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Patt v. Family Health Systems

February 06, 2002


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-C-1172--John W. Reynolds, Judge.

Before Bauer, Rovner, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Rovner, Circuit Judge

Argued May 14, 2001

Dr. Anita Patt sued her former employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq., alleging gender-based discrimination, a hostile work environment, and retaliation. The district court granted summary judgment in favor of her employer, and Patt appeals. We affirm.

Family Health Plan Cooperative ("Family Health") is a Wisconsin-based health maintenance organization that ceased operations in 2000 and is currently in bankruptcy. Patt joined Family Health in 1993 as a general surgeon. At that time, the surgery department included Dr. Kenneth Scher, department chief, and Drs. Greg Rosner and Fred Steele, both of whom had joined Family Health in 1991. Shortly after Patt was hired, another surgeon, Dr. Allan Converse, joined the department. During her employment, Patt was the only female surgeon in the department.

Sometime in 1994 Patt learned that she was earning nearly $50,000 less than Dr. Rosner, the other junior surgeon in the department. Patt complained about the discrepancy, and Family Health responded by giving her a mid-year $15,000 raise. Over the course of her employment, Patt continued to receive raises equal to or proportionately larger than Rosner, and the gap between their salaries narrowed. By 1999 the difference was approximately $10,000. Patt, however, believed that Family Health was intentionally paying her less than Rosner because of her gender.

According to Patt, after she complained about the salary discrepancy, matters worsened. She claims the male doctors in her department--Scher in particular--began a subtle campaign to derail her surgical career. This campaign was typified by Scher's unjustified criticisms of her medical abilities and his efforts to assign her to only simple cases so that she could not progress as a surgeon. As proof of Scher's gender-based animus, she points to derogatory comments Scher made to Patt and other female Family Healthemployees over the course of several years. The parties do not dispute that Patt was never formally disciplined, demoted, suspended, or terminated, and she continued to work for Family Health until it ceased operations in 2000.

In March 1997 Patt filed a complaint with the Equal Employment Opportunity Commission, seeking relief for the salary discrepancy and Scher's alleged harassment. By this time, Converse had replaced Scher as chief of surgery, though Scher still worked in the department. According to Patt, the harassment by Scher--and subsequent harassment by the new surgery chief Converse--intensified after she filed her EEOC complaint; she claims that both doctors excessively scrutinized her work, unfairly limited her surgical practice by requiring that she seek assistance when performing certain surgeries, and unjustifiedly subjected her to "endless peer review" in an effort to tarnish her professional reputation.

In 1998 Patt sued Family Health and its for-profit parent company, Family Health Systems, Inc. On Family Health's motion, the district court ruled that Patt's salary claim was time-barred because she did not file her EEOC complaint within 300 days of learning of the salary discrepancy. See 42 U.S.C. sec. 2000e-5(e)(1). With respect to Patt's remaining claims, the district court granted summary judgment in favor of Family Health, finding that Patt had failed to establish that she suffered an adverse employment action. In particular, the court found that Patt did not show that Scher or the other male doctors had hampered her surgical career. The court rejected Patt's retaliation claim on similar grounds. The court likewise rejected Patt's hostile work environment claim, finding that Patt failed to establish severe or pervasive harassment. Patt filed a timely notice of appeal.

On appeal, Patt renews her contention that she presented prima facie claims for disparate treatment based on unequal pay and the denial of career opportunities, as well as claims for hostile work environment and retaliation. Our review is under the familiar de novo standard. See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001). Although we view the evidence in the light most favorable to Patt, to survive summary judgment she must come forward with specific facts showing that there is a genuine issue for trial. See Miller v. American Fam. Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000).

I. Unequal Salary Claim

Patt argues that she established a Title VII disparate treatment claim based on unequal pay because "the facts . . . demonstrate that Dr. Patt was paid less than her male colleagues in the surgical department, especially Dr. Rosner." To establish a disparate treatment claim, Patt must show that she was a member of a protected class; that she was meeting Family Health's legitimate performance expectations; that she suffered an adverse employment action; and that Family Health treated similarly situated persons outside of the protected class more favorably. See Dunn v. Nordstrom, Inc., 260 F.3d 778, 784 (7th Cir. 2001).

The parties dispute whether Patt's unequal pay claim was timely. Normally, a plaintiff must file an EEOC complaint within 300 days of the employer's discriminatory act. See 42 U.S.C. sec. 2000e-5(e). Thus, Patt's 1996 EEOC complaint would not be timely with respect to an unequal pay claim dating back to 1994, when Patt first learned that she was being paid less than Rosner. But Patt seeks to avoid the statute of limitations by relying on the "continuing violation" doctrine. See Bazemore v. Friday, 478 U.S. 385 (1986); Goodwin v. Gen. Motors Corp., 275 F.3d 1005 (10th Cir. 2002); Cardenas v. Massey, 269 F.3d 251, 255-57 (3d Cir. 2001). The doctrine allows a Title VII plaintiff to obtainrelief for a time-barred discriminatory act by linking it with a discriminatory act occurring within the limitations period. Miller, 203 F.3d at 1003.

We need not reach the timeliness issue, however, because Patt cannot succeed on the merits of her unequal pay claim. She has not established that she was paid less than a similarly situated male surgeon. See Dunn, 260 F.3d at 784. Although Rosner was paid a higher salary, the record shows that Rosner worked at Family Health at least a year longer than Patt, and that Rosner had completed four years of post-residency work to Patt's two years at the time she was hired. Patt asserts that Rosner's prior post-residen cy work had "no bearing on nor relationship to surgery," but Rosner's curriculum vitae states that he previously served as "Director of Surgical Critical Care" at a medical facility in New York. Years of service and prior experience are legitimate, non-discriminatory reasons for a wage disparity. See Wollenburg v. Comtech Manuf. Co., 201 F.3d 973, 976 (7th ...

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