                            Nos. 95-2873/2875/3170/3288


Pauline Brine,                             *
Elizabeth Pelton,                          *
and Nancy Thompson,                        *
                                           *
        Appellees/                         *
         Cross-Appellants,                 *
                                           * Appeals from the United States
          v.     *                         District Court for the
                 *                         Southern District of Iowa.
University of Iowa and                     *
Iowa State Board of Regents,               *
                                           *
         Appellants/                       *
         Cross-Appellees.                  *




                             Submitted:   May 16, 1996

                              Filed:   July 19, 1996


Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

        Pauline Brine, Elizabeth Pelton, and Nancy Thompson were tenured
associate professors in the dental hygiene program at the University of
Iowa.     In 1991, the dental hygiene program, leading to a baccalaureate
degree after four years of study, was a separate department within the
College of Dentistry, and Professor Brine was the chair of the department.
All of the faculty and students in the dental hygiene program were women.


        Early in 1991, according to the plaintiffs, the university president
and the dean of the College of Dentistry decided to eliminate the dental
hygiene program from the university's
offerings, but they did not tell the faculty at that time.      The dean made
a public recommendation to that effect to the university in September,
1991.    The plaintiffs objected to that recommendation.   We assume, without
deciding, that the plaintiffs framed at least some of those objections in
terms of sex discrimination.     After various committees, both inside and
outside the university, reviewed the recommendation, the Board of Regents
voted in April, 1992, to close the dental hygiene program.       Three of the
four tenured faculty members then filed sex discrimination charges with the
relevant federal and state agencies.   A month later, the dean announced the
phase-out plan for the dental hygiene program.     The four tenured faculty
members from that program then moved into another department within the
College of Dentistry.      Students already enrolled in the program were
permitted to continue until they graduated; no new students were enrolled
after April, 1992.


        Three of the four tenured faculty members subsequently sued the
university and its Board of Regents (which we treat collectively as "the
university"), alleging sex discrimination.   The causes of action were based
on the first and fourteenth amendments (through 42 U.S.C. § 1983), Title
VII (of the Civil Rights Act of 1964), Title IX (of the Education
Amendments of 1972), the Iowa constitution, and the Iowa civil rights
statutes.     The plaintiffs also alleged retaliation by the university
(for their allegations of sex discrimination in the recommendation and
decision to close the dental hygiene program), actionable under Title VII,
Title IX, and the Iowa civil rights statutes.


        At a 12-day mixed bench/jury trial in 1995 before a magistrate (by
consent of the parties), the trial court found for the university on all
Title VII and Title IX claims that arose before November, 1991 (when the
right to a jury trial on disparate treatment claims became effective), and
on the disparate impact




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claim based on Title VII, Title IX, and state law.                 The jury found
for the university on the disparate treatment claim based on Title VII,
Title IX, and state law.   The trial court granted judgment as a matter of
law to the university on the fourteenth amendment and equivalent Iowa
constitutional claims (due process, equal protection).          The jury found for
the plaintiffs on the first amendment and equivalent Iowa constitutional
claims and on one retaliation claim (lower salary increases), but the trial
court granted judgment as a matter of law to the university on each of
those verdicts.


     The jury found for the plaintiffs on the remaining retaliation claims
and awarded damages of $65,000 to each plaintiff; the trial court awarded
attorneys' fees and costs of approximately $227,800 to the plaintiffs.           The
university appeals, arguing that, as a matter of law, it took no "adverse
employment action" that could be considered retaliation for allegations of
sex discrimination.   We agree.   We thus reverse the judgment of the trial
court on the retaliation claims and direct the trial court to enter
judgment for the university on those claims.


     The   plaintiffs   cross-appeal    the   trial   court's    verdict   for   the
university on the disparate impact claim, the denial of judgment as a
matter of law on the disparate treatment claim, and the grant of judgment
as a matter of law on the due process, first amendment, and salary-related
retaliation claims.     The plaintiffs also cross-appeal the trial court's
refusal to admit into evidence a complete copy, rather than just a summary,
of an opinion on an earlier sex discrimination case against the university;
the trial court's refusal to instruct the jury separately on Title VII and
Title IX; and the trial court's refusal to submit to the jury, as a state-
law claim, the disparate impact issue.        We affirm the judgments of the
trial court with respect to all of those issues,




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and, accordingly, we vacate the trial court's award of attorneys' fees and
costs to the plaintiffs.


                                     I.
     To prevail on a retaliation claim, the plaintiffs must prove that
they engaged in protected activity and that they suffered an adverse
employment action as a result of that activity.    See, e.g., Evans v. Kansas
City, Missouri, School District, 65 F.3d 98, 100 (8th Cir. 1995), cert.
denied, 116 S. Ct. 1319 (1996).   The plaintiffs characterize the following
actions as retaliation for their complaints that sex discrimination played
a part in the recommendation and decision to close the dental hygiene
program -- (1) exclusion from the various committees that reviewed the
recommendation to close the program and exclusion from participation in
planning for the phase-out of the program; (2) the abolition of the
department as an administrative unit as of mid-1992 rather than as of
mid-1995, when the last dental hygiene students graduated; and (3) the
change in Professor Brine's title from "chair" of the "department" to
"coordinator" of the "program," along with a loss of secretarial help, a
requirement that she have her department chair's permission to order
supplies, and a requirement that, as coordinator of the program, Professor
Brine communicate "program concerns" to a committee rather than directly
to the dean.


     With respect to the plaintiffs' alleged exclusion from the various
review committees and the process of planning for the phase-out of the
program, the plaintiffs have directed us to nothing that establishes their
right to be so included.    They point to no law, custom, or practice that
gives them such a right.   We note, moreover, that each plaintiff testified
before at least one of the review committees.     Finally, we see no evidence
other than timing tending to establish that the challenged exclusions of
the plaintiffs were because of their allegations of sex discrimination.




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Timing alone is not enough in the circumstances of this case.           See, e.g.,
Nelson v. J. C. Penney Company, Inc., 75 F.3d 343, 346-47 (8th Cir. 1996),
petition for cert. filed (U.S. May 20, 1996).        Without a causal connection
between the plaintiffs' allegations of sex discrimination and the alleged
exclusions, the plaintiffs lose, as a matter of law.         See, e.g., Evans, 65
F.3d at 100.


        With respect to the university's decision to abolish the dental
hygiene department as an administrative unit, rather than retaining it
until mid-1995, when the remaining dental hygiene students graduated, the
plaintiffs again have directed us to no law, custom, or practice that
requires the department to be retained.        Nor do we see any evidence tending
to establish that the university's decision in that regard was motivated
by sex discrimination.     Without such evidence, the plaintiffs lose, as a
matter of law.     Id.


        Finally, with respect to the change in Professor Brine's title and
the new administrative procedures instituted, we view all of those events
as inevitable consequences -- or side effects, so to speak -- of the
decision to close the dental hygiene department.           We see no evidence that
would    support   the   theory   that    those   events    were   caused   by   sex
discrimination by the university.        Without such evidence, the plaintiffs
lose, as a matter of law.     Id.


                                         II.
        The plaintiffs alleged a disparate impact claim under Title VII,
Title IX, and state law.          The trial court granted judgment to the
university on all of those claims.On cross-appeal, the plaintiffs first
assert that the seventh amendment gave them a right to a jury trial on the
state-law claim.    The seventh amendment guarantees the right to a jury for
all "Suits at common law" where more than twenty dollars is at stake.            See
U.S. Const. amend. VII.     We need not reach this question, however,




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because we hold that the plaintiffs failed to make a submissible case with
respect to their state-law disparate impact claim.


        The Iowa courts have held that the state civil rights statutes, see
Iowa Code Ann. § 216.6.1.a, § 216.9.1, § 216.9.3, are "patterned after
Title VII." Smith v. ADM Feed Corp., 456 N.W.2d 378, 382 (Iowa 1990).   The
Iowa courts also characterize the federal case law on Title VII as
"instructive," Annear v. State, 419 N.W.2d 377, 379 (Iowa 1988), with
respect to the state civil rights statutes.      We therefore consider the
federal case law on Title VII in evaluating the plaintiffs' state-law
disparate impact claim.


        The trial court found that the decision to close the dental hygiene
program was "part of a [year-long] process relating to the University's
strategic plan."      The goal of the strategic plan is "to strengthen
undergraduate education, selected professional and graduate programs, and
the diversity of the University community."       It seems to us that the
"challenged practice" in this case, Wards Cove Packing Company, Inc. v.
Atonio, 490 U.S. 642, 659 (1989), is actually the use of the strategic
plan.    We hold, as a matter of law, that no reasonable juror could find
that the use of the strategic plan in question does not "serve[], in a
significant way, the legitimate ... goals" of the university, id.


        The plaintiffs offered no evidence relative to an "alternative ...
practice," see 42 U.S.C. § 2000e-2(k)(1)(A)(ii), § 2000e-2(k)(1)(C), that
could substitute for the use of the strategic plan.      The university was
therefore entitled to judgment as a matter of law on the state-law
disparate impact claim.   See, e.g., MacPherson v. University of Montevallo,
922 F.2d 766, 772 (11th Cir. 1991), and Dwyer v. Smith, 867 F.2d 184, 189
(4th Cir. 1989).   That disposition thus moots the issue of whether a jury
trial was required on the state-law claim.    For the same reasons,




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the trial court was correct in granting judgment as a matter of law to the
university on the federal disparate impact claim.


                                        III.
      The jury found for the university on the disparate treatment claim.
On   cross-appeal,   the   plaintiffs   essentially   argue   that   because   the
university gave different reasons for closing the dental hygiene program
at different times (cost, lack of centrality), the plaintiffs proved
pretext.   We have read the entire trial transcript.     The issue was clearly
a submissible one, and we therefore refuse to disturb the jury verdict.


                                        IV.
      The trial court held, as a matter of law, that the university and the
Board of Regents were immune, under the eleventh amendment, from suit on
the due process and first amendment claims (brought through 42 U.S.C.
§ 1983).    The plaintiffs argue on cross-appeal, first, that the trial
court's legal analysis was wrong and, second, that the acts complained of
were proprietary functions, not governmental ones, and therefore should not
be subject to immunity.


      Because the plaintiffs asked only for damages and not for injunctive
relief on the claims under 42 U.S.C. § 1983, the trial court was correct
in its legal analysis.     See, e.g., Sherman v. Curators of the University
of Missouri, 16 F.3d 860, 863-65, 865 n.6 (8th Cir. 1994); see also Van
Pilsum v. Iowa State University, 863 F. Supp. 935, 936-40 (S.D. Iowa 1994).
The plaintiffs' proprietary/governmental argument, moreover, goes to the
question of sovereign immunity, not eleventh amendment immunity, see, e.g.,
Sherman, 16 F.3d at 862 n.2, although whether a state has waived its
sovereign immunity is one of the criteria to be considered in determining
the issue of eleventh amendment immunity, see, e.g., id. at 864, 864 n.5,
865 n.6.    In any event, hiring and firing employees (and, by analogy,
establishing and closing departments)




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are governmental, not proprietary, functions.   See, e.g., Nichols v. City
of Kirksville, 68 F.3d 245, 247 (8th Cir. 1995).


                                    V.
     The jury found for the plaintiffs on the retaliation claim tied to
lower salary increases, but the trial court granted   judgment as a matter
of law to the university on that claim.   The basis for that ruling was the
trial court's determination that because the plaintiffs' comparison of
salary increases was based on noncomparable sources for salary payments
(i.e., the other faculty members in the College of Dentistry were eligible
for money from the dental clinic operated by the university, grants, and
contracts, but the faculty members from the dental hygiene program were not
so eligible), the plaintiffs failed to offer sufficient evidence of a
disparity in salary increases.


     On cross-appeal, the plaintiffs essentially reargue the evidence.
We agree with the trial court that the comparison of salary increases
offered by the plaintiffs was insufficient, as a matter of law.        The
plaintiffs therefore failed to show an adverse employment action by the
university, and, accordingly, there is no error in the trial court's
ruling.


                                   VI.
     The plaintiffs argue on cross-appeal that instead of reading only the
summary of the opinion in Jew v. University of Iowa, 749 F. Supp. 946 (S.D.
Iowa 1990), an earlier case in which the university was found liable for
sex discrimination, the trial court should have allowed the jury to see the
whole opinion.    We agree with the court's post-trial assessment that
because the facts and the legal theory in the earlier case were so
different from those in this case, references to the earlier case should
not have been allowed at all.    See, e.g., Bradford v. Norfolk Southern
Corp.,




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54 F.3d 1412, 1418-19 (8th Cir. 1995).                 We therefore reject the plaintiffs'
argument on that issue.


                                                VII.
        Title   VII    (of       the    Civil        Rights    Act     of    1964)    proscribes
sex discrimination "with respect to ... compensation, terms, conditions,
or privileges of employment."            See 42 U.S.C. § 2000e-2(a)(1).              Title IX (of
the Education Amendments of 1972) proscribes sex discrimination with
respect to "participation in" or "the benefits of ... any education
program" receiving federal money.                See 20 U.S.C. § 1681(a).            The federal
regulations     on    Title      IX    construe       its    prohibitions     as     applying    to
"promotion, ... demotion, transfer," see 34 C.F.R. § 106.51(b)(2), "[j]ob
assignments,      classifications              and        structure,    including          position
descriptions,"        see     34      C.F.R.    §      106.51(b)(4),        and    "[a]ny     other
term,     condition,        or     privilege         of     employment,"      see     34    C.F.R.
§ 106.51(b)(10).       The university does not challenge the proposition that
a private right of action exists under Title IX.                        See, e.g., Cannon v.
University of Chicago, 441 U.S. 677, 689, 709, 717 (1979).


        On cross-appeal, the plaintiffs contend that because the language of
the two statutes (especially as amplified in the regulations applicable to
Title IX) is slightly different, the elements of proof are slightly
different and, thus, that the trial court should have instructed the jury
separately as to each of those claims.                 Our court has remarked that "to the
degree [a plaintiff] relies upon teaching conditions, such as course
assignments," a Title IX claim "merely duplicates" a Title VII claim.
O'Connor v. Peru State College, 781 F.2d 632, 642 n.8 (8th Cir. 1986).
Other circuits have explicitly declared that for employment discrimination
cases, "the Title VII standards for proving discriminatory treatment should
apply to claims arising under Title IX."                    Lipsett v. University of Puerto
Rico, 864 F.2d




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881, 896 (1st Cir. 1988); see also Preston v. Commonwealth of Virginia ex
rel. New River Community College, 31 F.3d 203, 206-07 (4th Cir. 1994), and
Mabry v. State Board of Community Colleges and Occupational Education, 813
F.2d 311, 316-17 n.6 (10th Cir. 1987), cert. denied, 484 U.S. 849 (1987).
We are persuaded by those opinions and therefore uphold the trial court's
action.


                                  VIII.
     For the reasons stated, we reverse the trial court's judgment for the
plaintiffs on the retaliation claims and direct the trial court to enter
judgment for the university on those claims.   We affirm the trial court's
judgments on all of the other issues discussed and, accordingly, vacate the
trial court's award of attorneys' fees and costs to the plaintiffs.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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