Employment Law Daily Male lawfully selected for principal position due to experience, paid more due to salary freeze
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Tuesday, December 18, 2018

Male lawfully selected for principal position due to experience, paid more due to salary freeze

By Lorene D. Park, J.D.

Affirming summary judgment against sex discrimination and retaliation claims by a former school principal whose school was closed (along with others) due to lack of enrollment, the Seventh Circuit found that she failed to raise triable issues where a male candidate was selected to be principal at another school because of his prior experience there and where his salary was higher because of a district-wide salary freeze occasioned by a financial crisis. In addition, the timing of the employee’s nonrenewal soon after her EEOC charge and her history of good performance could not raise a triable issue supporting her retaliation claim, given the context here (Terry v. Gary Community School Corp., December 13, 2018, Flaum, J.).

Reassigned after school closed. The employee began her career with the school district as a teacher in 1980. In August 2002, she was promoted to be principal of Brunswick Elementary School, where she remained until the district closed Brunswick and four other schools in 2014 due to declining enrollment. To decide whether to reassign employees from the closed schools to schools that remained open, the board of trustees met on July 22, 2014, and considered the recommendations of the superintendent. She recommended that the employee serve as assistant principal of Jefferson Elementary School, pending sufficient enrollment. Her recommendations were followed except as to her first choice for principal of Marquette Elementary School, and that position was advertised.

Denied principal position. The employee applied to be principal at Marquette and was the highest scorer on interviews, but it turned out that the superintendent did not even consider the interview scores. Instead, she selected the male assistant principal of Marquette (who had not even applied) because of his experience at the school and because he had served as interim principal there when the regular principal was on leave. The employee was placed at Jefferson with the same salary she had as principal and in January 2015 was reassigned to serve as assistant principal at Marquette. In February she was advised that the district had decided not to renew her contract as an administrator and she retired at the end of the 2014-2015 school year.

Litigation. Meanwhile, in October 2014, the employee filed an EEOC charge alleging that the district discriminated against her based on her gender when she was demoted, passed over for a promotion, and paid less. She filed suit under Title VII, Section 1983, and the Equal Pay Act.

Discriminatory demotion claim fails. Affirming summary judgment against the employee’s claim that her demotion from principal to assistant principal at another school constituted sex discrimination, the appeals court first found it questionable whether the change was “materially adverse” given there was no change in pay or benefits and the required duties and skills were the same. However, the court did not need to resolve that issue because, assuming it was an adverse employment action, the employee did not marshal any evidence raising a triable issue on whether the school district had a discriminatory purpose for taking the action. To the contrary, the record showed that the employee was transferred because her school closed, and she offered no evidence that this reason was pretextual.

No discriminatory failure to promote. As for the decision to appoint a male assistant principal to be principal at Marquette, the employee failed to raise a triable issue on whether the sex-neutral reason for hiring him (his prior experience at that school) was pretextual. The appeals court found it significant that there was no information on how the school district typically fills vacant positions and whether a formal interview was required, or whether the superintendent must review interview scores before making a recommendation. Moreover, the superintendent’s first choice was a woman; there was no information on why the school board rejected that candidate or when the school district began considering the individual eventually hired for the post. Without information on the context of the decision, the employee could not establish pretext here, so her Title VII and Section 1983 claims failed.

Retaliation claim fails too. Also affirming summary judgment against the retaliation claim, the appeals court noted that the employee relied on the timing of the nonrenewal letter soon after her EEOC charge and on her long, positive performance history. But here, state law dictated when the school district had to send the nonrenewal letter, and the record supported the school district’s argument that it did not renew her contract because of the financial crisis, school closures, and downsized administration. Given that “there are reasonable, non-suspicious explanations for the timing of [the nonrenewal letter],” that timing, even when combined with the employee’s positive history, was not enough to raise a dispute of material fact on whether the district retaliated against her.

No equal pay violation either. The employee based her Equal Pay Act claim on the fact that, during the 2013-2014 school year, she was paid $84,308 per year as principal but two male principals were each paid $85,986. Under the EPA, there are four exceptional circumstances when an employer is permitted to pay an employee less than an employee of the opposite sex despite having jobs requiring equal skill, effort, and responsibility: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

Here, the school district did not challenge the employee’s choice of comparators, but instead claimed that the pay disparity was due to a combination of its pay scale and to the fact that the positions were subject to a salary freeze caused by the district’s financial crisis. This, explained the court, constituted a “factor other than sex” that made the salary differential permissible. Though the employee pointed to testimony by the superintendent that, had she known earlier of the salary disparity, she would have tried to correct it, this testimony was “aspirational.” The superintendent offered no concrete actions that she could have taken, nor did she suggest that she could have eliminated the pay disparity even if there were ways to circumvent the salary freeze.

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