Peirick, Debbie A. v. IN Univ Purdue Athle

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-1538

DEBBIE A. PEIRICK,

Plaintiff-Appellant,

v.

INDIANA UNIVERSITY-PURDUE UNIVERSITY INDIANAPOLIS

ATHLETICS DEPARTMENT; INDIANA UNIVERSITY-PURDUE

UNIVERSITY INDIANAPOLIS; and THE BOARD OF TRUSTEES

OF INDIANA UNIVERSITY,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 03 C 1965—Larry J. McKinney, Chief Judge.

____________

ARGUED NOVEMBER 28, 2006—DECIDED DECEMBER 14, 2007

____________

Before FLAUM, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. During Debbie Peirick’s

thirteenth and final year as head coach of the women’s

tennis team at Indiana University-Purdue University

Indianapolis (IUPUI), her team maintained the highest

grade point average of all athletic teams, achieved its

best season in history, and, for the first time, qualified for

the NCAA tournament. Despite this record, Peirick, then

age fifty-three, was fired when the season ended. Within

a month of her termination, IUPUI hired the twenty-three

2 No. 06-1538

year old sister of the men’s tennis coach to coach the

women’s tennis team.

Peirick sued IUPUI, the IUPUI Athletics Department,

and the Board of Trustees of Indiana University, claiming

that her termination was motivated by gender and age.

The district court granted summary judgment for the

defendants on both claims. Material questions of fact

exist as to whether Peirick was treated less favorably

than her similarly situated male counterparts, so we

vacate the grant of summary judgment on her gender

discrimination claim. However, because IUPUI and the

Board of Trustees of Indiana University are immune

from suit under the Age Discrimination in Employment

Act (and the athletic department is not a suable entity

separate from the university), we affirm the grant of

summary judgment on Peirick’s age discrimination claim.

I. BACKGROUND

The following facts are recited in the light most favorable

to Peirick, the nonmovant for summary judgment. Peirick

became the head women’s tennis coach at IUPUI in 1990.

Six years later, Michael Moore accepted the position of

Athletic Director, with authority to hire and fire IUPUI’s

coaches. Denise O’Grady joined IUPUI as Assistant

Athletic Director and Senior Women’s Administrator in

October 2002, eight months before Peirick’s termination.

The Department evaluated all coaches at IUPUI based

on performance expectations for academics, community

service, compliance, budget management, fundraising,

professional conduct and development, and athletic

competition. The parties do not dispute that Peirick

excelled in most areas. Her players performed well aca-

demically, far exceeding the 2.6 grade point average (GPA)

requirement, and they often had the highest or second

No. 06-1538 3

highest GPA for all of IUPUI’s athletic teams. Peirick was

routinely acknowledged by the Athletics Department for

encouraging her team’s academic performance. She

received community service awards, including the 1998

U.S. Tennis Association’s Collegiate Community Service

Award, a distinction extended to only ten coaches across

the country. She never received an NCAA rule violation of

any sort during her thirteen-year tenure. No one com-

plained about her budgeting or fundraising abilities.

During 2002-2003, Peirick’s final year as coach, the

women’s tennis team had its best season in school history.

It went undefeated during regular season play, won its

first Mid-Continent Conference championship, and be-

came the first women’s team at IUPUI to advance to the

NCAA post-season tournament. For her achievements,

Peirick was named the 2004 College Coach of the Year by

the Midwest Division of the U.S. Professional Tennis

Association.

But IUPUI maintains that deficiencies in Peirick’s

professional conduct overshadowed all of these virtues.

According to Moore, events occurring during the two-

month window between April and June 2003 led to

Peirick’s termination. On April 6, 2003, the parents of

Emily Dukeman, a team member, sent Moore an email

message complaining that Peirick used “negative, foul

language,” “lacked professional qualities,” and made being

on the team a “very unpleasant and degrading experience.”

The message also claimed that “several players may not

return next year.”

Next, IUPUI says that five of the eight members of the

team met with O’Grady on April 10, 2003, to complain

about Peirick. During that meeting, which the students

requested, they said that Peirick used abusive language,

“would yell at them and scream at them, and tell them to

shut up,” and directed profanity towards the students and

coaches of other teams. Further, O’Grady says that the

4 No. 06-1538

students complained that when they were returning from

a road trip to Tennessee, Peirick drove a van of students

out of a restaurant parking lot without waiting for the

other van of students or making sure they had directions.

The students also said that Peirick was an unsafe driver,

who drove too fast for the road conditions. (O’Grady says

she also felt uncomfortable when riding with Peirick

during the trip to the NCAA tournament.) O’Grady claims

she took the complaints seriously because it was uncom-

mon for a group of students to come forward with com-

plaints, and because athletes were often reluctant to

complain at mid-season when their playing time could

be adversely affected.

IUPUI claims that Peirick’s handling of a scheduling

conflict involving the Indianapolis Tennis Center was the

key factor in her termination. In early April 2003, the

women’s tennis team was on target to win the Mid-Conti-

nent regular-season crown, an achievement that would

entitle them to host the Mid-Continent Conference Tourna-

ment. The team practiced and played at the Tennis Center,

an exceptional facility, and it expected to host the Tourna-

ment there. When Peirick sought to reserve the Tennis

Center, she learned that it was already booked and

conveyed this fact to Moore and O’Grady. After trying to

resolve the scheduling conflict, Moore and O’Grady

decided that they would have to secure an alternate, off-

campus location for the Mid-Conference Tournament.

Peirick asked Moore and O’Grady not to share this infor-

mation with the team for fear that the disappointment

might affect their play in remaining games.

On April 15, 2003, after the regular season ended,

Peirick informed her players that they would not be able

to host the Mid-Continent Tournament at the Tennis

Center. Later that day when two team members con-

fronted O’Grady about the situation, O’Grady was sur-

prised by the extent of their anger and asked them to

No. 06-1538 5

explain their feelings. According to O’Grady, the team

members stated that “Coach Peirick had informed them

that the tennis center was not going to be available for

the conference tournament, and indicated to them that

it could have—it could be available, but that the athletic

administration would not pick up the phone and make

the call to reserve the center . . . .” Moore and O’Grady

thought Peirick had lied, and Moore claims this was the

final straw requiring her termination.1 Neither Moore nor

O’Grady ever informed Peirick of the concerns that

emerged during the months preceding her termination,

and she was given no opportunity to respond or improve

either before or at the time of her termination.

It is not clear whether Peirick was entitled to a warning.

The answer to that question, IUPUI suggests, depends

only on whether Peirick was an hourly or appointed

employee. IUPUI classifies employees into a dizzying

array of categories: part-time, full-time, hourly, appointed,

monthly appointed (appointed and paid on a monthly

basis), biweekly appointed (appointed and paid on a

biweekly basis), to name a few. Only the hourly versus

appointed distinction is relevant to our review.

IUPUI’s Hourly Staff Handbook provides that an

hourly employee “may work irregular, intermittent, or on-

call hours,” and that hourly positions are intended to be

“less than full time, and [to] supplement[] full and part-

time appointed positions in the department.” Further,

“[s]ince hourly employees fill in for temporary needs of

1

IUPUI cites Peirick’s conduct during the team’s trip to Los

Angeles for the NCAA Regional Tournament from May 8-11, as

an additional basis for their failure to reinstate her. However,

Moore testified that he made the decision to terminate Peirick

before the NCAA tournament, so we do not consider those

additional justifications.

6 No. 06-1538

the department, some of the policies and benefits that

apply to appointed staff such as probationary periods,

seniority, paid time off and progressive discipline, do not

apply to hourly staff.” By contrast, “[a]n appointed posi-

tion is one that is needed for at least nine months in a

12-month period and is needed for at least 20 hours a

week . . . .” Appointed employees “may be eligible for

benefits such as paid time off, health and life insurance,

retirement, fee courtesy, etc.” So, by IUPUI policy, ap-

pointed, but not hourly employees, were guaranteed

progressive discipline.

This is not to say that the difference between hourly

and appointed employees had any practical significance.

Hourly and appointed staff were held to the same perfor-

mance standards. Employees were not made aware of the

two designations, and Moore provided progressive disci-

pline to hourly employees—persons that he considered

“valuable.” Before terminating Peirick, Moore asked

O’Grady to speak with IUPUI’s Human Resources Depart-

ment about IUPUI’s disciplinary process. At her deposi-

tion, LaVonne Jones, an Employment Consultant within

the Human Resources Administration, testified that

O’Grady had said that Peirick was an hourly employee.

Based on that representation, Jones told O’Grady what

options the Athletics Department had. It could consider

demoting Peirick, talking to her, calling a meeting, or

terminating her. O’Grady shared these possibilities

with Moore, and he made the decision to terminate.

On June 10, 2003, Moore informed Peirick, who was

53 years old, that she would not be invited back to coach

the women’s tennis team during the following year. In

explaining his decision, Moore simply stated that he

wanted to take the women’s tennis program in a “new,

different direction.” At that time, he gave Peirick the

option of retiring, to avoid the embarrassment associated

with nonrenewal. After Peirick’s termination IUPUI

No. 06-1538 7

detailed its alleged bases for terminating her. Peirick was

replaced by Andrea Lord, the twenty-three-year-old sister

of the men’s tennis coach. Although she had never coached

a team and finished college only a year before accepting

the position, Lord was paid $14,000 annually, nearly

$3,000 more than Peirick had been paid during

the preceding year.

Peirick filed suit against IUPUI, the IUPUI Athletics

Department, and the Board of Trustees of Indiana Univer-

sity, alleging violations of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the

Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §§ 621 to 634. The defendants filed a motion for

summary judgment, and the district court granted that

motion as to Peirick’s ADEA claim but denied the motion

with respect to Peirick’s Title VII claim. Just before trial,

the defendants filed a motion for reconsideration of the

ruling on summary judgment and the district court

granted summary judgment in the defendants’ favor on

Peirick’s Title VII claim. Peirick now appeals.

II. ANALYSIS

A. The Summary Judgment Standard of Review

We review the district court’s grant of summary judg-

ment de novo, affirming only if, after construing all facts

in the light most favorable to the nonmoving party, we

find no genuine issue of material fact and that the defen-

dants are entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir.

2007). With this standard in mind, we turn first to

Peirick’s claim of gender discrimination.

8 No. 06-1538

B. Summary Judgment Should Not Have Been

Granted on Peirick’s Gender Discrimination

Claim

Title VII makes it an unlawful employment practice

for an employer “(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). As

Peirick seeks to prove her case by the indirect method of

proof, we analyze her claim under the burden-shifting

approach announced in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). Under McDonnell Douglas, a

plaintiff must first make out a prima facie case of gender

discrimination. Peirick may do so by showing: (1) she is

a member of the protected class, (2) she met her employer’s

legitimate expectations, (3) she suffered an adverse

employment action, and (4) her employer treated similarly

situated male employees more favorably. Barricks v. Eli

Lilly & Co., 481 F.3d 556, 559 (7th Cir. 2007) (citing

Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th

Cir. 2006).2 At that point, the employer must offer a

legitimate nondiscriminatory reason for the adverse

employment action, which the employee may rebut by

showing that the reason is a mere pretext for discrimina-

tion. Id. The only issues on appeal are whether Peirick

2

Recently, we explained that, under certain circumstances, a

plaintiff may also satisfy the fourth prong of the McDonnell

Douglas framework by showing that “the employer needs to find

another person to perform that job after the employee is

gone . . . .” Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840,

846 (7th Cir. 2007). Because, as discussed below, Peirick satis-

fies the traditional formulation of McDonnell Douglas, we

need not consider whether she could also meet the standard

articulated in Pantoja.

No. 06-1538 9

satisfied the second and fourth elements of the prima facie

case, and whether she rebutted the defendants’ proffered

nondiscriminatory reason for the adverse employment

action.

Where, as here, an employee claims that she “performed

satisfactorily and the employer is lying about the business

expectations required for the position, the second prong

and the pretext question seemingly merge because the

issue is the same—whether the employer is lying.” Hague

v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.

2006); see Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179

(7th Cir. 1997) (“The defendant’s expectations are not

legitimate if they are phony; so if they are argued to

be phony, the issue of legitimate expectations and the

issue of pretext seem to merge.”). Therefore, we begin

with the fourth prong of the prima facie case.

1. Similarly Situated Individuals Were Treated

More Favorably Than Peirick

Peirick offers three individuals as similarly situated

employees: men’s soccer coach Steve Franklin; men’s

tennis coach Richard Lord; and men’s and women’s golf

coach John Andrews. IUPUI contends they are not valid

comparators because they had different classifications or

engaged in misconduct different in degree or kind than

Peirick.

To assess whether two employees are similarly situated,

“a court must look at all relevant factors, the number of

which depends on the context of the case.” Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000).

“[I]n disciplinary cases—in which a plaintiff claims that

he was disciplined by his employer more harshly than a

similarly situated employee based on some prohibited

reason—a plaintiff must show that he is similarly situated

10 No. 06-1538

with respect to performance, qualifications, and conduct.”

Id. (internal citations omitted). Typically this involves

showing that the employees shared the same supervisor,

performance standards, and “engaged in similar conduct

without such differentiating or mitigating circumstances

as would distinguish their conduct or the employer’s

treatment of them.” Id. at 617-18. That said, “[o]ur simi-

larly situated requirement ‘should not be applied mechani-

cally or inflexibly.’ ” Boumehdi v. Plastag Holdings, LLC,

489 F.3d 781, 791 (7th Cir. 2007) (quoting Hull v.

Stoughton Trailers, LLC, 445 F.3d 949, 952 (7th Cir.

2006)).

IUPUI first contends that Peirick was an hourly em-

ployee and that as such, she may only be compared with

other hourly employees. Since Richard Lord and Steve

Franklin were appointed employees during most or all of

their employment, IUPUI insists that Peirick may only

compare herself to golf coach John Andrews. Andrews,

IUPUI continues, was not similarly situated because he

did not engage in any termination-worthy conduct—his

only infractions being a few insubstantial NCAA rule

violations. But IUPUI is only partly right.

We agree with IUPUI that Peirick was an hourly em-

ployee. Although Peirick received annual letters of ap-

pointment, retirement benefits, never punched a time clock

or received overtime pay, under IUPUI policy, these

facts are not inconsistent with being an hourly employee.

And Human Resources paperwork demonstrates quite

clearly that throughout her tenure Peirick was designated

an hourly employee. But we are not convinced that the

hourly and appointed designations (which are only noted

in HR files) influenced the Department’s treatment of

its coaches or should bear upon our similarly situated

analysis.

In fact, Moore routinely disregarded the hourly and

appointed designations. At his deposition, Moore testified

No. 06-1538 11

that he gave progressive discipline to employees he

considered “valuable,” without regard to their employ-

ment classification. Underscoring this point is the fact

that the hourly versus appointed distinction was not

understood by members of the Athletics Department. At

the time of his deposition, Moore was fairly cloudy as to

when employees are entitled to progressive discipline.

When asked if he knew whether the Athletics Department

had a policy of progressive discipline, he said, “I believe

there is one in place for certain classes of employees

through the university.” At other points in his deposition,

Moore explained that in determining an employee’s

entitlement to progressive discipline, the relevant dis-

tinction is the part-time versus full-time classification. For

example, Moore testified that he gave coach Franklin,

who was accused of verbally abusing members of the

men’s soccer team, the benefit of progressive discipline

because he felt that was how he was supposed to treat

a “full-time professional employee.”

Likewise, at her deposition, O’Grady recalled speaking

with LaVonne Jones of Human Resources about the

significance of part-time versus full-time employment.

According to O’Grady, Jones said that “the progressive

discipline policy and procedure did not apply to a

part-time employee; that we were not required to go

through the progressive discipline process with a

part-time position.” But O’Grady did not know what

document would inform a coach that part-time and

full-time employees are treated differently when it comes

to progressive discipline. In fact, no such document

exists, because the relevant distinction is between hourly

and appointed, not part-time and full-time, employees.

Given the considerable misunderstanding regarding the

employee classifications, and Moore’s practice of providing

progressive discipline to “valuable” employees, we doubt

that the Athletics Department took heed of employee

12 No. 06-1538

classifications when doling out sanctions. We will not

give the hourly versus appointed distinction more impor-

tance than IUPUI did.

So, in the context of this case, we consider whether

Peirick and the three male coaches were similarly

situated—though only Andrews was an hourly employee

during his entire tenure. All three coaches were judged

according to the same performance standards, were

supervised by Moore, and had spotty performance histo-

ries. Yet only Peirick was terminated without the benefit

of progressive discipline. The central question for our

review, then, is whether Peirick and her colleagues

engaged in similar misconduct, but received dissimilar

treatment. Of course, employees may be similarly situ-

ated to the plaintiff even if they have not engaged in

conduct identical to that of the plaintiff. “[T]he law is not

this narrow; the other employees must have engaged in

similar—not identical—conduct to qualify as similarly

situated.” Ezell v. Potter, 400 F.3d 1041, 1050 (7th Cir.

2005).

In Ezell, we concluded that the plaintiff, a mail carrier

accused of taking an unauthorized extended lunch, and

his colleague, a mail carrier who had lost a piece of

certified mail, were similarly situated. Id. Taking a

common sense view, we reasoned that in the postal service,

whose sole function is to ensure to delivery of mail,

“[m]isplacing certified mail, that is, mail that has been

designated as especially important by its sender, would

seem to be a serious matter.” Id. Further, given that

another carrier had been fired for delaying mail delivery,

we inferred that “losing mail would also be a serious

offense, at least as serious as taking a long lunch.” Id. As

reflected in Ezell, in deciding whether two employees

have engaged in similar misconduct, the critical question

is whether they have engaged in conduct of comparable

seriousness. See Little v. Ill. Dep’t of Revenue, 369 F.3d

No. 06-1538 13

1007, 1016 (7th Cir. 2004); see also Davis v. Wis. Dep’t of

Corr., 445 F.3d 971, 978-79 (7th Cir. 2006); Spath v. Hayes

Wheels Int’l-Ind., Inc., 211 F.3d 392, 397 (7th Cir. 2000).

Comparable seriousness may be shown by pointing to a

violation of the same company rule, Davis, 445 F.3d at

978-79, or to conduct of similar nature, Hiatt v. Rockwell

Int’l Corp., 26 F.3d 761, 770 (7th Cir. 1994).

Mindful of these principles, we turn to Peirick’s proffered

comparators. First, we agree with IUPUI that John

Andrews, the head golf coach, is not an adequate compara-

tor. Peirick cites Andrews’s reprimand for two NCAA rule

violations and comments in his 2002 evaluation stating

that he needed to improve his documentation and paper-

work. These two performance concerns are minor when

compared to Peirick’s alleged misconduct. The women’s

basketball coach acknowledged that NCAA rule viola-

tions are not uncommon, and Moore stated that, by

definition, NCAA secondary rule violations are not

serious. Nor has Peirick provided us with any basis for

believing that the Department considered administrative

responsibilities as important as the obligation to treat

players with civility. For these reasons, we conclude that

Andrews and Peirick are not similarly situated.

However, we think that Franklin and Lord are valid

comparators. They both engaged in serious violations

of Indiana University’s Statement of Principles on the

Conduct of Participants in Student Athletic Programs and

were consistently provided progressive discipline.

Steve Franklin received repeated complaints of verbal

abuse in 2002 and 2003, about the time of Peirick’s

termination. In January 2003, two players who left the

soccer team indicated in their exit interviews that they

were leaving, in part, because of issues with the coaching

staff or style. They both recommended that a new head

coach be hired and stated that Franklin was “often”

14 No. 06-1538

verbally abusive. One student said that he thought other

coaches had left the team because of Franklin, Franklin

did not inspire the team, and yelling was the way Franklin

communicated with and motivated his players. The other

stated that Franklin engaged in “mind games, demeaning

[sic] & insulting players.” A parent echoed these senti-

ments in a letter to Moore in October 2003, stating that

during the course of four years, he had witnessed Frank-

lin’s “pervasive pattern of verbal and emotional abuse.”

Another letter sent by a parent to IUPUI’s chancellor

indicated that one student “ha[d] been verbally and

emotionally abused while on the soccer team at IUPUI.”

Further, the parent speculated that “[a]s evidenced by

the number of players who have left this team over the

recent years, in my opinion, he was probably not alone[.]”

Franklin acknowledged in his deposition that on at least

two occasions, a parent had called Moore to complain about

Franklin’s conduct and that a parent called Moore

at halftime during one soccer game to say that Franklin

should be fired.

Each of these complaints was met with progressive

discipline. Moore allowed Franklin to respond to the

criticisms of the parent who requested Franklin’s termina-

tion during halftime. In October 2003, Moore wrote a

letter to Franklin stating that Franklin’s use of sarcasm,

bullying, and mental games with the players had contrib-

uted to a “perceived culture of lack of respect for stu-

dent-athlete dignity and emotional well being within the

men’s soccer program.” Moore and O’Grady met with

Franklin on multiple occasions to discuss the letter of

reprimand and Franklin’s plan for improvement. Franklin

explained that Moore and O’Grady counseled him to take

“a kinder and gentler demeanor and approach,” and

informed him that they would be watching his behavior

and would meet with him at the end of the season to

determine whether he would be retained. At the end of the

No. 06-1538 15

year, Moore and O’Grady were happy with Franklin’s

progress and he was invited back to coach for the 2004

year.

Richard Lord, the men’s tennis coach, is also a valid

comparator. In his deposition, Lord acknowledged that

as the men’s tennis coach his duties were akin to Peirick’s

and he could think of no distinctions in their responsi-

bilities. Throughout his tenure at IUPUI, Lord engaged

in serious misconduct for which he could have been

terminated. He received extremely low marks on his 1999

evaluation in the following areas: being organized in

practice and game preparations, developing the potential

of student-athletes, providing strong leadership and

discipline, establishing clear team and individual goals,

and displaying exemplary conduct at all times when with

the team. The evaluation concluded by saying that Lord’s

“future IUPUI employment as men’s tennis coach

depend[ed] on improvement in the areas discussed in

this document.” In February 2000, he was issued a written

reprimand for “public behavior unbecoming of a head

coach” based on his admission that his students had

consumed alcohol during a road trip. Lord acknowledged

that in approximately 2002, Moore counseled him not to

use profanity with players in response to a complaint of

verbal abuse. Lord also had numerous NCAA violations,

one of which resulted in a week-long suspension from

coaching. Despite his clear performance problems—losing

records in most, if not all, of his years as head men’s tennis

coach, NCAA rule violations, problems fulfilling adminis-

trative requirements, complaints regarding use

of profanity and permitting students to drink alco-

hol—he was never terminated, but voluntarily resigned

his position sometime after Peirick’s dismissal.

Peirick was accused of using abusive language, unsafe

driving, leaving students behind during a road trip, and

16 No. 06-1538

pitting the students against the administration during the

Tennis Center scheduling conflict. According to IUPUI’s

position statement in response to Peirick’s EEOC Charge

of Discrimination, these acts amounted to violations of

Indiana University’s Statement of Principles on the

Conduct of Participants in Student Athletic Programs. In

particular, Peirick was accused of violating Section 3.1.4,

which states that “The obligation of coaches to treat

others with dignity and respect is not limited to their

interaction with student athletes, but shall apply to their

treatment of all other participants . . . .” The University

further alleged that Peirick had violated Section 2.4,

which states that “The conduct of all participants shall

reflect the fact that by virtue of their participation in the

student athletic programs sponsored by Indiana Univer-

sity, they are representing the University. As a result,

participants are expected to exhibit a higher standard of

behavior than might be expected of other students, staff,

and faculty, and to avoid conduct that is likely to appear

improper.” Although Franklin and Lord did not engage in

the exact same misconduct as alleged of Peirick, they

violated the very same rules as Peirick. See Davis, 445

F.3d at 978 (that employees engaged in “identical rule

violations” provided some indication that the offenses

were of “comparable seriousness”).

Franklin repeatedly contravened Section 3.1.4, which

directed coaches to treat students with dignity and re-

spect. Indeed, in his written reprimand, Moore told

Franklin that his conduct had created a “culture of lack of

respect for student-athlete dignity and emotional well

being within the men’s soccer program.” Likewise, Lord

was accused of being verbally abusive. Lord also vio-

lated Section 2.4’s directive to avoid the appearance of

impropriety when he engaged in “public behavior unbe-

coming of a head coach” by allowing students to drink

alcohol while on a road trip. Moreover, we can be sure that

No. 06-1538 17

the University considered Lord and Franklin to have

engaged in serious misconduct, as both were warned

to improve or face termination. We find both to be simi-

larly situated employees, who were treated more favor-

ably than Peirick.

2. IUPUI’s Bases for Terminating Peirick Are

Suspect

IUPUI argues that Peirick’s performance fell below its

legitimate expectations, and that for this reason, she can

neither satisfy the second prong of the prima facie case nor

show that the proffered basis for her termination—her

failure to meet IUPUI’s standards—is a pretext for

discrimination. Specifically, IUPUI claims that it de-

cided not to reinstate Peirick because she used abusive

language when talking with students, left a van of stu-

dents behind in Tennessee, was an unsafe driver, and told

students that the administration was to blame for the

unavailability of the Tennis Center during the conference

tournament. Our task is to determine whether these

were IUPUI’s true reasons for discharging Peirick, not

whether they were wise bases for doing so. See Stewart v.

Henderson, 207 F.3d 374, 378 (7th Cir. 2000).

As a result, our analysis begins with IUPUI’s perfor-

mance expectations for coaches. IUPUI’s published perfor-

mance expectations include standards for academics,

community service, compliance, budget management,

fundraising, athletic competition, and professional conduct

and development. IUPUI does not dispute that Peirick

outshined her colleagues with respect to the majority of

these documented expectations. She was praised for

encouraging academic excellence amongst her players, who

consistently earned the highest or second highest GPA of

all of IUPUI’s athletic teams. Peirick was nationally

recognized for her community service. Over the course of

18 No. 06-1538

thirteen years at IUPUI, she never received an NCAA rule

violation of any sort. The record provides no basis for

believing there to have been deficiencies in her budgeting

or fundraising. Also, under her leadership, the women’s

tennis team earned its best record in school history and

became the first women’s team at IUPUI to advance to the

NCAA post-season tournament. Her success was recog-

nized in 2004, when the Midwest Division of the U.S.

Professional Tennis Association awarded her Coach of the

Year. None of this matters, says IUPUI, because Peirick

fell terribly short on a single measure—professional

conduct—and that merited termination. But, on this

record, a jury could disbelieve IUPUI.

To begin, IUPUI never warned Peirick that her foul

language, poor driving, inattentiveness to trailing

vehicles, and expression of frustration during a schedul-

ing conflict could lead to dismissal. Even at the time of

her termination, Moore simply told her that he was look-

ing to take the Department in a “new, different direction.”

Moore says he “chose not to discuss the performance

issues with Peirick because [he] did not believe that

Peirick would change her behavior.” But this does not

explain why he failed to share his reasons with Byron

Clark, Peirick’s direct supervisor, or O’Grady. Moore’s

explanations were not forthcoming until Peirick filed a

complaint with the Equal Employment Opportunity

Commission.

Further, IUPUI’s delay in addressing its alleged con-

cerns undermines its claim that Peirick’s behavior was

unsafe or severe. Although the parents of Emily Dukeman

complained about Peirick on April 6, 2003, Moore did not

ask O’Grady to follow-up on that complaint until a month

later. Also in early April, O’Grady says students com-

plained that Peirick was an unsafe driver, who once

abandoned them on a road trip. O’Grady did not broach

these issues with Peirick. Instead, in May, when she

No. 06-1538 19

accompanied the team to the NCAA tournament, O’Grady

sat quietly as Peirick drove the team about L.A.3 The act

meriting termination, IUPUI says, occurred on April 15th.

That day, Peirick told her team that the Tennis Center

would be unavailable, voiced her frustrations, and directed

the students to seek out the administration for answers.

The fallout of Peirick’s impetuousness—the gripes of a

disappointed few—came to an end by the close of day.

Although IUPUI claims it thought Peirick had lied and

been disloyal, it handled this episode as it had every other

alleged performance concern, by failing to utter a word

to Peirick. The administration would not act for two

months—not even in the face of purported safety con-

cerns. This pattern of delay leads us to question whether

IUPUI was truly concerned about Peirick’s language,

driving, or handling of a scheduling conflict.

We also think a jury could find that IUPUI overstated

matters to justify its actions. Compare Plotke v. White, 405

F.3d 1092, 1106 (10th Cir. 2005) (“On this record, a jury

could reasonably infer the Army discriminated against

Dr. Plotke by suddenly reassigning her from the Haiti

Project to CAC-WIN and then contriving and grossly

exaggerating the TDY incident as a means of exercising

gender animus towards her.”). IUPUI suggests that all the

students that attended the April 10th meeting were

displeased with Peirick. But the affidavits and depositions

of tennis team members tell a different story. Although

five students, Michelle Cunningham, Hillary Byard,

Mallory Stemle, Emily Dukeman, and Natalie Bednar,

3

Further, IUPUI did not even ask Peirick’s replacement, Andrea

Lord, about her driving history, despite its stated concern. If

IUPUI had investigated Lord’s driving history, it would have

discovered that a few years before she was hired, Lord fell

asleep at the wheel, resulting in a crash that caused her car to

flip.

20 No. 06-1538

attended the April 10th meeting, three of those stu-

dents—the only students to have submitted affidavits or

offer testimony in this case—have come to Peirick’s

defense. In her affidavit, Hillary Byard stated that the

team met with O’Grady because some of the students,

especially Emily Dukeman and Mallory Stemle, had

personality conflicts with Peirick. The other three atten-

dees, however, thought Peirick was a good coach. Some

said they did not find her verbally abusive or an unsafe

driver; they thought she truly cared about the students

both on and off the court; they would call on her to dis-

cuss any problem; and they considered her a friend.

When they heard about Peirick’s termination, Michelle

Cunningham, Natalie Bednar, and Hillary Byard were

all “shocked” and “surprised.”

Peirick’s colleagues were similarly perplexed. Byron

Clark, Peirick’s direct supervisor, and Kristin Emer-

son-Simpson, the women’s head basketball coach, were

surprised by the termination. Men’s soccer coach Steve

Franklin was “stunned.” As he put it: “Debbie was coming

off an undefeated season. She was named Coach of the

Year, I believe. I think she had the Player of the Year

and the Newcomer of the Year, and I think it was the

first time a tennis [team]—in the mid-continent had gone

undefeated. . . . [T]o me, that seemed like a successful

season.” Even Lord, whose sister filled Peirick’s position,

was “surprised” that Peirick had been terminated. Al-

though the opinions of nondecisionmakers as to Peirick’s

performance cannot carry the day, see Johnson v. City of

Ft. Wayne, 91 F.3d 922, 936 (7th Cir. 1996), their re-

sponses to the termination decision provide some indica-

tion of the type of conduct historically considered termina-

tion worthy. And we find it striking that these coaches

were so baffled by the administration’s decision. The

termination of a coach with Peirick’s qualities appears to

have been an unprecedented event in IUPUI’s history. See

No. 06-1538 21

Gordon v. United Airlines, Inc., 246 F.3d 878, 890 (7th Cir.

2001) (taking unprecedented disciplinary action may be

evidence of pretext).

In sum, we find IUPUI’s post hoc explanations, delay,

exaggeration, and unusual conduct more than enough to

create a question of fact concerning the legitimacy of its

explanations for Peirick’s termination.4 The district court

should not have granted the defendants’ motion for

summary judgment on Peirick’s gender discrimination

claim.5

4

Additionally, the evidence that Moore, the decisionmaker in

this case, treated men more favorably than women only bolsters

Peirick’s claim. Peirick testified that Moore would introduce

male, but not female, coaches to dignitaries. The former women’s

basketball coach thought Moore was not sure how to “treat[ ]

people as human beings, especially when it comes to the female

gender.” Linda Carroll, former Assistant Athletic Director and

Senior Women’s Administrator, found Moore’s attitude toward

women mean-spirited and discriminatory. She explained that

“Moore rarely encouraged the women coaches or administration,

but he always encouraged the men to perform better” and that

“his expressions and body language expressed that he did not

welcome conversations with female coaches.” Further, she

believed “Moore did not like women to be assertive” and, specifi-

cally, that he “did not want Ms. Peirick to be assertive or

challenge him in any way.” Finally, Carroll said she resigned

from IUPUI because of Moore’s gender-based treatment of her.

5

Given our conclusion that summary judgment should not have

been granted on Peirick’s gender discrimination claim, we

need not address her argument that it was error for the district

court to reconsider its initial denial of summary judgment on

her gender claim. But we briefly note that the district court

was entitled to reconsider its initial denial of summary judg-

ment, because the denial of summary judgment was simply an

interlocutory order, which the district court had broad authority

(continued...)

22 No. 06-1538

C. Summary Judgment Was Proper On Peirick’s Age

Discrimination Claim, Because the Defendants

Are Immune From Suit

Peirick also charges IUPUI, the Athletics Department,

and the Board of Trustees of Indiana University with

violating the ADEA, which makes it unlawful for an

employer to discriminate against an employee in the

terms and conditions of her employment on the basis of

age. 29 U.S.C. § 623(a)(1). Defendants counter that the

Eleventh Amendment shields them from suit under the

ADEA, and we agree. (They do not claim immunity from

suit on Peirick’s gender discrimination claim, because

Congress “validly abrogated the States’ Eleventh Amend-

ment immunity with respect to Title VII disparate treat-

ment claims.” Nanda v. Bd. of Trs. of the Univ. of Ill., 303

F.3d 817, 831 (7th Cir. 2002).

At the outset, we note that the Athletics Department

is not a legal entity apart from the University. It is merely

a division of the University that is not capable of being

sued. See Whiting v. Marathon County Sheriff ’s Dep’t, 382

F.3d 700, 704 (7th Cir. 2004) (“[T]he Marathon County

Sheriff ’s Department is not a legal entity separable from

the county government which it serves and is therefore,

not subject to suit.”); West By & Through Norris v.

Waymire, 114 F.3d 646-47 (7th Cir. 1997) (“The naming

of the Town’s Police Department as a defendant adds

nothing; it is almost certainly not a suable entity separate

from the Town.”). So we consider only whether IUPUI

and the Board of Trustees of Indiana University enjoy

Eleventh Amendment immunity.

5

(...continued)

to reconsider. See Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st

Cir. 2001); Cameo Convalescent Center, Inc. v. Percy, 800 F.2d

108, 110 (7th Cir. 1986); United States v. Acosta, 669 F.2d 292,

293 (5th Cir. 1982).

No. 06-1538 23

The Eleventh Amendment provides: “The Judicial power

of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S. Const.

Amend. XI. Although the Amendment speaks of suits filed

by citizens of another state, the Supreme Court “has

consistently held that an unconsenting State is immune

from suits brought in federal courts by her own citizens as

well as by citizens of another State.” Edelman v. Jordan,

415 U.S. 651, 662-63 (1974) (internal citations omitted).

The Amendment usually bars actions in federal court

against a state, state agencies, or state officials acting

in their official capacities, see Gossmeyer v. McDonald,

128 F.3d 481, 487 (7th Cir. 1997), but three exceptions

exist. First, a state may waive immunity by consenting

to suit in federal court; second, Congress may abrogate

the state’s immunity through a valid exercise of its powers;

third, under the Ex parte Young doctrine, a plaintiff may

file “suit[] against state officials seeking prospective

equitable relief for ongoing violations of federal law . . . .”

Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997); see

Ex parte Young, 209 U.S. 123, 159-60 (1908). Peirick

does not contend that Indiana consented to suit in fed-

eral court. Her ability to resort to the second exception was

cut short in Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91

(2000), where the Court held that “in the ADEA, Congress

did not validly abrogate the States’ sovereign immunity

to suits by private individuals.” So only the Ex parte

Young exception remains, and Peirick has not availed

herself of that option.

Although Peirick requests only prospective injunctive

relief, she has not brought suit against a state official.

Indeed, Peirick cannot seriously dispute that IUPUI, a

partnership between Indiana and Purdue Universities, is

an agency of the state of Indiana. See Woods v. Ind.

24 No. 06-1538

Univ.-Purdue Univ., 996 F.2d 880, 883 (7th Cir. 1993)

(citing favorably Shannon v. Bepko, 684 F. Supp. 1465 (S.

D. Ind. 1988), which held Indiana University and IUPUI to

be agencies of the state); see also Porco v. Trs. of Ind.

Univ., 453 F.3d 390, 394-95 (7th Cir. 2006); Kashani v.

Purdue Univ., 813 F.2d 843, 844 (7th Cir. 1987). And, as

explained below, the Board of Trustees of Indiana Univer-

sity is an agency of the state.

Many courts have held that the governing bodies of their

state universities enjoy the same immunity from suit

as the universities themselves. See Richardson v. Southern

Univ., 118 F.3d 450, 455 (5th Cir. 1997) (“Southern

[University] and its Board are considered an agency of

the State of Louisiana”); Hall v. Hawaii, 791 F.2d 759,

761 (9th Cir. 1986) (holding that the University of Hawaii

and its board of regents “are clearly immune as agencies of

the state”); Harden v. Adams, 760 F.2d 1158, 1164 (11th

Cir. 1985) (noting that “the Board of Trustees of a state

university is entitled to sovereign immunity as an instru-

mentality of the state”); Cannon v. Univ. of Health Sci-

ences/Chi. Med. Sch., 710 F.2d 351, 356 (7th Cir. 1983)

(Southern Illinois University and the Board of Trustees

of the University of Illinois are state agencies with Elev-

enth Amendment immunity); Wellman v. Tr. of Purdue

Univ., 581 F. Supp. 1228, n.1 (N.D. Ind. 1984) (“[F]or

purposes of Eleventh Amendment immunity, no distinc-

tion can, should, or will be drawn between Purdue Univer-

sity and its Board of Trustees.”); see also Joseph v. Bd. of

Regents of the Univ. of Wis. Sys., 432 F.3d 746, 748 (7th

Cir. 2005) (“The [Wisconsin Board of Regents] is an ‘arm of

the state’ for Eleventh Amendment purposes.”). So it

seems to follow that the Board of Trustees of Indiana

University, like the university, is a state agency. And an

examination of the factors relevant for determining

whether an entity is an agency of the state leads to that

exact conclusion.

No. 06-1538 25

In deciding whether an entity is an agency of the state,

the most important factor is “the extent of the entity’s

financial autonomy from the state.” Kashani, 813 F.2d

at 845. That inquiry is composed of five subparts: (1) the

extent of state funding; (2) the state’s oversight and control

of the entity’s fiscal affairs; (3) the entity’s ability to raise

funds; (4) whether the entity is subject to state taxation;

and (5) whether a judgment against the entity would result

in an increase in its appropriations. Id. Beyond these

financial considerations, we also consider the general legal

status of the entity. Id. at 846-47. Where this factor is

concerned, we prioritize substance over form. Id. at 847.

The Board has only limited financial autonomy. The

Board holds and expends Indiana University’s financial

assets, see Ind. Code § 21-31-2-4 (2007), and a significant

percentage of those assets are derived from the state.

During the 2004-2005 academic year, for example, state

appropriations accounted for 24% of Indiana University’s

revenue. See Indiana University Financial Report

2004-2005, available at http://www.indiana.edu/~vpcfo/

fy2005.pdf (last visited Dec. 11, 2007). The state exercises

substantial control over the Board’s fiscal affairs and

its ability to raise funds. In certain instances, the Board

must gain the approval of the governor and the state’s

budget agency before issuing bonds, see Ind. Code

§ 21-35-2-21, or making capital expenditures, see Ind. Code

§ 21-35-2-20. Although the Board collects funds for the

University from sources outside the state, it depends on

the state’s financial support. See Kashani, 813 F.2d at

846. Since that financial support is carefully allocated, a

judgment against the Board would “affect the state trea-

sury.” Id. This becomes even more apparent given that

the Board is authorized to employ officers, faculty, consul-

tants, and counsel, see Ind. Code § 21-38-3-1, and to pay

the fees that these persons incur as a result of their

26 No. 06-1538

employment or performance of duties for the school. See

Ind. Code § 21-38-4-1.

The Board’s general legal status similarly suggests

an agency relationship. Specifically, the Indiana Code

includes state boards and universities in the definition of

state agencies. Ind. Code § 4-12-1-2. Moreover, the gover-

nor, the state’s chief executive, necessarily has some

control over the Board because six of the nine members

of the Board are gubernatorial appointees. Ind. Code

§ 21-20-3-12 to 13; see Kashani, 813 F.2d at 847. We

also find it significant that the Board, like Indiana Uni-

versity, serves the entire state. See Kashani, 813 F.2d

at 847-48. Taken together, these factors lead us to

conclude that the Board of Trustees of Indiana University

is but an agency of the state, which operates the school

under state oversight. See Russell v. Tr. of Purdue Univ.,

168 N.E. 529, 535 (Ind. 1929) (citing Tucker v. Pollock, 43

A. 369 (R.I. 1899) for the proposition that the Board of

Managers of the Rhode Island College of Agriculture

and Mechanic Arts “is but the agent of the state to carry

out the purposes of the General Assembly in connection

with the establishment and maintenance of the college.”).

As such, Peirick may not proceed against the Board even

on her claims for prospective injunctive relief.6 See Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 146 (1993) (“[t]he doctrine of Ex parte Young . . .

has no application in suits against the States and their

agencies, which are barred regardless of the relief

sought”); Buchwald v. Univ. of N.M. Sch. of Med., 159

F.3d 487, 496 (10th Cir. 1998) (“[A]lthough the Ex Parte

Young exception does not permit plaintiff to subject

6

A different result may have obtained had Peirick sued individ-

ual members of the Board in their official capacities. See

Kashani, 813 F.2d at 848.

No. 06-1538 27

[University of New Mexico School of Medicine], [and] its

Regents . . . to suit because they are state agencies,

plaintiff may maintain an action against the individual

defendants in their official capacities . . . .”); Wasserman

v. Purdue Univ., 431 F. Supp. 2d 911, 916 (N.D. Ind.

2006) (“[T]he Board of Trustees [of Purdue University] is

a political arm of the state which is immune to suit.

[Plaintiff] did not name the individual members of the

Board of Trustees, in their official or individual capacities.

Because Purdue has not waived that immunity, the

Eleventh Amendment precludes this court from exercis-

ing jurisdiction.”). Because IUPUI and the Board are

immune from suit, the district court’s grant of summary

judgment was proper.

III. CONCLUSION

For the foregoing reasons, we VACATE the award of

summary judgment in favor of IUPUI and the Board of

Trustees of Indiana University on Peirick’s gender dis-

crimination claim. However, in light of IUPUI’s and the

Board’s Eleventh Amendment immunity, we AFFIRM the

grant of summary judgment in their favor on Peirick’s

claim of age discrimination.

28 No. 06-1538

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-14-07