Opinion
Civ. No. 01-967 (JEL/JGL).
February 25, 2003
Judith K. Schermer, Esq., Judith K. Schermer, P.L.C., appeared for Plaintiff David R. Horn.
Jeffrey G. Vigil, Esq., and Jennifer L. Frisch, Esq., Associate General Counsel, Office of the General Counsel, appeared for Defendant University of Minnesota.
ORDER
This is an action by David Horn, a former assistant coach of the University of Minnesota women's hockey team, against the University of Minnesota (University). Horn alleges that the University violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 (2000) (Title VII), and the Equal Pay Act, 29 U.S.C. § 206(d) (2000) (EPA), by paying him less than a similarly situated female assistant coach, retaliating against him for complaining about the wage disparity, and constructively discharging him. The matter is before the Court on the University's Motion for Summary Judgment. For the reasons set forth below, the Court grants the University's motion.
I. BACKGROUND
In October 1996, the University hired Laura Halldorson as head coach of the women's hockey team in preparation for the team's inaugural season. The University created two assistant coach positions: a first assistant to be appointed to a 12-month term, and a second assistant to be appointed to a 10-month term. In July 1997, Halldorson hired Elizabeth Witchger as the first assistant coach, and hired Horn as the second assistant coach. Horn accepted the position knowing that Witchger would be the first assistant, that he would be the second assistant, and that he would be compensated accordingly. At the end of their initial contractual terms in June 1998, the University renewed both contracts and increased Witchger's and Horn's salaries. After the 1998-99 season, the University renewed Witchger's contract and increased her salary. The University also revalued Horn's position. Effective July 1, 1999, the University appointed Horn to a 12-month term at an increased salary. On August 25, 1999, Horn notified the University that he had accepted an offer from another employer, and that September 7, 1999, would be his last day at the University.
At some point during the 1997-98 season, Horn researched the salaries of coaches in the University's women's athletic department. After discovering the University paid Witchger more than him, Horn hired an attorney who contacted the Director of Women's Athletics in August or September 1998, to complain about Horn's pay. Later in September, Horn, his attorney, and the Women's Athletic Director met to discuss his complaints. Horn contends the University retaliated against him and constructively discharged him after he complained about the disparity between his compensation and that of Witchger.
II. DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Wage Discrimination
Horn's first claim is that the University paid him less than a similarly situated female employee, Witchger. To evaluate a claim for unequal pay for equal work on the basis of gender, a court uses the same standard without regard to whether the plaintiff raises the claim under Title VII or the EPA. Buettner v. Arch Coal Sales Co., 216 F.3d 707, 718-19 (8th Cir. 2000); McKee v. Bi-State Dev. Agency, 801 F.2d 1014, 1019 (8th Cir. 1986). To establish a prima facie case of wage discrimination, Horn must show that the University paid him less than Witchger for equal work in jobs that required equal skill, effort, and responsibility, and that were performed under similar conditions. See Buettner, 216 F.3d at 719. To be considered equal, jobs need not be identical; substantial equality suffices. Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002); Krenik v. County of Le Sueur, 47 F.3d 953, 961 (8th Cir. 1995). "Whether two jobs are substantially equal `requires a practical judgment on the basis of all the facts and circumstances of a particular case,' including factors such as level of experience, training, education, ability, effort, and responsibility." Hunt, 282 F.3d at 1030 (quoting Buettner, 216 F.3d at 719). Differences in job titles or classifications are not dispositive. Id. at 1029.
It is undisputed that the University paid Horn less than Witchger. Thus, the issue is whether Horn's and Witchger's positions were substantially equal. The University asserts that the positions were not substantially equal because Witchger performed duties that Horn did not. Horn points to no area where he had responsibilities that Witchger did not. He concedes that Witchger's position required her to perform additional duties, but maintains that his position was substantially equal to her position because her additional duties were "minimal." Witchger's additional duties fall into four categories.
First, Witchger was responsible for starting and maintaining a booster club. She searched for donors and individuals willing to serve as the club's president, vice president, treasurer, and secretary. She signed up members, approximately 30 to 40 in the first or second season. She ran the club's meetings and wrote its newsletters. Even after the executive staff assumed the responsibility of formulating ideas to support the team, Witchger continued to act as the liaison between the team and the club, to write the newsletter, and to preside over meetings.
Second, Halldorson entrusted Witchger with the responsibility of representing the team at meetings in Halldorson's absence. Witchger represented the team at meetings where the team was introduced to members of the University and surrounding community, the press, boosters, and potential boosters. During the first season, Witchger appeared in Halldorson's place at a couple of meetings.
Third, Witchger organized all team travel until July 2000, and arranged team meals and transportation for home games. Horn characterizes these duties as "hardly indicative of greater skill or responsibilities." Horn ignores that he did not face the demands on his time and the logistical difficulties that Witchger confronted by organizing the team's travel and meals.
Finally, Witchger also created a database to record information on potential recruits. Horn describes the database creation as a "one-time project," and notes that all of the coaches made entries after its creation. Nevertheless, Witchger set it up, which required her to have organizational and computer skills not required of Horn.
Based on this evidence, no rational trier of fact could conclude that Horn's position was substantially equal to Witchger's position. Witchger's position involved greater responsibilities and demanded greater efforts and skills than Horn's position. Because Horn failed to establish a prima facie case of wage discrimination, the Court grants the University's motion on this claim.
B. Retaliation
Horn's second claim is that the University violated Title VII and the EPA by retaliating against him for complaining about the disparity between his compensation and Witchger's compensation. For Horn's retaliation claim to survive the University's motion for summary judgment, Horn must first establish a prima facie case of retaliation which consists of three elements: (1) he participated in a protected activity; (2) an adverse employment action was taken against him; and (3) a causal connection exists between the adverse employment action and the protected activity. See Krause v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001); Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 270 n. 2 (8th Cir. 1996) (assuming no significant differences exist between Title VII and the EPA with respect to claims of retaliatory termination). The University concedes that Horn's complaints about his compensation constitute protected activity. The University argues, however, that Horn has failed to establish the second and third elements of his prima facie case.
Not everything that makes an employee unhappy constitutes an adverse employment action. LaCroix v. Sears, Roebuck Co., 240 F.3d 688, 691 (8th Cir. 2001). Instead, an adverse employment action consists of a material employment disadvantage, such as a change in salary, benefits, or responsibilities. Id. Horn identifies four actions and argues that, either individually or collectively, they constitute adverse employment action.
First, he argues that Halldorson failed to treat him with respect and did not effectively communicate with him. According to Horn, Halldorson was upset, angry, disgusted, and unfriendly, and decreased her communications with him. This evidence, viewed in the light most favorable to Horn, is insufficient to establish that he was subject to an adverse employment action. "Title VII is not `a general civility code for the American workplace.' Therefore, in employer retaliation cases, `ostracism and rudeness by supervisors and co-workers do not rise to the level of an adverse employment action.'" Thorn v. Amalgamated Transit Union, 305 F.3d 826, 831 (8th Cir. 2002) (citations omitted). Thus, Horn cannot establish a prima facie case of retaliation based on Halldorson's failure to treat him with respect and her inability to effectively communicate with him.
At his deposition, Horn summarized how Halldorson's treatment of him changed after she learned of his complaints:
As far as retaliation, trying to sort of describe it, the way [Halldorson] treated me before this came up, she was always very friendly, polite. Every once in awhile us coaches would get together and go out at night or whatever. As soon as this happened, she no longer was very friendly toward me. Facial expressions, body language, tone of voice when she would talk to me was like she was annoyed with me, like she was disgusted with me. If I were to bring things up in meetings that we had or whatever, she would sort of, I don't know, roll her eyes or wouldn't take it as well as she would beforehand, right? Beforehand she was very receptive to my ideas and very polite. Whether she went with them or not, she was very up front with it.
Horn next argues that Halldorson's failure to invite him to participate in her summer 1999 hockey camp constitutes an adverse employment action. Although he states that working there was a "privilege of employment" and that it was "customary" for the assistant coaches to work at it, he acknowledges that the camp was "not a formal University activity." Indeed, Horn does not dispute that Halldorson maintained the camp separately from her work as head coach of the women's hockey team and that the University did not support the camp financially or in any other way. Notwithstanding Horn's assertion that the University's guidelines on assistant coach compensation specifically encourage assistant coaches to participate in camps as a benefit of employment, the guidelines reveal that the University does not negotiate contracts for assistant coaches to participate in camps and does not compensate them for such activities. Because participation in Halldorson's summer camp was not part of Horn's employment with the University, he did not experience an adverse employment action when Halldorson failed to include him in the 1999 camp.
Third, Horn asserts that his 1998-99 performance evaluation constitutes an adverse employment action. In that evaluation, Halldorson indicated that his overall performance "need[ed] improvement." Within individual categories of job performance, his ratings ranged from "poor" to "professionally competent." Halldorson noted that he was occasionally disrespectful and unprofessional in his communications with her and that he needed to "improve in the areas of trust, respect, and loyalty." Although this evaluation could be considered negative, it does not constitute an adverse employment action because "a negative review is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment." LaCroix, 240 F.3d at 692. In this case, there is no evidence that the University detrimentally altered the conditions of Horn's employment after the evaluation. In fact, the University revalued his position, making it a year-round position at an increased salary, within two weeks of the evaluation. Horn therefore cannot establish a prima facie case of retaliation based on the evaluation.
Horn also maintains the University "papered" his personnel file with notes of performance issues that Halldorson kept throughout the 1998-99 season. Halldorson began taking notes in September 1998, on the same day she learned of Horn's complaints about his compensation. The notes culminate in the June 1, 1999, entry in which she recommends that Horn's contract not be renewed. As a factual matter, Horn's assertion that his personnel file was "papered" with the notes is incorrect. The University submitted Horn's complete University personnel file; the notes are not in it. Even if the notes had been placed in his personnel file, he cannot rely on them to establish a prima facie case of retaliation because the University did not use them to detrimentally alter the terms of his employment. See id. Within one month after Halldorson submitted the notes, the University rejected her recommendation to not renew Horn's contract, and, instead appointed him to a 12-month term and gave him a raise.
Finally, Horn contends that the University engaged in a "pattern of reprisal" against him. A series of employment actions short of termination may constitute adverse employment action. See Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997). For example, in Kim, an employer reduced an employee's duties, gave the employee much lower performance reviews, "papered" the employee's personnel file with negative reports (at least one of which was allegedly fabricated), and required the employee to undergo special remedial training. Id. at 1052-53, 1060. Kim declined to decide whether each act constituted an adverse employment action and held as a matter of law that the employer's conduct, as a whole, constituted adverse employment action. Id. at 1060. Horn's reliance on Kim is misplaced. The University did not reduce Horn's duties and did not require him to undergo remedial training. The University rejected Halldorson's recommendation to not renew his contract and did not use her notes or his performance evaluation to detrimentally alter the terms of his employment. In fact, the "pattern of reprisal" postulated by Horn culminated in the University appointing him to a 12-month position and giving him a raise. For these reasons, the Court rejects Horn's contention that the University systematically retaliated against him.
C. Constructive discharge
Horn's final claim is that the University constructively discharged him in violation of Title VII and the EPA. A constructive discharge occurs when an employee quits as a result of the employer's deliberate creation of intolerable working conditions with the intent to force the employee to quit. Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996). "`Constructive discharge requires considerably more than an unpleasant and unprofessional environment.'" Duncan v. Gen. Motors Corp., 300 F.3d 928, 936 (8th Cir. 2002) (quoting Jones v. Fitzgerald, 285 F.3d 705, 716 (8th Cir. 2002)). The conditions created by the employer must be intolerable to a reasonable person. Tidwell, 93 F.3d at 494.
The University argues inter alia that Horn's working conditions were not objectively intolerable. In response, Horn asserts that Halldorson's treatment of him and her evaluation of his performance during the 1998-99 season created an objectively intolerable work environment. The Court acknowledges that Halldorson's treatment of Horn may have created an unpleasant environment. Viewed in the light most favorable to him, the disrespect, rudeness, and decreased communications Horn describes, however, fall far short of what a reasonable person would consider intolerable.
The same conclusion is warranted with respect to Horn's contention that the evaluation created an intolerable situation. Assuming that the evaluation was unfair, Horn cannot establish that his working conditions were objectively intolerable based on the evaluation. See Tork v. St. Luke's Hosp., 181 F.3d 918, 919 (8th Cir. 1999); Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1160 (8th Cir. 1999) ("The working atmosphere was not ideal, but `a feeling of being unfairly criticized or [having to endure] difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign."). Viewing the record in the light most favorable to Horn, no reasonable person would find Horn's working conditions intolerable.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. The University's Motion for Summary Judgment [Docket No. 26] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.