Employment Law Daily No revival of ‘trailing spouse’ female professor’s pay bias claim
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Friday, April 6, 2018

No revival of ‘trailing spouse’ female professor’s pay bias claim

By Kathleen Kapusta, J.D.

Despite comments by the Director of the School of Art referring to a part-time faculty member as a “princess” and “trailing spouse” who should just have babies and be happy, the Fifth Circuit affirmed the dismissal of the non-renewed LSU art professor’s Title VII gender discrimination in pay claim. It also affirmed dismissal of her state-law whistleblower claim, which was premised on her contention that LSU retaliated against her for disclosing that the School of Art imposed unauthorized course fees. Nor did the lower court err in dismissing on summary judgment her spoliation claim, said the appeals court, finding no evidence to show the university instructed or suggested that a panel chair destroy his notes from a meeting in which the nonrenewal decision was discussed (Herster v. Board of Supervisors of Louisiana State University, April 4, 2018, Stewart, C.).

“Princess” comments. During his interview for a law professor position with Louisiana State University, the employee’s husband asked about the possibility of his wife also obtaining a faculty position. After receiving her credentials, the School of Art agreed to employ her part-time. Almost immediately, the employee questioned whether she was being asked to do more work than her part-time position entailed. She also asked the school director to clarify her duties. When she requested more money, he allegedly responded by stating, “I thought you were a trailing spouse. I thought you were going to have children and be happy,” like another female professor. He also purportedly told her she was acting like an eight-year-old and a princess.

Internal audit. Although her job ultimately changed to a full-time professor-in-residence position, her continued belief that she was paid less than male colleagues with similar duties prompted her to file internal complaints of discrimination as well as an EEOC charge. She also sent a letter to the school dean, contending that course fees were being improperly collected from students. An internal audit found that that since 2010, the school had charged approximately $28,000 annually in unapproved course fees and that some of the fees were used for purposes contrary to LSU policy.

Not renewed. Not long after the school director received the employee’s course fee letter, a faculty panel recommended not renewing her appointment. Although the employee requested that the panel chair provide his personal notes from the meeting, LSU’s HR department and the school director advised him not to turn over his notes. After the employment decision was finalized, he shredded his notes pursuant to his usual practice.

Lawsuit. The employee then sued the university alleging numerous federal and state-law claims. The district court granted LSU’s motion for summary judgment against her spoliation claim but her Title VII gender discrimination in pay, hostile work environment, and retaliation claims, as well as her state-law whistleblower claim, proceeded to trial. After she presented her case-in-chief, the district court granted LSU’s motions for judgment as a matter of law on her gender discrimination in pay, hostile work environment, and whistleblower claims. Although her retaliation claim went to the jury, it found against her. The employee appealed only the gender discrimination in pay, whistleblower, and spoliation decisions.

No gender discrimination in pay. The district court correctly concluded that the employee failed to show she was paid less than a male comparator for work requiring substantially the same responsibility, the Fifth Circuit held, observing that two of the purported comparators were assistant professors in a tenure track that required research as a condition of employment. In contrast, the employee, as a professional-in-residence, was not required to research or seek to obtain research grants. Moreover, while the third comparator was also a professional-in-residence, he had greater qualifications and responsibilities as, unlike the employee, he had a Ph.D. and was assigned a larger course load. Thus, she failed to present sufficient circumstantial evidence of discrimination.

“Have children and be happy” comments not direct evidence. Nor did she show direct evidence of discrimination, said the court, noting that at most, the director’s comments inferred that gender was a factor in the decision concerning her compensation, as an individual can be referred to as a “trailing spouse” irrespective of gender. Further, an inferential leap was required to prove she was paid less because of her gender when analyzing his comments of “I thought you were going to have children and be happy” and that she was acting like a “princess.”

Nor did his reference to another woman whom he considered to be a trailing spouse amount to direct evidence of discrimination because an inference was required to get from that statement to the conclusion that gender was a basis for setting the employee’s compensation, said the court, finding that her evidence “was simply much weaker than what this court has accepted as direct evidence of discrimination in prior cases.” Noting further that the proximity in time of the comments to the challenged employment decision was unclear, the court found that the comments were stray remarks that failed to provide direct evidence of discrimination for her gender discrimination in pay claim.

No whistleblower claim. Turning to the employee’s whistleblower claim, the court found it undisputed that LSU did not receive authorization from the state legislature to collect the course fees. While Article VII, § 2.1 of the Louisiana Constitution requires that any fee assessed by the state and some of its subunits, including LSU, be enacted by a two-thirds vote of the state legislature, the term “fee” is not defined. Finding that the employee failed to show LSU actually violated the Louisiana Constitution, the court observed that she did not point to any authority establishing that the imposition of any type of course fee by the School of Art or LSU constituted a violation of Louisiana law.

Although she contended that the internal auditor’s asserted belief that the course fee constituted a violation of the Louisiana Constitution would qualify her for protection under the Louisiana Whistleblower Statute, a plaintiff must prove that his employer committed an actual violation of state law, the court explained, noting that she had nothing more than an unverified belief there was a state law violation.

Spoliation. Finally, the appeals court found that despite the possible factual issue about the amount of control LSU had over the panel chair’s notes, the employee’s spoliation claim was properly dismissed. No LSU policy required the chair to maintain, preserve, or provide his notes that were taken during the meeting that included a discussion of the employee’s reappointment. Nor was there any evidence showing that LSU instructed or suggested to him to shred or intentionally destroy his notes.

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