1986 ad hoc committee and on other ad hoc committees. Thus, if as seems likely Dean Wiley was aware that plaintiff and Robert Church were friends, Dean Wiley's selection of Robert Church to be on plaintiff's ad hoc committee is evidence that Dean Wiley was not attempting to stack that committee against a grant of tenure to plaintiff.
Dean Wiley is also accused of having rigged the peer reviewers. Plaintiff established that certain of the peer reviewers knew Dean Wiley, that certain of them were recommended by Dean Wiley, and that certain of them were contacted by telephone by Dean Wiley. At least one of the peer reviewers recommended by Dean Wiley strongly recommended that plaintiff be granted tenure. More significantly, there was no evidence that would tend to establish that Dean Wiley in any way attempted to influence any peer reviewer to make a negative recommendation. Given the high-powered scholars involved, the court is also highly skeptical that Dean Wiley could have influenced any of them to send in negative recommendations even if he had tried.
Plaintiff also contends that Dean Wiley treated her less favorably than her male counterparts, Bruce Spencer and Dan Lewis. The court has previously found against plaintiff with respect to the facts on which this contention is based. The circumstances of plaintiff were different from those of Bruce Spencer and Dan Lewis. Plaintiff contends that Dean Wiley "established barriers in her path that were not encountered by male tenure candidates in the School of Education, including the assignment of administrative duties and increased teaching loads and a premature tenure review." This is not true. In fact, Dean Wiley attempted to help plaintiff put her tenure review off for a year, in which she would not have any teaching or administrative duties and could devote herself to her research, during which she would retain the title of assistant professor and would lose no salary, when he obtained a research associate position for her. That plaintiff chooses to see this as some sort of demotion does not change the nature of the offer; Dean Wiley was offering plaintiff exactly the sort of help she needed at the time--an extra year to prepare for her tenure review, at full salary, during which plaintiff could devote all of her time to her scholarship. Plaintiff contends that Dean Wiley imposed a higher standard of scholarship upon plaintiff than upon similarly situated male candidates and failed to honestly evaluate her scholarship. This, too, is not true. Plaintiff contends finally that Dean Wiley "intentionally engaged in a calculated effort over time to insure that Plaintiff did not receive tenure." This, too, is untrue. Although Dean Wiley may not have done exactly as plaintiff would have preferred, he in fact tried to help her in her effort to receive tenure, the most dramatic and tangible example of his efforts being the research associate position plaintiff declined.
Plaintiff contends that "other evidence of sex discrimination in Northwestern's School of Education emerges when the compensation, courseloads, and promotions of male and female faculty are compared." These facts, however, have been found adversely to plaintiff's position.
Plaintiff contends that "the procedural irregularities that plagued each of Plaintiff's tenure reviews and the 1986 review, in particular, are also probative of intent." There were no "procedural irregularities" of any significance established by the evidence in the 1986 tenure review. There were also no procedural irregularities of significance in the 1985 tenure review, with the possible exception of the timing of the tenure review which provided the basis for the provost's decision, on UFRPTDAP's recommendation, to grant plaintiff a second tenure review to give her the benefit of the doubt created by the different interpretations she had been given of when her tenure clock had begun to run.
The court concludes, therefore, that plaintiff has not proven by a preponderance of the evidence that Dean David Wiley decided to deny her tenure and promotion to associate professor because of her sex. There being no sex discrimination established at any of the prior levels of the tenure review that might have tainted Dean Wiley's decision, the evidence does not establish that Northwestern discriminated against plaintiff when it denied her tenure and promotion to associate professor. Northwestern is accordingly entitled to judgment in its favor on plaintiff's claim of sex discrimination.
Plaintiff also makes a claim of Title VII retaliation against defendant. 42 USC § 2000e-3(2). Plaintiff's retaliation claim is essentially that David Cohen, acting in lieu of Provost Robert Duncan, retaliated against plaintiff for her making the claim, in her UFRPTDAP appeal and before the EEOC, that she was discriminated against because of her sex in the decision to deny her tenure and promotion. Dean David Wiley made the decision to deny plaintiff tenure and promotion and communicated that decision to her. Plaintiff appealed that decision to UFRPTDAP in August 1986 and to the provost. After UFRPTDAP decided the appeal adversely to plaintiff and before David Cohen notified plaintiff of his decision with respect to the thoroughness and completeness of the UFRPTDAP report, plaintiff filed her charge of sex discrimination with the EEOC on April 6, 1987. David Cohen's letter notifying plaintiff that he was denying her appeal was dated April 17, 1987.
Title VII makes it:
An unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge under this subchapter.
42 USC § 2000e-3(2)(a). As with the claim of sex discrimination, plaintiff may establish her retaliation claim either by direct proof or by use of the burden-shifting approach established by the Supreme Court in McDonnell Douglas Corp. v Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Johnson v University of Wisconsin-Eau Claire, 70 F.3d 469, 477 (7th Cir 1995). Under the burden-shifting approach, plaintiff is first required to establish a prima facie case showing that (1) she engaged in statutorily-protected expression; (2) she suffered an adverse action by her employer; and (3) the adverse action by her employer was caused by the protected expression. Johnson v University of Wisconsin-Eau Claire, 70 F.3d 469, 479 (7th Cir 1995). To establish the causal link, plaintiff must demonstrate that her employer would not have taken the adverse action but for the protected expression. Johnson v University of Wisconsin-Eau Claire, 70 F.3d 469, 479 (7th Cir 1995). After a plaintiff establishes a prima facie case, the burden of production shifts to the defendant employer to come forward with a legitimate, non-retaliatory reason for its actions. Johnson v University of Wisconsin-Eau Claire, 70 F.3d 469, 479 (7th Cir 1995). If the employer comes forward with such a reason, the burden shifts back to plaintiff to prove by a preponderance of the evidence that the proffered reason is a pretext for discrimination. See Wolf v Buss (America) Inc., 77 F.3d 914, 919 (7th Cir 1996); Johnson v University of Wisconsin-Eau Claire, 70 F.3d 469, 479 (7th Cir 1995). Again, the shifting only pertains to the burden of production; the burden of persuasion remains with plaintiff at all times. St. Mary's Honor Center v Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).
Plaintiff has not, and does not claim to have, presented direct evidence that David Cohen retaliated against her for making her sex discrimination claims in the UFRPTDAP appeal and the EEOC charge. Rather, she has attempted to prove her case by the burden-shifting approach. Plaintiff has established that she engaged in statutorily-protected expression--claiming sex discrimination in defendant's denying her tenure and promotion--and that she suffered an adverse action--the denial of plaintiff's appeal of the decision to deny her tenure and promotion--by her employer. Defendant does not contest this.
Defendant does contest that plaintiff established the causal link element of her prima facie case. According to plaintiff's argument, the decision to deny tenure and promotion was ultimately made by David Cohen when he decided the UFRPTDAP appeal, Dean Wiley's role being to recommend denial of tenure and promotion. The defendant's view is that Dean Wiley denied tenure and promotion, with UFRPTDAP's and David Cohen's roles being to decide an appeal from that decision. The evidence adduced in this case demonstrated that the dean denied tenure and promotion to plaintiff and the provost's role was to decide an appeal of that decision. See Lever v Northwestern University, 979 F.2d 552, 554-55 (7th Cir 1992) (coming to the same conclusion with respect to the roles of dean and provost in the tenure review process at Northwestern). Defendant's position is that this is the end of the analysis; that the adverse action was the decision to deny plaintiff tenure and promotion, that this occurred prior to plaintiff's first engaging in the statutorily-protected expression in her UFRPTDAP appeal, that therefore the statutorily-protected expression could not have caused the adverse action, and that this means that plaintiff has not established a prima facie case of retaliation.
The problem with defendant's analysis is that the denial of plaintiff's appeal, which was the action taken by David Cohen, was also an adverse action by plaintiff's employer. Although it is true that an employer's refusal to undo a discriminatory decision is not a fresh act of discrimination for purposes of Title VII, see Lever v Northwestern University, 979 F.2d 552, 556 (7th Cir 1992), if the employer refuses to undo the discriminatory decision in order to retaliate against a plaintiff for having engaged in statutorily-protected expression there is no reason that cannot give rise to a claim for retaliation. Therefore, defendant's argument as to why no causal link was established is unpersuasive.
There is a difficulty with the causal link element of plaintiff's prima facie case. Plaintiff's claim is that a causal connection may be inferred because David Cohen's decision of the appeal closely followed plaintiff's claim of sex discrimination. The court does not believe that such an inference is warranted on the facts of this case. What David Cohen had before him was an appeal that had been reviewed and found wanting by UFRPTDAP. This appeal had begun in August of 1986, at which time plaintiff first made her claim that she had been discriminated against because of her sex when she was denied tenure and promotion. There are at least three reasons the court does not believe the inference for which plaintiff argues is warranted in this case. (1) Plaintiff was notified of the denial of her appeal by David Cohen in a letter dated April 17, 1987, more than seven months after plaintiff initially made her sex discrimination in her UFRPTDAP appeal so, although the EEOC charge was made April 6, 1987, David Cohen's decision did not closely follow plaintiff's first claim of sex discrimination. (2) David Cohen had an appeal before him and his job was to decide it one way or the other. This appeal had been pending in Northwestern's appeal system for more than seven months. It does not seem appropriate to infer that, just because plaintiff filed her EEOC charge shortly before the appeal was decided against her, the appeal was decided that way in retaliation for the EEOC charge. The situation is unlike one in which, shortly after a charge of discrimination is made, an employer discharges or reduces the compensation of an employee or takes some other such adverse action. (3) The evidence does not establish that David Cohen was aware of the EEOC charge at the time he rendered his decision of the appeal. The court therefore will not make the inference plaintiff invites it to make.
The rejected inference being the sole basis on which plaintiff's contention that a casual link between plaintiff's statutorily-protected expression and the adverse action by her employer has been established rests, the court concludes that plaintiff has failed to establish the required casual link. Plaintiff has accordingly failed to establish a prima facie case of retaliation, and defendant is entitled to judgment on that claim.
ORDERED: The court finds in favor of defendant, Northwestern University, and against plaintiff, Barbara Schneider, on her claims of sex discrimination and retaliation under Title VII. Judgment in favor of defendant and against plaintiff will be set forth on a separate document and entered in the civil docket. FRCP 58, 79(a).
GEORGE W. LINDBERG
DATED: MAY 13 1996
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial before the Court. The issues have been tried and a decision has been rendered.
IT IS ORDERED AND ADJUDGED judgment is entered in favor of the defendant, Northwestern University and against the plaintiff, Barbara Schneider.
May 13, 1996
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