# Downes v. Illinois State University

> District Court, C.D. Illinois · March 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10137046

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** March 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10137046

## How later opinions describe it (automated extraction)

- affirming decision of district court which assumed the facts as claimed and supported by admissible evidence by the moving party were admitted to exist without controversy

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

MEREDITH DOWNES, )
)
Plaintiff, )
v. ) Case No. 19-cv-1411
)
THE BOARD OF TRUSTEES OF )
ILLINOIS STATE UNIVERSITY, )
Defendant. )

ORDER AND OPINION
This matter is now before the Court on a Motion for Summary Judgment filed pursuant to
Fed. R. Civ. P. 56 by Defendant The Board of Trustees of Illinois State University (“Defendant”
or “ISU”). (D. 471). Plaintiff Meredith Downes (“Plaintiff” or “Downes”) filed this lawsuit
asserting claims for wage discrimination based on sex and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Equal Pay Act, 29
U.S.C. § 206(d). (D. 15). For the reasons set forth below, Defendant’s Motion is GRANTED.
BACKGROUND2
Downes has been a professor in the Management and Quantitative Methods Department
(“MQM” or “MQM Department”) in ISU’s College of Business since 1997. ISU has three ranks
of tenure-track professors: Assistant Professor (lowest rank); Associate Professor (intermediate
rank); and Full Professor (highest rank). Downes started ISU at or around the time she was
completing her Ph.D. as an Assistant Professor. In 2002, she received tenure and was promoted to
Associate Professor. In 2009, she was promoted again to the highest rank of Full Professor and
currently holds that position. At the time this lawsuit was filed, Downes was the only female

1 Citations to the docket are abbreviated as (D. __.).
2 To the extent possible, the information in the Background section is taken in the light most favorable to the
Plaintiff.
tenured, Full Professor in the MQM Department. Despite her rank, Downes is also one of the
lowest paid professors in the MQM Department.
A. ISU’s ASPT System
To fully understand the arguments made by the parties, an examination of ISU’s salary
structure and methodology is necessary. ISU’s Faculty Appointment, Salary, Promotion and

Tenure (“ASPT”) System sets forth the “minimum levels of achievement necessary for sustained
progress in the areas of Promotion, Tenure, Performance Evaluation, and Salary.” (D. 15-2). Each
Department at ISU has a Department Faculty Status Committee (“DFSC”) charged with
developing and administering department-level ASPT policies. Id. The MQM DFSC (hereinafter,
“DFSC”) is comprised of at least three elected faculty members and the MQM Department
Chairperson, who is an ex officio voting member and DFSC Chairperson.
Pursuant to ISU’s ASPT Policies, the DFSC is responsible for developing Department
policies which reflect the MQM Department’s own identity, mission, and culture, consistent with
the standards set forth under ISU’s ASPT System (“Department Policies”). (D. 47-15).3 These

include two sets of Department Policies: “(1) for appointment, reappointment, performance-
evaluation, promotion, tenure review, and (2) allocation of monies devoted to salary equity
adjustments and performance-evaluation increments.” (D. 15-3, p. 11). The claims raised in this
case relate to the latter set of Department Policies, specifically, money devoted to salary equity
adjustments. (D. 15).
1. Faculty Performance Evaluations
The DFSC conducts annual performance evaluations of all tenure-track faculty members,
making recommendations regarding pay raises based on their performance in accordance with the

3 Department of Management & Quantitative Methods Illinois State University Appointment, Salary, Promotions &
Tenure Policies, effective January 1, 2018.
Department Policies’ criteria. The annual performance evaluation process includes: (1) an annual
assessment of the faculty member’s performance in teaching, research, and service; and (2) an
overall assessment of as either “satisfactory” or “unsatisfactory.” The DFSC provides one of the
following ratings in each evaluation category (teaching, research, and service): (1) unsatisfactory;
(2) standard raise; (3) raise beyond standard; and (4) exceeds raise beyond standard. Department

Policies set forth the criteria necessary to achieve each successively higher rating. An overall
assessment of “satisfactory” means the individual met or exceeded the minimum expectations.
The DFSC then provides each faculty member with a detailed letter including their overall
assessment, rating and assessment in each evaluation category, and a raise recommendation.
Faculty then has ten days to submit any appeals. Following the expiration of the appeal period, the
DFSC submits the recommendations and performance evaluation to the College Faculty Status
Committee (“CFSC”). The CFSC reviews the DFSC’s reports and approves the recommendations
in the report for consistency and conformity with Department and University policies. The CFSC
then submits to the Provost its recommendation for performance evaluation of each faculty

member, along with the DFSC’s original reports.
Downes has no objection to any of her DFSC performance evaluation ratings and has
consistently received a “raise above the standard raise” recommendation since 2009. (D.47-3, pp.
58-86). Despite these recommendations, she had the lowest average performance rating of all Full
Professors in the MQM Department in 2014 and 2015, and one of the lowest in 2018.
2. Salary Incrementation
Each year the Provost informs faculty the amount of funds available to the ASPT system.
The Provost allocates at least ninety percent of the salary funds directly to each Department/School
for salary increments through the ASPT System. Pursuant to ISU’s ASPT System, these salary
increments shall take the form of “(1) standard increments payable to all raise-eligible faculty
members who receive overall satisfactory performance and (2) performance-evaluated increments
that recognize contributions made by particular faculty members.” (D. 15-3, p. 10).
Consistent with ISU’s ASPT salary increment policies, the MQM Department Policies
governing raises provide:

(1) 20% of the “available raise pool” (available raise pool = raise pool minus the 10%
held by the Provost’s office) will be distributed to raise eligible faculty as the
university standard increment as per Section 7.2a and 2b of the University’s ASPT
guidelines. This amount will be distributed as an equal percentage of the base to all
raise eligible faculty.

(2) The remainder of the “available raise pool” will be distributed as a DFSC standard
increment to “raise eligible” faculty who maintain a level of intellectual
contribution sufficient to be viewed as either “scholarly academic” (SA) or
“professional academic” (PA) under AACSB standards as indicated below. This
amount will be distributed as an equal percentage of the base salary. The
distribution will occur as follows:

If the remainder of the available raise pool (see above) is less than
3%, than 75% of this pool will be distributed as an equal percentage
of base salary to all raise eligible faculty who maintain either SA or
PA status under AACSB standards. The distribution of rest of the
funds will be based on performance.

If the remainder of the available raise pool (see above) is 3% or
more, then 50% of this pool will be distributed as an equal
percentage of base salary to all raise eligible faculty who maintain
their SA and PA status under AACSB standards. The distribution of
the rest of the funds will be based on performance and equity
considerations. The allocation between performance and equity will
be determined by a departmental vote at that time.

(D. 47-15, pp. 5-6, MQM Depart. ASPT Policies, eff. Jan. 1, 2018).
In summary, based on the forgoing policies, the three raise components used by the MQM
Department are identified as follows: (1) the University Standard Increment; (2) the Department
Standard and Performance Increment; and (3) the Provost Increment. See id.; see also (D. 47, p.
16, ¶ 80; D. 80, p. 2, ¶ 1). The University Standard Increment raise is awarded to all faculty who
received an overall assessment of satisfactory and is distributed as an equal percentage of their
base salary. (D. 47, p. 16) (citations to the record omitted); (D. 80, p. 2). The Department Standard
and Performance Increment is based on the DFSC’s performance ratings and is calculated as a
percentage of the faculty member’s salary. Id. The Department Chair has no discretion in the
distribution of these two raise components. Id.

Here, Downes does not take issue with any of her DFSC performance evaluations or
University Standard Increment or Department Standard and Performance Increment raises. Rather,
her wage discrimination claims target the Provost’s Increment and prior chairs allocation of money
devoted to equity adjustments. A primary point of contention stems from the parties’
understanding of how the Provost’s Increment is to be distributed. It is ISU’s position that the
Provost’s Increment raise “has at times been used to reward top performers and at others to combat
salary inversion and compression.” (D. 47, p. 17). Downes disputes this, claiming the Provost’s
Increment has always been intended to only address equity considerations, specifically salary
inversion and compression. (D. 80, p. 3).

Salary inversion and salary compression are systemic issues at ISU. “Salary inversion” is
when new hires have higher salaries than longer-tenured faculty due to market factors at the time
they were hired. “Salary compression” is when the salary gap between newly hired employees and
current employees is small. As a result of market factors at the time an individual is hired, the
parties agree many lower ranking, newly hired professors are paid more than higher ranking,
tenured professors. For example, Downes agrees that at this time this lawsuit was filed she was the
highest-ranking female professor in the MQM Department but had a lower salary than all the
subsequently hired lower-ranking female professors.
While ISU denies the Provost’s Increment has always been used only to address equity
considerations, the parties agree that since 2018 the MQM Department has devoted the Provost’s
Increment to address the issue of salary inversion and compression. It is also undisputed that
Downes has received among the largest allotment of the Provost’s Increment among her colleagues
since 2016.

B. Additional Ways to Increase Salary
In addition to consistently receiving high DFSC performance evaluations, other ways
faculty can increase their salary include promotion, obtaining the honorary designation of
University Professor or Distinguished Professor, using a counteroffer from another school to
renegotiate base salary, serving as Department Chair, and teaching summer courses. Here, Downes
has not held a Chair position, received jobs offers from other Universities, or been awarded the
distinction of University Professor or Distinguished Professor. She has, however, taught summer
courses every year since 2009, except in 2016 and 2019.
1. Summer Courses - Retirement Option

A faculty member’s salary is paid monthly, over a nine-month period. Historically, faculty
members who taught a summer course received an additional month’s salary.4 Due to the limited
number of summer courses available and high professor interest in teaching these courses, the
MQM Department established a summer teaching rotation where professors are offered the
opportunity to teach a summer course every other summer.
The MQM Department also offered a “Retirement Option” which allowed eligible faculty
to teach four consecutive summers. The Retirement Option provided:
4. Retirement option – To be eligible for the 4-year retirement option (4 consecutive
years at the top of the rotation of summer school), one must be tenured at ISU and
meet one of the following two criteria:

4 In 2021, summer pay was changed to 75% of the faculty member’s monthly salary. (D. 47-6, p. 29).
1. Must have completed 15 years of service at ISU in a tenure track position.
2. Must have completed 10 years of service at ISU in a tenure track position
and must be at least 51 years of age.

Eligible faculty must notify the Department Chari [sic] in writing by the first Friday
of the Fall semester preceding the summer which they wish to exercise the
retirement option provision of the summer school policy.

(D. 47, pp. 28-29).
Dr. Roberta Trite was the MQM Department Interim Chair from January 3, 2017, to June
30, 2021. Prior to serving as the MQM Chair, she was in ISU’s English Department. In the summer
of 2017, Downes advised Trite that she wanted to exercise the Retirement Option to supplement
her income while her daughter was in college during the summers of 2018-2021.
Downes was the first faculty member to submit a request to Trite to exercise the Retirement
Option.5 Trite investigated and did not discover any other mid-career faculty that had used the
Option. She also consulted with Dean Samant, who started at ISU’s College of Business in July
2016. They concluded that they needed to follow the intent and wording of the Retirement Option,
and that to exercise the Option a faculty member must submit a written notice of intent to retire.
Because Downes had no intent to retire, her request to exercise the Retirement Option was denied.
To assist Downes in finding other summer work while her daughter was in college, Trite helped
Downes find alternative summer teaching in ISU’s overseas Panama Program. Downes taught in
the Panama Program during the summers of 2018 and 2020.
In 2020 a new procedure went into effective eliminating any reference to retirement. The
new procedure allows eligible, mid-career faculty to teach four consecutive summers one time in

5 Downes claims Professor Gary Salegna used the Retirement Option while Trite was Chair and was not required to
submit a written intent to retire. However, it is an undisputed material fact that Salegna exercised the Retirement
Option during the summers of 2015-2018, and therefore Trite did not handle his request. It is also undisputed that
Salegna retired shortly after exercising the retirement option. (D. 47, p. 30, ¶ 159; D. 80, p. 2, ¶ B. (1)).
their career. After the new procedure was enacted, Trite offered the option to Downes starting in
2020. Because Downes had already secured a summer course, she deferred exercising the summer
option until 2021. She taught a summer course in 2021 and 2022 and plans to teach a summer
course in 2023 and 2024.
C. MQM Department

While not the subject of this litigation, by 2016 MQM Department had a contentious
environment. Downes started her career with a strained relationship with John Lust, who served
as the MQM Department Chair from 1997-2007. She also had issues with John Bantham, who was
Chair from 2012-2014. Downes finally had a good relationship with Alex Barelka, who served as
Chair starting in 2014. However, Barelka was terminated from the position in December 2016.
Lust and Bantham were among the individuals advocating for Barelka’s removal.
Trite replaced Barelka as Interim-Chair in January 2017. When she inherited the position
there were numerous ethics and grievance cases pending between the faculty members. (D. 47-6,
p. 20). This included a complaint filed by Downes with ISU’s Office of Equal Opportunity and

Access in December 2016, just prior to Barelka’s removal. Her complaint was against Lust and
Bantham alleging she had been subjected to gender discrimination since she started at ISU. Her
allegations included Lust yelling at her for missing a department meeting in 1997, prematurely
telling people she was pregnant in 1998 which she claims attributed to a subsequent miscarriage,
and being verbally abusive and hostile towards her. (D. 47-5, pp. 49-55). Her complaints against
Bantham were less severe. Id. at pp. 54-55. ISU ultimately dismissed Downes’ complaint and no
appeal was filed. Id. at pp. 22-23.
At or around this time, Downes also learned she was one of the lowest paid professors in
the Department. Trite met with Downes numerous times to discuss her concerns regarding her
compensation, the gender balance in the MQM Department, and an ethics grievance case filed by
another female professor against Downes relating to that professor’s tenure and promotion while
Downes was a DFSC faculty member. During one conversation, Downes told Trite that John Lust
had been abusive to her. In response, Trite told Downes that her statements about Lust could be
actionable slander.

PROCEDURAL BACKGROUND
Downes filed a charge with the United States Equal Employment Opportunity Commission
(“EEOC”) alleging discriminatory practices based on gender in violation of Title VII and the Equal
Pay Act. (D. 15, p. 1). On September 25, 2019, the EEOC issued a “Dismissal and Notice of Rights
Letter” denying her claims on the grounds that it was “unable to conclude that the information
obtained establishes a violation of the statutes.” (D. 15-1). The EEOC letter notified Downes that
she had ninety-days from receipt of the letter to file a lawsuit against ISU based on her
discrimination charge, and that any Equal Pay Act claim must be filed within two years (three
years for willful violations) of the alleged Equal Pay Act underpayment. Id.

On December 20, 2019, Downes filed a Complaint against ISU alleging violations of Title
VII (Count I) and the Equal Pay Act (Count II). (D. 1). On June 23, 2020, an Amended Complaint
was filed containing the same two counts but substituting The Board of Trustees of Illinois State
University as the sole Defendant. (D. 15). ISU has filed a motion for summary judgment. (D. 47).
The matter is fully briefed, and this Order follows.
LEGAL STANDARD
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 dispute as to
any material fact and that the movant is entitled to judgment as a matter of law.” \Hemsworth v.
Quotesmith.com, 476 F.3d 487, 489-90 (7th Cir. 2007); Fed. R. Civ. P. 56. “In deciding motions
for summary judgment, courts must consider the evidence as a whole,” de Lima Silva v. Dep’t of
Corrs., 917 F.3d 546, 559 (7th Cir. 2019), and “view[ ] the record and all reasonable inferences .
. . drawn from it in the light most favorable to the nonmoving party,” Laborers’ Pension Fund v.
W.R. Weis Co., Inc., 879 F.3d 760, 766 (7th Cir. 2018). However, the court will not draw inferences

that are “supported by only speculation or conjecture,” Argyropoulos v. City of Alton, 539 F.3d
724, 732 (7th Cir. 2008), and “[c]onclusory allegations alone cannot defeat a motion for summary
judgment.” Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir. 2003). A party who
bears the burden of proof on a particular issue must affirmatively demonstrate, with specific
allegations supported by appropriate citations to relevant admissible evidence, that a genuine issue
of material fact exists. Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994).
It is not the role of the [c]ourt to scour the record in search of evidence to defeat a motion
for summary judgment; instead, the nonmoving party bears the responsibility of identifying
evidence to defeat summary judgment.” Aberman v. Bd. of Educ. of City of Chi., 242 F. Supp. 3d

672, 685 (N.D. Ill. 2017) (citing Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104
(7th Cir. 2008)). “[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997)
(citations omitted). Employment discrimination cases are “extremely fact-intensive, and neither
appellate courts nor district courts are obliged in our adversary system to scour the record looking
for factual disputes.” Greere v. Bd. of Educ. of City of Chi., Ill., 267 F.3d 723, 727 (7th Cir. 2001).
DISCUSSION
As a preliminary matter, this Court finds ruling on ISU’s motion for summary judgment
has been complicated by Downes’ failure to comply with the Central District of Illinois’ Local
Rules. Local Rule 7.1(D)(2)(b)(2)-(3) states every disputed material and immaterial fact “must be
supported by evidentiary documentation referenced by specific page.” Any filing not in
compliance may be stricken by this Court. C.D. Ill. Local R. 7.1(D); see also Waldridge24 F.3d at

923-24. Compliance with Local Rule 7.1(D) not only benefits the parties by clarifying exactly
what is in dispute and on what evidence they rely, but also greatly benefits the court which does
not have the same familiarity with the record as the parties. See id.
Here, Downes makes factual allegations in her response that are often unsupported by the
referenced documentation she relies on. For example, she attempts to refute ISU’s assertion that
the Provost’s Increment raise was at times based on performance and at other times used to combat
salary inversion and compression, but only cites her deposition testimony where she confirms that
she has never been involved with decisions relating to distribution of the Provost Increment. (D.
80, pp. 2-4, ¶¶ 83-85, 92, 94, 103, 110, 119, 125 (citing D. 47-2, p. 39, Plaintiff’s Jan. 2022 Dep.

149:6). ISU produced Department Policies regarding raise distribution and the testimony of
department chairs who were responsible for distributing raises, supporting the fact that the
Provost’s Increment may be based on performance or equity. Downes cited deposition testimony
did not dispute that fact at all, but merely confirmed she was never involved in the decision making.
Downes also cites evidence from the record to support certain factual allegation that do not
support the allegation at all or are an unfair or incomplete summary of the record. (D. 80, pp. 3-5,
¶¶ 94, 155, 158, 160). Specifically, Downes implies Roberta Trite allowed another male professor
to exercise the Retirement Option without submitting a written intent to retire, when in fact
Downes’ request to exercise the Option was the first one Trite received as the MQM Department
Chair. Downes also claims other mid-career male professors were permitted to use the amended
four-year summer option a year before her. While true, Downes fails to make clear that this was
after the procedure changed eliminating any reference to retirement and that Trite offered the
option to Downes as soon as the new procedure went into effect, but she declined because she
already had a summer course for that summer. Downes also relies on an exhibit she created

between her January 2022 and February 2022 depositions (Plaintiff’s Feb. 2022 Dep. Ex. 29),
purportedly based on personal notes she took after this lawsuit was filed and that she destroyed or
could not otherwise produce. Id. at p. 12; see also (D. 47-5, pp. 3-4).
Rule 56 of the Federal Rules of Civil Procedure instructs:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record,” or “showing
that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact . . . . If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court may
. . . consider the fact undisputed for purposes of the motion[.]

Fed. R. Civ. P. 56(c)(1), (e)(2). In short, Downes has made factual allegations in her response
brief that do not have evidentiary support. The Court cannot consider these unsupported allegations
as facts. Accordingly, in instances where Downes only has unsupported allegations, the Court
credits ISU’s versions of facts, which they have supported with evidence from the record. See
Waldridge v. Am. Hoechst Corp., 24 F.3d 918 (7th Cir. 1994) (affirming decision of district court
which assumed the facts as claimed and supported by admissible evidence by the moving party
were admitted to exist without controversy); Thomas v. Kroger, No. 13-CV-00588, 2014 WL
555086, at *1 (S.D. Ind. Feb. 12, 2014) (“Failure to properly support a fact in opposition to a
movant’s factual assertion can result in the movant’s fact being considered undisputed, and
potentially in the grant of summary judgment.”).
The briefing and designated evidence in this case are lengthy, and the burden is on the
parties to bring relevant information to the Court’s attention — the Court will not search for the
record to find the material facts that Downes asserts are in dispute. Accordingly, the Court will
strike Downes’ denial of the material facts asserted in paragraphs 83, 84, 85, 92, 94, 103, 110, 119,
125, 155, 158, and 160, as non-compliant with this Court’s local rules and Fed. R. Civ. P. 56. The

Court will deem those facts admitted and undisputed. The Court further finds Downes has not
substantiated Plaintiff’s Feb. 2022 Dep. Ex. 29, and therefore, it is stricken.
Because the Court reviews the record in the light most favorable to Downes, it will consider
Downes’ “Additional Material Facts” to the extent they are supported by admissible evidence and
are relevant. Because Downes relies only on Plaintiff’s Feb. 2022 Dep. Ex. 29, which has been
stricken in support of paragraphs the Exhibit in support of paragraphs 3 and 4 of her Additional
Material Facts, those paragraphs are also stricken.
A. Disparate Pay Claims
Downes’ wage discrimination claims are premised on two federal statutes: the Equal Pay

Act and Title VII. The Equal Pay Act prohibits an employer from discriminating against
employees based on sex “for equal work on jobs the performance of which require equal skill,
effort, and responsibility, and which are performed under similar working conditions, except where
such payment is made pursuant to (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.” 29 U.S.C. § 206(d)(1).
Title VII makes it unlawful for an employer “to discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] …
sex.” 42 U.S.C. § 2000e-2(a)(1). A prima facie case under Title VII requires a showing that: (1)
the plaintiff is a member of a protected class; (2) she is performing her job satisfactorily; and (3)
she suffered an adverse employment action, in that she was treated less favorably than at least one
“similarly situated” male colleague. Dandy v. United Parcel Service, Inc., 388 F.3d 263, 274 (7th
Cir. 2004); Lim v. Trus. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.2002). The failure to satisfy any
one of these elements is fatal to a plaintiff’s claim. See Gates v. Caterpillar, Inc., 513 F.3d 680,

690 (7th Cir. 2008). If plaintiff establishes a prima facie case, the burden of production shifts to
the defendant to provide a legitimate, nondiscriminatory reason for the decision. Lim, 297 F.3d at
580. Once the defendant satisfies its burden, the burden shifts back to the plaintiff to show that the
defendant’s explanation was pretextual. Id.
Considerable overlap exists between the Equal Pay Act and Title VII, but they are generally
distinguishable in who carries the burden of proof. In both Equal Pay Act and Title VII claims, the
plaintiff bears the initial burden of proof of establishing a prima facie case that pay discrimination
occurred. Kellogg v. Ball State University, 984 F.3d 525, 530 (7th Cir. 2021). But unlike the
burden-shifting framework for Title VII claims, if the plaintiff establishes a prima facie case under

the Equal Pay Act and the employer is unable to attribute the disparate pay to one of the four
statutory defenses, the plaintiff will prevail. Id.; see also, Fallon v. State of Ill., 882 F.2d 1206,
1203 (7th Cir. 1989).
1. Equal Pay Act Claims
To prevail in an Equal Pay Act action, the jobs of women and men for which pay is unequal
must be substantially equal in terms of skill, effort, responsibility, and working conditions. Cullen
v. Indiana University, 338 F.3d 693, 698-99 (7th Cir. 2003). Here, Downes has failed to establish
she is performing “equal work” to that performed by comparably employed men. Downes has
identified the following male Full Professors in the MQM Department as comparators: Askar
Choudhury, Elango Balasubramanian, Jim Jawahar, Victor Davinatz, Richard Ringer, and Mark
Hoelscher. Downes earned a lower salary than all of them, except Richard Ringer.
Other than holding the same title, all the above referenced males are distinguishable from
Downes in skill level. “Skill includes consideration of such factors as experience, training,
education, and ability.” 29 C.F.R. § 1620.15(a). Davinatz is a Distinguished Professor, and

Jawahar and Balasubramanian are University Professors. The honorary designations of
“University Professor” and “Distinguished Professor” exist to enable the University to honor
individual facility members for their academic achievements and demonstrate to both the
University and broader community that excellence is the foundation of ISU.
To be eligible for appointment of University Professor a person must hold the rank of
Professor, either at ISU or another institution, and must have achieved distinction in one of the
following areas: (1) national recognition for research, production, or leadership in creative or
scholarly activities; and (2) the individual must have been clearly identified by students,
colleagues, or external agencies as an outstanding teacher. (D. 47-12, p. 1). University Professors

continue to hold their rank in an academic department, receive $2,500.00 added to their base salary,
plus a one-time award of $1,000.00 to use toward future activities of the recipient. University
Professors will hold their title throughout their years of service at ISU, unless awarded the title of
Distinguished Professor.
Distinguished Professor is the highest academic honor bestowed by ISU. To be eligible
for appointment a person must: (1) hold the rank of Professor at ISU; (2) have achieved national
or international recognition for research, creative production, or leadership in creative or scholarly
activities; and (3) have either been identified as an outstanding teacher or have contributed
significant public service in accord with their academic discipline. (D. 47-13, p. 1). Distinguished
Professors receive $5,000.00 annually in addition to their base salary, and a minimum $1,000.00
budget per annum to support activities as Distinguished Professor. Id. Distinguished Professors
will hold ten-month appointments for two years but may hold the title throughout their years of
service to ISU. Id. Downes testified that she has not been nominated for either honorary distinction
and does not believe she meets the qualifications to receive them.

Jawahar also served as the MQM Department Chair from 2008-2012, and then took a
position as the Associate Provost from 2012-2018. He received a salary increase with each
position. When he returned to the MQM Department in 2018, he retained his higher monthly salary
from the Provost’s Office. Hoelscher served as the Director of Means Center for Entrepreneurial
Studies from 2000-2019, and Ringer served as the Director of Organizational Leadership from
2000 until he retired in May 2022. These positions were leadership roles, which they held for a
considerable amount of time, and included administrative duties beyond their professor roles.
Based on the foregoing, the other tenured, Full Professors have positions distinguishable from
Downes, in that they require different skills, effort, and responsibility.

Even assuming Downes established a prima facie case, which she did not, the burden of
persuasion shifts to ISU to prove one of four statutory affirmative defenses. See 29 U.S.C.
206(d)(1). ISU relies on the defense that there exists “a differential based on any other factor other
than sex.” 29 U.S.C. § 206(d)(1)(iv). Unlike Downes, Choudury, Balasubramanuan, and Jawahar
came to ISU with completed Ph.Ds., prior teaching experience, and multiple publications. These
factors increased their starting salary amount. Additionally, Choudury, Balasubramanian, Jawahar,
and Hoelscher all started teaching at ISU after Downes. ISU spends a significant amount of time
explaining how market forces effect the starting salaries of later hired professors. The parties agree
that it is common in the education industry for new faculty to be hired at a higher salary than
tenured faculty. When referring to market forces in this context, it means ISU must compete to get
new talent with Ph.Ds. as Assistant Professors. This is especially true in the MQM Department,
were there are a limited candidates with the requisite Ph.Ds. available for hire each year. To attract
these individuals, ISU explains that it must offer a competitive starting salary.
In addition to the role market factors play in the starting salary awarded, ISU uses a merit-

based system to determine raises in the areas of teaching, research, and service. While Downes
does not dispute any of her performance evaluations and she often received above standard ratings,
many of the other Full Professors consistently received higher performance ratings than Downes.
The exceptions are Professors Salegna and Ringer, who had similar or lower ratings, and often had
a lower salary than Downes. As a result, this Court finds ISU’s merit-based system was used to
determine raises, and not Downes gender.
As discussed at length above, an individual’s base salary is the primary factor in calculating
their raise. That amount is used to determine the amount the individual will receive under each of
the raise components. These considerations, in addition to the factors listed above that result in

salary increases, support ISU’s position that there is a valid reason other than sex to pay these
individuals more than Downes.
2. Title VII
a. Wage Discrimination
Having addressed Downes’ Equal Pay Act argument, the Court turns to her Title VII claim.
Here, there is no dispute that Downes is a member of a protected class. ISU also does not provide
argument that her job performance was not meeting her employer’s legitimate expectations.
Accordingly, for purposes of summary judgment, the first two elements of a prima facie case have
been established. Downes claim fails under Title VII because she has not presented evidence that
a similarly situated male was treated more favorably, as discussed above. Rather than present
evidence in support of this fact, Downes simply states in her response that “[t]here can be no
dispute that DOWNES has established her prima facie case for gender discrimination.” (D. 80, p.
15). She then goes on to argue that the burden is therefore shifted to ISU to provide a legitimate
reason she is paid at a lesser rate of pay than her male colleagues.

Downes claims her salary has failed to increase at the same rate as her male colleagues due
to prior department chairs utilizing the ASPT and Department Policies to impose adverse treatment
in its distribution of the Provost’s Increment raise component. To Downes’ detriment, the record
contains ample evidence that the Provost’s Increment raise component may be distributed based
on either performance or equity considerations. This is supported by both Department Policies
governing raise distribution, and the testimony of prior department chairs who were responsible
for distributing raises. Department Policies state, in relevant part:
If the remainder of the available raise pool (see above) is 3% or
more, then 50% of this pool will be distributed as an equal
percentage of base salary to all raise eligible faculty who maintain
their SA and PA status under AACSB standards. The distribution of
the rest of the funds will be based on performance and equity
considerations. The allocation between performance and equity will
be determined by a departmental vote at that time.

(D. 47-15, pp. 5-6, MQM Depart. ASPT Policies, eff. Jan. 1, 2018) (emphasis added). Because
Downes has no issues with any of her performance evaluations, she does not have a claim for
adverse employment action the years the Provost’s Increment was distributed solely based on
performance. Furthermore, Downes has stipulated she has received amongst the largest allotments
of the Provost’s Increment among her colleagues since 2016, and that it has been devoted solely
to correcting salary inversion and compression since 2018. (D. 47, p. 17; D. 80, p. 2).
Similarly, Downes has failed to present a similarly situated male colleague that was
allowed to exercise the “Retirement Option” with no intent to retire. While she points out that
Salegna was not required to submit a written intent to retire before being allowed to exercise the
option, he did intend to retire after completing the Retirement Option. She also points out that the
Department denied another male professor’s request to exercise the Retirement Option because he

missed the deadline to apply to exercise the Retirement Option. The Court fails to see how he was
treated more favorably than Downes, as he also was not allowed to exercise the Retirement Option.
For the reasons stated above, the professors that were allowed to use the procedure after it was
changed are also not similarly situated males that were treated more favorably than Downes.
Even assuming she had met her prima facie burden, Downes has failed to introduce
evidence to create a material dispute regarding pretext. ISU has provided unrebutted,
nondiscriminatory reasons for the pay disparity, including such as market factors based on the time
of hiring, different credentials, and differences in additional roles other Full Professors have taken
on that have increased their salaries. Consequently, Downes cannot prevail on her Title VII wage

discrimination claim.
b. Retaliation
Downes also argues she was the subject of retaliation for expressing concern to Trite about
earning less than her similarly situated male colleagues. (D. 15, p. 5). Specifically, Downes claims
she told Trite that this practice began under John Lust and has been a continuing harm. Id. The
retaliation, she contends, was that Trite dismissed Plaintiff’s concerns and suggested that
Plaintiff’s comments could be the basis of a defamation suit against Plaintiff. Id.
To defeat summary judgment, Plaintiff must offer evidence from which a reasonable jury
could find that she : (1) engaged in protected activity; (2) suffered an adverse employment action;
and (3) a causal connection exists between the two. King v. Ford Motor Co., 872 F.3d 833, 841
(7th Cir. 2017); Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018). The evidence must be
considered as a whole, with all relevant evidence being considered and irrelevant evidence being
discarded. Ortiz, 834 F.3d at 765. Defendant argues Plaintiff has failed to establish all three factors.
ISU argues “the record does not clearly show that Plaintiff…complained to Trite about

gender-based discrimination.” (D. 47, p. 53) (emphasis added). Rather, ISU claims Downes’ own
testimony shows that she approached Trite regarding her salary concerns, which merged into her
airing grievances about John Lust’s abusive treatment of her. Id. There is no clear evidence that
the two topics were referenced in connection to each other. In response, Downes claims ISU’s
argument that the record “does not clearly show” that Plaintiff did not engage in a protected
activity, is the equivalent of ISU admitting a factual dispute remains on this element. (D. 80, p.
26). Downes offers no further evidence or argument in to support that she was engaging in a
protected activity under Title VII.
Downes testified that she had told Trite, at some point, that she thought Lust was abusive

to her because of the things he had said to her. (D. 47-2, p. 23, Plaintiff’s Dep. p. 85). Trite
responded saying Downes’ allegations could result in Lust having a legal cause of action against
her. Other than Plaintiff’s statement to Trite that she felt Lust was verbally abusive, there is no
evidence that Plaintiff expressed or otherwise inferred to Trite that Lust discriminated against her
because of her gender. “Merely complaining in general terms of discrimination or harassment,
without indicating a connection to a protected class or providing facts sufficient to create that
inference, is insufficient.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006)
(internal citations omitted).
Even assuming, arguendo, that Plaintiff had engaged in a protected activity, her retaliation
claim still fails because she cannot prove an “adverse employment action.” Title VII protects
employees from retaliation that produces an injury. Here, and Trite’s warning to Downes that her
telling people another professor abused her may create a private legal right of action with him does
not qualify as retaliation See Poulard v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016).

Furthermore, there is no evidence that Trite intended to tell Lust or otherwise took adverse
disciplinary action against Downes. In fact, the record shows the opposite.
Downes continued to retain her rank as Full Professor. There is no evidence of an adverse
change in Downes’s teaching, research, or service activities. In fact, Trite continued to work with
Downes to secure summer teaching opportunities and leaderships roles in ISU’s Panama program.
This resulted in additional income for Downes. Trite also facilitated a committee being formed to
amend the Retirement Option in 2019, so that the criteria necessary for exercising the Option was
clear to all faculty and could be uniformly enforced by department chairs. Once the new procedure
went into effect, Trite offered it to Downes.

The DFSC also continued to recommend Downes receive a “raise beyond the standard” in
2019 and 2020. (D. 47-3, pp. 78-80). In May 2019, Trite nominated Downes for the Outstanding
University Teaching Award. (D. 47-6, p. 54). In September 2019, Trite recommended Downes for
the Hinderliter Endowed Professorship. Id. at 57. Although she did not win either of these awards,
it is clear Trite continued to be an advocate for Downes’ professional growth. Finally, Trite
continued to exercise her discretion to allocate the Provost Increment to address equity
consideration, which she knew would result in Downes receiving one of the largest allotments of
that raise component.
Accordingly, no reasonable jury could conclude Plaintiff suffered retaliation due to
Plaintiff’s complaint to Trite regarding Lust’s treatment of her, and Defendant’s Motion on this
ground is GRANTED.

CONCLUSION

For the reasons stated above, Defendant’s [47] Motion for Summary Judgment is
GRANTED, The Clerk is DIRECTED to enter judgment in favor of Defendant and against
Plaintiff. The case is now TERMINATED. The Clerk is DIRECTED to close this case.
ENTERED this 9th day of March, 2023.

/s/ Michael M. Mihm
Michael M. Mihm
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10137046. Public record. Not legal advice.