Ronicka Schottel v. Nebraska State College System, doing business as Peru State College

United States Court of Appeals
For the Eighth Circuit
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No. 21-2246
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Ronicka Schottel
Plaintiff - Appellant
v.
Nebraska State College System, doing business as Peru State College
Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: May 12, 2022
Filed: August 3, 2022
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Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Appellant Ronicka Schottel, a former employee at Nebraska State College
System’s (NSCS) Peru State College, brought Equal Pay Act and Title VII claims
against NSCS after she received a terminal contract in 2018. The district court1
1 The Honorable Brian C. Buescher, United States District Judge for the
District of Nebraska.

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granted summary judgment in favor of NSCS on all of Schottel’s claims, and
Schottel appeals. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Schottel began her employment as a criminal justice instructor at Peru State
in 2012. At the time of her hiring, Schottel had two master’s degrees and three years’
experience as a probation officer but lacked formal teaching experience. Peru State
selected Schottel over a male candidate, Daniel Hayes, who had applied for the same
available position. Hayes had one master’s degree, ten years’ experience in
corrections work, and five years’ teaching experience as a criminal justice adjunct
faculty member at Peru State. The hiring committee tasked with the selection of
instructors considered applicants’ education, field experience, teaching experience,
interview performance, what they could “bring[] to the team,” and whether they had
“diverse thought process[es].” Dr. Greg Galardi, the Dean of the School of
Professional Studies, advocated for Schottel’s hiring based on her strong interview
performance, unique background in probation work, and the diversity that she would
bring to the School of Professional Studies. Shortly after Schottel’s hiring, another
criminal justice instructor position became available, and Peru State hired Hayes.
Both Schottel and Hayes began teaching in August 2012, with Schottel
receiving a $48,000 annual salary and Hayes receiving a $49,500 annual salary.
Schottel’s salary remained approximately $1,500 less than Hayes’s for five years.
Dr. Todd Drew, the then-Vice President of Academic Affairs, set the salaries for
both Schottel and Hayes. In an email contemporaneous to Hayes’s hiring sent to
several colleagues, including Peru State’s president and director of human resources,
Drew explained the pay differential: “[Hayes] has substantial adjunct teaching
experience with us and more professional experience that is directly related to the
discipline taught.” When Schottel was promoted to assistant professor for the
2017-18 academic year, she received a $3,000 raise, thus earning roughly $1,319
more than Hayes per year at that point.

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In April 2018, Schottel met with Timothy Borchers, who had succeeded Drew
as Vice President of Academic Affairs, to discuss her potential advancement toward
tenure. During the meeting, Schottel raised concerns about Galardi, her direct
supervisor, including concerns about his comments to her, emails he sent to her, and
his physical demeanor toward her. Schottel also mentioned Hayes being paid more
than her prior to her promotion. Borchers did not share Schottel’s comments about
Galardi with him. Schottel later met with Galardi, during which they generally
discussed the tenure track but not her concerns about him.
Early in May 2018, a student in one of Schottel’s classes approached Galardi
and shared concerns about passing Schottel’s class after Schottel had refused to
accept a late assignment. Galardi responded that Schottel had discretion to refuse
late assignments and that he would not interfere with her grading decision. The
student then expressed his concern about the quality of the course and Schottel’s
teaching performance. Specifically, he told Galardi that the weekly class never met
for the entirety of its scheduled 2 hours and 45 minutes and that it had only lasted
longer than 1 hour about four times that semester. The student also stated that
Schottel had cancelled class four times during the semester, “barely taught the class,”
and did not follow the course syllabus. Galardi subsequently contacted another
student enrolled in the class whom he trusted. This other student confirmed that
Schottel dismissed every class session early but also mentioned that another Peru
State instructor regularly let class out early. No further information was provided
regarding how early or frequently the other instructor prematurely dismissed class.
Galardi relayed his conversations with both students to Borchers.
On May 24, 2018, Borchers notified Schottel that her employment would
terminate in May 2019. He listed Schottel’s “[p]ast practices of dismissing classes
early, cancelling classes and failing to follow the syllabus.” Peru State issued her a
terminal contract, which allowed her to continue teaching through the 2018-19
academic year but would not renew thereafter.

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In July 2019, after Schottel filed a charge of discrimination with the Nebraska
Equal Opportunity Commission, she brought this action alleging an Equal Pay Act
claim, as well as claims of gender-based harassment, gender discrimination, and
retaliation in violation of Title VII. NSCS filed a motion for summary judgment on
all of Schottel’s claims, which the district court granted.2 Regarding Schottel’s
claim that NSCS violated the Equal Pay Act by paying Hayes more than her, the
district court determined that NSCS proved that it had a non-discriminatory reason
for paying Schottel less: Hayes’s superior experience was better suited for the
teaching role. The district court largely relied on Drew’s email explaining the pay
differential. As to Schottel’s gender discrimination claim, the district court
determined that the claim was based entirely on wage discrimination and therefore
failed for the same reason as her Equal Pay Act claim. The district court further
rejected Schottel’s attempt to morph her wage discrimination claim into a disparate
treatment claim at the summary judgment stage. Finally, as to Schottel’s retaliation
claim, the district court concluded that she failed to prove a causal link between her
protected conduct—complaining about the pay differential—and NSCS’s decision
to issue her a terminal contract.
II.
Schottel asserts that the district court erred in granting summary judgment on
her Equal Pay Act claim and Title VII claims of gender discrimination and
retaliation. “We review a grant of summary judgment de novo, construing the record
in the light most favorable to the nonmoving party.” Wages v. Stuart Mgmt. Corp.,
798 F.3d 675, 679 (8th Cir. 2015). We “give [the nonmoving party] the ‘benefit of
all reasonable inferences in the record.’ Summary judgment is appropriate only if
‘there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Shanner v. United States, 998 F.3d 822, 824 (8th Cir.
2021) (citations omitted).
2 Schottel does not challenge the district court’s grant of summary judgment
on her gender-based harassment claim.

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A.
Schottel first argues that the district court erroneously granted summary
judgment in NSCS’s favor on her Equal Pay Act claim and gender discrimination
claim based on unequal pay. “The [Equal Pay Act] prohibits pay discrimination on
the basis of sex. A plaintiff must first establish a prima facie case that women were
paid less than men in the same establishment for equal work requiring equal skill,
effort, and responsibility and performed under similar working conditions.” Price v.
N. States Power Co., 664 F.3d 1186, 1191 (8th Cir. 2011) (citation omitted). The
burden shifts to the defendant if the plaintiff establishes a prima facie case. Id. The
defendant must “prove that any wage differential is explained by ‘(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.’”
Id. (citation omitted). It “cannot escape liability merely by articulating a legitimate
non-discriminatory reason for the employment action,” but instead “must prove that
the pay differential was based on a factor other than sex.” Id. (citation omitted).
Because Schottel’s gender discrimination claim is based on “unequal pay for equal
work,” we analyze it under the same standard applied to her Equal Pay Act claim.
See Tenkku v. Normandy Bank, 348 F.3d 737, 741 (8th Cir. 2003).
The parties do not dispute that Hayes was paid more for the same position
from when Schottel and Hayes were hired until Schottel’s promotion in 2017; thus,
it is undisputed that Schottel has set forth a prima facie case. The parties dispute,
however, whether NSCS satisfied its burden to prove that the pay differential was
based on a factor other than sex. We agree with the district court that NSCS met its
burden. NSCS offered sufficient evidence that Hayes received a higher salary
because he had significantly more experience than Schottel. See Hutchins v. Int’l
Brotherhood of Teamsters, 177 F.3d 1076, 1081 (8th Cir. 1999) (“A differential that
is based on education or experience is a factor other than sex recognized by the Equal
Pay Act.”); see also Lawrence v. CNF Transp., Inc., 340 F.3d 486, 493-94 (8th Cir.
2003) (“[E]xperience with a company may constitute a factor in the salary
calculation.”). Upon his hiring as an instructor, Hayes had already worked at Peru

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State as a criminal justice adjunct professor for five years. He also had ten years’
experience as a case worker and case manager at a nearby correctional institute. In
contrast, Schottel had no teaching experience and only three years’ relevant
professional experience as a probation officer. The email sent by Drew, the
administrator responsible for setting faculty salaries, to colleagues before Hayes’s
hiring demonstrates that the $1,500 annual salary difference was based on Hayes’s
objectively more extensive experience. The email reflects a “finely calibrated
evaluation[],” based on legitimate factors, that resulted in a marginal pay differential
permissible under the Equal Pay Act. Brousard-Norcross v. Augustana Coll. Ass’n,
935 F.2d 974, 979 (8th Cir. 1991).
Schottel maintains that her being hired before Hayes demonstrates her
superior experience. This assumption is erroneous, as Schottel conflates Peru State’s
hiring and salary decisions. The record contains Peru State’s reasons for hiring
Schottel before Hayes, which differ from its reasons for paying her approximately
three percent less than Hayes. Schottel acknowledges that Peru State’s hiring
decisions, led by a hiring committee, are based on both objective and subjective
criteria, and the record reflects Peru State’s focus on the subjective criteria, including
Schottel’s interview performance and the diversity that she would bring to the
faculty, which supported the school’s choice to hire her first. In contrast, Schottel
does not dispute that salary decisions, generally made by the vice president of
academic affairs, are based solely on objective criteria. Schottel also highlights her
2017 promotion as evidence of her qualifications, but we agree with NSCS that the
decision to promote Schottel is not evidence of a superior resume when she was
hired five years earlier.
The district court appropriately resolved this claim at the summary judgment
stage because the determination that Hayes had more experience than Schottel did
not require weighing the evidence and no reasonable jury could have found that the
slight pay differential was based on Schottel’s sex. This case does not present a
scenario in which the male employee had significantly fewer qualifications or
capabilities than the lesser-paid female employee. See, e.g., Simpson v. Merchs. &

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Planters Bank, 441 F.3d 572, 579 (8th Cir. 2006) (detailing job capabilities of female
employee in comparison to job capabilities of higher-paid male employee). We
conclude that the district court correctly granted NSCS summary judgment on
Schottel’s Equal Pay Act and gender discrimination claims. In the absence of
“intentional discrimination” and without “the authority to sit as super-personnel
departments,” we make no comment on the “wisdom or fairness” of Peru State’s
hiring and salary decisions. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136
(8th Cir. 1999) (en banc) (citation omitted).
B.
Schottel next argues that NSCS violated Title VII because it issued her a
terminal contract in retaliation for her complaints about Galardi and unequal pay.
Title VII contains an antiretaliation provision that prohibits an employer from
discriminating against an employee because the employee opposed a practice made
unlawful by Title VII. Muldrow v. City of St. Louis, 30 F.4th 680, 690-91 (8th Cir.
2022). Because Schottel relies on indirect evidence, we apply the McDonnell
Douglas3 framework to her Title VII retaliation claim. See id. at 691. “To establish
a prima facie case of retaliation, an employee-plaintiff must show that ‘(1) she
engaged in protected conduct, (2) she suffered a materially adverse employment act,
and (3) the adverse act was causally linked to the protected conduct.’” Id. (citation
omitted). Then, “[i]f the employee establishes a prima facie case, ‘the burden shifts
to the employer to articulate a legitimate, non-retaliatory reason for its action.’ If
the employer satisfies its burden, ‘the burden then shifts back to the employee to put
forth evidence of pretext.’” Id. (citations omitted).
We agree with the district court that Schottel engaged in protected activity by
complaining to Borchers about the pay differential, and she suffered a materially
adverse employment act when she received a terminal contract. The parties focus
their dispute, however, on whether Schottel proved a causal link between her
3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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complaints to Borchers and the later terminal contract. Schottel “must prove that
her opposition to unlawful discrimination was the ‘but for’ cause of the employer’s
adverse action.” Porter v. City of Lake Lotawana, 651 F.3d 894, 898 (8th Cir. 2011)
(citation omitted). Schottel’s retaliation claim hinges on Galardi initiating an
investigation into Schottel’s early class dismissals after Schottel met with Borchers
and raised concerns about Galardi and the pay differential between her and Hayes.
However, Schottel fails to demonstrate that Galardi, as the decision-maker
responsible for the investigation that led to her termination, had any awareness of
Schottel’s protected activity when he began the investigation. Id. at 899 (concluding
that employee’s opposition to unlawful discrimination could not have played role in
her discharge when she offered no evidence that decision-makers responsible for
discharge had knowledge of protected conduct). Galardi stated under oath that he
was unaware of Schottel’s complaints when he began the investigation, and Borchers
similarly stated under oath that he had not shared Schottel’s complaints with Galardi.
Schottel confirmed that Borchers had told her that he would keep her concerns in
confidence. The evidence instead supports NSCS’s position that Galardi began his
investigation because a student approached him with concerns about Schottel’s
management of her class.
Schottel’s reliance on temporal proximity falls short of establishing causation.
Schottel highlights the fact that Galardi’s investigation began less than three weeks
after her meeting with Borchers. However, “temporal proximity alone is insufficient
to demonstrate a genuine issue of material fact as to whether conduct was
retaliatory.” Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062, 1069 (8th Cir. 2017).
And although we have determined that a six-week period can “plausibly allege[] a
but-for causal connection,” NSCS presents a “lawful, ‘obvious alternative
explanation[]’ for the alleged conduct” that renders Schottel’s theory of causation
based on temporal proximity implausible. See Wilson v. Ark. Dep’t of Hum. Servs.,
850 F.3d 368, 373 (8th Cir. 2017) (citation omitted). That lawful alternative
explanation is Schottel’s habitual early dismissal and cancellation of class and
failure to follow the syllabus, in violation of school policy.

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Even if Schottel proves causation, Schottel fails to put forth evidence
demonstrating pretext in response to NSCS’s legitimate reason for issuing her a
terminal contract. “To show pretext, the [employee] must both discredit [the
employer’s] proffered reasons for the alleged retaliatory action and show that the
circumstances permit drawing a reasonable inference that retaliation was the real
reason for the adverse employment action.” Sellars v. CRST Expedited, Inc., 13
F.4th 681, 694 (8th Cir. 2021), cert. denied, 142 S. Ct. 1361 (2022). As described
above, the evidence does not support the inference that Schottel’s complaints to
Borchers were the reason for her later termination when Galardi, the decision-maker
responsible for initiating the investigation, was unaware of her complaints. Schottel
also relies on evidence that Galardi and Borchers knew of a similarly situated male
colleague who also dismissed class early yet took no action against him. This vague
evidence does not permit a reasonable inference of pretext because Schottel merely
speculates as to the frequency of the male colleague’s actions in violation of NSCS
policy. See Doucette v. Morrison Cnty., 763 F.3d 978, 984 (8th Cir. 2014)
(explaining that female employee did not provide enough information about male
coworkers to create genuine issue of material fact regarding pretext because “[w]e
gauge the seriousness of misconduct in part based on its frequency, and [she] has not
indicated how many times these asserted comparators engaged in the misconduct for
which she asserts they should have been disciplined”). Because Schottel shows
neither causation nor pretext, the district court did not err in granting NSCS summary
judgment on Schottel’s retaliation claim.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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