court
for the Central District of Illinois.
No. 98 C 3313—Jeanne E. Scott, Judge.
__________
ARGUED MARCH 31, 2003—DECIDED OCTOBER 30, 2003
__________
Before BAUER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. Reinee Hildebrandt brought this
action against her employer, the Illinois Department of
Natural Resources (“IDNR”), for sex discrimination pursu-
ant to Title VII and the Equal Pay Act. She also brought
claims against her coworkers and supervisors, in their
individual capacities, for unequal treatment on the basis of
her sex in violation of 42 U.S.C. § 1983. The district court
granted summary judgment to the IDNR on Dr.
Hildebrandt’s Title VII claims and to the individual defen-
2 Nos. 01-3064 & 01-3690
dants, with the exception of Richard Little, Dr.
Hildebrandt’s immediate supervisor, on the § 1983 claims.
At trial, the district court entered a directed verdict for
Mr. Little on the remaining § 1983 claim, and the jury
returned a verdict in favor of Dr. Hildebrandt on her Equal
Pay Act claim. The district court also awarded Dr.
Hildebrandt attorneys’ fees; however, the court denied her
the full amount sought because of her limited success on the
merits.
Dr. Hildebrandt now appeals the district court’s entry of
summary judgment, the directed verdict and the court’s
reduced fee award. For the reasons set forth in this opinion,
we affirm in part and reverse in part the judgment of the
district court, we vacate the award of attorneys’ fees, and we
remand for further proceedings.
I
BACKGROUND
A. Factual Background
Reinee Hildebrandt, who holds a Ph.D. degree in forestry,
was hired as a program administrator by the IDNR in 1991.
When hired, she was paid the second highest salary among
the four program administrators. The other three adminis-
trators, John Sester, Pete Skuba and Robert Schmocker, were
male. All held bachelor’s degrees; none of them had a
doctoral degree.
Each program administrator oversaw different forestry
programs in Illinois; Dr. Hildebrandt oversaw Urban
Forestry. Her direct supervisor was Richard Little. Mr. Little
evaluated the performance of each program administrator
annually and assigned a performance rating according to
the following scale: exceptional, accomplished, acceptable
Nos. 01-3064 & 01-3690 3
1
and unacceptable. Mr. Little also recommended annual
raises based on the evaluations and budgetary restrictions.
In performing this task, he was constrained by the IDNR’s
Merit Compensation Guidelines, which provided a range of
appropriate raises for each rating. Stewart Pequignot, the
State Forester, was Mr. Little’s supervisor. Mr. Pequignot
reviewed Mr. Little’s evaluations and raise recommenda-
tions, and approved all annual raises.
By July 1, 1994, Dr. Hildebrandt’s salary was less than all
three of the other program administrators. In 1993 and 1994,
she had received a “needs improvement” overall rating and,
consequently, had received no raise in 1993 and a smaller
raise than others in 1994. From 1994 to 1997 Hildebrandt
received a lower overall salary than the other three adminis-
trators. In each of those years, at least one of the male
program administrators received a larger percentage raise
than did Dr. Hildebrandt. In 1997, Dr. Hildebrandt and two
of the other administrators, Skuba and Schmocker, all
received the same rating of “accomplished.” Nevertheless,
although all three raises were within the IDNR’s Merit
Compensation Guidelines for the “accomplished” rating,
Dr. Hildebrandt received a lower percentage raise than the
2
other two. In 1998, no employee received a raise because of
1
During the earlier years of Dr. Hildebrandt’s employment the
ratings were: superior, exceeds expectations, meets expectations,
needs improvement and unacceptable.
2
Dr. Hildebrandt asserts in her brief that each year Mr. Little
gave her “the lowest salary percentage increase that he could give
her pursuant to the Merit Compensation Guidelines. (Appendix
p. 1402a-1416a).” Appellant’s Br. at 27. Yet, the cited trial
testimony shows that, although in 1997 Mr. Little did give Dr.
Hildebrandt the lowest possible raise under the guidelines, the
(continued...)
4 Nos. 01-3064 & 01-3690
budget constraints. In 1999 and 2000, the four administra-
tors all received either 4.39% or 4.40% raises.
Dr. Hildebrandt also alleges that she experienced unfair
treatment in her working conditions apart from compensa-
tion. For example, she alleges that she, unlike the men, was
not allowed to communicate directly with forestry employ-
ees; that she was required to submit monthly goal state-
ments; that she was denied adequate support staff; that staff
workers were disrespectful to her and were more friendly to
the male administrators; that she was provided fewer
interns; that she was denied computer equipment; and that
she was provided slower reimbursement. More generally,
Dr. Hildebrandt complains about the treatment she received
from Anna May Brown, who was Mr. Pequignot’s secretary
and was in charge of the secretarial staff for the forestry
division. The defendants dispute the claims of discrimina-
tory treatment and claim that Dr. Hildebrandt received the
same treatment as the male program administrators.
Dr. Hildebrandt began complaining about the inequity
3
in her treatment in 1992. In 1995 or 1996, she asked the Illi-
nois Central Management Services to provide her with
information concerning her salaries and the salaries of the
other administrators. At that time, she learned that her pay
had fallen behind the others. In 1996, she complained about
2
(...continued)
guidelines gave Mr. Little no discretion in 1993, 1994, 1995 and
1996. See Appellant’s App. at 1407a, 1410a, 1411a-12a, 1412a-13a.
In those years, the guidelines dictated the exact percentage to be
given in light of her rating. R.112 at 97, 100-03. Thus, as Mr. Little
testified, the raise he gave her was “the only option” he had open
to him. Id.
3
According to Dr. Hildebrandt, these complaints also mark the
beginning of the retaliatory treatment by the defendants.
Nos. 01-3064 & 01-3690 5
the salaries and asked to speak with the IDNR Director
Brent Manning, but was directed to speak with Kirby
Cottrell, who was the Director of the Office of Resource
Conservation and supervised Mr. Pequignot.
On June 16, 1997, Dr. Hildebrandt filed an internal charge
of discrimination with the IDNR’s Equal Employment
Opportunity Officer, Theresa Cummings. Cummings
recommended that a meeting be held and that Dr.
Hildebrandt’s salary be reviewed for adjustment. On March
31, 1998, a meeting was held with Dr. Hildebrandt, John
Comerio (who was the IDNR Deputy Director), Mr.
Pequignot, Mr. Little and Cummings. At the meeting, there
was no agreement as to whether a pay inequity existed. No
adjustments were made to Dr. Hildebrandt’s salary.
On May 6, 1998, Dr. Hildebrandt filed a charge of discrim-
ination with the EEOC. She subsequently received a right-
to-sue letter and then filed this action on December 29, 1998.
After the filing of this action, other pertinent events took
place. Beginning with her 1998 evaluation, David Gillespie
4
sat in on her annual evaluation conducted by Mr. Little,
while Mr. Little alone attended the men’s reviews. Addi-
tionally, Mr. Little advised Dr. Hildebrandt that she would
be subject to semi-annual or quarterly evaluations, while the
men had only annual evaluations. The record does not
indicate whether or not these more frequent evaluations
were ever imposed.
4
David Gillespie was the Section Manager for Field Operations.
Gillespie was supervised by Mr. Pequignot and held the same
level in the administration as Mr. Little. The record is not clear as
to the reason that Gillespie attended Dr. Hildebrandt’s reviews.
6 Nos. 01-3064 & 01-3690
B. District Court Proceedings
1.
In her complaint, Dr. Hildebrandt brought claims against
Mr. Little, Ms. Brown, Mr. Pequignot and Mr. Cottrell
pursuant to 42 U.S.C. § 1983. She alleged that they had
violated her right to equal protection of the laws by treating
her less favorably than males with regard to pay raises and
to the non-compensatory conditions of her employment. She
also brought an Equal Pay claim and two Title VII claims
against the IDNR; one of the Title VII claims concerned
allegedly unlawful discrimination on the basis of her sex
with respect to pay and other terms of her employment, and
the other concerned retaliation that Dr. Hildebrandt alleg-
edly experienced after she complained of the unlawful
discrimination.
2.
On February 20, 2001, the district court granted summary
judgment to the defendants on several of Dr. Hildebrandt’s
claims. First, the district court held that the statute of
limitations barred some of the claims. The court held that
Dr. Hildebrandt’s Title VII compensation discrimination
claim was barred by the 300-day statute of limitations. The
court pointed out that Dr. Hildebrandt had failed to demon-
strate that she had been given a discriminatory raise after
July 10, 1997, which marked the beginning of the limitations
period. The court further held that Dr. Hildebrandt’s Title
VII claim concerning unequal treatment in the non-compen-
satory conditions of her employment also was limited by the
statute of limitations. The court construed Dr. Hildebrandt’s
claim as one for a hostile work environment and held that
Dr. Hildebrandt could rely only on acts that occurred after
July 10, 1997, to support her claim. The court noted that
Nos. 01-3064 & 01-3690 7
“[m]ost of Hildebrandt’s complaints concern actions taken
by Brown and [staff] prior to that date.” R.81 at 17. It
concluded that “the acts that [Dr. Hildebrandt] documents
after that date do not constitute a discriminatory work
environment” because they do not suggest a workplace “so
permeated with discriminatory intimidation, ridicule, and
insult” that they “alter the conditions of her employment
and create[] an abusive work environment.” Id. at 17-18.
Turning to the § 1983 claims, the court held that “the
§ 1983 two-year statute of limitations barred any claims for
discrimination that occurred prior to December 29, 1996.” Id.
at 18. The court noted that “[a]fter that date, the only
unequal treatment respecting compensation occurred on
July 1, 1997, when Hildebrandt received the same rating as
Skuba and Schmocker, but received a lower percentage raise
than either of them.” Id. The court determined that Dr.
Hildebrandt could proceed to trial on the § 1983 claim
against Mr. Little concerning whether he “intentionally gave
her a smaller raise because of her gender” in 1997. Id.
However, Dr. Hildebrandt could not proceed against any of
the other individual defendants under § 1983 for the 1997
raise because Mr. Little was “the only Defendant who
directly participated in this possibly discriminatory act” and
§ “1983 requires direct participation.” Id. at 18-19.
In arriving at these determinations, the court rejected Dr.
Hildebrandt’s arguments that her claims were not barred by
the statute of limitations because of the continuing violation
doctrine, the discovery rule, and also because “at the 1998
meeting, and other times within the statute, the Defendants
failed to correct the effects of past discrimination.” Id. at 20-
21.
The district court further held that the individual defen-
dants, Mr. Little, Ms. Brown, Mr. Pequignot and Mr.
Cottrell, were entitled to qualified immunity on all of Dr.
8 Nos. 01-3064 & 01-3690
Hildebrandt’s “§ 1983 claims based on Hildebrandt’s
treatment at the workplace unrelated to her compensation.”
Id. at 16. The court held that Dr. Hildebrandt had presented
no precedent to the court that “established that denying
staff support, inequitable treatment by management of the
type shown here, or slow reimbursement constituted gender
discrimination.” Id. Finally, the court held that Dr.
Hildebrandt had failed to establish a Title VII retaliation
claim. See id. at 22.
Before trial, therefore, the court dismissed all counts
except the Equal Pay Act claim and the § 1983 disparate pay
claim against Mr. Little. Consequently, the court dismissed
Ms. Brown, Mr. Pequignot and Mr. Cottrell from the case.
3.
During the trial on the remaining counts, the district court
did not allow Dr. Hildebrandt to testify concerning
Cummings’ statement that Director Manning had “ap-
proved Cummings’ recommendations” at the March 1998
meeting. The court held that the testimony was hearsay. The
court further refused to allow the admission of this testi-
mony as a party admission because the court “[did]n’t view
[Cummings] as someone in charge of the Department who
is speaking for the Department. And it is the Department
5
being sued.” R.110 at 183. Similarly, the court did not allow
into evidence exhibits 49 and 49A, a letter from Cummings
5
However, the court did let Dr. Hildebrandt testify to the
statements of Mr. Cottrell, Mr. Pequignot and Mr. Little made at
that same meeting because the court “view[ed] their admissions
as binding upon the Department as party admissions” because
“they are in positions of authority within the Department.” R.110
at 183-84.
Nos. 01-3064 & 01-3690 9
and her recommendations to Director Manning, because the
exhibits were hearsay and because Cummings already had
testified to their contents. R.154 at 543-44.
At trial, at the close of the plaintiff’s case, the district court
granted a directed verdict to Mr. Little on the claim that he
discriminated against Dr. Hildebrandt by giving her a lower
raise in 1997. The court gave two reasons. First, Dr.
Hildebrandt testified that the evaluation she received in
1997 “was not a bad evaluation” and “[s]he also testified
that she knew that Dick Little followed the C.M.S. Guide-
lines” and thus under her “own version of the facts . . . Little
did not intentionally give her a smaller raise in that year
because of her gender.” R.155 at 684. Second, Mr. Little was
entitled to qualified immunity because it was not clearly
established that giving a lower raise within a set guideline
range, that was presented to Mr. Little by another agency
and that he was directed to follow, would constitute a
constitutional violation. See id.
The jury returned a verdict for Dr. Hildebrandt on the
Equal Pay Act claim and found that the IDNR willfully had
violated the act. Consequently, the court awarded Dr.
Hildebrandt $25,000 in backpay plus $25,000 in liquidated
damages. Finally, because of Dr. Hildebrandt’s limited
success on the merits, the court awarded her only $65,052 in
attorneys’ fees, two-thirds of $97,578 requested by Dr.
Hildebrandt.
II
DISCUSSION
A. Standard of Review
Our review of a district court’s grant of summary judg-
ment or a judgment as a matter of law is de novo. See Mauler
10 Nos. 01-3064 & 01-3690
v. Bayfield County, 309 F.3d 997, 1000 (7th Cir. 2002), cert.
denied, 123 S. Ct. 2076 (2003); O’Neal v. City of New Albany,
293 F.3d 998, 1003 (7th Cir. 2002). Summary judgment is
appropriate only when, after construing the facts in the light
most favorable to the nonmoving party, there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. See Mateu-Anderegg v. Sch. Dist.
of Whitefish Bay, 304 F.3d 618, 623 (7th Cir. 2002).
However,
[i]n reviewing a district court’s grant of summary
judgment, we consider only those matters that were
before the district court when it entered the judgment.
Our review is confined to an examination of the materi-
als before the court at the time the rulings were made.
Neither the evidence offered subsequently at the trial
nor the verdict is relevant.
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 242
(4th Cir. 2002) (internal quotation marks and citations
omitted); see also Chapman v. Al Transport, 229 F.3d 1012,
1028 (11th Cir. 2000) (stating that “because the district court
did not have the testimony from the trial of the ADA claims
before it when it granted summary judgment in favor of the
defendants on the ADEA claims, any evidence offered at
trial is not relevant to our review of the ADEA summary
judgment and we will not consider it” and citing cases from
the First, Second, Fifth and Tenth circuits).
B. Title VII Claims
Dr. Hildebrandt brings two types of claims: She alleges
that she was discriminated against on the basis of her sex (1)
in her compensation and evaluations as evidenced by her
lower raises; and (2) in the terms and conditions of her
Nos. 01-3064 & 01-3690 11
employment through alleged inequitable treatment at the
6
workplace. Although these claims are brought under Title
VII and under § 1983, for ease of analysis we first address
Dr. Hildebrandt’s Title VII claims.
The district court dismissed the Title VII claims against
the IDNR on the basis that Title VII’s 300-day statute of
limitations (1) barred Dr. Hildebrandt’s Title VII disparate
pay claim and (2) limited “Hildebrandt’s [Title VII] claim of
a discriminatory work environment to acts that occurred
after July 10, 1997,” concluding that “[t]he acts that [Dr.
Hildebrandt] documents after that date do not constitute a
discriminatory work environment.” R.81 at 17. Dr.
Hildebrandt submits on appeal that the district court erred
in these rulings.
1. Title VII—Disparate Pay
a. Statute of Limitations
With respect to her discriminatory pay claim, Dr.
Hildebrandt, relying on the Supreme Court’s holding in
Bazemore v. Friday, 478 U.S. 385 (1986), and on our case
Wagner v. NutraSweet, 95 F.3d 527 (7th Cir. 1996), contends
that the allegedly discriminatory compensation from 1992 to
7
1997 constituted a continuing violation, and thus her
6
Dr. Hildebrandt presents no argument in her brief with respect
to her retaliation claim. Any arguments with respect to those
claims, therefore, are waived.
7
In her brief, Dr. Hildebrandt argues that the range is “from
1992 through 1999” because she “claims that her performance
evaluation and salary increase in FY99 was the product of
unlawful discrimination.” Appellant’s Br. at 36, 40. Yet, Dr.
(continued...)
12 Nos. 01-3064 & 01-3690
receipt of paychecks at a discriminatory rate after July 10,
1997, satisfied the statute of limitations. Dr. Hildebrandt’s
brief argues that the continuing violation doctrine allows
her to recover for the entire period of 1992 through 1997.
However, at oral argument, Dr. Hildebrandt affirmatively
stated that she was seeking recovery on her Title VII claim
only for paychecks she received inside the 300-day charge
filing period, that is, those received after July 10, 1997,
which reflect the last allegedly discriminatory raise given to
her on July 1, 1997.
i) Bazemore and its progeny
In Bazemore, 478 U.S. at 395-96, the Supreme Court stated
that “[e]ach week’s paycheck that delivers less to a black
than to a similarly situated white is a wrong actionable
under Title VII.” In Chambers v. American Trans Air, Inc., 17
F.3d 998, 1003 (7th Cir. 1994), and Wagner v. NutraSweet Co.,
95 F.3d 527, 534 (7th Cir. 1996), we read Bazemore as holding
that disparate pay claims were continuing violations: “Pay
increases are typically continuing violations, because each
paycheck at a discriminatory rate is seen as the basis for a
separate claim. Bazemore v. Friday, 478 U.S. 385 (1986).”
7
(...continued)
Hildebrandt has not brought forth any evidence that the 1999
raise or performance evaluation was discriminatory. In 1999, Dr.
Hildebrandt received exactly the same performance evaluation
and raise as her male coworkers. All of them received a 4.4% raise
and all of them received an evaluation of “accomplished.”
Defendant’s Ex.38. Similarly, in 1998, all of the employees
received the same rating “accomplished,” and no one received a
raise due to budget constraints. Thus, 1997 is the last year for
which Dr. Hildebrandt has brought forth evidence of disparate
treatment in compensation.
Nos. 01-3064 & 01-3690 13
Chambers, 17 F.3d at 1003 (parallel citations omitted);
NutraSweet, 95 F.3d at 534 (same). Further, other courts of
appeals interpreted Bazemore to hold that pay claims were
continuing violations. See, e.g., Cardenas v. Massey, 269 F.3d
251, 257 (3d Cir. 2001) (stating that “[m]ost courts appear to
treat pay discrimination claims as continuing violations”
(internal quotation marks and citations omitted)).
We later seemed to depart from this conclusion in
Dasgupta v. University of Wisconsin Board of Regents, 121 F.3d
1138, 1140 (7th Cir. 1997). In that case, we distinguished
Bazemore and NutraSweet as cases involving claims “where
the illegal act is repeated during the limitations period.” Id.
at 1140. We noted: “Any illegal act that takes place in the
limitations period is actionable; the limitations bar falls only
on earlier acts. A lingering effect of an unlawful act is not
itself an unlawful act, however, so it does not revive an
already time-barred illegality. . . .” Id. We went on to
explain:
In Bazemore and NutraSweet, the plaintiffs alleged that
during the limitations period they failed to receive the
amount of compensation that the law entitled them to.
The fact that this level had been determined before the
limitations period meant only that the violation of their
rights was predictable. If an employer tells his em-
ployee, “I am going to infringe your rights under Title
VII at least once every year you work for me,” this does
not start the statute of limitations running on the future
violations, violations that have not yet been committed.
This case is at the opposite pole. There were no new
violations during the limitations period, but merely a
refusal to rectify the consequences of time-barred
violations. It is not a violation of Title VII to tell an
employee he won’t get a raise to bring him up to the
salary level that he would have attained had he not been
14 Nos. 01-3064 & 01-3690
discriminated against at a time so far in the past as to be
outside the period during which he could bring a suit
seeking relief against that discrimination.
Dasgupta, 121 F.3d at 1140. Despite this statement in
Dasgupta, we subsequently have recognized that “[d]rawing
the line between something that amounts to a ‘fresh act’
each day and something that is merely a lingering effect of
an earlier, distinct, violation is not always easy.” Pitts v. City
of Kankakee, 267 F.3d 592, 595 (7th Cir. 2001), cert. denied, 536
U.S. 922 (2002).
ii) National Railroad Passenger Corp. v. Morgan
The Supreme Court in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), has clarified the applicability of
the “continuing violation” doctrine. The Supreme Court
explained the requirements for two types of acts: discrete
discriminatory acts and acts contributing to a hostile
environment. As to discrete acts, the Court explained:
[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in
timely filed charges. Each discrete discriminatory act
starts a new clock for filing charges alleging that act.
The charge, therefore, must be filed within the 180- or
300-day time period after the discrete discriminatory act
occurred. The existence of past acts and the employee’s
prior knowledge of their occurrence, however, does not
bar employees from filing charges about related discrete
acts so long as the acts are independently discrimina-
tory and charges addressing those acts are themselves
timely filed. Nor does the statute bar an employee from
using the prior acts as background evidence in support
of a timely claim.
Nos. 01-3064 & 01-3690 15
Morgan, 536 U.S. at 113. Thus the Supreme Court in Morgan
“foreclosed the use of the continuing violation doctrine to
incorporate untimely claims for discrete discriminatory
actions even though they may be related to a timely claim.”
Peters v. City of Stamford, No. 3:99-CV-764 CFD, 2003 WL
1343265, at *5 (D. Conn. Mar. 17, 2003).
However, the Court in Morgan went on to explain that for
hostile work environment claims,
[t]he timely filing provision only requires that a Title VII
plaintiff file a charge within a certain number of days
after the unlawful practice happened. It does not matter,
for purposes of the statute, that some of the component
acts of the hostile work environment fall outside the
statutory time period. Provided that an act contributing
to the claim occurs within the filing period, the entire
time period of the hostile environment may be consid-
ered by a court for the purposes of determining liability.
Morgan, 536 U.S. at 116.
Not only did Morgan speak to the applicability of the
continuing violation doctrine to discrete acts of discrimina-
tion, it also offered guidance with respect to what actions
might be considered a “discrete act.” According to the
Court, the following actions constitute discrete acts:
“termination, failure to promote, denial of transfer, or
refusal to hire.” Id. at 114. More specifically, Morgan gives
guidance in the area of equal pay violations. In Morgan, the
Supreme Court expressly relied on its statement in Bazemore
regarding each paycheck paid at a discriminatory rate as an
example of an actionable “discrete act or single occurrence,
even when it has a connection to other acts.” Id. at 111(internal quotation marks and citations omitted). Notably,
the Court did not characterize Bazemore as involving a
“continuing violation” or as embracing a continuing
16 Nos. 01-3064 & 01-3690
violation doctrine. Indeed, the Court noted that “in Bazemore
. . . although the salary discrimination began prior to the
date that the act was actionable under Title VII, ‘[e]ach
week’s paycheck that deliver[ed] less to a black than to a
similarly situated white is a wrong actionable under Title
VII.’ ” Id. at 2071 (quoting Bazemore, 478 U.S. at 395). Thus,
the Court in Morgan reaffirmed the Bazemore statement that
each discriminatory paycheck was a separate discriminatory
act that could give rise to a Title VII action. Consequently,
reading Bazemore in light of Morgan, a plaintiff cannot make
timely any prior time-barred discrete acts of discriminatory
pay by filing within the time frame of one discriminatory
paycheck.
Prior to Morgan, other courts had anticipated its holding
and determined that discriminatory paychecks were discrete
acts not subject to a continuing violation doctrine. See, e.g.,
Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 119 (2d Cir.
1997) (stating that “a claim of discriminatory pay is funda-
mentally unlike other claims of ongoing discriminatory
treatment because it involves a series of discrete, individual
wrongs rather than a single and indivisible course of
wrongful action”). Indeed, in spite of our statements in
NutraSweet and Chambers, we had stated elsewhere in dicta
that repeated paychecks at a discriminatory rate were
discrete acts. See Heard v. Sheahan, 253 F.3d 316, 320 (7th Cir.
2001) (explaining that separate paychecks would be discrete
acts and citing to the case law of other circuits, including
Pollis, 132 F.3d at 119); see also CSC Holdings, Inc. v. Redisi,
309 F.3d 991, 992 (7th Cir. 2002) (explaining the existence of
a “contrast between a continuing wrong, such as deliberate
indifference to a prisoner’s medical treatment, and discrete
acts, such as consistently underpaying an employee because
Nos. 01-3064 & 01-3690 17
8
of her sex,” in a non-Title VII case decided after Morgan).
Cases subsequent to the Supreme Court’s decision in
Morgan have recognized that repeated discriminatory
paychecks constitute discrete acts and that a plaintiff cannot
render timely any time-barred discriminatory paychecks
merely by filing with respect to subsequent discriminatory
paychecks within the limitations period. See Quarless v.
Bronx-Lebanon Hosp. Ctr., 228 F. Supp. 2d 377, 382 (S.D.N.Y.
2002) (stating in a post-Morgan decision that “[b]ecause each
paycheck that the Plaintiff received was an (alleged)
immediate and individual wrong which gave rise to a
separate disparate pay claim, the Plaintiff cannot use the
continuing violation doctrine to render timely any disparate
pay violations which occurred outside the 300 day statute of
limitations”); Inglis v. Buena Vista Univ., 235 F. Supp. 2d
1009, 1023 (N.D. Iowa 2002) (extensively discussing
8
The Second Circuit in Pollis v. New School for Social Research, 132
F.3d 115 (2d Cir. 1997), recognized the Supreme Court’s state-
ment in Bazemore that each “ ‘paycheck that delivers less to a
[disadvantaged class member] than to a similarly situated
[favored class member] is a wrong actionable under Title VII,
regardless of the fact that this pattern was begun prior to the
effective date’ of limitation.” Id. at 119 (brackets in original)
(quoting Bazemore, 478 U.S. at 395-96). Nevertheless, rather than
construing the Bazemore statement as regarding a continuing
violation, the Second Circuit explained that “each continuation or
repetition of the wrongful conduct may be regarded as a separate
cause of action for which suit must be brought within the period
beginning with its occurrence.” Id. Consequently, “a cause of
action based on receipt of a paycheck prior to the limitations
period is untimely and recovery for pay differentials prior to the
limitations period is barred irrespective of subsequent, similar
timely violations.” Id.; see also Knight v. Columbus, 19 F.3d 579, 582
(11th Cir. 1994).
18 Nos. 01-3064 & 01-3690
Bazemore and the precedents of other circuits in light of
Morgan, and stating that “[b]ecause each discriminatory
paycheck is unlawful, issuance of such a paycheck is a
discrete act of discrimination that, like a termination, a
failure to promote, or refusal to hire, is easily identifiable, its
occurrence can be pinpointed in time, and is itself actionable.”
(emphasis added)).
Morgan’s foreclosure of the continuing violation doctrine
for discrete discriminatory acts clearly requires a reevalua-
tion of our earlier interpretation. Using Morgan as our guide,
therefore, we must conclude that each of Dr. Hildebrandt’s
paychecks that included discriminatory pay was a discrete
discriminatory act, not subject to the continuing violation
9
doctrine. Therefore, Dr. Hildebrandt may only recover for
the discriminatory pay received within the statute of
limitations period. Mr. Little allegedly gave Dr. Hildebrandt
a discriminatory annual raise on July 1, 1997. She filed her
charge 300 days after July 10, 1997. Thus Mr. Little’s act of
deciding to give Dr. Hildebrandt a discriminatory annual
raise is outside of the limitations period and, under Morgan,
she cannot reach any paycheck prior to July 10, 1997.
However, the same is not true for paychecks received after
July 10, 1997, that reflect the July 1, 1997 discriminatory
raise. As the Second Circuit, in a post-Morgan decision,
recently explained:
In Bazemore, the employer’s act of cutting each weekly
paycheck was deemed to give rise to a new claim of an
unlawful employment practice. . . . The clear message of
Bazemore is that an employer performs a separate
9
We note that another panel of this court has reached the same
conclusion with respect to Morgan’s effect on discriminatory pay
claims. See Reese v. Ice Cream Specialties, Inc., No. 02-1633, slip op.
at 9 (7th Cir. Oct. 30, 2003).
Nos. 01-3064 & 01-3690 19
employment practice each time it takes adverse action
against an employee, even if that action is simply a
periodic implementation of an adverse decision previously
made.
Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134 (2d Cir.
2003) (emphasis added).
The Second Circuit’s commentary is consistent with and
helps explain our own distinction in Dasgupta. In Dasgupta
we stated that:
In Bazemore and NutraSweet, the plaintiffs alleged that
during the limitations period they failed to receive the
amount of compensation that the law entitled them to.
The fact that this level had been determined before the
limitations period meant only that the violation of their
rights was predictable. If an employer tells his em-
ployee, “I am going to infringe your rights under Title
VII at least once every year you work for me,” this does
not start the statute of limitations running on the future
violations, violations that have not yet been committed.
Dasgupta, 121 F.3d at 1140. Bazemore and NutraSweet thus
must be read as involving the “periodic implementation of
an adverse decision previously made.” Elmenayer, 318 F.3d
at 134. Such a “periodic implementation” of a decision to
discriminate against an individual is a discrete act of
discrimination and is distinct from “a refusal to rectify time-
barred violations,” which does not constitute an actionable
wrong under Title VII. Dasgupta, 121 F.3d at 1140.
b. Merits of Title VII-Disparate Pay Claim
Having found that Dr. Hildebrandt’s Title VII pay claim,
at least with respect to her 1997 raise, is not barred by the
statute of limitations, we turn to the merits of that claim.
20 Nos. 01-3064 & 01-3690
Under Title VII, it is “an unlawful employment practice for
an employer . . . to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privi-
leges of employment, because of such individual’s race,
color, religion, sex or national origin . . . .” 42 U.S.C. § 2000e-
2(a)(1). “Proof of intentional discrimination is required
under a disparate treatment analysis.” Gonzalez v. Ingersoll
Milling Mach. Co., 133 F.3d 1025, 1036 (7th Cir. 1998). “A
Title VII plaintiff can satisfy her burden of proof by two
avenues: (1) she may present direct evidence of discrimina-
tory intent or, because of the difficulty in directly proving
discrimination, (2) she may use the indirect, burden-shifting
procedure set forth in McDonnell Douglas . . . .” Id. at 1031;
see also Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002).
Dr. Hildebrandt does not bring forward any direct
10
evidence of discrimination. Under the indirect method,
10
At oral argument, Dr. Hildebrandt’s counsel appeared to argue
that there was direct evidence of discrimination because “Mr.
Little specifically told [the] EEO officer (Theresa Cummings), ‘I
will never give Ms. Hildebrandt more than an acceptable evalua-
tion.’ ” This statement does not constitute “direct evidence.”
Direct evidence is “evidence that establishes [a fact] without
resort to inferences from circumstantial evidence.” Stone v. City
of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir.), cert.
denied, 537 U.S. 879 (2002). Assuming Mr. Little made the
statement as quoted at oral argument, his rationale still could
have been a permissible one under the statute. For instance, such
a statement does not preclude the possibility that Mr. Little’s
grading decision was based on her performance or her inability
to get along with others rather than gender. Counsel for Dr.
Hildebrandt noted that there was evidence that Dr. Hildebrandt’s
work was satisfactory and apparently excellent. But such
evidence in combination with Mr. Little’s alleged statement
(continued...)
Nos. 01-3064 & 01-3690 21
a plaintiff must establish a prima facie case of discrimina-
tion. Once she has done so, the employer must then
produce a nondiscriminatory reason for the employ-
ment action. If the employer does so, the plaintiff must
then present sufficient evidence that would enable a
trier of fact to find that the explanation is pretextual.
10
(...continued)
would create only an inference of discrimination, which would
be indirect rather than direct evidence.
More problematic, Mr. Little’s statement to Cummings is not
readily found in the record. Dr. Hildebrandt’s counsel provides
a citation to the record for this statement; she cites to Ex.6,
Cummings Dep., Plaintiff’s Dep. Exs.27-34. Ex.6 is Cummings’
deposition. On pages 40-44 of her deposition, Cummings
reviewed and explained the contents of deposition exhibits 27-34.
These exhibits are copies of “a questionnaire that [Cummings]
gave to the staff” who worked with Dr. Hildebrandt when
Cummings was investigating Dr. Hildebrandt’s allegations of
discrimination. Ex.6 at 40. None of the questionnaires can be
identified by name. Nor could Cummings identify who wrote
which one. See Ex.6 at 40-41. None of them state that Dr.
Hildebrandt never would get more than an acceptable evaluation.
Through a meticulous search of the record, we have found
something as near as we can to Mr. Little’s alleged statement. In
Plaintiff’s Ex.40, Dr. Hildebrandt wrote to Mr. Little when
objecting to one of her evaluations that “[y]ou once made the
comment that I would never get above the middle evaluation
range, at least not for a long time. . . . I believe this statement to
be an unfair reality.” However, this statement is written in
response to her 1998 evaluation. In 1997, 1998 and 1999, Dr.
Hildebrandt received a rating of “accomplished,” the same rating
as that given her male coworkers. Thus, her contention at oral
argument and in her brief that Mr. Little said she would never get
a rating above “acceptable,” even if true, is contradicted by the
fact that she did in fact get a rating over “acceptable” for fiscal
years 1997, 1998 and 1999. Reply Br. at 13.
22 Nos. 01-3064 & 01-3690
Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002). Thus, we
must first determine whether or not Dr. Hildebrandt has
established a prima facie case. In order to establish a prima
facie case for gender discrimination, the plaintiff must
demonstrate that: “(1) she is a member of a protected class;
(2) she was performing her job to her employer’s legitimate
expectations; (3) that in spite of her meeting the legitimate
expectations of her employer, she suffered an adverse
employment action; and (4) that she was treated less
favorably than similarly situated male employees.” Markel
v. Bd. of Regents of the Univ. of Wisconsin Sys., 276 F.3d 906,
911 (7th Cir. 2002).
Our examination of the record reveals that Dr.
Hildebrandt has established a prima facie case that the 1997
raise, reflected in each of her paychecks received after July
10, 1997, constituted intentional discrimination. Dr.
Hildebrandt has shown each of the required elements of a
prima facie case: (1) She is a member of a protected class; (2)
in 1997 she was performing her job to her employer’s
legitimate expectations as evidenced in her evaluation in
1997 as “accomplished,” Defendant’s Ex.38; (3) she suffered
an adverse employment action, namely a paycheck reflect-
ing her 1997 salary which was determined with a lower
raise than that given her coworkers (see Herrnreiter v. Chi.
Hous. Auth, 315 F.3d 742, 744 (7th Cir. 2002) (stating that
actionable adverse employment actions include “[c]ases in
which the employee’s compensation, fringe benefits, or
other financial terms of employment are diminished”)); and
(4) she was treated less favorably by receiving a lower raise
than similarly situated male employees who were also rated
as “accomplished.” See Markel, 276 F.3d at 911. The record is
unclear as to whether the IDNR brought forth a legitimate
non-discriminatory reason and, if so, whether Dr.
Hildebrandt was able to rebut that reason as pretextual. But
Nos. 01-3064 & 01-3690 23
the record at the very least indicates that a prima facie case
exists.
c. Necessity of Remand
However, the fact that Dr. Hildebrandt set forth a prima
facie case of disparate pay under Title VII does not necessar-
ily require us to remand this claim to the district court for
further proceedings. Remand is only necessary if there is a
possibility that Dr. Hildebrandt may recover something
more for her Title VII disparate pay claim than she already
has received for her Equal Pay Act claim. We consider this
possibility below.
Under the Equal Pay Act, a plaintiff may recover back
wages; she also may recover liquidated damages in the
amount of double the backpay award for willful violations.
Both “are compensatory in nature.” Broadus v. O.K. Indus.,
Inc., 226 F.3d 937, 943 (8th Cir. 2000). As explained by the
Eighth Circuit in Broadus, “[l]iquidated damages . . . ‘consti-
tute [] compensation for the retention of a workman’s pay
which might result in damages too obscure and difficult of
proof for estimate other than by liquidated damages,’ ” id.(quoting Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707
(1945)); they are a “ ‘means of compensating employees for
losses they might suffer by reason of not receiving their
lawful wage at the time it was due,’” id. (quoting Reich v. S.
New England Telecomms., 121 F.3d 58, 70 n.4 (2d Cir. 1997)).
Properly characterized, therefore, Dr. Hildebrandt recov-
ered $25,000 in backpay and an additional $25,000 in
additional compensatory damages on her Equal Pay Act
24 Nos. 01-3064 & 01-3690
11
claim.
The damage provisions of Title VII differ from those of the
Equal Pay Act. Under Title VII, as originally enacted, a
plaintiff may recover equitable relief in the form of backpay
and reinstatement, or front pay in lieu of reinstatement. See
Williams v. Pharmacia, Inc., 137 F.3d 944, 951 (7th Cir. 1998).
With the passage of the Civil Rights Act of 1991, a plaintiff
also may recover compensatory damages “for future
pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other
nonpecuniary losses” and punitive damages if the defen-
dant “engaged in a discriminatory practice or discrimina-
tory practices with malice or with reckless indifference to
the federally protected rights of an aggrieved individual.”
42 U.S.C. § 1981a(b)(1) & (3). However, punitive damages
cannot be recovered against “a government, government
agency or political subdivision.” Id. (b)(1).
Comparing the recovery Dr. Hildebrandt received on her
Equal Pay Act claim with the potential types of recovery
under Title VII, we believe that there is at least a possibility
of additional recovery should Dr. Hildebrandt prevail on
her Title VII claim. As noted above, Dr. Hildebrandt already
has recovered backpay and, therefore, is precluded from
any further award of backpay. She also received a substan-
tial compensatory award. Given our precedent, it would be
difficult for Dr. Hildebrandt to make a showing that she was
entitled to additional compensatory damages attributable
only to her discriminatory pay. See Webb v. City of Chester,
813 F.2d 824, 837 n.4 (7th Cir. 1987) (documenting range of
11
Although Dr. Hildebrandt also sought injunctive relief in the
form of a salary adjustment, the district court determined that
such relief was not available under the Equal Pay Act. See R.161
at 5-6. Dr. Hildebrandt does not appeal this ruling.
Nos. 01-3064 & 01-3690 25
awards of $500 to $50,0000 for emotional distress damages
due to loss of employment). Finally, as a matter of law, Dr.
Hildebrandt cannot recover punitive damages against the
IDNR, a government agency. See Baker v. Runyon, 114 F.3d
668 (7th Cir. 1997).
However, Dr. Hildebrandt has not recovered any front
pay as a result of the Equal Pay Act violation; indeed, the
district court explicitly ruled that such relief was not
available under the Equal Pay Act. See R.161 at 5-6. Such
relief is available under Title VII. See Gumbhir v. Curators of
the Univ. of Missouri, 157 F.3d 1141, 1144 (8th Cir. 1998)
(stating that “[i]t is often appropriate to grant a prospective
salary adjustment, or some other form of ‘front pay,’ in an
employment discrimination case” and upholding a jury’s
front pay award to compensate for discrimination in the
form of “below average salary increases”); see also Kim v.
Nash Finch Co., 123 F.3d 1046, 1066 (8th Cir. 1997) (uphold-
ing an award of front pay in failure to promote case).
Consequently, because there is at least one type of relief
available to Dr. Hildebrandt under Title VII that was not
available to her under the Equal Pay Act, we must remand
Dr. Hildebrandt’s Title VII disparate pay claim for further
12
proceedings.
12
We note, however, that front pay is an equitable remedy, see
Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 499 (7th Cir.
2000), and the decision to award or deny front pay is a matter of
discretion for the district court, see Sellers v. Delgado Coll., 902 F.2d
1189, 1193 (5th Cir. 1990). We express no opinion on whether the
district court should award front pay or, more fundamentally,
whether Dr. Hildebrandt’s underlying Title VII claim is meritori-
ous.
26 Nos. 01-3064 & 01-3690
2. Title VII—Hostile Environment
a. Statute of Limitations
With respect to Dr. Hildebrandt’s hostile work environ-
ment claim, we believe that Morgan requires that we
conclude that the district court erred in limiting its review
of her claim to acts occurring after July 10, 1997. Under
Morgan, “[a] hostile work environment claim is comprised
of a series of separate acts that collectively constitute one
‘unlawful employment practice.’ ” Morgan, 122 S. Ct. at 2074.
Consequently, “[p]rovided that an act contributing to the
claim occurs within the filing period, the entire time period
of the hostile environment may be considered by a court for
the purposes of determining liability.” Id. Because Dr.
Hildebrandt alleges several acts as part of her hostile work
environment claim that arose after July 10, 1997, she can
reach beyond the limitations period to bring forth evidence
of facts prior to that time that contributed to the hostile
environment.
However, a court of appeals can affirm a district court’s
grant of summary judgment on any ground that finds
support in the record. See Conley v. Vill. of Bedford Park, 215
F.3d 703, 709 (7th Cir. 2000). As explained in greater detail
below, we do not believe that Dr. Hildebrandt has set forth
a prima facie case of hostile work environment sexual
harassment, and we affirm the district court’s judgment on
that basis.
b. Merits
“An employer violates Title VII when discrimination
based on sex . . . create[s] a hostile or abusive work environ-
ment.” Adusumilli v. City of Chi., 164 F.3d 353, 361 (7th Cir.
1998) (internal quotation marks and citations omitted).
Nos. 01-3064 & 01-3690 27
“Workplace harassment must be sufficiently severe or
pervasive to be actionable.” Haugerud v. Amery Sch. Dist.,
259 F.3d 678, 692-93 (7th Cir. 2001) (internal quotation marks
13
and citations omitted). “Harassment is not limited to acts
13
We note, at the outset, that none of the allegedly discriminatory
actions that occurred after July 10, 1997, standing alone, consti-
tute actionable adverse employment actions. We review these
allegations briefly.
Dr. Hildebrandt first maintains that, in 1998, Mr. Little advised
Dr. Hildebrandt that she would be subjected to quarterly
evaluations, but did not have the same requirements for the male
program administrators. All that Dr. Hildebrandt alleges is that
Mr. Little “advised” her that she would be subject to quarterly or
mid-year evaluations. Appellant’s Br. at 15. The defendants
admitted in their answer to the complaint that Mr. Little had so
“advised.” R.1 at ¶¶ 37-38; R.4 at ¶¶ 37-38; R.44 at ¶¶ 37-38.
However, the record appears to be devoid of any evidence
indicating that Dr. Hildebrandt was ever subjected to a quarterly
or mid-year evaluation.
Second, Dr. Hildebrandt points to two other aspects of her
review process that she believes were discriminatory—the fact
that David Gillespie sat in on her evaluations after 1998 and that
her male coworkers were evaluated only by Mr. Little and that,
during her 1998 performance evaluation, Mr. Little recommended
that she travel less, apparently explaining that she might spend
more time with her family.
Under our case law, it is clear that the above acts do not
constitute an adverse employment action.
We have defined an adverse employment action as “more
disruptive than a mere inconvenience or an alteration of job
responsibilities. A materially adverse change might be
indicated by a termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distin-
guished title, a material loss of benefits, significantly dimin-
(continued...)
28 Nos. 01-3064 & 01-3690
13
(...continued)
ished material responsibilities, or other indices that might be
unique to a particular situation.
Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002) (quoting
Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996)); see also Markel,
276 F.3d at 911 (finding that being “denied ‘better’ equipment, the
ability to travel and make presentations, and removed from
certain accounts that caused her not to receive bonuses” did not
constitute adverse employment actions). Adverse employment
actions do not include inconveniences or minor events that
“make[] an employee unhappy.” Smart v. Ball State Univ., 89 F.3d
437, 441 (7th Cir. 1996). By contrast, “an employee must show
that ‘material harm has resulted from . . . the challenged ac-
tions.’ ” Traylor, 295 F.3d at 788 (quoting Haugerud v. Amery Sch.
Dist., 259 F.3d 678, 692 (7th Cir. 2001)).
Turning to Dr. Hildebrandt’s allegations, we cannot conclude
that the alleged discriminatory actions constitute adverse
employment actions. The fact that Gillespie sat in on the evalua-
tions and that Mr. Little advised Dr. Hildebrandt that she would
have extra performance evaluations (there is no evidence he ever
implemented this advisement), particularly when she received
favorable evaluations under these conditions, cannot constitute
an adverse employment action. Certainly there may be situations
when a difference in the frequency and quality of evaluations
may constitute an adverse employment action, see, e.g., Hernandez
v. Hill Country Tel. Cooperative, 849 F.2d 139, 143 (5th Cir. 1988)
(finding discrimination on the basis of race when, among other
inequities, the plaintiff was limited to annual raises and the other
employees received pay raises on a semi-annual basis); however,
this is not such a case.
Furthermore, we note that beginning with her annual perfor-
mance evaluation in 1998, Dr. Hildebrandt was given the same
performance evaluation of “accomplished” and the same
percentage raise as her male coworkers. See Defendant’s Ex.38.
(continued...)
Nos. 01-3064 & 01-3690 29
of sexual desire, but rather is a broad term which encom-
passes all forms of conduct that unreasonably interfere with
an individual’s work performance or create an intimidating,
hostile, or offensive working environment.” Id. at 692
(internal quotation marks and citations omitted). Yet, “not
all workplace conduct that may be described as ‘harass-
ment’ affects a term, condition, or privilege of employment
within the meaning of Title VII.” Adusumilli, 164 F.3d at 361.
Thus, “[t]o prevail on a hostile environment claim, the
plaintiff must show that the work environment was both
subjectively and objectively hostile.” Haugerud, 259 F.3d at
692-93. “An objectively hostile environment is one that a
reasonable person would find hostile or abusive,” and a
court “must consider all the circumstances, including the
frequency of the discriminatory conduct; its severity;
whether it was physically threatening or humiliating; or a
mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.”
Adusumilli, 164 F.3d at 361 (internal quotation marks and
citations omitted). Finally, and significantly in this case, the
harassment must have “occurred because of the sex of the
complainant, thus we ask whether she was exposed to
disadvantageous terms or conditions of employment to
which members of the other sex [were] not exposed.”
Haugerud, 259 F.3d at 692.
We now shall examine Dr. Hildebrandt’s primary factual
allegations in light of our hostile work environment case
13
(...continued)
Consequently, Dr. Hildebrandt did not suffer a material harm as
a result of the alleged actions.
30 Nos. 01-3064 & 01-3690
14
law.
14
Dr. Hildebrandt also alleges multiple acts of discrimination that
we do not discuss in the body of the opinion. By way of example
only, Dr. Hildebrandt argues (1) that Gillespie once removed a
reference to the fact she had a Ph.D. from one urban forestry
program; (2) that the IDNR telephone directories for a time
omitted listings for various urban forestry programs; (3) that
Sester had a full-time secretary, but that the other three (herself
and two men) shared the services of Ms. Brown and the clerical
staff; (4) that Ms. Brown and Mr. Little made stylistic changes to
her letters without her consent, such as that Mr. Little changed
the wording of a letter Dr. Hildebrandt wrote from “Illinois
Department of Natural Resources” to “we,” R.80 Supplemental
Aff. of Hildebrandt at ¶ 17; Dr. Hildebrandt was so upset at this
change by her supervisor—because it was her “opinion that a
more formal identifier be used for the Department”—that she
discussed it with Mr. Pequignot, who agreed with Mr. Little, see
id.; (5) that she was denied computer equipment; Dr. Hildebrandt
always had a computer, though initially she had a 286, and was
later given a 386, which is the same computer the other program
administrators were given, see Hildebrandt Dep. 62-65; (6) that
Ms. Brown and others who accompanied Dr. Hildebrandt to
conferences refused to help Dr. Hildebrandt in setting up and
taking down displays, see Hildebrandt Dep. 103-06; (7) that Dr.
Hildebrandt was treated disrespectfully by Ms. Brown and staff
workers, particularly that they treated her coldly while treating
the men more warmly. With respect to this last allegation, Dr.
Hildebrandt does not give any specific examples of either the
cold or the warm treatment, except that she was yelled at by staff
on a particular occasion; however, the record indicates that Sester
also had altercations with his secretary, Robin Blue, see
Hildebrandt Dep. at 57; Sester Dep. at 108; Defendant’s Ex.8A
(Little Dep.) at 170 (explaining that Sester had “major blowups”
with staff).
(continued...)
Nos. 01-3064 & 01-3690 31
First, Dr. Hildebrandt argues that she was subject to
“[o]ne or two off-color remarks made in her presence.”
Appellant’s Br. at 9. Dr. Hildebrandt does not elaborate on
those remarks, but the record indicates that there were two
distasteful jokes made by coworkers, neither of which were
directed at or told to Dr. Hildebrandt—she only overheard
them. We have recognized that “simple teasing” and
“offhand comments” generally “will not amount to discrim-
inatory changes in the terms and conditions of employ-
ment.” Adusumilli, 164 F.3d at 361 (internal quotation marks
omitted). Moreover, “second-hand harassment,” that is,
comments not directed to the plaintiff, do not have the same
impact as “harassment directed at the plaintiff.” Id. at 362.
Second, Dr. Hildebrandt argues that Mr. Little required
Dr. Hildebrandt “to submit monthly goals,” while her male
14
(...continued)
Although we do not dispute that such incidents, if properly
supported in the record and if affecting the plaintiff dispropor-
tionately in comparison to her male counterparts, may contribute
to a hostile work environment, neither of these requirements is
satisfied here. Apart from the complete lack of citation to the
record for any of these assertions, Dr. Hildebrandt has failed to
demonstrate that she was subjected to this treatment on the basis
of her sex. The record simply does not support a conclusion that
male program administrators were treated more favorably on
these matters. In fact, Dr. Hildebrandt admits that for several of
the alleged harassing acts (the signing of letters by Ms. Brown
and the sharing of secretaries), men and women were treated the
same. Consequently, because many of these allegations are not
supported by proper citation to the record and because Dr.
Hildebrandt has not shown that she was treated differently from
her male coworkers with respect to these events, we do not
consider these events in assessing Dr. Hildebrandt’s claim of a
hostile work environment.
32 Nos. 01-3064 & 01-3690
counterparts were not subject to the same requirement.
Appellant’s Br. at 10. The record does not support this
contention. Mr. Little explained in his deposition that each
of the program administrators was required to submit
monthly accomplishment statements. Each program admin-
istrator had his own way of doing so; some filed very
informal monthly statements. See Defendant’s Ex.8B at 353-
54. Dr. Hildebrandt argues that she additionally was
required to state her future goals as well as her accomplish-
ments. She brought as evidence of this requirement two
such monthly goal statements that she had submitted to Mr.
Little in 1993. Plaintiff’s Exs.198 & 199. At most, viewing the
evidence in the light most favorable to Dr. Hildebrandt, the
record indicates that Dr. Hildebrandt had the extra burden
of including her future “goals” in her monthly statement of
accomplishments, although the statement itself was a
requirement for all program administrators, male and
female. See Defendant’s Ex.8B at 354.
Third, Dr. Hildebrandt noted that Mr. Little advised Dr.
Hildebrandt that she would be subject to quarterly reviews
after 1998, but, apparently, did not similarly advise the male
program administrators. See R.1 at ¶¶ 37-38; R.44 at ¶¶ 37-
38.
Fourth, Dr. Hildebrandt notes that Gillespie sat in on her
evaluations after 1998 and that her male coworkers were
evaluated only by Mr. Little.
Fifth, Dr. Hildebrandt alleges that she was not allowed to
communicate directly with district foresters, but instead was
forced to communicate with them through Gillespie and
that the male program administrators were not subject to
the same requirement. However, the evidence demonstrates
that the male program administrators were required to
speak through Gillespie on specified projects with the
district foresters. See R.80 Supplemental Aff. of Hildebrandt
Nos. 01-3064 & 01-3690 33
at ¶ 54. At most, looking at the evidence in the light most
favorable to Dr. Hildebrandt, she was required to go
through Gillespie on more projects than were the men, but
the men were also required to do so, at least on occasion.
Dr. Hildebrandt has failed to show that these acts consti-
tute an objectively hostile work environment. “Harassment,
in the context of Title VII, involves conduct that unreason-
ably interferes with a person’s work performance or creates
an intimidating, hostile, or offensive work environment.”
Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir.
1998). The enumerated acts alleged by Dr. Hildebrandt at
most inconvenienced her, and there is no evidence that any
of them “unreasonably interfere[d]” with her work. Id.In addition to the allegations just analyzed, Dr.
Hildebrandt makes several general allegations of unequal
treatment. She claims that Ms. Brown and Mr. Little
bottlenecked her work and that Ms. Brown gave Dr.
15
Hildebrandt’s work lower priority; that “the level of her
staff support since 1991 has been diminished by over
16
50%”; and that she was not allowed to work with interns
17
as extensively as the men. However, these “[b]are allega-
tions not supported by specific facts are insufficient in
15
In her deposition, Dr. Hildebrandt stated that she has generally
observed that it takes longer for the support staff to complete her
work than it does to complete work for the men, but again, she
brings forth no specific instances of such. See Hildebrandt Dep. at
58-59.
16
We were unable to find this statistic in the record or any factual
support for it.
17
The record shows that Dr. Hildebrandt did have interns work
for her from time to time. Dr. Hildebrandt has failed to bring
forth any specific evidence of what interns were available to
Urban Forestry or the other programs or of the procedure for
hiring and assigning interns.
34 Nos. 01-3064 & 01-3690
opposing a motion for summary judgment.” Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989);
Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003)
(“Conclusory allegations, unsupported by specific facts, will
not suffice.”).
C. Section 1983 Claims
Dr. Hildebrandt also brought § 1983 claims, parallel to her
Title VII claims, against the individual defendants for sex
discrimination with respect to her compensation and with
18
respect to non-compensatory inequitable treatment.
1. Section 1983/Non-compensatory Claims
The district court dismissed the § 1983 claims concerning
18
The Supreme Court’s ruling in National Railroad Passenger Corp.
v. Morgan, 536 U.S. 101 (2002), although discussing the continuing
violation doctrine in the Title VII context, applies equally to
§ 1983 cases. See Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.
2003) (explaining the lack of a “principled basis upon which to
restrict Morgan to Title VII claims” and thus applying it to § 1983
claims), petition for cert. filed, 72 U.S.L.W. 3093 (July 9, 2003); RK
Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058-61 (9th Cir.
2002) (applying Morgan to § 1983 claims). Therefore, under
Morgan, any discrete acts that Dr. Hildebrandt alleges occurred
outside of the limitations period for § 1983 actions are barred, but
acts that contribute to a hostile work environment may be
considered so long as one of the contributing acts occurred within
the limitations period. The statute of limitations for § 1983 actions
in Illinois is two years, see Licari v. City of Chi., 298 F.3d 664, 667-
68 (7th Cir. 2002), and Dr. Hildebrandt filed her case on Decem-
ber 29, 1998. Consequently, we focus our inquiry on events that
occurred after December 29, 1996.
Nos. 01-3064 & 01-3690 35
the treatment of Dr. Hildebrandt unrelated to her compen-
sation on the basis that the defendants were entitled to
qualified immunity. We begin by noting that the district
court did not employ the methodology set forth by the
Court in Saucier v. Katz, 533 U.S. 194 (2001), to determine
whether the defendants were entitled to qualified immunity.
According to Saucier, the district court was required to
analyze first whether there was a constitutional violation
and second whether it was clearly established, at the time
the defendants took the allegedly discriminatory actions,
that such actions violated the Constitution. The district court
incorrectly skipped the first step and rather first inquired
whether there was qualified immunity. Here, we follow
Saucier and inquire first whether the actions of each defen-
dant resulted in a constitutional violation.
“[T]he same standards for proving intentional discrimina-
tion apply to Title VII and § 1983 equal protection” claims.
Williams v. Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003). Thus,
the non-compensatory § 1983 claims against the individual
defendants can be dismissed on the same basis as the Title
VII claims: Dr. Hildebrandt has failed to set forth a prima
facie case of discriminatory treatment or of hostile work
19
environment harassment.
19
For the disparate treatment discrete action claim (not the
hostile work environment claim), the statute of limitations for
§ 1983 claims bars any discrete actions occurring before Decem-
ber 29, 1996, while the statute of limitations for Title VII barred
any actions occurring before July 10, 1997. Thus, if Dr.
Hildebrandt had alleged any specific actions that fell between
those dates, we would have to review them separately here.
However, Dr. Hildebrandt did not allege any specific actions that
fell between December 29, 1996, and July 10, 1997.
36 Nos. 01-3064 & 01-3690
2. Section 1983/Disparate Pay Claims
As to her disparate pay claim, the only raise that Dr.
Hildebrandt received at a discriminatory rate after Decem-
ber 29, 1996, was her July 1, 1997 raise. The district court
granted summary judgment to all of the individual defen-
dants (Mr. Pequignot, Ms. Brown and Mr. Cottrell) except
Mr. Little on the basis that Mr. Little “was the only Defen-
dant who directly participated in this possibly discrimina-
tory act” and “[s]ection 1983 requires direct participation.”
R.81 at 19. The district court later entered a directed verdict
in favor of Mr. Little on this claim because Dr. Hildebrandt
had failed to show intent to discriminate and because Mr.
Little was entitled to qualified immunity. She appeals the
judgment in favor of Mr. Pequignot and Mr. Cottrell, as well
as the directed verdict in favor of Mr. Little.
We first address the claim against Mr. Little.
a. Directed Verdict for Mr. Little
The district court appears to have concluded that Dr.
Hildebrandt failed to show that Mr. Little possessed the
necessary discriminatory intent required to set forth an
equal protection claim. At trial, Dr. Hildebrandt testified
20
that her 1997 evaluation was not a bad evaluation. The
20
Dr. Hildebrandt’s statement at trial was part of the following
dialogue concerning the 1997 performance evaluation:
Q. How many “accomplished” did you get?
A. Five.
Q. And in fact, on Page 4 of this evaluation, Dick Little rated
(continued...)
Nos. 01-3064 & 01-3690 37
district court concluded that this testimony and the fact that
Mr. Little gave raises that were within the suggested
guideline range demonstrated that “Little did not intention-
ally give [Dr. Hildebrandt] a smaller raise in that year
because of her gender.” R.155 at 684.
We do not believe that the district court’s conclusion
necessarily follows from the facts upon which it relied. If
Mr. Little gave Dr. Hildebrandt the lowest raise in a range
because of her sex, but gave all the men who were similarly
evaluated higher raises, Mr. Little’s actions would constitute
intentional discrimination regardless of whether he fol-
lowed the guidelines and of whether “accomplished” is
considered a good or bad rating.
With respect to Mr. Little’s intent, Dr. Hildebrandt was
not required to rely upon direct evidence. As explained in
Bruno v. City of Crown Point, 950 F.2d 355, 361 (7th Cir. 1992),
“[u]nder Title VII and § 1983, the plaintiff is required to
establish that she has been the victim of intentional discrimi-
nation.” Yet, for both § 1983 and Title VII claims, “[t]he
plaintiff can provide evidence of intentional discrimination
in two different ways. The plaintiff may either offer direct
proof of discrimination or may rely on indirect evidence
20
(...continued)
you with respect to your human relations as “accomplished,”
and he made a positive comment; “Reinee continues to
improve in this area.” Right?
A. Correct.
Q. Did you think this was a bad evaluation?
A. No.
R.105 at 44. With respect to the various categories listed on the
evaluation form, Dr. Hildebrandt received five ratings of
“accomplished” and four ratings of “acceptable.” Her overall
rating on the 1997 review was “accomplished.”
38 Nos. 01-3064 & 01-3690
using the McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), burden-shifting method of proof.” Id. (internal
citations omitted).
Because Dr. Hildebrandt did not bring forth direct
evidence of discrimination with respect to her 1997 raise, we
must determine whether she established the requisite intent
through circumstantial evidence. As Bruno notes, the most
common method of establishing intent in the absence of
direct evidence is the McDonnell-Douglas indirect method
outlined above. First, Dr. Hildebrandt was in a protected
class as a woman; second, she received an evaluation of
“accomplished” for 1997 and was meeting her employer’s
legitimate employment expectations; third, she suffered an
adverse employment action, namely, a raise at a discrimina-
tory rate; and fourth, she was treated differently from
similarly situated employees in that two of the male pro-
gram directors received the same employment evaluation
that Dr. Hildebrandt received and both received higher
raises. The exact percentages of the raises are disputed, but
Dr. Hildebrandt received either a 3.55% or a 3.56% raise;
Schmocker received either a 4% or a 4.4% raise; and Skuba
received a 6% or a 7.8% raise.
Because the district court never reached the merits of this
claim, it never had an opportunity to address whether Dr.
Hildebrandt was subject to disparate treatment on
21
an impermissible basis. On remand, the court will have to
determine whether Mr. Little gave a neutral reason for the
lower raise and whether Dr. Hildebrandt showed that any
21
Unlike her claim under Title VII, Dr. Hildebrandt’s § 1983 claim
may result in an award of punitive damages against the individ-
ual defendants. See, e.g., Siebert v. Severino, 256 F.3d 648 (7th Cir.
2001).
Nos. 01-3064 & 01-3690 39
22
such reason was pretextual.
22
Because there are genuine issues of material fact with respect
to whether a constitutional violation took place, we also cannot
resolve the second issue of the Saucier analysis—whether the
defendants are entitled to qualified immunity—on the record
before us. We have stated that qualified immunity shields a
governmental official from § 1983 liability if “either the federal
law he is asserted to have breached was not clearly established at
the time of the alleged violation or there exists no genuine
dispute of material fact which would prevent a finding that his
actions, with respect to following such clearly established law,
were objectively reasonable.” Tangwall v. Stuckey, 135 F.3d 510,
515 (7th Cir. 1998). With respect to the first part of this inquiry,
we note that the district court erred in requiring the plaintiff
to come forward with a case precisely on point in order to show
that the right was clearly established. We previously have
explained that
[a] right is clearly established when its contours are suffi-
ciently clear so that a reasonable official would realize that
what he is doing violates that right. This does not mean that
there has to be a case on point holding that the officials’ exact
conduct is illegal before we will find the officials liable;
however, in the light of preexisting law the unlawfulness
must be apparent.
Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997) (internal
quotation marks and citations omitted). Consequently, the fact
that Dr. Hildebrandt cannot point to a case holding “that giving a
lower raise that was within the set guidelines” resulted
in a constitutional violation, Trial Tr. at 684, is not dispositive of
the qualified immunity issue. See, e.g., Nabozny v. Podlesny, 92 F.3d
446, 455-56 (7th Cir. 1996) (holding that defendants were not
entitled to qualified immunity on a claim of gender discrimination
even though there were no cases directly on point because the
Supreme Court in 1971 had established that the Equal Protection
(continued...)
40 Nos. 01-3064 & 01-3690
b. Personal Involvement of Mr. Pequignot and Mr.
Cottrell
Having determined that Dr. Hildebrandt established a
prima facie case that the 1997 raise constituted intentional
gender discrimination, we turn to whether Mr. Pequignot
and Mr. Cottrell also could be subject to liability for the
allegedly discriminatory 1997 raise. The district court
dismissed Mr. Pequignot and Mr. Cottrell because they
were not personally involved in the raise.
For a defendant to be liable under § 1983, he or she must
have participated directly in the constitutional violation.
“Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, liability does not
attach unless the individual defendant caused or partici-
pated in a constitutional deprivation.” Vance v. Peters, 97
F.3d 987, 991 (7th Cir. 1996). For supervisors,
[a]n official satisfies the personal responsibility require-
ment of section 1983 . . . if the conduct causing the
constitutional deprivation occurs at [his] direction or
22
(...continued)
Clause “prevent[ed] arbitrary gender-based discrimination” and
by 1982 the Supreme Court had held that the Equal Protection
Clause “requir[ed] equal treatment regardless of gender”);
Markham v. White, 172 F.3d 486, 491 (7th Cir. 1999) (“The fact that
arbitrary gender-based discrimination, including discrimination
in an educational setting, violates the equal protection clause has
been plain in this circuit for almost a decade and a half.”).
Furthermore, as explained in detail above, there is a genuine
issue of material fact that precludes a finding that Mr. Little did
not discriminate against Dr. Hildebrandt on the basis of her sex
by giving her a lower raise within the guideline range. Conse-
quently, summary judgment on qualified immunity grounds is
not appropriate.
Nos. 01-3064 & 01-3690 41
with [his] knowledge and consent. That is, he must
know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye. In short, some causal
connection or affirmative link between the action
complained about and the official sued is necessary for
§ 1983 recovery.
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (internal
quotation marks and citations omitted). Mr. Little was Dr.
Hildebrandt’s direct supervisor, Mr. Pequignot supervised
Mr. Little, and Mr. Cottrell supervised Mr. Pequignot.
At oral argument and in her brief, Dr. Hildebrandt
stressed that there was evidence that Mr. Pequignot was
involved directly with Dr. Hildebrandt’s performance
evaluations and accompanying raises. The record supports
this contention. In his deposition, Mr. Little stated that he
“always discussed every one of these [performance evalua-
tions and raises] with the State Forester [Mr. Pequignot].”
Defendant’s Ex.8B at 248. Although Mr. Pequignot testified
that he reviewed the raises merely to determine if they fit
within the budget, see, e.g., Defendants’ Ex.7A at 32, Mr.
Pequignot also stated that in “a lot” of cases Mr. Little
would bring the evaluations to him to review or see if Mr.
Pequignot had any comments or changes. Defendants’
Ex.7A at 32. Indeed, the record includes a memo from Mr.
Little to Mr. Pequignot requesting comments on Dr.
Hildebrandt’s 1993 performance evaluations (we have no
information specifically concerning the 1997 evaluation and
raise, except that Mr. Pequignot signed it as well as the
evaluations and raises for the male program administrators).
See Defendants’ Exs.15-18. Viewing the evidence in the light
most favorable to Dr. Hildebrandt, as we must on summary
judgment, we conclude that there is a genuine issue of
material fact as to whether the alleged “constitutional
deprivation occur[red] . . . with [Mr. Pequignot’s] knowl-
42 Nos. 01-3064 & 01-3690
edge and consent.” Gentry, 65 F.3d at 561. There is at least a
genuine issue of fact that Mr. Pequignot “kn[ew] about the
conduct, facilitat[ed] it, approve[d] it, [and] condone[d] it,”
as evidenced by his participation in the evaluation process
as well as his signing (and approving) the evaluations. Id.We therefore reverse the district court’s determination as to
Mr. Pequignot.
However, we do not reach the same conclusion as to Mr.
Cottrell. Dr. Hildebrandt’s only allegation of personal
involvement by Mr. Cottrell was that he “attended and
actively participated in the March 31, 1998 meeting.”
Appellant’s Br. at 35; R.73 at 5. We do not think that this
allegation constitutes sufficient evidence to create a triable
issue of fact for a jury that Mr. Cottrell was personally
involved in determining Dr. Hildebrandt’s 1997 raise. We
accordingly affirm the district court as to its grant of
summary judgment in favor of Mr. Cottrell.
D. Cummings’ Statements
At trial, Dr. Hildebrandt sought to testify that, during the
March 31, 1998 meeting, Theresa Cummings had stated that
Director Manning had “approved” Cummings’ recommen-
dations (to review Dr. Hildebrandt’s salary, etc.). The
defendants objected to Dr. Hildebrandt’s statement as
hearsay, and the trial court sustained the objection. The trial
court stated that Cummings would have to be called as a
witness and testify herself as to whether or not Manning
approved her recommendations and what her recommenda-
tions were. See R.110 at 183, 187.
“Evidentiary rulings by the trial judge are reviewed for an
abuse of discretion, and we will alter the district court’s
ruling only if failure to do so would be inconsistent with
substantial justice.” Fort v. C. W. Keller Trucking, Inc., 330
Nos. 01-3064 & 01-3690 43
F.3d 1006, 1013 (7th Cir. 2003) (internal quotation marks and
citations omitted); see also Fed. R. Civ. P. 61 (“No error in
either the admission or the exclusion of evidence . . . is
ground for . . . modifying, or otherwise disturbing a judg-
ment or order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substan-
tial rights of the parties.”).
Here, it appears that any error with regard to admitting
Cummings’ statements or documents was harmless. With
respect to Cummings’ recommendations, no harm resulted
from the ruling because the recommendations were read
into the record. See R.153 at 305-06 (Cummings reads her
recommendations into the record); R.154 at 543-44 (court
noting that the inadmissible letter repeated that to which
Cummings had already testified). As to the district court’s
refusal to allow Dr. Hildebrandt to testify that Cummings
stated to her (Dr. Hildebrandt) that Director Manning had
“approved” Cummings’ recommendation, the issue is
irrelevant to the claims being appealed. Dr. Hildebrandt
prevailed at trial on her Equal Pay Act claim. She claims in
her reply brief that Cummings’ excluded “statements are
evidence of intentional discrimination on the parts of Little,
Pequignot, and Cottrell for both the 1983 claims and the
Title VII claims.” Reply Br. at 16. However, the § 1983 claims
against Mr. Pequignot and Mr. Cottrell were disposed of on
summary judgment, as were the Title VII claims. In evaluat-
ing the propriety of summary judgment on appeal, we are
limited to reviewing what the district court had before it at
the time it granted summary judgment, see, e.g., Harrods Ltd.
v. Sixty Internet Domain Names, 302 F.3d 214, 242 (4th Cir.
2002); such evidence does not include trial testimony.
Consequently, the district court’s evidentiary rulings during
44 Nos. 01-3064 & 01-3690
trial do not provide a basis for overturning a summary
judgment.
The only claim potentially affected by the court’s eviden-
tiary ruling is the § 1983 claim against Mr. Little. However,
whether Director Manning approved Cummings’ recom-
mendations in 1998 is irrelevant to the question of whether
Mr. Little acted with discriminatory intent in giving a lower
raise to Dr. Hildebrandt in July of 1997. Reversible error
cannot be predicated on the decision to allow, or refusal to
admit, evidence that is not probative of an issue before the
court. See Old Republic Ins. Co. v. Employers Reinsurance Corp.,
144 F.3d 1077, 1081 (7th Cir. 1998) (stating that “[n]o error in
either the admission or the exclusion of evidence . . . is
ground for granting a new trial or for . . . disturbing a
judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice”
and further stating that this standard is met “when a
significant chance exists that they affected the outcome of
the trial” (internal quotation marks and citations omitted)).
Thus, the district court’s refusal to admit Cummings’
statement at trial, even if error, also was harmless with
respect to the disparate pay claim against Mr. Little.
E. Attorneys’ Fees
The district court reduced Dr. Hildebrandt’s fees by one-
third on the basis of her limited success. Dr. Hildebrandt
submits that the district court erred in this determination.
However, we need not reach this precise issue. Our reversal
of the district court with respect to the Title VII disparate
pay claim and to the § 1983 claims against Mr. Little and Mr.
Pequignot potentially changes Dr. Hildebrandt’s degree of
success. We therefore vacate the district court’s attorneys’
fee award.
Nos. 01-3064 & 01-3690 45
Conclusion
The judgment of the district court is affirmed with respect
to its grant of summary judgment to the individual defen-
dants on the non-compensatory § 1983 claims and to the
IDNR on the non-compensatory Title VII claim. However,
we reverse the judgment of the district court with respect to
the § 1983 disparate pay claims against Mr. Little and Mr.
Pequignot, and with respect to the Title VII disparate pay
claim against the IDNR, and we remand these claims for
further proceedings. Finally, because our ruling may alter
the measure of Dr. Hildebrandt’s success on the merits, we
vacate the district court’s grant of attorneys’ fees. The
parties shall bear their own costs in this court.
AFFIRMED in part, REVERSED in part,
VACATED in part and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-03