Markel, Karla J. v. Bd Regents Univ WI

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1513
Karla J. Markel,
Plaintiff-Appellant,
v.
Board of Regents of the University
of Wisconsin System,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C 254--Barbara B. Crabb, Chief Judge.
Argued December 4, 2001--Decided January 3, 2002
Before Bauer, Posner, and Easterbrook,
Circuit Judges.
Bauer, Circuit Judge. From October 1998
through June 1999, Karla Markel was
employed on a fixed-term nine month
contract by the University of Wisconsin
Learning Innovations. A month prior to
the end of Markel’s contract she was
dismissed from her position, but she was
still paid in full until her contract
expired. Markel later filed a complaint
in the Western District of Wisconsin
claiming that she was discriminated
against on the basis of her gender, in
violation of the Civil Rights Acts of
1964, as amended, 42 U.S.C. sec. 2000 et
seq., and that she was paid less than her
male counterparts for the same work, in
violation of the Equal Pay Act of 1963,
29 U.S.C. sec. 206(d). The University of
Wisconsin moved for summary judgment on
both claims, and the district court
granted the motion finding there was no
genuine issue of material fact and that
summary judgment was warranted as a
matter of law. Markel filed a timely
appeal with this court, and after
briefing and oral argument we conclude
that the district court correctly granted
summary judgment and affirm.
BACKGROUND
The University of Wisconsin Learning
Innovations (UWLI) is a division of the
University of Wisconsin Extension. The
mission of the Extension is to promote
various University programs and resources
to the citizens of Wisconsin not enrolled
in the University. Karla Markel was hired
by UWLI pursuant to a nine month fixed-
term contract, which was to run from
October 1998 until June 1999. The
contract did not provide for renewal and
disavowed any right to notice of
nonrenewal. Included with the contract
was a non-compete clause and an agreement
not to disclose any proprietary
information. As part of UWLI, which
provided web-based services to
corporations and governmental entities,
her job duties included developing sales
of web-based services to health care
organizations. Markel was to receive a
3.5% bonus based on gross revenues
generated, if certain conditions were
met. Markel’s supervisors were Michael
Offerman, the Dean and Director of UWLI,
and Philip LaForge, Marketing Manager.
In April 1999, Offerman and LaForge were
informed that Markel, Richard Schafer,
and Jeffery Sledge were involved with a
competing company, called Learning W@rks,
and were trying to recruit UWLI employees
to staff it. A meeting occurred at a
restaurant among the employees,
supposedly to recruit John Ashley and
discuss business strategy. Offerman,
together with LaForge and Holly
Breitkreutz, Associate Dean & Director of
UWLI, went to the restaurant and saw four
employees there, seated together. After
the meeting, when Ashley returned to the
office, Offerman confronted him. Ashley
told Offerman the business plan and gave
him some documents from the new business.
It seems that the employees intended to
take advantage of Schafer’s connection,
through his wife, to an existing
enterprise called Leadership Online,
which performed services similar to that
of UWLI. They also planned to use
Sledge’s involvement with a nonprofit
company called Learning Works Group.
Learning Works Group, because of its
connections to former University regents,
appeared to be affiliated with the
University. Apparently, Leadership Online
was supposed to take over Learning Works
Group and use some of its’ name
recognition and inferred associations
with the University to attract business.
In May 1999, armed with this
information, Offerman and Breitkreutz
confronted Markel. They asked Markel
about her involvement with Learning
W@rks, and gave her written notice of the
charges of dismissal and a chance to
respond. Offerman told her that in order
to avoid dismissal she needed to either
write out and sign a statement outlining
what she knew about the new business or
resign. Markel refused to sign a
statement and said she would need to
consult with an attorney before answering
Offerman’s questions. The meeting ended,
and Markel was forced to cease work
immediately and return all UWLI property.
However, the next step in the process to
terminate Markel was not taken, and she
was paid in full until the end of her
contract on June 30, 1999. Markel later
filed an appeal of the dismissal and
requested a hearing, but because her
contract had already ended and it was
nonrenewable, Offerman withdrew the
dismissal charges.
ANALYSIS
We review a district court’s grant of
summary judgment de novo, to determine if
there is a genuine issue of material fact
that would necessitate a trial. Griffin
v. City of Milwaukee, 74 F.3d 824, 826-27
(7th Cir. 1996). Summary judgment is
appropriate where there is no genuine
issue of material fact and the moving
party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56. The facts are
viewed in a light most favorable to the
nonmoving party and all reasonable
inferences are drawn in favor of the
nonmoving party. In the employment
discrimination context, summary judgment
is warranted where "the evidence,
interpreted favorably to the plaintiff,
could [not] persuade a reasonable jury
that the employer had discriminated
against the plaintiff." Palucki v. Sears,
Roebuck & Co., 879 F.2d 1568, 1570 (7th
Cir. 1989).
A. Gender Discrimination Claim
A plaintiff in an employment
discrimination action may prove
discrimination either through direct
evidence or indirect evidence, using the
McDonnell-Douglas Corp. v. Green, 411
U.S. 792 (1973), burden shifting
approach. See Randle v. LaSalle Telecom.,
Inc., 876 F.2d 563, 565-69 (7th Cir.
1989). In either case, the burden is on
the plaintiff to demonstrate genuine
issues exist for trial. Griffin, 74 F.3d
at 827.
1. Direct Discrimination
As she did in the district court, Markel
contends that several statements
attributed to Offerman and LaForge are
evidence of direct discrimination.
Offerman, LaForge, and the University
deny that the statements were ever made.
At oral argument the University contended
that these statements are more
appropriately considered performance
related, and even if they are believed,
show an aversion toward age not gender.
Either way, the statements are not worth
repeating because they fail to show
direct discrimination. In order to arrive
at the conclusion Markel would have us
reach, we would need to infer
discriminatory animus into the
statements, which we cannot do. See
Randle, 876 F.2d at 569-70 (holding that
"direct evidence, if believed by the
trier of fact, will prove the particular
fact in question without reliance upon
inference or presumption") (emphasis
added). Moreover, the statements were
claimed to have been made between
November 1998 and March 1999, and Markel
was removed from her position nearly two
months later in May 1999. Therefore,
these statements were not made
contemporaneously to the adverse
employment action as required by our case
law. See id.; Conley v. Vill. of Bedford
Park, 215 F.3d 703, 711 (7th Cir. 2000)
("’To rise to the level of direct
evidence of discrimination, this Court
has stated that isolated comments must be
contemporaneous with the [adverse action]
or causally related to the [applicable]
decision-making process.’") (citations
omitted); Robin v. Espo Eng’g Corp., 200
F.3d 1081, 1089 (7th Cir. 2000). The
district court properly found Markel
failed to demonstrate any potential claim
of direct discrimination.
2. Indirect Discrimination
Under the McDonnell-Douglas burden
shifting approach, 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. See, e.g., Bragg
v. Navistar Int’l Transp. Corp., 164 F.3d
373, 376 (7th Cir. 1998); Randle, 876
F.2d at 570-71.
Markel meets the first prong of the test
because she is a member of a protected
class. However, the district court found
that Markel did not meet the second prong
because she violated the non-compete
clause in her contract. Thus, the
district court did not reach the third
prong of the test. Nevertheless, on
appeal, Markel used a considerable
portion of her brief to contend that she
suffered an adverse employment action.
This is an interesting legal question be
cause Markel was not technically
dismissed from her job; she was paid in
full until the end of her contract, and
her contract was nonrenewable. Typically,
adverse employment actions are economic
injuries such as dismissal, suspension,
failure to promote, or diminution in pay.
Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761-62 (1998) ("A tangible
employment action in most cases inflicts
direct economic harm."); Hunt-Golliday v.
Metro. Water Reclamation Dist. of Greater
Chicago, 104 F.3d 1004, 1014-15 (7th Cir.
1997) (suspension and suspension pending
termination); Hunt v. City of Markham,
Illinois, 219 F.3d 649, 654-55 (7th Cir.
2000) (denial of a raise); Ribando v.
United Airlines, Inc., 200 F.3d 507, 511
(7th Cir. 1999) (denial of a promotion).
Markel could be considered to have been
constructively discharged, though not in
the traditional sense, or suspended
pending termination. See Tutman v. WBBM-
TV, Inc./CBS, Inc., 209 F.3d 1044, 1050
(7th Cir. 2000) (a constructive discharge
normally occurs where an employer drives
the employee to quit by making working
conditions miserable); Hunt-Golliday, 104
F.3d at 1014-15. Even though a resolution
of this issue might create some new
insights in this area of the law, we need
not reach it because of Markel’s failure
to meet the second part of the test.
Markel also complains that she was
treated adversely because she was denied
"better" equipment, the ability to travel
and make presentations, and removed from
certain accounts that caused her not to
receive bonuses. Even if believed, these
complaints do not amount to
actionableadverse employment actions.
"While adverse employment actions extend
beyond readily quantifiable losses, not
everything that makes an employee unhappy
is an actionable adverse action." Smart
v. Ball State Univ., 89 F.3d 437, 441
(7th Cir. 1996); see also Stutler v.
Illinois Dept. of Corr., 263 F.3d 698,
702-03 (7th Cir. 2001) (holding that "a
lateral transfer without a loss in
benefits does not constitute an adverse
employment action."); Fyfe v. City of
Fort Wayne, 241 F.3d 597, 602 (7th Cir.
2001) (holding that denial of a request
for reimbursement for travel expenses did
not constitute an adverse employment
action); Murray v. Chicago Transit
Authority, 252 F.3d 880, 887-88 (7th Cir.
2001) (same); Miller v. Am. Family Mut.
Ins. Co., 203 F.3d 997, 1006 (7th Cir.
2000) (holding that denial of a bonus was
not an adverse employment action); Place
v. Abbott Lab., 215 F.3d 803, 810 (7th
Cir. 2000) (holding that the loss of a
telephone and cubicle were "too trivial
to amount to an adverse employment
action"); Conley, 215 F.3d at 712
(requiring village maintenance worker
plaintiff to paint water department pump
room was not an adverse employment
action). When combined with other
actions, differences in office aesthetics
between employees might aid the plaintiff
in showing discriminatory treatment,
however, standing alone they are not
readily quantifiable losses Title VII was
meant to redress. See, e.g., Wanamaker v.
Columbian Rope Co., 108 F.3d 462, 466 (2d
Cir. 1997) (noting that "the loss of
these services [office and telephone],
standing alone, has never been held
adverse action." (citing Collins v. State
of Illinois, 830 F.2d 692, 703-04 (7th
Cir. 1987))).
Markel contends she was terminated
because of her gender, and that her
contract was "renewable on an annual
basis." In order to stave off summary
judgment a fact would need to be in
dispute and material to the case. As we
have stated before, "[a] party to a
lawsuit cannot ward off summary judgment
with an affidavit or deposition based on
rumor or conjecture." Palucki, 879 F.2d
at 1572. The facts show that another
enterprise called Learning W@rks was
formed, and that Markel had lunch with
several other employees of UWLI to
discuss job opportunities. Markel was
only confronted after management
collected information and documents
regarding this enterprise, and after she
was observed at the meeting by her
supervisors. Additionally, if Markel’s
assertion of pretext is correct, there
was absolutely no reason for UWLI to also
terminate Schafer, who was also
supposedly involved with Learning W@rks.
Yet, Schafer was terminated and other
employees who did not cooperate were
disciplined. As to Markel’s argument that
her contract was renewable, the documents
contained in her own appendix clearly
establish that her contract "did not
provide for any term of renewal," and her
"appointment [was] for the above-stated
period only and renewal [was] not
intended."
Markel’s counsel also filed an affidavit
purporting to be that of Jeffery Sledge.
Though this affidavit adds no evidence
beneficial to Markel’s case, its unusual
nature calls for a momentary digression.
Pursuant to Rule 56(e) affidavits are
only to be "made on personal knowledge."
Fed. R. Civ. P. 56(e). Put another way,
affidavits "must show that the affiant is
competent to testify to the matters at
hand, and must contain facts that would
be admissible in evidence." Rhine v.
Loyola Univ. Chicago, 1998 WL 456550 at
*2 (N.D. Ill. July 31, 1998); Thompson v.
Exposition Serv., 2001 WL 321998 at *1
(N.D. Ill. April 2, 2001); New Hampshire
Ins. Co. v. Farmer Boy AG, Inc., 2000 WL
33125128 at *5 (S.D. Ind. Dec. 19, 2000);
cf. Palucki, 879 F.2d at 1572. Jeffery
Sledge’s affidavit was not sworn to or
certified, and it was not signed by him,
it was signed by Alan Olson, counsel for
Markel. This affidavit should not, and
indeed cannot, be considered as evidence
because it fails to meet the requirements
of Rule 56(e). See Vanni v. City of New
York, 1988 WL 1956 at *10 (E.D.N.Y. Jan.
5, 1988).
After our own review of the facts, we
find that the district court correctly
concluded that summary judgment was
warranted because no issues of material
facts were in dispute.
B. Unequal Pay Claim
To demonstrate a prima facie case for a
violation of the Equal Pay Act, a
plaintiff must establish: "(1) that
different wages are paid to employees of
the opposite sex; (2) that the employees
do equal work which requires equal skill,
effort, and responsibility; and (3) that
the employees have similar working
conditions." Fallon v. State of Illinois,
882 F.2d 1206, 1208-09 (7th Cir. 1989).
The plaintiff would have to show that the
jobs compared are substantially equal,
"based upon ’actual job performance and
content--not job titles, classifications
or descriptions.’" EEOC v. Mercy Hosp.
and Med. Ctr., 709 F.2d 1195, 1197 (7th
Cir. 1983) (citations omitted). After a
plaintiff has demonstrated a prima facie
case, the employer may respond with
affirmative defenses to show the pay
differential is due to: "(1) a seniority
system; (2) a merit system; (3) a system
which measures earnings by quantity or
quality of production; or (4) any other
factor other than sex." Fallon, 882 F.2d
at 1211.
Markel compared her position to that of
Brent Parks and Richard Schafer, both of
whom were paid more than Markel. Thus,
the first part of the test was met, and
we move on to consider the second and
third parts. Parks was a consultant who
did not receive benefits, and there was
no evidence demonstrating he performed
work that was substantially equal to
Markel’s work. Schafer, however, was part
of the marketing team and was an account
manager like Markel. Thus, Markel
demonstrated a prima facie case as to the
pay disparity between her and Schafer.
The burden then shifted to the
University to explain the pay disparity.
The University explained that Schafer was
justifiably paid more than Markel based
on the number of years he had worked for
the University and the fact he had been a
program director. The district court
found that these reasons showed the pay
disparity was based on factors "other
than sex." In their affidavits, Markel
and Schafer averred that there were no
grounds, other than sex, for the pay
disparities between Markel, Parks, and
Schafer. However, apart from their bald
assertions there is no evidence to
support these contentions. Parks and
Markel were not substantially equal, and
there was a legitimate reason not based
on sex for Schafer’s higher compensation.
See Dey v. Colt Constr. & Dev. Co., 28
F.3d 1446, 1462 (7th Cir. 1994) ("The
factor need not be ’related to the
requirements of the particular position
in question,’ nor must it even be
business-related.") (citations omitted).
Markel further asserts that Schafer was
not entitled to notice prior to
termination and severance pay. The
University demonstrated and district
court found that because of his length of
tenure at UWLI, Schafer was entitled to
notice under the applicable
administrative code. Our reading of the
code comports with that of the district
court, and Markel never provided any
evidence to contradict this basic reading
of the text. Based on the applicable
rules, UWLI was required to give notice
and severance pay to Schafer, but was not
required to do so for Markel.
CONCLUSION
Applying the relevant legal principles
to the facts of this case led us to the
same conclusion as the district court: no
reasonable jury could find that the
employer discriminated against the
plaintiff. Affirmed.