Editor’s note: This article has been updated.
An Indiana University Kelley School of Business professor didn’t have his Title VII rights violated by his employer when the school didn’t provide him with an early promotion or when it paid one of his white colleagues more than him, the 7th Circuit Court of Appeals has ruled.
Paul Palmer Jr. II was hired to the business school’s marketing department in August 2010.
In January 2013, Palmer inquired to department chair Hari Shanker Krishnan about his potential for early promotion to senior lecturer. Krishnan told Palmer it was rare for lecturers to apply for senior lecturer prior to their sixth year and suggested that he wait, which he decided to do.
IU promoted Palmer to senior lecturer in August 2016.
In addition to his role as a lecturer, IU had hired Palmer, who is Black, to serve as diversity coach in the MBA program. The position paid an additional $25,000 per year and permitted Palmer to teach a reduced courseload.
Also in August 2016, the marketing department hired Josh Gildea, who is white, as a new lecturer. Gildea was also hired as director of the Business Marketing Academy, for which he earned a $30,000 annual stipend plus a $7,500 annual summer stipend, but did not also receive a teaching credit.
By February 2017, IU decided the diversity coach position should focus more heavily on recruiting, and that same month Palmer sent an email saying, “I am not the person who should be responsible for driving diversity recruiting at the [Kelley School of Business], nor am I interested in being the person.” Palmer decided to resign from his position as diversity coach effective at the end of the 2016–2017 school year.
Palmer emailed the chair of the marketing department, now professor Ray Burke, in July 2018 complaining about the fact that Gildea’s base salary had risen to nearly match Palmer’s base salary.
At the time, Palmer earned $98,750 and Gildea earned $94,000, with no other lecturer or senior lecturer in their department earning more than $90,000. Though Palmer was still the highest paid in the department at this time, his email to Burke said that Gildea’s salary increase “from a URM [under-represented minority] perspective … looks very biased.”
A few weeks later, Palmer emailed IU Associate Dean Laureen Maines, sharing his belief that “there [were] a number of situations where [Krishnan] ha[d] been actively biased and/or discriminated against [Palmer] as an under-represented US minority.”
Palmer followed up in a response email reiterating his concerns that he had “a number of issues over the last 5 years, where I feel [Krishnan] has acted in a … discriminatory manner against me.”
Burke announced that Gildea was seeking an early promotion to senior lecturer in February 2019. By that point, Gildea had taught more than five years’ worth of credits and had grown the BMA into the largest academy in the MBA program.
Palmer then sent another email to Maines reiterating his concerns, saying, “On August 10, we met via phone, where I outlined to you that I had a number of significant concerns regarding racial discrimination and/or bias by IU and [Krishnan] (as my department chair) against me.”
Palmer’s email said that “[d]uring the call,” he had detailed for Maines “how racial discrimination had negatively impacted” his salary and promotion to senior lecturer. He also expressed his frustration with Gildea’s consideration for early promotion.
Throughout his time as a lecturer and senior lecturer at IU, Palmer earned the highest base salary of any lecturer or senior lecturer in the marketing department. But Palmer earned less in aggregate than Gildea between 2017 and 2019, the 7th Circuit noted. Both Gildea and Palmer earned more each year than their base salaries but neither party provided an accounting to explain all the reasons, the court continued.
The parties agreed much of Gildea’s additional pay came from his teaching “overload” classes, which are classes taught beyond the required teaching load for a lecturer and for which lecturers are paid per additional class taught, according to the 7th Circuit. Additionally, it was undisputed that Gildea received higher percentage raises than Palmer in each of the three school years from 2017–2018 through 2019–2020.
On May 15, 2019, Palmer filed a charge with the Equal Employment Opportunity Commission alleging race discrimination in violation of Title VII. In that filing, Palmer stated that he had “outlined a significant number of concerns regarding racial discrimination” in his August 2018 call with Maines.
The EEOC then issued a right to sue L=letter and Palmer initiated this suit on Nov. 19, 2019.
Before the U.S. District Court for the Southern District of Indiana, Palmer alleged race discrimination in two forms: (1) IU’s failure to promote him to senior lecturer after his third year and (2) unequal pay.
For both claims, he presented Gildea as his only comparator, arguing that IU had discriminated against him based on his race because Gildea was promoted early to senior lecturer and earned more than Palmer in aggregate between 2017 and 2019.
The district court granted summary judgment to IU on all claims.
On the failure-to-promote claim, the 7th Circuit found Palmer missed the statutory deadline by several years and equitable tolling couldn’t save his claim.
“Palmer provides no case that would support a finding that the length of time he waited to file his claim was reasonable — regardless of whether that delay be counted as only three months (the amount of time he waited to file after he accused IU of discrimination over email in February 2019), nine months, or six years,” Senior Judge Joel Flaum wrote.
Regarding the unequal pay claim, the 7th Circuit concluded “Palmer’s narrow argument fails because Gildea’s income does not provide a proper framework for comparison.”
“Recognizing that Palmer’s duties were not all directly comparable to Gildea’s, Palmer attempts to advance his unequal pay claim by arguing that he was denied similar opportunities to teach overload classes,” Flaum wrote. “While the denial of an opportunity may provide the basis for a Title VII claim, it provides no basis for Palmer’s unequal pay claim, which requires unequal pay for equal work. Palmer cannot establish an unequal pay claim by arguing that a requirement for a successful claim — equal work — can be excused in the event of unequal opportunities.
“… Gildea taught so many overload classes between 2017 and 2019 that he completed five years’ worth of a lecturer’s teaching load in his first three years at IU,” Flaum continued. “… In short, Gildea’s overload courses enabled him to ramp up more quickly to the experience level of a lecturer who had worked for more years, and IU was entirely permitted to steepen his raises to account for that.”
Judge Frank Easterbrook concurred with additional comments in Paul Palmer, Jr. II v. Indiana University and The Trustees of Indiana University, 21-1634.