Purcell v. Indiana University-South Bend and its Chancellor et al

Filing 91

OPINION AND ORDER GRANTING IN PART as to plaintiff's Equal Pay Act claim and DENYING AS MOOT as to all other claims 81 Motion for Summary Judgment. Because no claims remain against any defendants in this case, the clerk is toENTER FINAL JUDGMENT stating: Judgment is entered in favor of defendants and againstplaintiff Alicia Purcell, who shall take nothing by way of hercomplaint. Signed by Senior Judge James T Moody on 2/2/17. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ALICIA PURCELL,
Plaintiff,
v.
INDIANA UNIVERSITY - SOUTH
BEND AND ITS CHANCELLOR, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 3:13 CV 386

OPINION and ORDER
I.

BACKGROUND
In the summary that follows, the court refers only to undisputed facts1, or, if

there is a dispute, notes that it exists and relies on the version of the fact, or inference
therefrom, that is most favorable to plaintiff. This summary provides an overview.
Additional relevant undisputed facts will be referred to in the analysis that follows.
Starting in 2004, plaintiff was employed as a visiting lecturer in voice at Indiana
University - South Bend’s Ernestine M. Raclin School of the Arts (“the Raclin School”).
(DE ## 27 ¶ 8, 89-3 at 11.) Initially, plaintiff was hired for the position because of her
“vast experience in both teaching and performing.” (DE # 89-3 at 15.) She was paid a

1

As defendants correctly point out, plaintiff has failed to include a section of her
response brief labeled “Statement of Genuine Disputes” in accordance with Local Rule
56-1. However, plaintiff provides a section titled “Plaintiff’s Statement of Genuine
Issues” (DE # 88 at 3-12) which largely overlaps with defendants’ “Statement of
Material Facts” (DE # 83 at 127), but also contains some different facts. The court has
reviewed these opposing “statements.” The court considers facts in defendants’
statement to be disputed when plaintiff’s statement contains a fact or facts that
contradict defendants’ asserted facts.

salary of $30,000, which was the same amount previously budgeted for a lecturer in
music theory position. (DE ## 83 at 4, 83-7, 83-9.) Plaintiff was tasked with classroom
responsibilities, assisting students in recitals, and conducting the campus chorus. (DE
# 89-3 at 38.)
In August 2006, plaintiff was hired as a full-time voice lecturer at the Raclin
School, with a starting salary of $30,750, with the $750 raise due to the “legislature’s
percentage increase across the board for faculty members. It was a cost of living
[adjustment.]” (DE # 89-3 at 57, 63.) Her responsibilities remained the same as when she
was a “visiting” lecturer, although she no longer taught choral music. (Id. at 63.)
Plaintiff was expected to meet a “full time equivalent” (“FTE”) to fulfill her duties as a
lecturer, namely, teaching “12 credit hours per semester or the equivalent.” (DE ## 89-4
at 23, 89-6 at 22.) This same FTE of 12 credit hours was required of all lecturers, absent a
special arrangement. (DE # 89-5 at 23.)
Defendants note that plaintiff failed to meet one-hundred percent of her FTE
requirements in multiple semesters during her time as a full-time lecturer. (DE ## 83
¶¶ 38–45, 83-10.) Although plaintiff does not deny defendants’ assertion on this matter,
she points out that she performed other tasks aside from normal teaching duties. For a
six-month period from January 2008 to June 2008, plaintiff served as the acting area
coordinator while Dr. David Barton was on sabbatical. (DE ## 89-3 at 31–32, 89-4 at 29.)
During that time, she was responsible for “hiring and firing adjuncts, answering

2

student complaints, [and] answering problems with faculty.” (DE # 89-3 at 87.) Plaintiff
did not receive extra pay for serving as the acting coordinator. (DE # 89-4 at 30.)
Additionally, plaintiff asserts that she was expected to perform music
(presumably a vocal performance) as part of her position. (DE # 88 at 11.) Although
plaintiff is not aware of a written requirement to perform, she notes that her obligation
to perform was cited in her performance reviews by Dr. Marvin Curtis.2 (DE # 89-5 at
35–36.) Specifically, Curtis wrote “[i]t is expected that Professor Purcell be a more active
performer.” (DE # 89-21 at 1.) However, defendants deny that plaintiff was required to
perform. (DE # 90 at 5.)
Plaintiff was notified on April 19, 2011 that she would not be reappointed for the
2012-2013 academic year. (DE # 89-14.) Her employment with the school effectively
ended on June 30, 2012. (DE # 89-3 at 140.)
Plaintiff then filed the instant suit against Indiana University (improperly sued
as “Indiana University South Bend”), the Indiana University Board of Trustees, the
President of Indiana University (Michael A. McRobbie), the Chancellor of Indiana
University South Bend (Una Mae Reck), the State of Indiana3, and Marvin Curtis
(collectively, “defendants”). (DE # 27.) Plaintiff alleges violations of (1) the Age

2

Curtis is the current dean of the Raclin School. (DE # 89-5 at 8.)

3

The State of Indiana was dismissed from the action on February 4, 2014. (DE

# 42.)
3

Discrimination in Employment Act (ADEA); (2) Title VII of the Civil Rights Act of 1964;
(3) the Equal Pay Act; and, (4) Article I, Section 23 of the Indiana Constitution. (Id.)
Defendants moved to dismiss plaintiff’s ADEA, Title VII, and Indiana
constitutional claims. (DE # 29.) The court issued an order dismissing plaintiff’s ADEA
claim in its entirety and also dismissing the Title VII claim against the individual
defendants and as it relates to the decision not to renew plaintiff’s employment for
another year of service as a lecturer. (DE # 49.) The remaining defendants have filed a
motion for summary judgment. (DE # 81.) The motion has been fully briefed and is ripe
for ruling.
II.

LEGAL STANDARD
Defendants have moved for summary judgment. FEDERAL RULE OF CIVIL

PROCEDURE 56 requires the entry of summary judgment, after adequate time for
discovery, against a party “who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“[S]ummary judgment is appropriate—in fact, is mandated—where there are no
disputed issues of material fact and the movant must prevail as a matter of law. In other
words, the record must reveal that no reasonable jury could find for the non-moving
party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994)
(citations and quotation marks omitted).

4

The moving party bears the initial burden of demonstrating that these
requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th
Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his
burden, the non-moving party must identify specific facts establishing that there is a
genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986);
Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324).
In doing so, the non-moving party cannot rest on the pleadings alone, but must present
fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of
Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion
for summary judgment, the court must construe all facts in a light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC
Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).
III.

DISCUSSION
A.

Title VII and Indiana Constitutional Claims

Defendants move for summary judgment on all remaining claims. (DE # 81.)
Regarding plaintiff’s Title VII claim, defendants argue both that the claim is time-barred
by the statute of limitations and that plaintiff fails to establish a prima facie case of sex
discrimination. (DE # 82 at 4.) Concerning plaintiff’s claim under Article I, Section 23 of
the Indiana Constitution, defendants argue that judgment should be entered because

5

Indiana courts have not explicitly recognized a private right of action for monetary
damages under the Indiana Constitution. (DE # 82 at 23 (citing Smith v. Ind. Dep’t of
Corr., 871 N.E.2d 975, 985 (Ind. Ct. App. 2007)).)
Plaintiff does not oppose defendants’ motion as to these two claims. (DE # 88 at
1, n.1.) Plaintiff “opposes the [motion for summary judgment] only on the Equal Pay
Act claim.” (Id.) Instead, “[p]laintiff stipulates to the dismissal of claims brought under
Title VII and the Indiana Constitution.” (Id.) Accordingly, plaintiff’s Title VII and
Indiana Constitutional claims are dismissed. The court now turns to plaintiff’s Equal
Pay Act claim.
B.

Equal Pay Act Claim

Plaintiff brings a claim alleging that she was paid less than male lecturers in
music, specifically the members of the Euclid Quartet, due to her gender. (DE # 27
¶¶ 32, 52-55.) The Euclid Quartet was a string quartet hired in 2007 to serve as the
Raclin School’s new quartet in residence, replacing the outgoing Avalon Quartet. (DE
# 89-3 at 13, 17, 44.) The members of the Euclid Quartet were hired as lecturers to teach
classes at the Raclin School. (DE ## 89-3 at 71–72, 89-4 at 32.) Additionally, the Raclin
School maintains the quartet in residence with the expectation that the group will
perform off-campus. (DE # 89-6 at 55.) The quartet serves the purpose of boosting the
school’s reputation and bringing national and international attention to the school. (Id.
at 36, 55.)

6

i.

The Prima Facie Case

In order for this Equal Pay Act claim to survive summary judgment, plaintiff
must first establish a prima facie case of wage discrimination. See Bartlett v. NIBCO Inc.,
No. 3:08-CV-597, 2010 WL 1779887, at *7 (N.D. Ind. Apr. 28, 2010). To establish a prima
facie case of wage discrimination, plaintiff must “show that: (1) higher wages were paid
to a male employee, (2) for equal work requiring substantially similar skill, effort and
responsibilities, and (3) the work was performed under similar working conditions.”
Cullen v. Ind. Univ. Bd. Of Trustees, 338 F.3d 693, 698 (7th Cir. 2003).
As to the first requirement, plaintiff asserts generally that she was paid “less than
similarly situated male faculty performers.” (DE # 88 at 8, 15.) However, she specifically
bases her argument on her salary disparity with the four members of the Euclid
Quartet, who were all male. (DE # 88 at 15.) The members of the Euclid Quartet were
each paid $40,000 per year, while plaintiff was only paid $30,750 per year. (DE ## 83-3
at 30, 83-5 at 5, 89-3 at 57.) The Euclid Quartet’s salary was inherited from the Avalon
Quartet. (DE # 83-2 at 46.) Thus, plaintiff has met the first prong of establishing her
prima facie case.
For the second prong, “the crucial inquiry is whether the jobs to be compared
have a ‘common core’ of tasks, i.e., whether a significant portion of the two jobs is
identical.” Cullen, 338 F.3d at 698 (internal quotation marks omitted). Both plaintiff and
the members of the Quartet were classified as “lecturers” by the Raclin School. (DE
## 89-3 at 63, 89-4 at 32.) All of these individuals were experienced musicians who

7

taught students at the Raclin School. (See DE # 89-3 at 71–72.) Thus, a common core
exists between the two positions.
Next, once the plaintiff establishes a common core, “the court must ask whether
any additional tasks make the jobs ‘substantially different.’” Cullen, 338 F.3d at 698.
Although plaintiff and other lecturers at the Raclin School had a full or “one-hundred
percent” teaching load, it is undisputed that the Euclid Quartet had a different
assignment due to a “special arrangement.” (DE # 89-5 at 18–19, 23.) Specifically, the
Euclid Quartet had a fifty percent teaching load “because they were performers and
they were assigned differently than [plaintiff].” (Id. at 19.) Defendants argue that the
Euclid Quartet’s dual responsibilities to perform and teach made their position
substantially different than plaintiff’s position, justifying the difference in pay.
However, construing the facts in the light most favorable to the non-moving party,
plaintiff was also required to engage in performances. (DE # 89-21 at 1.)
But, in assessing whether two jobs require equal skill, effort, and responsibility,
the court must examine “the duties actually performed by each employee” and not the job
description or title. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461 (7th Cir. 1994)
(emphasis added). Thus, whether or not defendants expected plaintiff to engage in
performances is immaterial because there is no dispute as to the fact that, unlike the
members of the Euclid Quartet, she was not actually performing music. (See DE # 89-3
at 73 (“As I said, I had stopped performing professionally.”).)

8

Based on the duties actually performed by plaintiff, her position did not require
substantially similar skill, effort and responsibilities to the positions of the members of
the Euclid Quartet. First, the Euclid Quartet members needed to be able to teach and
perform, whereas plaintiff’s position did not require the skill necessary to be an active
performer. Second, the Euclid Quartet members exerted different effort than plaintiff
because they traveled and performed internationally in addition to their obligation to
teach. Thirdly, the Euclid Quartet members had a greater responsibility than plaintiff
because they served as a public face for the Raclin School and impacted the School’s
reputation around the world in a way that plaintiff did not. (See DE # 89-6 at 55.)
Therefore, the positions did not constitute equal work.
Since plaintiff has not met the second prong of this test—and no genuine issue of
material fact remains as to this prong—the court finds that plaintiff has failed to
establish a prima facie case of wage discrimination and summary judgment is
appropriate.
ii.

Affirmative Defense

Even if plaintiff had established a prima facie case, her claim would still fail due to
defendants’ affirmative defense. Once a plaintiff establishes a prima facie case, the
burden of persuasion shifts to the employer to prove one of four statutory affirmative
defenses. Cullen, 338 F.3d at 702. The employer has the opportunity to show that “the
pay disparity [was] 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

9

than sex.” Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989) (citing 29 U.S.C.
§ 206(d)(1)).
Defendants assert the fourth affirmative defense (i.e., a differential based on any
factor other than sex) which is “a broad catch-all exception [that] embraces an almost
limitless number of factors, so long as they do not involve sex.” Dey, 28 F.3d at 1462
(7th Cir. 1994). Specifically, defendants assert that members of the Euclid Quartet
received higher salaries than plaintiff due to their higher market value. (DE # 82 at 17,
22.) In assessing this affirmative defense, “it is not [the court’s] province to secondguess the employer’s business judgment.” Dey, 28 F.3d at 1462. Accordingly, “we ask
only whether the factor is bona fide, whether it has been discriminatorily applied and
. . . whether it may have a discriminatory effect.” Id. In other words, “[t]he justification
need not be a ‘good reason,’ but merely a gender-neutral one.” Warren v. Solo Cup Co.,
516 F.3d 627, 630 (7th Cir. 2008).
Plaintiff contends that market value is not an appropriate “factor other than sex”
in this case and cites to the EEOC Compliance Manual which states that “market value
qualifies as a factor other than sex only if the employer proves that it assessed the
marketplace value of the particular individuals job-related qualification, and any
compensation disparity is not based on sex.” EEOC Compliance Manual, § 10-IV(F)(2)(g).
Plaintiff argues that genuine issues of fact exist as to whether defendants actually made
the required assessment of the marketplace prior to awarding a higher salary to the
Euclid Quartet. (DE # 88 at 17.)

10

However, the undisputed facts indicate that Dr. Alfred Guillaume, then the Vice
Chancellor for Academic Affairs at Indiana University - South Bend, did assess the
marketplace value of a string quartet. Guillaume determined that a $40,000 salary was
necessary to attract a new resident quartet, and that the old quartet had left in part due
to salary concerns. (DE # 83-5 at 6.) Even plaintiff seems to recognize that this was
Guillaume’s reasoning, as in her response brief she quotes his assessment that
“lowering that salary would jeopardize that opportunity” to “hire the best quartet that
[he] could find.” (DE ## 83-5 at 8, 88 at 9.) Additionally, defendants note that
professional string quartets in residence are rare, and thus there was a relatively small
applicant pool from which to draw. (See DE # 83-2 at 41); see also Cullen, 338 F.3d at 703
(approving pay differences based on market forces where a higher salary was necessary
to attract a candidate from a small national applicant pool).
In a further attempt to discredit defendants’ affirmative defense, plaintiff cites
another statement from the EEOC compliance manual that “[p]rior salary alone is not
sufficient to justify a compensation disparity.” EEOC Compliance Manual,
§ 10-IV(F)(2)(g). This statement applies to the prior salaries of job candidates for the
open position, not the prior salaries for individuals who once held the position in
question. See id. Regardless, in the case at hand, the prior salaries awarded to the
Avalon Quartet were not a reflection of sex-based compensation discrimination, and
therefore do not run afoul of the EEOC Compliance Manual. See id. It is undisputed that
the Avalon Quartet contained both male and female members who were all paid at the

11

same rate. (DE ## 83-3 at 6, 83-14.) Therefore, the Avalon Quartet’s compensation, upon
which the Euclid Quartet’s compensation was based, was not the result of gender
discrimination.
Since this is a legitimate, nondiscriminatory reason for the difference in pay, and
since there is no genuine issue of material fact over its validity, summary judgment is
appropriate on this claim. See Rowels v. Ill. Dep’t of Employment Sec., No. 99 C 6450, 2004
WL 1243870, at *2 (N.D. Ill. June 8. 2004).
IV.

CONCLUSION
For the reasons set forth above, plaintiff’s claims pursuant to Title VII of the Civil

Rights Act of 1964 and Article I, Section 23 of the Indiana Constitution are DISMISSED.
Defendants’ motion for summary judgment (DE # 81) is GRANTED IN PART as to
plaintiff’s Equal Pay Act claim. As to all other claims, the motion is DENIED AS
MOOT. Because no claims remain against any defendants in this case, the clerk is to
ENTER FINAL JUDGMENT stating:
Judgment is entered in favor of defendants and against
plaintiff Alicia Purcell, who shall take nothing by way of her
complaint.
SO ORDERED.
Date: February 2, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

12