Peirick, Debbie A. v. IN Univ Purdue Athle

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1538
DEBBIE A. PEIRICK,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY-PURDUE UNIVERSITY INDIANAPOLIS
ATHLETICS DEPARTMENT; INDIANA UNIVERSITY-PURDUE
UNIVERSITY INDIANAPOLIS; and THE BOARD OF TRUSTEES
OF INDIANA UNIVERSITY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 1965—Larry J. McKinney, Chief Judge.
____________
ARGUED NOVEMBER 28, 2006—DECIDED DECEMBER 14, 2007
____________
Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. During Debbie Peirick’s
thirteenth and final year as head coach of the women’s
tennis team at Indiana University-Purdue University
Indianapolis (IUPUI), her team maintained the highest
grade point average of all athletic teams, achieved its
best season in history, and, for the first time, qualified for
the NCAA tournament. Despite this record, Peirick, then
age fifty-three, was fired when the season ended. Within
a month of her termination, IUPUI hired the twenty-three
2 No. 06-1538
year old sister of the men’s tennis coach to coach the
women’s tennis team.
Peirick sued IUPUI, the IUPUI Athletics Department,
and the Board of Trustees of Indiana University, claiming
that her termination was motivated by gender and age.
The district court granted summary judgment for the
defendants on both claims. Material questions of fact
exist as to whether Peirick was treated less favorably
than her similarly situated male counterparts, so we
vacate the grant of summary judgment on her gender
discrimination claim. However, because IUPUI and the
Board of Trustees of Indiana University are immune
from suit under the Age Discrimination in Employment
Act (and the athletic department is not a suable entity
separate from the university), we affirm the grant of
summary judgment on Peirick’s age discrimination claim.
I. BACKGROUND
The following facts are recited in the light most favorable
to Peirick, the nonmovant for summary judgment. Peirick
became the head women’s tennis coach at IUPUI in 1990.
Six years later, Michael Moore accepted the position of
Athletic Director, with authority to hire and fire IUPUI’s
coaches. Denise O’Grady joined IUPUI as Assistant
Athletic Director and Senior Women’s Administrator in
October 2002, eight months before Peirick’s termination.
The Department evaluated all coaches at IUPUI based
on performance expectations for academics, community
service, compliance, budget management, fundraising,
professional conduct and development, and athletic
competition. The parties do not dispute that Peirick
excelled in most areas. Her players performed well aca-
demically, far exceeding the 2.6 grade point average (GPA)
requirement, and they often had the highest or second
No. 06-1538 3
highest GPA for all of IUPUI’s athletic teams. Peirick was
routinely acknowledged by the Athletics Department for
encouraging her team’s academic performance. She
received community service awards, including the 1998
U.S. Tennis Association’s Collegiate Community Service
Award, a distinction extended to only ten coaches across
the country. She never received an NCAA rule violation of
any sort during her thirteen-year tenure. No one com-
plained about her budgeting or fundraising abilities.
During 2002-2003, Peirick’s final year as coach, the
women’s tennis team had its best season in school history.
It went undefeated during regular season play, won its
first Mid-Continent Conference championship, and be-
came the first women’s team at IUPUI to advance to the
NCAA post-season tournament. For her achievements,
Peirick was named the 2004 College Coach of the Year by
the Midwest Division of the U.S. Professional Tennis
Association.
But IUPUI maintains that deficiencies in Peirick’s
professional conduct overshadowed all of these virtues.
According to Moore, events occurring during the two-
month window between April and June 2003 led to
Peirick’s termination. On April 6, 2003, the parents of
Emily Dukeman, a team member, sent Moore an email
message complaining that Peirick used “negative, foul
language,” “lacked professional qualities,” and made being
on the team a “very unpleasant and degrading experience.”
The message also claimed that “several players may not
return next year.”
Next, IUPUI says that five of the eight members of the
team met with O’Grady on April 10, 2003, to complain
about Peirick. During that meeting, which the students
requested, they said that Peirick used abusive language,
“would yell at them and scream at them, and tell them to
shut up,” and directed profanity towards the students and
coaches of other teams. Further, O’Grady says that the
4 No. 06-1538
students complained that when they were returning from
a road trip to Tennessee, Peirick drove a van of students
out of a restaurant parking lot without waiting for the
other van of students or making sure they had directions.
The students also said that Peirick was an unsafe driver,
who drove too fast for the road conditions. (O’Grady says
she also felt uncomfortable when riding with Peirick
during the trip to the NCAA tournament.) O’Grady claims
she took the complaints seriously because it was uncom-
mon for a group of students to come forward with com-
plaints, and because athletes were often reluctant to
complain at mid-season when their playing time could
be adversely affected.
IUPUI claims that Peirick’s handling of a scheduling
conflict involving the Indianapolis Tennis Center was the
key factor in her termination. In early April 2003, the
women’s tennis team was on target to win the Mid-Conti-
nent regular-season crown, an achievement that would
entitle them to host the Mid-Continent Conference Tourna-
ment. The team practiced and played at the Tennis Center,
an exceptional facility, and it expected to host the Tourna-
ment there. When Peirick sought to reserve the Tennis
Center, she learned that it was already booked and
conveyed this fact to Moore and O’Grady. After trying to
resolve the scheduling conflict, Moore and O’Grady
decided that they would have to secure an alternate, off-
campus location for the Mid-Conference Tournament.
Peirick asked Moore and O’Grady not to share this infor-
mation with the team for fear that the disappointment
might affect their play in remaining games.
On April 15, 2003, after the regular season ended,
Peirick informed her players that they would not be able
to host the Mid-Continent Tournament at the Tennis
Center. Later that day when two team members con-
fronted O’Grady about the situation, O’Grady was sur-
prised by the extent of their anger and asked them to
No. 06-1538 5
explain their feelings. According to O’Grady, the team
members stated that “Coach Peirick had informed them
that the tennis center was not going to be available for
the conference tournament, and indicated to them that
it could have—it could be available, but that the athletic
administration would not pick up the phone and make
the call to reserve the center . . . .” Moore and O’Grady
thought Peirick had lied, and Moore claims this was the
final straw requiring her termination.1 Neither Moore nor
O’Grady ever informed Peirick of the concerns that
emerged during the months preceding her termination,
and she was given no opportunity to respond or improve
either before or at the time of her termination.
It is not clear whether Peirick was entitled to a warning.
The answer to that question, IUPUI suggests, depends
only on whether Peirick was an hourly or appointed
employee. IUPUI classifies employees into a dizzying
array of categories: part-time, full-time, hourly, appointed,
monthly appointed (appointed and paid on a monthly
basis), biweekly appointed (appointed and paid on a
biweekly basis), to name a few. Only the hourly versus
appointed distinction is relevant to our review.
IUPUI’s Hourly Staff Handbook provides that an
hourly employee “may work irregular, intermittent, or on-
call hours,” and that hourly positions are intended to be
“less than full time, and [to] supplement[] full and part-
time appointed positions in the department.” Further,
“[s]ince hourly employees fill in for temporary needs of
1
IUPUI cites Peirick’s conduct during the team’s trip to Los
Angeles for the NCAA Regional Tournament from May 8-11, as
an additional basis for their failure to reinstate her. However,
Moore testified that he made the decision to terminate Peirick
before the NCAA tournament, so we do not consider those
additional justifications.
6 No. 06-1538
the department, some of the policies and benefits that
apply to appointed staff such as probationary periods,
seniority, paid time off and progressive discipline, do not
apply to hourly staff.” By contrast, “[a]n appointed posi-
tion is one that is needed for at least nine months in a
12-month period and is needed for at least 20 hours a
week . . . .” Appointed employees “may be eligible for
benefits such as paid time off, health and life insurance,
retirement, fee courtesy, etc.” So, by IUPUI policy, ap-
pointed, but not hourly employees, were guaranteed
progressive discipline.
This is not to say that the difference between hourly
and appointed employees had any practical significance.
Hourly and appointed staff were held to the same perfor-
mance standards. Employees were not made aware of the
two designations, and Moore provided progressive disci-
pline to hourly employees—persons that he considered
“valuable.” Before terminating Peirick, Moore asked
O’Grady to speak with IUPUI’s Human Resources Depart-
ment about IUPUI’s disciplinary process. At her deposi-
tion, LaVonne Jones, an Employment Consultant within
the Human Resources Administration, testified that
O’Grady had said that Peirick was an hourly employee.
Based on that representation, Jones told O’Grady what
options the Athletics Department had. It could consider
demoting Peirick, talking to her, calling a meeting, or
terminating her. O’Grady shared these possibilities
with Moore, and he made the decision to terminate.
On June 10, 2003, Moore informed Peirick, who was
53 years old, that she would not be invited back to coach
the women’s tennis team during the following year. In
explaining his decision, Moore simply stated that he
wanted to take the women’s tennis program in a “new,
different direction.” At that time, he gave Peirick the
option of retiring, to avoid the embarrassment associated
with nonrenewal. After Peirick’s termination IUPUI
No. 06-1538 7
detailed its alleged bases for terminating her. Peirick was
replaced by Andrea Lord, the twenty-three-year-old sister
of the men’s tennis coach. Although she had never coached
a team and finished college only a year before accepting
the position, Lord was paid $14,000 annually, nearly
$3,000 more than Peirick had been paid during
the preceding year.
Peirick filed suit against IUPUI, the IUPUI Athletics
Department, and the Board of Trustees of Indiana Univer-
sity, alleging violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621 to 634. The defendants filed a motion for
summary judgment, and the district court granted that
motion as to Peirick’s ADEA claim but denied the motion
with respect to Peirick’s Title VII claim. Just before trial,
the defendants filed a motion for reconsideration of the
ruling on summary judgment and the district court
granted summary judgment in the defendants’ favor on
Peirick’s Title VII claim. Peirick now appeals.
II. ANALYSIS
A. The Summary Judgment Standard of Review
We review the district court’s grant of summary judg-
ment de novo, affirming only if, after construing all facts
in the light most favorable to the nonmoving party, we
find no genuine issue of material fact and that the defen-
dants are entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir.
2007). With this standard in mind, we turn first to
Peirick’s claim of gender discrimination.
8 No. 06-1538
B. Summary Judgment Should Not Have Been
Granted on Peirick’s Gender Discrimination
Claim
Title VII makes it an unlawful employment practice
for an employer “(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). As
Peirick seeks to prove her case by the indirect method of
proof, we analyze her claim under the burden-shifting
approach announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Under McDonnell Douglas, a
plaintiff must first make out a prima facie case of gender
discrimination. Peirick may do so by showing: (1) she is
a member of the protected class, (2) she met her employer’s
legitimate expectations, (3) she suffered an adverse
employment action, and (4) her employer treated similarly
situated male employees more favorably. Barricks v. Eli
Lilly & Co., 481 F.3d 556, 559 (7th Cir. 2007) (citing
Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th
Cir. 2006).2 At that point, the employer must offer a
legitimate nondiscriminatory reason for the adverse
employment action, which the employee may rebut by
showing that the reason is a mere pretext for discrimina-
tion. Id. The only issues on appeal are whether Peirick
2
Recently, we explained that, under certain circumstances, a
plaintiff may also satisfy the fourth prong of the McDonnell
Douglas framework by showing that “the employer needs to find
another person to perform that job after the employee is
gone . . . .” Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840,
846 (7th Cir. 2007). Because, as discussed below, Peirick satis-
fies the traditional formulation of McDonnell Douglas, we
need not consider whether she could also meet the standard
articulated in Pantoja.
No. 06-1538 9
satisfied the second and fourth elements of the prima facie
case, and whether she rebutted the defendants’ proffered
nondiscriminatory reason for the adverse employment
action.
Where, as here, an employee claims that she “performed
satisfactorily and the employer is lying about the business
expectations required for the position, the second prong
and the pretext question seemingly merge because the
issue is the same—whether the employer is lying.” Hague
v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.
2006); see Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179
(7th Cir. 1997) (“The defendant’s expectations are not
legitimate if they are phony; so if they are argued to
be phony, the issue of legitimate expectations and the
issue of pretext seem to merge.”). Therefore, we begin
with the fourth prong of the prima facie case.
1. Similarly Situated Individuals Were Treated
More Favorably Than Peirick
Peirick offers three individuals as similarly situated
employees: men’s soccer coach Steve Franklin; men’s
tennis coach Richard Lord; and men’s and women’s golf
coach John Andrews. IUPUI contends they are not valid
comparators because they had different classifications or
engaged in misconduct different in degree or kind than
Peirick.
To assess whether two employees are similarly situated,
“a court must look at all relevant factors, the number of
which depends on the context of the case.” Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000).
“[I]n disciplinary cases—in which a plaintiff claims that
he was disciplined by his employer more harshly than a
similarly situated employee based on some prohibited
reason—a plaintiff must show that he is similarly situated
10 No. 06-1538
with respect to performance, qualifications, and conduct.”
Id. (internal citations omitted). Typically this involves
showing that the employees shared the same supervisor,
performance standards, and “engaged in similar conduct
without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s
treatment of them.” Id. at 617-18. That said, “[o]ur simi-
larly situated requirement ‘should not be applied mechani-
cally or inflexibly.’ ” Boumehdi v. Plastag Holdings, LLC,
489 F.3d 781, 791 (7th Cir. 2007) (quoting Hull v.
Stoughton Trailers, LLC, 445 F.3d 949, 952 (7th Cir.
2006)).
IUPUI first contends that Peirick was an hourly em-
ployee and that as such, she may only be compared with
other hourly employees. Since Richard Lord and Steve
Franklin were appointed employees during most or all of
their employment, IUPUI insists that Peirick may only
compare herself to golf coach John Andrews. Andrews,
IUPUI continues, was not similarly situated because he
did not engage in any termination-worthy conduct—his
only infractions being a few insubstantial NCAA rule
violations. But IUPUI is only partly right.
We agree with IUPUI that Peirick was an hourly em-
ployee. Although Peirick received annual letters of ap-
pointment, retirement benefits, never punched a time clock
or received overtime pay, under IUPUI policy, these
facts are not inconsistent with being an hourly employee.
And Human Resources paperwork demonstrates quite
clearly that throughout her tenure Peirick was designated
an hourly employee. But we are not convinced that the
hourly and appointed designations (which are only noted
in HR files) influenced the Department’s treatment of
its coaches or should bear upon our similarly situated
analysis.
In fact, Moore routinely disregarded the hourly and
appointed designations. At his deposition, Moore testified
No. 06-1538 11
that he gave progressive discipline to employees he
considered “valuable,” without regard to their employ-
ment classification. Underscoring this point is the fact
that the hourly versus appointed distinction was not
understood by members of the Athletics Department. At
the time of his deposition, Moore was fairly cloudy as to
when employees are entitled to progressive discipline.
When asked if he knew whether the Athletics Department
had a policy of progressive discipline, he said, “I believe
there is one in place for certain classes of employees
through the university.” At other points in his deposition,
Moore explained that in determining an employee’s
entitlement to progressive discipline, the relevant dis-
tinction is the part-time versus full-time classification. For
example, Moore testified that he gave coach Franklin,
who was accused of verbally abusing members of the
men’s soccer team, the benefit of progressive discipline
because he felt that was how he was supposed to treat
a “full-time professional employee.”
Likewise, at her deposition, O’Grady recalled speaking
with LaVonne Jones of Human Resources about the
significance of part-time versus full-time employment.
According to O’Grady, Jones said that “the progressive
discipline policy and procedure did not apply to a
part-time employee; that we were not required to go
through the progressive discipline process with a
part-time position.” But O’Grady did not know what
document would inform a coach that part-time and
full-time employees are treated differently when it comes
to progressive discipline. In fact, no such document
exists, because the relevant distinction is between hourly
and appointed, not part-time and full-time, employees.
Given the considerable misunderstanding regarding the
employee classifications, and Moore’s practice of providing
progressive discipline to “valuable” employees, we doubt
that the Athletics Department took heed of employee
12 No. 06-1538
classifications when doling out sanctions. We will not
give the hourly versus appointed distinction more impor-
tance than IUPUI did.
So, in the context of this case, we consider whether
Peirick and the three male coaches were similarly
situated—though only Andrews was an hourly employee
during his entire tenure. All three coaches were judged
according to the same performance standards, were
supervised by Moore, and had spotty performance histo-
ries. Yet only Peirick was terminated without the benefit
of progressive discipline. The central question for our
review, then, is whether Peirick and her colleagues
engaged in similar misconduct, but received dissimilar
treatment. Of course, employees may be similarly situ-
ated to the plaintiff even if they have not engaged in
conduct identical to that of the plaintiff. “[T]he law is not
this narrow; the other employees must have engaged in
similar—not identical—conduct to qualify as similarly
situated.” Ezell v. Potter, 400 F.3d 1041, 1050 (7th Cir.
2005).
In Ezell, we concluded that the plaintiff, a mail carrier
accused of taking an unauthorized extended lunch, and
his colleague, a mail carrier who had lost a piece of
certified mail, were similarly situated. Id. Taking a
common sense view, we reasoned that in the postal service,
whose sole function is to ensure to delivery of mail,
“[m]isplacing certified mail, that is, mail that has been
designated as especially important by its sender, would
seem to be a serious matter.” Id. Further, given that
another carrier had been fired for delaying mail delivery,
we inferred that “losing mail would also be a serious
offense, at least as serious as taking a long lunch.” Id. As
reflected in Ezell, in deciding whether two employees
have engaged in similar misconduct, the critical question
is whether they have engaged in conduct of comparable
seriousness. See Little v. Ill. Dep’t of Revenue, 369 F.3d
No. 06-1538 13
1007, 1016 (7th Cir. 2004); see also Davis v. Wis. Dep’t of
Corr., 445 F.3d 971, 978-79 (7th Cir. 2006); Spath v. Hayes
Wheels Int’l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000).
Comparable seriousness may be shown by pointing to a
violation of the same company rule, Davis, 445 F.3d at
978-79, or to conduct of similar nature, Hiatt v. Rockwell
Int’l Corp., 26 F.3d 761, 770 (7th Cir. 1994).
Mindful of these principles, we turn to Peirick’s proffered
comparators. First, we agree with IUPUI that John
Andrews, the head golf coach, is not an adequate compara-
tor. Peirick cites Andrews’s reprimand for two NCAA rule
violations and comments in his 2002 evaluation stating
that he needed to improve his documentation and paper-
work. These two performance concerns are minor when
compared to Peirick’s alleged misconduct. The women’s
basketball coach acknowledged that NCAA rule viola-
tions are not uncommon, and Moore stated that, by
definition, NCAA secondary rule violations are not
serious. Nor has Peirick provided us with any basis for
believing that the Department considered administrative
responsibilities as important as the obligation to treat
players with civility. For these reasons, we conclude that
Andrews and Peirick are not similarly situated.
However, we think that Franklin and Lord are valid
comparators. They both engaged in serious violations
of Indiana University’s Statement of Principles on the
Conduct of Participants in Student Athletic Programs and
were consistently provided progressive discipline.
Steve Franklin received repeated complaints of verbal
abuse in 2002 and 2003, about the time of Peirick’s
termination. In January 2003, two players who left the
soccer team indicated in their exit interviews that they
were leaving, in part, because of issues with the coaching
staff or style. They both recommended that a new head
coach be hired and stated that Franklin was “often”
14 No. 06-1538
verbally abusive. One student said that he thought other
coaches had left the team because of Franklin, Franklin
did not inspire the team, and yelling was the way Franklin
communicated with and motivated his players. The other
stated that Franklin engaged in “mind games, demeaning
[sic] & insulting players.” A parent echoed these senti-
ments in a letter to Moore in October 2003, stating that
during the course of four years, he had witnessed Frank-
lin’s “pervasive pattern of verbal and emotional abuse.”
Another letter sent by a parent to IUPUI’s chancellor
indicated that one student “ha[d] been verbally and
emotionally abused while on the soccer team at IUPUI.”
Further, the parent speculated that “[a]s evidenced by
the number of players who have left this team over the
recent years, in my opinion, he was probably not alone[.]”
Franklin acknowledged in his deposition that on at least
two occasions, a parent had called Moore to complain about
Franklin’s conduct and that a parent called Moore
at halftime during one soccer game to say that Franklin
should be fired.
Each of these complaints was met with progressive
discipline. Moore allowed Franklin to respond to the
criticisms of the parent who requested Franklin’s termina-
tion during halftime. In October 2003, Moore wrote a
letter to Franklin stating that Franklin’s use of sarcasm,
bullying, and mental games with the players had contrib-
uted to a “perceived culture of lack of respect for stu-
dent-athlete dignity and emotional well being within the
men’s soccer program.” Moore and O’Grady met with
Franklin on multiple occasions to discuss the letter of
reprimand and Franklin’s plan for improvement. Franklin
explained that Moore and O’Grady counseled him to take
“a kinder and gentler demeanor and approach,” and
informed him that they would be watching his behavior
and would meet with him at the end of the season to
determine whether he would be retained. At the end of the
No. 06-1538 15
year, Moore and O’Grady were happy with Franklin’s
progress and he was invited back to coach for the 2004
year.
Richard Lord, the men’s tennis coach, is also a valid
comparator. In his deposition, Lord acknowledged that
as the men’s tennis coach his duties were akin to Peirick’s
and he could think of no distinctions in their responsi-
bilities. Throughout his tenure at IUPUI, Lord engaged
in serious misconduct for which he could have been
terminated. He received extremely low marks on his 1999
evaluation in the following areas: being organized in
practice and game preparations, developing the potential
of student-athletes, providing strong leadership and
discipline, establishing clear team and individual goals,
and displaying exemplary conduct at all times when with
the team. The evaluation concluded by saying that Lord’s
“future IUPUI employment as men’s tennis coach
depend[ed] on improvement in the areas discussed in
this document.” In February 2000, he was issued a written
reprimand for “public behavior unbecoming of a head
coach” based on his admission that his students had
consumed alcohol during a road trip. Lord acknowledged
that in approximately 2002, Moore counseled him not to
use profanity with players in response to a complaint of
verbal abuse. Lord also had numerous NCAA violations,
one of which resulted in a week-long suspension from
coaching. Despite his clear performance problems—losing
records in most, if not all, of his years as head men’s tennis
coach, NCAA rule violations, problems fulfilling adminis-
trative requirements, complaints regarding use
of profanity and permitting students to drink alco-
hol—he was never terminated, but voluntarily resigned
his position sometime after Peirick’s dismissal.
Peirick was accused of using abusive language, unsafe
driving, leaving students behind during a road trip, and
16 No. 06-1538
pitting the students against the administration during the
Tennis Center scheduling conflict. According to IUPUI’s
position statement in response to Peirick’s EEOC Charge
of Discrimination, these acts amounted to violations of
Indiana University’s Statement of Principles on the
Conduct of Participants in Student Athletic Programs. In
particular, Peirick was accused of violating Section 3.1.4,
which states that “The obligation of coaches to treat
others with dignity and respect is not limited to their
interaction with student athletes, but shall apply to their
treatment of all other participants . . . .” The University
further alleged that Peirick had violated Section 2.4,
which states that “The conduct of all participants shall
reflect the fact that by virtue of their participation in the
student athletic programs sponsored by Indiana Univer-
sity, they are representing the University. As a result,
participants are expected to exhibit a higher standard of
behavior than might be expected of other students, staff,
and faculty, and to avoid conduct that is likely to appear
improper.” Although Franklin and Lord did not engage in
the exact same misconduct as alleged of Peirick, they
violated the very same rules as Peirick. See Davis, 445
F.3d at 978 (that employees engaged in “identical rule
violations” provided some indication that the offenses
were of “comparable seriousness”).
Franklin repeatedly contravened Section 3.1.4, which
directed coaches to treat students with dignity and re-
spect. Indeed, in his written reprimand, Moore told
Franklin that his conduct had created a “culture of lack of
respect for student-athlete dignity and emotional well
being within the men’s soccer program.” Likewise, Lord
was accused of being verbally abusive. Lord also vio-
lated Section 2.4’s directive to avoid the appearance of
impropriety when he engaged in “public behavior unbe-
coming of a head coach” by allowing students to drink
alcohol while on a road trip. Moreover, we can be sure that
No. 06-1538 17
the University considered Lord and Franklin to have
engaged in serious misconduct, as both were warned
to improve or face termination. We find both to be simi-
larly situated employees, who were treated more favor-
ably than Peirick.
2. IUPUI’s Bases for Terminating Peirick Are
Suspect
IUPUI argues that Peirick’s performance fell below its
legitimate expectations, and that for this reason, she can
neither satisfy the second prong of the prima facie case nor
show that the proffered basis for her termination—her
failure to meet IUPUI’s standards—is a pretext for
discrimination. Specifically, IUPUI claims that it de-
cided not to reinstate Peirick because she used abusive
language when talking with students, left a van of stu-
dents behind in Tennessee, was an unsafe driver, and told
students that the administration was to blame for the
unavailability of the Tennis Center during the conference
tournament. Our task is to determine whether these
were IUPUI’s true reasons for discharging Peirick, not
whether they were wise bases for doing so. See Stewart v.
Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
As a result, our analysis begins with IUPUI’s perfor-
mance expectations for coaches. IUPUI’s published perfor-
mance expectations include standards for academics,
community service, compliance, budget management,
fundraising, athletic competition, and professional conduct
and development. IUPUI does not dispute that Peirick
outshined her colleagues with respect to the majority of
these documented expectations. She was praised for
encouraging academic excellence amongst her players, who
consistently earned the highest or second highest GPA of
all of IUPUI’s athletic teams. Peirick was nationally
recognized for her community service. Over the course of
18 No. 06-1538
thirteen years at IUPUI, she never received an NCAA rule
violation of any sort. The record provides no basis for
believing there to have been deficiencies in her budgeting
or fundraising. Also, under her leadership, the women’s
tennis team earned its best record in school history and
became the first women’s team at IUPUI to advance to the
NCAA post-season tournament. Her success was recog-
nized in 2004, when the Midwest Division of the U.S.
Professional Tennis Association awarded her Coach of the
Year. None of this matters, says IUPUI, because Peirick
fell terribly short on a single measure—professional
conduct—and that merited termination. But, on this
record, a jury could disbelieve IUPUI.
To begin, IUPUI never warned Peirick that her foul
language, poor driving, inattentiveness to trailing
vehicles, and expression of frustration during a schedul-
ing conflict could lead to dismissal. Even at the time of
her termination, Moore simply told her that he was look-
ing to take the Department in a “new, different direction.”
Moore says he “chose not to discuss the performance
issues with Peirick because [he] did not believe that
Peirick would change her behavior.” But this does not
explain why he failed to share his reasons with Byron
Clark, Peirick’s direct supervisor, or O’Grady. Moore’s
explanations were not forthcoming until Peirick filed a
complaint with the Equal Employment Opportunity
Commission.
Further, IUPUI’s delay in addressing its alleged con-
cerns undermines its claim that Peirick’s behavior was
unsafe or severe. Although the parents of Emily Dukeman
complained about Peirick on April 6, 2003, Moore did not
ask O’Grady to follow-up on that complaint until a month
later. Also in early April, O’Grady says students com-
plained that Peirick was an unsafe driver, who once
abandoned them on a road trip. O’Grady did not broach
these issues with Peirick. Instead, in May, when she
No. 06-1538 19
accompanied the team to the NCAA tournament, O’Grady
sat quietly as Peirick drove the team about L.A.3 The act
meriting termination, IUPUI says, occurred on April 15th.
That day, Peirick told her team that the Tennis Center
would be unavailable, voiced her frustrations, and directed
the students to seek out the administration for answers.
The fallout of Peirick’s impetuousness—the gripes of a
disappointed few—came to an end by the close of day.
Although IUPUI claims it thought Peirick had lied and
been disloyal, it handled this episode as it had every other
alleged performance concern, by failing to utter a word
to Peirick. The administration would not act for two
months—not even in the face of purported safety con-
cerns. This pattern of delay leads us to question whether
IUPUI was truly concerned about Peirick’s language,
driving, or handling of a scheduling conflict.
We also think a jury could find that IUPUI overstated
matters to justify its actions. Compare Plotke v. White, 405
F.3d 1092, 1106 (10th Cir. 2005) (“On this record, a jury
could reasonably infer the Army discriminated against
Dr. Plotke by suddenly reassigning her from the Haiti
Project to CAC-WIN and then contriving and grossly
exaggerating the TDY incident as a means of exercising
gender animus towards her.”). IUPUI suggests that all the
students that attended the April 10th meeting were
displeased with Peirick. But the affidavits and depositions
of tennis team members tell a different story. Although
five students, Michelle Cunningham, Hillary Byard,
Mallory Stemle, Emily Dukeman, and Natalie Bednar,
3
Further, IUPUI did not even ask Peirick’s replacement, Andrea
Lord, about her driving history, despite its stated concern. If
IUPUI had investigated Lord’s driving history, it would have
discovered that a few years before she was hired, Lord fell
asleep at the wheel, resulting in a crash that caused her car to
flip.
20 No. 06-1538
attended the April 10th meeting, three of those stu-
dents—the only students to have submitted affidavits or
offer testimony in this case—have come to Peirick’s
defense. In her affidavit, Hillary Byard stated that the
team met with O’Grady because some of the students,
especially Emily Dukeman and Mallory Stemle, had
personality conflicts with Peirick. The other three atten-
dees, however, thought Peirick was a good coach. Some
said they did not find her verbally abusive or an unsafe
driver; they thought she truly cared about the students
both on and off the court; they would call on her to dis-
cuss any problem; and they considered her a friend.
When they heard about Peirick’s termination, Michelle
Cunningham, Natalie Bednar, and Hillary Byard were
all “shocked” and “surprised.”
Peirick’s colleagues were similarly perplexed. Byron
Clark, Peirick’s direct supervisor, and Kristin Emer-
son-Simpson, the women’s head basketball coach, were
surprised by the termination. Men’s soccer coach Steve
Franklin was “stunned.” As he put it: “Debbie was coming
off an undefeated season. She was named Coach of the
Year, I believe. I think she had the Player of the Year
and the Newcomer of the Year, and I think it was the
first time a tennis [team]—in the mid-continent had gone
undefeated. . . . [T]o me, that seemed like a successful
season.” Even Lord, whose sister filled Peirick’s position,
was “surprised” that Peirick had been terminated. Al-
though the opinions of nondecisionmakers as to Peirick’s
performance cannot carry the day, see Johnson v. City of
Ft. Wayne, 91 F.3d 922, 936 (7th Cir. 1996), their re-
sponses to the termination decision provide some indica-
tion of the type of conduct historically considered termina-
tion worthy. And we find it striking that these coaches
were so baffled by the administration’s decision. The
termination of a coach with Peirick’s qualities appears to
have been an unprecedented event in IUPUI’s history. See
No. 06-1538 21
Gordon v. United Airlines, Inc., 246 F.3d 878, 890 (7th Cir.
2001) (taking unprecedented disciplinary action may be
evidence of pretext).
In sum, we find IUPUI’s post hoc explanations, delay,
exaggeration, and unusual conduct more than enough to
create a question of fact concerning the legitimacy of its
explanations for Peirick’s termination.4 The district court
should not have granted the defendants’ motion for
summary judgment on Peirick’s gender discrimination
claim.5
4
Additionally, the evidence that Moore, the decisionmaker in
this case, treated men more favorably than women only bolsters
Peirick’s claim. Peirick testified that Moore would introduce
male, but not female, coaches to dignitaries. The former women’s
basketball coach thought Moore was not sure how to “treat[ ]
people as human beings, especially when it comes to the female
gender.” Linda Carroll, former Assistant Athletic Director and
Senior Women’s Administrator, found Moore’s attitude toward
women mean-spirited and discriminatory. She explained that
“Moore rarely encouraged the women coaches or administration,
but he always encouraged the men to perform better” and that
“his expressions and body language expressed that he did not
welcome conversations with female coaches.” Further, she
believed “Moore did not like women to be assertive” and, specifi-
cally, that he “did not want Ms. Peirick to be assertive or
challenge him in any way.” Finally, Carroll said she resigned
from IUPUI because of Moore’s gender-based treatment of her.
5
Given our conclusion that summary judgment should not have
been granted on Peirick’s gender discrimination claim, we
need not address her argument that it was error for the district
court to reconsider its initial denial of summary judgment on
her gender claim. But we briefly note that the district court
was entitled to reconsider its initial denial of summary judg-
ment, because the denial of summary judgment was simply an
interlocutory order, which the district court had broad authority
(continued...)
22 No. 06-1538
C. Summary Judgment Was Proper On Peirick’s Age
Discrimination Claim, Because the Defendants
Are Immune From Suit
Peirick also charges IUPUI, the Athletics Department,
and the Board of Trustees of Indiana University with
violating the ADEA, which makes it unlawful for an
employer to discriminate against an employee in the
terms and conditions of her employment on the basis of
age. 29 U.S.C. § 623(a)(1). Defendants counter that the
Eleventh Amendment shields them from suit under the
ADEA, and we agree. (They do not claim immunity from
suit on Peirick’s gender discrimination claim, because
Congress “validly abrogated the States’ Eleventh Amend-
ment immunity with respect to Title VII disparate treat-
ment claims.” Nanda v. Bd. of Trs. of the Univ. of Ill., 303
F.3d 817, 831 (7th Cir. 2002).
At the outset, we note that the Athletics Department
is not a legal entity apart from the University. It is merely
a division of the University that is not capable of being
sued. See Whiting v. Marathon County Sheriff ’s Dep’t, 382
F.3d 700, 704 (7th Cir. 2004) (“[T]he Marathon County
Sheriff ’s Department is not a legal entity separable from
the county government which it serves and is therefore,
not subject to suit.”); West By & Through Norris v.
Waymire, 114 F.3d 646-47 (7th Cir. 1997) (“The naming
of the Town’s Police Department as a defendant adds
nothing; it is almost certainly not a suable entity separate
from the Town.”). So we consider only whether IUPUI
and the Board of Trustees of Indiana University enjoy
Eleventh Amendment immunity.
5
(...continued)
to reconsider. See Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st
Cir. 2001); Cameo Convalescent Center, Inc. v. Percy, 800 F.2d
108, 110 (7th Cir. 1986); United States v. Acosta, 669 F.2d 292,
293 (5th Cir. 1982).
No. 06-1538 23
The Eleventh Amendment provides: “The Judicial power
of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const.
Amend. XI. Although the Amendment speaks of suits filed
by citizens of another state, the Supreme Court “has
consistently held that an unconsenting State is immune
from suits brought in federal courts by her own citizens as
well as by citizens of another State.” Edelman v. Jordan,
415 U.S. 651, 662-63 (1974) (internal citations omitted).
The Amendment usually bars actions in federal court
against a state, state agencies, or state officials acting
in their official capacities, see Gossmeyer v. McDonald,
128 F.3d 481, 487 (7th Cir. 1997), but three exceptions
exist. First, a state may waive immunity by consenting
to suit in federal court; second, Congress may abrogate
the state’s immunity through a valid exercise of its powers;
third, under the Ex parte Young doctrine, a plaintiff may
file “suit[] against state officials seeking prospective
equitable relief for ongoing violations of federal law . . . .”
Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997); see
Ex parte Young, 209 U.S. 123, 159-60 (1908). Peirick
does not contend that Indiana consented to suit in fed-
eral court. Her ability to resort to the second exception was
cut short in Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91
(2000), where the Court held that “in the ADEA, Congress
did not validly abrogate the States’ sovereign immunity
to suits by private individuals.” So only the Ex parte
Young exception remains, and Peirick has not availed
herself of that option.
Although Peirick requests only prospective injunctive
relief, she has not brought suit against a state official.
Indeed, Peirick cannot seriously dispute that IUPUI, a
partnership between Indiana and Purdue Universities, is
an agency of the state of Indiana. See Woods v. Ind.
24 No. 06-1538
Univ.-Purdue Univ., 996 F.2d 880, 883 (7th Cir. 1993)
(citing favorably Shannon v. Bepko, 684 F. Supp. 1465 (S.
D. Ind. 1988), which held Indiana University and IUPUI to
be agencies of the state); see also Porco v. Trs. of Ind.
Univ., 453 F.3d 390, 394-95 (7th Cir. 2006); Kashani v.
Purdue Univ., 813 F.2d 843, 844 (7th Cir. 1987). And, as
explained below, the Board of Trustees of Indiana Univer-
sity is an agency of the state.
Many courts have held that the governing bodies of their
state universities enjoy the same immunity from suit
as the universities themselves. See Richardson v. Southern
Univ., 118 F.3d 450, 455 (5th Cir. 1997) (“Southern
[University] and its Board are considered an agency of
the State of Louisiana”); Hall v. Hawaii, 791 F.2d 759,
761 (9th Cir. 1986) (holding that the University of Hawaii
and its board of regents “are clearly immune as agencies of
the state”); Harden v. Adams, 760 F.2d 1158, 1164 (11th
Cir. 1985) (noting that “the Board of Trustees of a state
university is entitled to sovereign immunity as an instru-
mentality of the state”); Cannon v. Univ. of Health Sci-
ences/Chi. Med. Sch., 710 F.2d 351, 356 (7th Cir. 1983)
(Southern Illinois University and the Board of Trustees
of the University of Illinois are state agencies with Elev-
enth Amendment immunity); Wellman v. Tr. of Purdue
Univ., 581 F. Supp. 1228, n.1 (N.D. Ind. 1984) (“[F]or
purposes of Eleventh Amendment immunity, no distinc-
tion can, should, or will be drawn between Purdue Univer-
sity and its Board of Trustees.”); see also Joseph v. Bd. of
Regents of the Univ. of Wis. Sys., 432 F.3d 746, 748 (7th
Cir. 2005) (“The [Wisconsin Board of Regents] is an ‘arm of
the state’ for Eleventh Amendment purposes.”). So it
seems to follow that the Board of Trustees of Indiana
University, like the university, is a state agency. And an
examination of the factors relevant for determining
whether an entity is an agency of the state leads to that
exact conclusion.
No. 06-1538 25
In deciding whether an entity is an agency of the state,
the most important factor is “the extent of the entity’s
financial autonomy from the state.” Kashani, 813 F.2d
at 845. That inquiry is composed of five subparts: (1) the
extent of state funding; (2) the state’s oversight and control
of the entity’s fiscal affairs; (3) the entity’s ability to raise
funds; (4) whether the entity is subject to state taxation;
and (5) whether a judgment against the entity would result
in an increase in its appropriations. Id. Beyond these
financial considerations, we also consider the general legal
status of the entity. Id. at 846-47. Where this factor is
concerned, we prioritize substance over form. Id. at 847.
The Board has only limited financial autonomy. The
Board holds and expends Indiana University’s financial
assets, see Ind. Code § 21-31-2-4 (2007), and a significant
percentage of those assets are derived from the state.
During the 2004-2005 academic year, for example, state
appropriations accounted for 24% of Indiana University’s
revenue. See Indiana University Financial Report
2004-2005, available at http://www.indiana.edu/~vpcfo/
fy2005.pdf (last visited Dec. 11, 2007). The state exercises
substantial control over the Board’s fiscal affairs and
its ability to raise funds. In certain instances, the Board
must gain the approval of the governor and the state’s
budget agency before issuing bonds, see Ind. Code
§ 21-35-2-21, or making capital expenditures, see Ind. Code
§ 21-35-2-20. Although the Board collects funds for the
University from sources outside the state, it depends on
the state’s financial support. See Kashani, 813 F.2d at
846. Since that financial support is carefully allocated, a
judgment against the Board would “affect the state trea-
sury.” Id. This becomes even more apparent given that
the Board is authorized to employ officers, faculty, consul-
tants, and counsel, see Ind. Code § 21-38-3-1, and to pay
the fees that these persons incur as a result of their
26 No. 06-1538
employment or performance of duties for the school. See
Ind. Code § 21-38-4-1.
The Board’s general legal status similarly suggests
an agency relationship. Specifically, the Indiana Code
includes state boards and universities in the definition of
state agencies. Ind. Code § 4-12-1-2. Moreover, the gover-
nor, the state’s chief executive, necessarily has some
control over the Board because six of the nine members
of the Board are gubernatorial appointees. Ind. Code
§ 21-20-3-12 to 13; see Kashani, 813 F.2d at 847. We
also find it significant that the Board, like Indiana Uni-
versity, serves the entire state. See Kashani, 813 F.2d
at 847-48. Taken together, these factors lead us to
conclude that the Board of Trustees of Indiana University
is but an agency of the state, which operates the school
under state oversight. See Russell v. Tr. of Purdue Univ.,
168 N.E. 529, 535 (Ind. 1929) (citing Tucker v. Pollock, 43
A. 369 (R.I. 1899) for the proposition that the Board of
Managers of the Rhode Island College of Agriculture
and Mechanic Arts “is but the agent of the state to carry
out the purposes of the General Assembly in connection
with the establishment and maintenance of the college.”).
As such, Peirick may not proceed against the Board even
on her claims for prospective injunctive relief.6 See Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 146 (1993) (“[t]he doctrine of Ex parte Young . . .
has no application in suits against the States and their
agencies, which are barred regardless of the relief
sought”); Buchwald v. Univ. of N.M. Sch. of Med., 159
F.3d 487, 496 (10th Cir. 1998) (“[A]lthough the Ex Parte
Young exception does not permit plaintiff to subject
6
A different result may have obtained had Peirick sued individ-
ual members of the Board in their official capacities. See
Kashani, 813 F.2d at 848.
No. 06-1538 27
[University of New Mexico School of Medicine], [and] its
Regents . . . to suit because they are state agencies,
plaintiff may maintain an action against the individual
defendants in their official capacities . . . .”); Wasserman
v. Purdue Univ., 431 F. Supp. 2d 911, 916 (N.D. Ind.
2006) (“[T]he Board of Trustees [of Purdue University] is
a political arm of the state which is immune to suit.
[Plaintiff] did not name the individual members of the
Board of Trustees, in their official or individual capacities.
Because Purdue has not waived that immunity, the
Eleventh Amendment precludes this court from exercis-
ing jurisdiction.”). Because IUPUI and the Board are
immune from suit, the district court’s grant of summary
judgment was proper.
III. CONCLUSION
For the foregoing reasons, we VACATE the award of
summary judgment in favor of IUPUI and the Board of
Trustees of Indiana University on Peirick’s gender dis-
crimination claim. However, in light of IUPUI’s and the
Board’s Eleventh Amendment immunity, we AFFIRM the
grant of summary judgment in their favor on Peirick’s
claim of age discrimination.
28 No. 06-1538
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-14-07