2017
WL 129114

Only
the Westlaw citation is currently available.

United
States Court of Appeals,

Seventh
Circuit.

Celeste
David, Plaintiff–Appellant,

v.

Board
of Trustees of Community College District No. 508, doing business as City
Colleges of Chicago, Defendant–Appellee.

No.
15-2132

Argued
January 14, 2016

Decided
January 13, 2017

 

Ripple, Circuit Judge.

 

*1 Celeste David, an African–American woman over the age of
forty, was an employee of the City Colleges of Chicago (“CCC”) from 1980 until
2012. She announced in August 2011 that she planned to retire in June of the
following year. After her announcement, she requested a change in title and an
increase in salary because she was performing additional responsibilities
related to the implementation of a software system; she was not awarded either.
Following her retirement, her job duties were performed by Christopher Reyes,
an Asian man under the age of forty, who was paid substantially more than Ms. David.

 Ms. David subsequently brought this action alleging that she
was denied a pay increase on the basis of her race, sex, and age, in violation
of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the Equal Pay
Act, 29 U.S.C. § 206(d). The district court granted summary judgment to CCC.
Because we believe that the record, assessed in its entirety, does not contain
sufficient evidence to permit a verdict for Ms. David on any of the counts, we
now affirm the judgment of the district court.

I

BACKGROUND

A.

 

Ms. David began working for CCC in October 1980. She held
different positions throughout her career, but her final position at CCC was
Manager of End–User Services in CCC’s Office of Information Technology (“OIT”). 

In that position, Ms. David worked in computer support: she
oversaw staff at the help desk and compiled internal reports of student data
and external reports of staffing, building, and salary data required by the
Illinois Community College Board and the Illinois Board of Higher Education.
According to the job description for the Manager of End–User Services position,
the qualifications include a “Bachelor’s Degree in Computer Science,
Information Science, Computer Information Systems, Data Processing, or an
appropriate related field.”1 The job description also provides,
however, that “[a] combination of educational and work experience may be taken
into consideration at the discretion of the administration.”2 Ms. David’s
salary at the time of her retirement in 2012 was $75,594.67.

In 2001, “CCC implemented a new web application[,]
PeopleSoft[,] for the collection and retention of [CCC’s] educational,
personnel, and financial data.”3 PeopleSoft has several “pillars”
directed toward different aspects of school administration: student
administration, human resources, and financials.4 When CCC began
implementing the PeopleSoft application, Ms. David “was assigned to handle the
security function of the application,” which “included: acting upon requests to
give or remove a CCC employee or student’s access to various levels of the
PeopleSoft pillars and creating reports detailing which individuals had what
levels of access to the system.”5 From the time PeopleSoft was
implemented in 2001 until October 11, 2011, CCC contracted with a company
called Sync Solutions “to provide staff augmentation services to the OIT.”6
During this time, a Sync Solutions IT consultant, Christopher Reyes, assisted
Ms. David with her PeopleSoft security duties.

 *2 In 2011, due to the expiration of the contract with Sync
Solutions, OIT made an effort to hire internally former Sync Solutions
consultants to support PeopleSoft and other key applications. One of those
individuals was Reyes.7 In October 2011, Reyes applied for, and
received, the position of “Functional Applications Analyst,” which required a
Bachelor’s Degree in a relevant field.8 In that position, he “was
responsible for configuring the PeopleSoft Student Administration pillar” and
reported directly to Valerie Davis, District Director of PeopleSoft Student
Systems.9 Initially, Reyes continued to assist Ms. David with her
PeopleSoft security duties, specifically generating required reports. Once he
had taught Ms. David his methods for performing these tasks, she began
performing these functions on her own, and Reyes focused exclusively on the
PeopleSoft student administration application.

On August 1, 2011, prior to CCC’s hiring Reyes, Ms. David had
announced her intention to retire on June 30, 2012. Approximately one month
later, Ms. David met with Craig Lynch, the Vice Chancellor for OIT, who had the
authority to make promotion recommendations to the Chancellor.10 Ms.
David asked Lynch for a new job title and more pay because she was performing
additional tasks related to PeopleSoft security. Lynch told Ms. David to
complete a Job Analysis Questionnaire (“JAQ”), a form that CCC employees can
fill out to request more pay or a different title. Lynch also said that he
would look into her job description and pay level. At some point during the
meeting, Lynch inquired of Ms. David, “aren’t you about to retire[?]”11

Lynch reviewed Ms. David’s job description and acknowledged
that it did not include a description of Ms. David’s PeopleSoft security
duties. However, he concluded that, even if some change should be made in job
description or job title, it was a lateral move that did not require additional
compensation because the additional duties were “transactional in nature and
did not involve analysis, critical thinking [or] problem solving.”12
Lynch did send an email to CCC’s Executive Director of Compensation and
Staffing, Jane Barnes,13 which stated: “Celeste David is working in
a position that is not in alignment with her description…. Does it make sense
to retitle her (not sure if she would need additional compensation)? Let me
know. I need to update her on what the possibilities are.”14

 

In her deposition, Barnes testified that she does not recall
specifically responding to Lynch, but believes that she spoke to him. It is
undisputed, however, that she would have been disinclined to seek a raise for
Ms. David because giving her a raise over a certain amount would have resulted
in a fine by the State University Retirement System (“SURS”).15
Moreover, Barnes did not believe that Ms. David’s position should be retitled
or that she should receive a raise “because the creation and approval of a new
position and salary would take several months, and [Ms. David] was retiring in
June 2012.”16

As Lynch had instructed, Ms. David filled out a JAQ. The
questionnaire never was processed, and Ms. David remained at her same pay
level, $75,594.67, and in her position of Manager of End–User Services, until
her retirement.

 

In February 2012, Ms. David filed an internal Equal
Employment Opportunity Complaint. On that form, Ms. David claims that she met
with Lynch on three different occasions to discuss her pay and title. On each
occasion, according to Ms. David, Lynch referenced her impending retirement.
CCC’s internal EEO office confirmed receipt of Ms. David’s complaint form on
February 3, 2012, but was unable to resolve the complaint before Ms. David
retired in June.

*3 When Ms. David retired at the end of June 2012, the PeopleSoft
security functions reverted back to Reyes. He did not receive any increase in
pay for taking on these additional duties. However, after Reyes’s position was
claimed by the union, he received a mandatory pay increase to $85,280 pursuant
to the collective bargaining agreement.

 

Six months after Ms. David retired, Reyes applied for the
newly created,17 non-union position of Senior Systems Security
Analyst.18 During his interview, he told the committee that he would
like to retain his job duties as a Functional Applications Analyst as well.19
Reyes was hired into the position of Senior Systems Security Analyst on
December 10, 2012, with an annual salary of $93,808.20 “At that
time, it was [CCC’s] practice to grant a 10% pay increase to CCC employees who
were internally promoted into positions designated in Salary Schedule N
(non-Union).”21

In April 2013, CCC hired Rosane Rodriguez, a Hispanic female
over forty, to the position of Technical Applications Developer with an annual
salary of $85,000. Rodriguez has a Bachelor of Science degree in Computer
Information Services, which is a requirement of the position. She was hired
into that position to develop an “interaction hub portal”22 and also
to assist Reyes with the PeopleSoft security duties.

 

B.

 

Ms. David filed a four-count complaint alleging that she had
been discriminated against on the basis of her age, gender, and race, in
violation of the ADEA, Title VII, and the Equal Pay Act.23 CCC moved
for summary judgment on all counts. Ms. David claimed that Lynch’s comments
about her impending retirement, his failure to process her JAQ, and CCC’s slow
response to her EEO complaint demonstrated both age discrimination and pretext.
She further maintained that Reyes and Rodriguez performed equivalent work but were
compensated at a much higher level. The disparities, she maintained, evidenced
gender, race, and age discrimination. Finally, she contended that Lynch’s and
Barnes’s explanations for failing to accord her a new title or higher pay were
unworthy of credence.

 

The district court ruled in favor of CCC.24 It
turned first to isolating the adverse employment actions of which she
complained. It first noted that Ms. David had to establish that she suffered an
adverse employment action on the basis of her gender, race, or age, and
observed that the only materially adverse actions that Ms. David alleged were
unequal pay and failure to reclassify her position. Although Ms. David had
argued that Lynch’s and Barnes’s failure to properly process her JAQ and CCC’s
failure to attend promptly to her EEO complaint were materially adverse
actions, the court disagreed. It observed that neither action affected “the
claimant’s employment status such as hiring, discharge, denial of promotion,
reassignment to a position with significantly different job responsibilities,
or an action that causes a substantial change in benefits.”25
“Instead those failures [we]re, at most, the vehicles by which CCC did
engage in materially adverse employment actions—that is, CCC’s denial of David’s
request for a better job title and more pay.”26

 

*4 The court then concluded that Ms. David had not come
forward with a similarly situated employee who was treated more favorably than
she was treated. The court noted that, in order to be similarly situated, the
employee had to be similar “in all material respects.”27 Ms. David’s
proposed comparators, however, did not meet this requirement. With respect to
Reyes, the court explained that, when CCC hired Reyes from Sync Solutions as a
full-time Functional Applications Analyst, he had a Bachelor of Science degree
in Computer Information Systems, a qualification that Ms. David did not have.
Moreover, in his position, Reyes performed “totally different” duties than what
he performed while working for CCC as a Sync Solutions consultant;28
specifically, he worked on PeopleSoft Administration—a pillar on which Ms. David
never worked. Later Reyes applied for, and was given, the position of Senior
Systems Security Analyst. In sum, the district court rejected Ms. David’s claim
that Reyes simply was doing her old job, but with higher pay than she received.
The district court noted that the new position filled by Reyes required a
Bachelor of Arts or Science degree in Computer Science, with seven years of
related experience in systems analysis, design, software support and
application of security controls. Ms. David’s job description, however, did not
require a bachelor’s degree, or the same kind of software experience.

 

Ms. David fared no better in comparing herself to Rodriguez.
The district court noted that Rodriguez’s position, like Reyes’s, required a
college degree. Additionally, Rodriguez’s position centered on the development
of “the interaction hub,”29 which admittedly was not part of Ms. David’s
responsibilities. The district court therefore concluded that neither employee
was sufficiently similar to Ms. David to serve as a comparator.

 

With respect to her age claim, the district court also
concluded that Lynch’s remarks concerning Ms. David’s impending retirement,
without more, did not establish that Lynch was motivated by Ms. David’s age in
denying her a new title or more pay.

 

Turning to Ms. David’s Equal Pay Act claim, the court noted
that, in order to establish a prima facie case, the plaintiff first “must show
that different wages are paid to employees of the opposite sex. Second,
plaintiff must show that she did equal work which requires equal skill, effort
and responsibility. Third, plaintiff must show that the employees have similar
working conditions.”30 If Ms. David were to establish this, the
court continued, the burden would then shift to CCC to show that the pay
disparity was due to “(1) a seniority system, (2) a merit system, (3) a system
which measures earnings by quantity or quality of production or (4) any other
factor other than sex.”31 The district court concluded that, even if
Ms. David had established a prima facie case under the Equal Pay Act, “that
claim must fail based on the facts that doom [Ms.] David’s Title VII and ADEA
claims,” namely that the disparity in pay is attributable to Reyes’s college
degree.32

 

Ms. David timely appealed.33

 

II

DISCUSSION

A.

 

12“We review de novo a district court’s grant of summary
judgment. Summary judgment is appropriate when, after construing the record in
the light most favorable to the nonmoving party, we conclude that no reasonable
jury could rule in favor of the nonmoving party.” Bagwe v. Sedgwick Claims
Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted).

After the district court had issued its decision in this
case and after the case was briefed on appeal, we decided Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Ortiz explicitly
instructed district courts to “stop separating ‘direct’ from ‘indirect’
evidence and proceeding as if they were subject to different legal standards.” Id.
at 765. Instead, the test “is simply whether the evidence would permit a
reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex,
religion, or other proscribed factor caused the discharge or other adverse
employment action.” Id. Ortiz, however, did not alter “[t]he
burden-shifting framework created by McDonnell Douglas Corp v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id. at 766
(parallel citations omitted). As we have explained, both before and after Ortiz,
McDonnell Douglas is a means of organizing, presenting, and assessing
circumstantial evidence in frequently recurring factual patterns found in
discrimination cases. See, e.g., Volling v. Kurtz Paramedic Servs.,
Inc., 840 F.3d 378, 383 (7th Cir. 2016) (observing that a “prima facie case
in Title VII litigation … refers to a common, but not exclusive,
method of establishing a triable issue of intentional discrimination” (emphasis
added) (internal quotation marks omitted)); Morgan v. SVT, LLC, 724 F.3d
990, 997 (7th Cir. 2013) (explaining that “the original purpose of McDonnell
Douglas … was to outline a series of steps that, if satisfied, would
support a plaintiff’s right to reach a trier of fact”).34 As Ortiz
and our other case law make clear, however, McDonnell Douglas is not the
only way to assess circumstantial evidence of discrimination. In adjudicating a
summary judgment motion, the question remains: has the non-moving party
produced sufficient evidence to support a jury verdict of intentional
discrimination? Morgan, 724 F.3d at 997 (“The central question at issue
is whether the employer acted on account of the plaintiff’s race (or sex,
disability, age, etc.).”).

 

*5 Because the McDonnell Douglas framework survived Ortiz,
and because Ms. David has presented her argument in those terms, we will begin
our assessment of the evidence by employing that construct and addressing first
whether Ms. David has established a prima facie case of discrimination. We will
then, however, assess cumulatively all the evidence presented by Ms. David to
determine whether it permits a reasonable factfinder to determine that her
smaller salary was attributable to her age, race, or sex.

 

 

3Ms. David’s Title VII and ADEA claims are essentially
disparate pay claims: she claims that employees who were younger,
non-African–American, or male were paid more than she was paid for equivalent
work, or, at the very least, were compensated for taking on additional work
when she had not been compensated.35

1.

45Generally speaking, under McDonnell Douglas, the
plaintiff has the initial burden of establishing that “(1) she is a member of a
protected class, (2) she performed reasonably on the job in accord with her
employer[‘s] legitimate expectations, (3) despite her reasonable performance,
she was subjected to an adverse employment action, and (4) similarly situated
employees outside of her protected class were treated more favorably by the
employer.” Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir.
2014) (internal quotation marks omitted), overruled on other grounds by
Ortiz, 834 F.3d at 765. “If the plaintiff satisfies that burden, then the
employer must articulate a legitimate, nondiscriminatory reason for the adverse
employment action, at which point the burden shifts back to the plaintiff to
submit evidence that the employer’s explanation is pretextual.” Id.
Although previously we have noted that “[i]t is somewhat unclear what standard
guides the determination of a prima facie case of disparate pay under
Title VII,” Cardoso v. Robert Bosch Corp., 427 F.3d 429, 433 (7th Cir.
2005) (emphasis in original), in a more recent case, we have applied the
standard McDonnell Douglas framework for evaluating disparate pay claims
under Title VII and the ADEA, see Warren v. Solo Cup Co., 516 F.3d 627,
630 (7th Cir. 2008). Consequently, that will provide the basis for analyzing
Ms. David’s pay claims under Title VII and the ADEA.

 

*6 6There is no question that Ms. David is a member of a
protected class, that she was performing her job in an acceptable manner, and
that she was being paid less than Reyes and Rodriguez. We must focus therefore
on whether Reyes and Rodriguez were similarly situated to Ms. David. We have
observed that whether employees are similarly situated is a “flexible,
common-sense, and factual” inquiry. Coleman v. Donahoe, 667 F.3d 835,
841 (7th Cir. 2012). Relevant factors include “whether the employees (i) held
the same job description, (ii) were subject to the same standards, (iii) were
subordinate to the same supervisor, and (iv) had comparable experience,
education, and other qualifications—provided the employer considered these
latter factors in making the personnel decision.” Warren, 516 F.3d at
631 (quoting Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir.
2005)).

 

7Turning first to Reyes, Ms. David claims that the position
that Reyes ultimately was hired into, the Senior Systems Security Analyst
position, essentially was her old job. She relies on statements by her
supervisor, Robin Jackson, and by Reyes that CCC was looking to fill Ms. David’s
“old position.”36 Regardless of how the position is referenced in
conversation, however, Ms. David must establish that she and Reyes were
“directly comparable … in all material respects.” Alexander v. Casino
Queen, Inc., 739 F.3d 972, 981 (7th Cir. 2014) (internal quotation marks
omitted).

 

Looking first to the job descriptions, it is clear that Ms. David’s
position—“Manager, End–User Services,”—bears little resemblance to Reyes’s
position—“Senior Systems Security Analyst.”37 Ms. David’s position
was focused on developing policies and supervising staff related to the
delivery of services. It required a Bachelor’s Degree in Computer Science or a
related field, but also allowed for “[a] combination of educational and work
experience [to] be taken into consideration at the discretion of the
administration.”38 It required technical expertise in DOS and
Windows, previous experience installing and/or administering other operating
programs, and proficiency in basic software applications.39 The
Senior Systems Security Analyst, by contrast, was responsible for
“[d]efin[ing], configur [ing], and administer[ing]” the PeopleSoft system;
“[e]nsur[ing]” the security of the systems; and “[e]valuat[ing], test[ing],
monitor[ing], and maintain[ing] Oracle security configurations and security
administration policies.”40 In short, the focus of the Senior
Systems Security Analyst position was the development, implementation, and
servicing of the computer systems themselves. The position required a
Bachelor’s Degree in Computer Science, seven years of experience in “systems
analysis, design, software support and application of security controls,” and
“[e]xperience working with PeopleSoft applications.”41

Ms. David does not maintain that she had the qualifications
or the skills to perform the Senior Systems Security Analyst position. Instead,
she maintains that “Reyes … testified, that as a Senior Security Analyst, he
performs the exact same duties that David performed before she retired.”42
Reyes’s deposition testimony, however, does not support this assertion. Reyes
testified that, when he was hired into the Senior Systems Security Analyst
position, he was “perform[ing] the same job duties that [Ms. David] had previously
performed” along with the duties of “the functional application analyst
position that I had before in addition to the senior security analyst.”43
In short, when he was hired into the Senior Systems Security Analyst position,
he was performing Ms. David’s old job duties, the job duties from his own prior
position (Functional Application Analyst), and the new responsibilities of the
Senior Systems Security Analyst position. There simply is no evidence in the
record that Reyes, in his position of Senior Systems Security Analyst, was
performing only duties equivalent to that which Ms. David had performed.

*7 Ms. David also maintains that she was similarly situated
to Rodriguez because Rodriguez “also performed PeopleSoft security duties.”44

 

The fact that one of Ms. David’s job duties eventually found
its way to Rodriguez, who was hired over one year after Ms. David retired, does
not establish that they were similarly situated for purposes of pay. Again,
even a cursory comparison of Ms. David’s job duties with those of a Technical
Applications Developer—the position held by Rodriguez—establishes that
Rodriguez’s job was focused on software installation, testing, documentation,
and maintenance.45 Ms. David does not maintain that she had the qualifications—a
Bachelor’s Degree in Computer Science—or skills to perform these functions.

 

The core duties of Reyes’s and Rodriguez’s positions focused
on the development, installation, and monitoring of software programs that Ms. David
did not, and could not, perform. Neither person is similarly situated to Ms. David
for purposes of her disparate pay claim, and she has failed to establish a
prima facie case of discrimination under Title VII.46

 

2.

 

8In assessing cumulatively all the record evidence without
the assistance of the McDonnnell Douglas paradigm, it is clear that a
reasonable jury could not conclude that any pay disparity was the result of Ms.
David’s age, race, or sex.

 

In addition to the evidence concerning the responsibilities
and pay of Reyes and Rodriguez, Ms. David believes several other pieces of
evidence point to an illicit motive: (1) CCC’s failure to process her JAQ and
complete its EEO investigation prior to her retirement; (2) Lynch’s reference
to Ms. David’s retirement when she inquired about a change in title and raise;
and (3) Lynch’s and Barnes’s lack of credible reasons for not retitling her
position or awarding her a raise.

 

Neither Lynch, the head of the OIT department, nor Barnes,
recalled receiving a JAQ from Ms. David. In light of Ms. David’s request for a
new title and increase in pay, however, Lynch did review her job description
and concluded that it did not reflect the PeopleSoft security duties that she
had been performing.47 In November 2011, Lynch sent an email to
Barnes noting that Ms. David’s PeopleSoft security duties were “not in
alignment with her description” and inquiring if CCC should “retitle her” and
“if she would need additional compensation.”48 Barnes, who was the
person to whom Ms. David’s JAQ would have been directed, “did not believe that
CCC should retitle Plaintiff into a new position because the creation and
approval of a new position and salary would take several months, and Plaintiff
was retiring in June 2012.”49 Additionally, Barnes was concerned
that CCC would incur a penalty by SURS if it increased Ms. David’s pay more
than six percent in the year prior to her retirement.50 Thus,
despite CCC’s failure to process the JAQ, Ms. David nevertheless received a
review of her request.

 

*8 Ms. David notes that it would not have been impossible
to complete the review, retitle her position, and give her a raise before
retirement. She notes that, because the Senior Security Systems Analyst
position was approved at approximately the time that she retired, her position
also could have been evaluated and upgraded before her retirement.

 

The timing of the approval of the Senior Security Systems
Analyst position, however, confirms rather than undermines Barnes’s rationale.
It took the CCC ten months, from the time of Ms. David’s announcement of her
retirement in August 2011 until June 2012, to assess its OIT needs and approve
the Senior Security Analyst position.51 Ms. David has not presented
any evidence that the review of her position could have been accomplished in a
shorter period of time.

More importantly, however, there simply is no reason to
believe that Lynch, who was responsible for making recommendations,52
believed that Ms. David’s performance of PeopleSoft security functions
warranted a promotion or a pay increase. Indeed, Ms. David admitted that Lynch
believed that she was not entitled to a pay increase and that, if her job title
was re-written, it “would be a lateral move, with no change in pay.”53

 

Ms. David now claims that Lynch should not be believed
because he was not her immediate supervisor and, therefore, would not have
known whether her job functions warranted a pay increase. It is undisputed,
however, that Lynch was responsible for the OIT department and had the
authority to make promotion recommendations. Ms. David’s argument, at bottom,
is simply that Lynch did not have sufficient first-hand knowledge to make an
informed promotion recommendation. This is an attack on the wisdom of Lynch’s
decision—or, more accurately, on the wisdom of CCC’s decision to bestow on
Lynch the responsibility for making promotion recommendations—not on the
honesty of Lynch’s explanation. Our role, however, is not to inquire into the
wisdom of an employment decision, but simply to determine if “the employer is
dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105
(2000). Ms. David has not come forward with any evidence that this is the case.

 

Finally, Ms. David notes that Lynch, during at least one of
the meetings concerning her desired promotion and increase in pay, mentioned
her impending retirement. Ms. David would like us to construe those comments as
age-related. The Supreme Court rejected such an approach in Hazen Paper Co.
v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In
that case, the employer had terminated the employment of a sixty-two-year-old
man to prevent his pension plan from vesting. The Court observed that pension
plans typically vest “once the employee completes a certain number of years of
service with the employer…. Because age and years of service are analytically
distinct, an employer can take account of one while ignoring the other, and
thus it is incorrect to say that a decision based on years of service is
necessarily ‘age based.’ ” Id.

 

Similarly, eligibility for retirement may be based on age,
years of service, or a combination of the two. Ms. David has not identified any
record evidence that explains how retirement eligibility is determined at CCC.
We therefore cannot equate retirement eligibility with age.

 

*9 Moreover, Ms. David was not simply eligible for
retirement when she had her initial meeting with Lynch about upgrading her
position and pay; she had announced her intention to retire several months
earlier. Thus, when Lynch referenced her impending retirement, he was not
making any assumptions about retirement eligibility based on Ms. David’s age;
he merely was referencing her current employment status as a “short timer.”

 

Indeed, all of the evidence of “discrimination” points to
this conclusion. Ms. David had made clear that, as of June 2012, she no longer
would be an employee of CCC. Having made that announcement, CCC had little
motivation to expend time and resources retitling or reclassifying her
position. That may not have been an enlightened decision. But there simply is
nothing in the record to support an inference that the decisions were based on
Ms. David’s age, sex, or race, rather than her announcement of her voluntary
retirement.

 

Because the evidence does not permit a reasonable factfinder
to conclude that Ms. David’s age, sex, or race was the cause of her lower pay, see
Ortiz, 834 F.3d at 765, the district court properly granted summary
judgment to CCC on Ms. David’s Title VII and ADEA claims.

 

 

9101112“The Equal Pay Act forbids employers from paying
different rates to men and women for the same work at the same establishment.” Jaburek
v. Foxx, 813 F.3d 626, 632 (7th Cir. 2016) (internal quotation marks
omitted). In order to establish a prima facie case under the Equal Pay Act, a
plaintiff must show: “(1) higher wages were paid to a male employee, (2) for
equal work requiring substantially similar skill, effort and responsibilities,
and (3) the work was performed under similar working conditions.” Merillat
v. Metal Spinners, Inc., 470 F.3d 685, 695 (7th Cir. 2006) (internal
quotation marks omitted). In determining whether two jobs are equal, “we look
to whether the jobs have a ‘common core of tasks, i.e., whether a significant
portion of the two jobs is identical.’ Once a plaintiff establishes a ‘common
core’ of tasks, we ask whether any additional tasks make the jobs
‘substantially different.’ ” Id. (citation omitted) (quoting Cullen
v. Ind. Univ. Bd. of Trs., 338 F.3d 693, 698 (7th Cir. 2003)). In making
this determination, the court “look[s] to the actual job duties performed by
each employee, not to his or her job description or title.” Id.

 

13Ms. David maintains that Reyes was paid a higher salary
for, essentially, performing her old job functions. According to Ms. David,
“Reyes testified that his posit[i]on as Senior Security Analyst was the exact
same job as David before she retired.”54 This does not reflect
accurately Reyes’s testimony. Reyes testified that, in the Senior Systems
Security Analyst position, he performed Ms. David’s PeopleSoft security
responsibilities, along “with the functional application analyst
position that I had before in addition to the senior security analyst.”55
He also testified that the duties listed in the Functional Analyst and Senior
Systems Security Analyst Job descriptions “accurately reflect the duties” that
he performed in those positions.56 As explained in some detail
above, those duties involve the development, implementation, and servicing of
the computer systems.57 The record reveals that Ms. David did not
perform similar duties in her position or that she had the skills to perform
these functions. Reyes’s position, therefore, included responsibilities that
were “substantially different” from those performed by Ms. David and that Ms. David
could not perform. She therefore has not established a prima facie case under
the Equal Pay Act.

 

Conclusion

 

*10 For the reasons set forth in this opinion, the judgment
of the district court is affirmed.

 

AFFIRMED

Footnotes

*

Of the Western District of Wisconsin, sitting by
designation.

1

R.18–26 at 2.

2

Id. at 3.

3

R.28 ¶ 19.

4

R.29–12 (Reyes Dep.) at 10.

5

R.28 ¶ 25.

6

Id. ¶ 21.

7

Reyes previously had been employed at CCC as a student
intern and, in 1999, was promoted to the position of Customer Services
Coordinator. He was hired by Sync Solutions in June 2001 and earned a salary of
approximately $60,000.

8

Reyes has a Bachelor of Science degree in Computer
Information Systems.

9

R.28 ¶ 57.

10

Lynch is both African–American and over forty.

11

R.29 ¶ 4 (internal quotation marks omitted).

12

R.28 ¶ 33.

13

Barnes also is African–American and over forty.

14

Id. ¶ 34.

15

See id. ¶ 36.

16

Id. ¶ 37.

17

The job description reflects that the position was
“[a]pproved by [c]lassification & [c]ompensation” on June 1, 2012. R.18–20
at 2.

18

Ms. David disputes that this is actually a new position. She
claims it is her old position, retitled and with greater qualification
requirements.

19

His duties and responsibilities in the Functional
Application Analyst position included: “[t]est[ing] all PeopleSoft
customizations, enhancements, interfaces and reports”; “[w]rit[ing]
documentation of system designs, functional specifications and test results”;
“[p]erform[ing] unit and system tests and functional regression testing of
developed code”; and “[d]esign[ing], document[ing] and test[ing] interfaces and
transactions with other systems using application programming interfaces.”
R.18–18 at 1.

20

See R.28. ¶ 64.

21

Id.

22

R.29–12 (Reyes Dep.) at 9.

23

The district court’s jurisdiction was premised on 28 U.S.C.
§ 1331.

24

The district court employed, throughout its opinion, the
lexicon and methodology common at the time it ruled. As we discuss at some
length later in the opinion, see infra at –––– – ––––, the terms
“direct” and “indirect” evidence no longer retain the significance they were
once thought to have in the analysis of discrimination cases. See Ortiz v.
Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).

25

R.40 at 6 (quoting Rhodes v. Ill. Dep’t of Transp.,
359 F.3d 498, 504 (7th Cir. 2004), overruled on other grounds by Ortiz,
834 F.3d at 765).

26

Id. at 6–7 (emphasis in original).

27

Id. at 12 (emphasis in original)
(quoting Warren v. Solo Cup Co., 516 F.3d 627, 630–31 (7th Cir. 2008)).

28

Id. at 14 (internal quotation marks
omitted).

29

Id. at 16 (internal quotation marks
omitted).

30

Id. at 18–19 (internal quotation marks
omitted).

31

Id. at 19 (internal quotation marks
omitted).

32

Id. at 19–20.

33

Our jurisdiction is premised on 28 U.S.C. § 1291.

34

See also Pearson v. Ill. Bell Tel. Co.,
No. 15 C 653, 2016 WL 7374235, at *6 (N.D. Ill. Dec. 20, 2016) (“McDonnell
Douglas identifies one pattern that the evidence might fit that would
enable a reasonable juror to find discrimination….”).

35

Ms. David also claims that CCC’s failure to process her JAQ
and its delay in investigating her EEO (pay) complaint constituted actionable
adverse employment actions. Title VII protects an employee from discriminatory
actions with respect to “compensation, terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e–2(a)(1). “To be actionable,” therefore, “there
must be a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits. In other words, the
adverse action must materially alter the terms and conditions of employment.” Stutler
v. Ill. Dep’t of Corr., 263 F.3d 698, 703 (7th Cir. 2001) (citation
omitted) (internal quotation marks omitted). Neither the failure to process the
JAQ nor the failure to complete the EEO investigation affected the terms and
conditions of Ms. David’s employment. Instead, as the district court noted, the
questionnaire and the complaint process simply were means to an end: they were
the methods by which Ms. David was attempting to secure a new title and a
raise. It was the failure to receive a new title and the raise that is at the
heart of her complaint.

Ms. David relies on Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006),
for the proposition that “[a]n employment action is materially adverse[ ] if it
would deter a reasonable worker from complaining of discrimination,”
Appellant’s Br. 14, and further argues that CCC’s failure to process the JAQ or
the EEO complaint would have this effect. The standard that Ms. David invokes,
however, relates to Title VII’s antiretaliation protection, which
incorporates a broader definition of materiality than Title VII’s protection
against discrimination. Burlington N. & Santa Fe Ry. Co., 548 U.S.
at 64, 126 S.Ct. 2405 (observing that the “antiretaliation provision, unlike
the substantive provision, is not limited to discriminatory actions that affect
the terms and conditions of employment”). Ms. David’s claims, however, do not
include retaliation, only discrimination.

36

See Appellant’s Br. 16–17.

37

Compare R.18–26 (Manager, End–User Services
Job Description), with R.18–20 (Senior Systems Security Analyst Job
Description).

38

R.18–26 at 2–3.

39

See id. at 3.

40

R.18–20 at 1.

41

Id. at 2.

42

Appellant’s Br. 17 (quoting R.29 ¶ 37).

43

R.29–12 (Reyes Dep.) at 8 (emphasis added).

44

Appellant’s Br. 12.

45

See R.18–13 (Technical Applications
Developer Job Description).

46

Ms. David also makes a slightly different argument. She
claims that she was treated differently on the basis of her age, race, and sex
because when younger, non-African–American, male employees were assigned
additional duties, they were provided assistance or greater pay, but she was
not provided either when she assumed responsibilities related to PeopleSoft
security. The record simply does not bear this out. Ms. David began performing
the PeopleSoft security responsibilities on her own in November 2011 and did
not receive any assistance or extra pay for those responsibilities prior to her
retirement in June 2012. In June 2012, after Ms. David retired, Reyes took back
those responsibilities, but “no one assisted him” until Rodriguez was hired in
April 2013. R.29–11 (Jackson Dep.) at 24. Reyes, therefore, performed the
PeopleSoft security responsibilities without assistance for even longer than
Ms. David did. Moreover, Ms. David does not dispute that “Reyes did not receive
any increase in pay for taking on these additional duties”; rather, she admits
that his subsequent pay increase was due to the union claiming his position.
R.28 ¶¶ 60–61.

47

R.28 ¶ 33.

48

Id. ¶ 34 (internal quotation marks
omitted).

49

Id. ¶ 37.

50

See id. ¶ 36. Ms. David argues that this
rationale is unworthy of credence because, among other reasons, the statute on
which CCC “rests this position … makes no mention of a ‘fine’ or penalty.”
Appellant’s Br. 27. This is a nonstarter. Section 5/7–172(k) of Chapter 40 of
the Illinois Compiled Statutes provides that,

[i]f the amount of a participating employee’s reported
earnings for any of the 12–month periods used to determine the final rate of
earnings exceeds the employee’s 12 month reported earnings with the same
employer for the previous year by the greater of 6% or 1.5 times the annual
increase in the Consumer Price Index[ ], … the participating …
instrumentality … shall pay to the Fund, in addition to any other
contributions required under this Article, the present value of the increase in
the pension resulting from the portion of the increase in salary that is in
excess of the greater of 6% or 1.5 times the annual increase in the Consumer
Price Index[ ]….

Thus, Illinois law clearly imposes an additional monetary
burden on an employer who raises the salary of an employee during his or her
last year of employment in excess of six percent or one-and-one-half times the
increase in the Consumer Price Index.

51

It was another six months before the position actually was
filled by Reyes.

52

R.29–2 (Lynch Dep.) at 5.

53

R.28 ¶ 33.

54

Appellant’s Br. 31.

55

R.29–12 (Reyes Dep.) at 8 (emphasis added).

56

Id. at 13–14.

57

See supra note 19 and at 17–18.