Merillat, Janet M. v. Metal Spinners ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4053
JANET M. MERILLAT,
Plaintiff-Appellant,
v.
METAL SPINNERS, INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 04 C 193—William C. Lee, Judge.
____________
ARGUED MAY 8, 2006—DECIDED DECEMBER 6, 2006
____________
Before BAUER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Janet M. Merillat brought this
action against her former employer, Metal Spinners, Inc.,
(“Metal Spinners”). She alleged age discrimination in
violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.; sex discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.; and a violation of the Equal Pay Act
(“EPA”), 29 U.S.C. § 206(d). Metal Spinners filed a mo-
tion for summary judgment; the district court granted
that motion. For the reasons set forth in the following
opinion, we affirm the judgment of the district court.
2 No. 05-4053
I
BACKGROUND
A. Facts
Metal Spinners provides a variety of metal-forming
services, including metal spinning. Olin Wiland has been
its chief executive officer since 1997.
Ms. Merillat began her employment with Metal Spinners
in September 1983. At all times relevant to this litigation,
she worked in the materials department, which consisted
of Ms. Merillat and Amy Stevenson, who initially was
supervised by Ms. Merillat. Until December of 2002,
Ms. Merillat’s title was Purchase Manager; she then became
the Senior Buyer. As the Senior Buyer, her duties included
creating various reports, purchasing, entering orders,
shipping, meeting with management, scheduling trucks,
supervising department employees, negotiating with
suppliers, evaluating suppliers and creating a plan for
reducing the costs of tools. Ms. Merillat tracked sup-
pliers, shipments and inventory by using three different
computer programs: Vantage, Al-Net and Excel. Conse-
quently, Ms. Merillat sometimes had to enter the same
data into more than one computer program. Ms. Merillat
admitted that some of her computer tasks were redundant,
but maintains that Metal Spinners failed to give her the
computer upgrades and training that would have enabled
her to create all necessary reports on only one program.
In August of 2002, Metal Spinners created a new posi-
tion, “Vice President of Procurement and Materials
Management,” and Wiland began a search for an individ-
ual to fill this position. The duties of this position in-
cluded managing the materials department employees
(Ms. Merillat and Stevenson), as well as establishing
No. 05-4053 3
strategies to reduce inventory costs and increase profit-
ability. The successful candidate would be expected to
implement a new computer system. In November, Wiland
offered the position to Craig Wehr. Wehr was 38 years old
when he was hired; his starting salary was $62,500. At
that time, Ms. Merillat earned $49,800. Ms. Merillat helped
to train Wehr after he was hired.
Ms. Merillat had kept a cartoon posted on her bulletin
board that lampooned the difference between salaries
for men and women. The cartoon, which reasonably
could be described as somewhat crude, had been dis-
played on her board for over fifteen years. On the day
that Wiland told Ms. Merillat that Wehr had been hired,
he asked her to take the cartoon down.
In late 2002 and the first half of 2003, Metal Spinners
experienced significant financial difficulties and decided
to eliminate some positions to decrease costs—a reduc-
tion in force (“RIF”). Ms. Merillat and another individual,
Patrick O’Beirne, were terminated on June 3, 2003. Two
other individuals were terminated on June 4, 2003. One of
those individuals, John Johnson, retired. The other, Jim
Cranfull, had his position eliminated, but he was al-
lowed to return to a former position on the production
floor.
On the date of her termination, Ms. Merillat was 49
years old; Wehr was 38 years old. Some of Ms. Merillat’s
former duties, such as creating various reports, are
now performed by the Vantage computer system, follow-
ing a technical upgrade by Metal Spinners; other of Ms.
Merillat’s tasks have been absorbed into the positions
occupied by Wehr and Stevenson.
4 No. 05-4053
B. District Court Proceedings
In addressing the merits of Metal Spinners’ summary
judgment motion, the district court first observed that
Ms. Merillat had offered no direct evidence of either sex or
age discrimination. The court then proceeded to assess
both of these claims under the burden-shifting frame-
work set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The district court determined that Ms.
Merillat could not establish two elements of the McDonnell
Douglas prima facie test: that she was performing her job
to her employer’s reasonable expectations and that simi-
larly situated employees outside of the protected classes
were treated more favorably than she.
With regard to her work performance, the court noted
that Wiland’s deposition testimony was that Ms. Merillat
had failed to meet his expectations because: (1) she was
unable “to entertain strategic concepts and manage new
projects”; (2) she was “unable to adequately supervise
subordinates”; (3) she “did not get along well with her co-
workers”; and (4) she was “unwilling to implement a
corporate-wide computer system.” R.50 at 7 (citing
Wiland Dep., R.35 at 16-17). The district court also deter-
mined that Metal Spinners’ evaluations of Ms. Merillat
from 2000-2002 confirmed Wiland’s deposition testimony.
Although the evaluations contained numerical ratings
that indicated that Ms. Merillat was performing satis-
factorily during those years, the court credited Metal
Spinners’ contention that the comments on those reviews
“indicate that Merillat was performing marginally at best.”
Id. at 9.
The district court further explained that:
If Merillat had simply been fired from her job in the
absence of a RIF, then she might have been able to
No. 05-4053 5
argue that she was performing satisfactorily enough to
not warrant being fired. But in this case she was not
terminated for cause, but terminated due to reduction
in force. This court agrees with Metal Spinners that
what constitutes “satisfactory” work shifts a bit in a
reduction in force case. Thus, while the record shows
that Merillat was performing in the mid-range in
some respects, the reviews also show that Merillat had
some problems that concerned Metal Spinners
enough that they were included in her evaluations.
Thus, in this regard, the record supports Metal Spin-
ners[’] view that Merillat was a non-satisfactory
performer.
Id.
Next, the district court examined the fourth prong of the
traditional RIF McDonnell Douglas inquiry regarding the
treatment of similarly situated employees not within the
protected classes. Earlier in the opinion, the district court
had noted that this circuit’s precedent recognizes varia-
tions on the McDonnell Douglas analysis for a traditional
RIF, where positions and duties are eliminated, and for
what this court has called a “mini-RIF,” where a dis-
charged employee’s duties are absorbed by other exist-
ing staff. See Bellaver v. Quanex Corp., 200 F.3d 485, 493-95
(7th Cir. 2000); Paluck v. Gooding Rubber Co., 221 F.3d 1003,
1011-12 & n.5 (7th Cir. 2000). Specifically, the district
court noted that under the modified McDonnell Douglas
test appropriate in a “mini-RIF” situation, the fourth
prong of the plaintiff’s prima facie case is satisfied when
the plaintiff demonstrates that her duties were absorbed
by persons not in the protected class. When actually
applying the McDonnell Douglas test, however, the district
court looked to whether Ms. Merillat presented anyone
6 No. 05-4053
similarly situated to her, an inquiry, which, as we have
noted, is suited to the McDonnell Douglas test in a tradi-
tional RIF situation. See Bellaver, 200 F.3d at 494. Apply-
ing this test, the district court stated that Ms. Merillat
failed to show that similarly situated, younger employees
or similarly situated men were treated more favorably.
Id. at 9. Although Ms. Merillat claimed that she and Wehr
were similarly situated, the district court determined that
they were not, based on its findings that Wehr was her
supervisor and had more education and broader work
experience than Ms. Merillat.
The district court also held that, even if Ms. Merillat had
established a prima facie case, Metal Spinners had a
legitimate, non-discriminatory reason for terminating
her: The company was experiencing an economic down-
turn. The court noted that many of Ms. Merillat’s tasks now
could be done by the new Vantage computer system,
making her a plausible candidate for termination to cut
costs. Additionally, the court stated that her poor job
performance was a separate legally sufficient reason for
her discharge.
Finally, the district court turned to Ms. Merillat’s EPA
claim in which she alleged that she was paid less than
Wehr because of her gender. Relying upon Cullen v. Indiana
University Board of Trustees, 338 F.3d 693, 698 (7th Cir. 2003),
the district court stated that, in order to establish a
prima facie case of an EPA violation, Ms. Merillat
needed to show that her job and Wehr’s job required
comparable skill, effort and responsibility. The court then
held the jobs did not require comparable “skills” because
Wehr’s job required him to “supervise the department
and implement new strategies to improve supplier rela-
tionships,” while Ms. Merillat’s did not. Id. at 19. The court
No. 05-4053 7
also held that the jobs did not require equal “effort,”
because Wehr’s added responsibilities “created more
stress.” Id. Finally, the court stated that the jobs did not
require equal “responsibility,” because Wehr had super-
visory responsibility of the entire department, includ-
ing Ms. Merillat. Id. Therefore, the district court held
that Ms. Merillat could not establish a prima facie case of
wage discrimination.
The district court further held that, if Ms. Merillat had
established a prima facie case, the burden would shift to
Metal Spinners to prove one of the statutory defenses,
including that the unequal pay arose from a seniority
system, a merit system, or any factor other than gender.
Id. at 19-20. The court found that Wehr had more experi-
ence and education than Ms. Merillat, and that this distinc-
tion, along with market forces, provided a reason other
than sex that justified paying Wehr a higher salary. The
court characterized Ms. Merillat’s response to Metal
Spinners’ proffered non-discriminatory reasons for the pay
differential as “fatally weak,” finding that she merely
had relied on her own testimony that she and Wehr
“performed a common core of tasks.” Id. at 21. The court,
therefore, found that Ms. Merillat’s EPA claim “fails as a
matter of law.” Id. at 22.
II
DISCUSSION
We review a district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in the light most favorable to Ms. Merillat, the non-
moving party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th
Cir. 2006).
8 No. 05-4053
A. Age and Sex Discrimination
1. Prima Facie Case
Ms. Merillat submits that, employing the McDonnell
Douglas framework, she has established a prima facie
case of age and sex discrimination. See McDonnell Douglas,
411 U.S. 792. Although McDonnell Douglas itself outlined
a particular four-part showing that a plaintiff must make
to establish her prima facie case, we long have recog-
nized that the test is not inflexible and is appropriately
adapted where necessary to “reflect more fairly and
accurately the underlying reality of the workplace.”
Bellaver, 200 F.3d at 494. In a mini-RIF context, a situa-
tion in which the dismissed worker’s duties have been
absorbed by another employee rather than eliminated,
we employ one such modified version of the McDonnell
Douglas framework. Johal v. Little Lady Foods, Inc., 434 F.3d
943, 946 (7th Cir. 2006); Paluck, 221 F.3d at 1011 n.5. This
approach requires that Ms. Merillat demonstrate that:
(1) she is a member of a protected class; (2) she was meet-
ing her employer’s legitimate performance expectations;
(3) she suffered an adverse employment action; and (4)
her duties were absorbed by employees not in the pro-
tected classes.1 Johal, 434 F.3d at 946; Michas v. Health Cost
1
The parties in this case presented arguments relating to the
viability of any comparison group presented by Ms. Merillat to
demonstrate that similarly situated individuals outside the
protected class were treated more favorably than she. This
showing would be part of a plaintiff’s prima facie showing under
a traditional RIF test. See Bellaver v. Quanex Corp., 200 F.3d 485,
494 (7th Cir. 2000). In this case, however, since Ms. Merillat’s
(continued...)
No. 05-4053 9
Controls of Illinois, 209 F.3d 687, 693 (7th Cir. 2000).
Metal Spinners does not dispute that Ms. Merillat is in
a protected class with respect to both her age and her
sex. Both parties also agree that Ms. Merillat suffered
an adverse employment action when she was terminated.
We therefore shall focus on the two contested prongs:
whether Ms. Merillat was meeting her employer’s legiti-
mate expectations and whether her duties were absorbed
by individuals not within her protected classes.
(...continued)
duties were absorbed rather than eliminated, it is more properly
evaluated under the mini-RIF test. See Paluck v. Gooding Rubber
Co., 221 F.3d 1003, 1011 n.5 (7th Cir. 2000) (stating that the key
inquiry in determining whether to apply the RIF or the mini-RIF
prima facie test is not the number of individuals terminated, but
whether the duties of those individuals were absorbed by
existing staff or eliminated altogether).
Although Paluck, a mini-RIF case, uses the “similarly situated”
and “treated more favorably” language, our case law clarifies
that this showing is satisfied in the mini-RIF context when a
plaintiff demonstrates that the duties of the terminated worker
have been absorbed by retained workers outside of the protected
class. See Bellaver, 200 F.3d at 495 (“The plaintiff in a [mini-RIF]
case does not need to make a showing that ‘similarly situated’
employees were treated better because the inference of discrimi-
nation arises from the fact that they were constructively ‘re-
placed’ by workers outside of the protected class.”); Michas v.
Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir.
2000) (same). The retention of an employee outside the pro-
tected class to perform the plaintiff’s duties is nothing more
than a demonstration of more favorable treatment, particularly
tailored to the factual circumstances of a mini-RIF case.
10 No. 05-4053
a. meeting legitimate expectations
Ms. Merillat contends that she was meeting her em-
ployer’s expectations. She invites our attention to her
yearly reviews for 2001 and 2002 in which Wiland’s overall
rating of her performance was “Satisfactory/Good.” R.44,
Ex.E-F. She also points to a letter that she received in
January of 2003 that notes that she had been awarded a
raise in her salary and that this adjustment in salary
“recognize[d her] performance during the past year.” R.44,
Ex.L.
Metal Spinners relies on the same reviews. It submits
that the written comments on those reviews indicate that
Ms. Merillat was not meeting her employer’s expecta-
tions. More specifically, Wiland testified in his deposition
that Ms. Merillat did not meet his expectations for the
following areas: ability to entertain strategic concepts
and manage new projects, willingness to accept new chal-
lenges, ability to get along with others and willingness to
implement a computer system. R.35 at 9-10.
The evaluations, while providing some negative com-
ments, seem to be largely positive. In her 2001 evalua-
tion, Ms. Merillat received an “excellent” rating in ten
categories and “satisfactory/good” ratings in seventeen
categories, with no categories rating below “satisfac-
tory/good.”2 See R.36 at 14-15. Some comments included
on the evaluations are positive, such as “Jan has made
2
Some examples of the various categories on the evaluation
form include: “Does the team member possess and apply the
skill level necessary for the job?”; “Does the team member have
a good attitude?”; and “Does the team member offer sugges-
tions as to how to improve productivity?” R.36 at 14-15.
No. 05-4053 11
tremendous progress with areas previously noted for
improvement,” id. at 15, and, in the area of work habits,
“[s]he is performing at a level commensurate with her
position and she needs to continue developing per-
sonally as an effective manager,” id. Some comments,
however, are more negative, such as Ms. Merillat “may
need to consider delegating additional tasks,” id., and
she “needs to explore alternatives to her current methods
and practices so cost improvements can be realized,” id.
at 14.
Similarly, in her 2002 evaluation, she received one
“outstanding” rating, ten “excellent” ratings and sixteen
“satisfactory/good” ratings, with no category rated lower
than “satisfactory/good.” Id. at 18-19. Again, there are
some positive comments, such as Ms. Merillat “demon-
strates continued improvement” in teamwork, id. at 18,
and she “did an outstanding job of reducing raw mate-
rials inventories in 2002,” id. There are also negative
comments, such as she “has too many redundant/duplica-
tive business practices that must be challenged,” id., and
she must work on “developing rapport with coworkers
and with improving her overall morale and demeanor,” id.
at 19.
Mr. Wiland stated in his deposition that he had at-
tempted to make the written evaluations as fair as possible.
He first admitted in his deposition testimony that he did
not indicate “specifically” on these evaluations that Ms.
Merillat was failing in her expectations, R.35 at 20, but later
stated that “printed words [on the evaluation forms] in
conjunction with [the conversation he had with Ms.
Merillat while going over the forms with her] indicate
that she was not fulfilling the expectations that we had
for her at that position,” id. at 23.
12 No. 05-4053
For her part, Ms. Merillat admitted to “getting ugly” with
co-workers when they “didn’t do something right,” in
2001, but also stated that later she “changed.” R.33 at 13-15.
She contends that her job performance was largely posi-
tive and that the reason for some of her failings was that
she did not get the necessary computer upgrades and
training to utilize the Vantage system and eliminate some
of her redundant practices.
We must conclude that, based on this record, material
issues of fact certainly remain with respect to whether
Ms. Merillat was meeting her employer’s expectations.
Her employment evaluations are, at best, inconclusive.
Additionally, she did receive a raise that stated it was
based, in part, on her performance. Therefore, summary
judgment for Metal Spinners on this prong would be
inappropriate.
b. duties absorbed by individuals outside the
protected classes
There is agreement that a good deal of Ms. Merillat’s
responsibilities were assumed by Wehr, who is neither
female nor within the protected age group. We therefore
must conclude that Ms. Merillat has met this prong of the
modified McDonnell Douglas test.
2. Pretext
If the plaintiff does establish a prima facie case, the
burden shifts to the defendant to articulate a legitimate,
non-discriminatory reason for the termination. See Johal,
434 F.3d at 946. If the defendant does articulate such
No. 05-4053 13
reasons, the burden shifts back to the plaintiff to prove
the proffered reasons were pretextual. See id.In the present case, where there is a genuine issue of
material fact with respect to whether Ms. Merillat was
meeting expectations, Metal Spinners can prevail on its
motion for summary judgment only if it can show that
there remains a non-pretextual and non-discriminatory
reason for her discharge. Metal Spinners offers several non-
discriminatory reasons for terminating Ms. Merillat as
part of its RIF: Many of her duties could be eliminated by
the implementation of the Vantage computer system;
she had a history of difficulty working with co-workers
and suppliers; she had less desirable education and
experience than Wehr and Wehr was more willing and
better able to implement new strategies.
Ms. Merillat admits that many of her tasks are now
performed by the Vantage computer system and there-
fore, at least one of the reasons given by Metal Spinners
for her termination is not pretextual.3 She nevertheless
contends that Wehr has done a poor job because he has had
inventory sitting idle for longer periods than she did
when she was doing the metals purchasing. Ms. Merillat
submits that Wehr’s comparatively weaker performance
demonstrates that Wiland was biased against her when
he decided to terminate Ms. Merillat but to leave Wehr in
his position. However, much of Ms. Merillat’s explanation
3
Ms. Merillat does argue that, while she was employed, she had
requested that the Vantage system be upgraded to help elimi-
nate her redundant work practices. See Appellant’s Br. at 33.
However, this does not negate the fact that the computer can
now produce the reports that Ms. Merillat formerly produced,
which is a fact that she admits. See id.14 No. 05-4053
for Wehr’s poor performance refers to his performance
after her termination. Metal Spinners may have made a
mistake in terminating Ms. Merillat rather than Wehr
during the RIF. However, such information, even if
proven to be true, would not be relevant to our present
inquiry. Our only task is to determine whether Metal
Spinners “honestly believed in the nondiscriminatory
reasons it offered, even if the reasons are foolish or trivial
or even baseless.” Jackson v. E.J. Brach Corp., 176 F.3d 971,
984 (7th Cir. 1999); see also Balderston v. Fairbanks Morse
Engine, 328 F.3d 309, 323 (7th Cir. 2003) (“[A] plaintiff must
do more than demonstrate that the employer made a
mistake . . . .”). Even if Metal Spinners’ decision was, in
retrospect, a mistake, that conclusion, made with the
benefit of hindsight, does not mean that Metal Spinners
honestly did not believe that retaining Wehr and terminat-
ing Ms. Merillat was the appropriate decision at the time
it was made. See Johal, 434 F.3d at 946 (stating that,
when examining a claim of pretext, “it is not our role to
question the wisdom of a company’s decisions on how
to run its business”); McKnight v. Kimberly Clark Corp., 149
F.3d 1125, 1129 (10th Cir. 1998) (“An articulated motivat-
ing reason is not converted into pretext merely because,
with the benefit of hindsight, it turned out to be poor
business judgment.”).
Ms. Merillat further submits that the district court
created a new standard when it stated that “what consti-
tutes ‘satisfactory’ work shifts a bit in a reduction in force
case.” Appellant’s Br. at 25 (quoting R.50 at 9). However,
when read in context, it is clear that the district court
was only stating what we have already recognized: that,
even if an employee would not have been fired under
normal circumstances, “[i]n a reduction in force, some-
No. 05-4053 15
one has to go. It is usually the least qualified or least
productive employee.” Fairchild v. Forma Scientific, Inc., 147
F.3d 567, 573 (7th Cir. 1998). Even though, as noted above,
Ms. Merillat’s performance may have been satisfactory,
it does not mean that her termination as part of a RIF
was discriminatory. See Balderston, 328 F.3d at 324 (hold-
ing that the plaintiff did not demonstrate pretext when
there was no evidence to show that the employer “did not
honestly believe [it] was dismissing a poorer perform-
ing, less suitable” employee in a RIF).4
Relatedly, Ms. Merillat points out that, when Wiland
told her that she was terminated, he told her it was due
4
The record certainly contains evidence that supports Wiland’s
judgment in this respect. Ms. Merillat had only one year of post-
high school education (a legal secretary degree) while Wehr had
a bachelor’s degree in business administration. Additionally,
Ms. Merillat had no experience in the metal industry prior to
working at Metal Spinners, while Wehr had previously over-
seen two other metal purchasing departments, had experience
with new computer systems for metals purchasing and had
significant contacts in the metal industry. See Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (finding that
employees with different qualifications and experiences were
not similarly situated); Doan v. Seagate Tech., Inc., 82 F.3d 974,
979 (10th Cir. 1996) (holding that employee without relevant
degree is not similarly situated to those with relevant degrees).
Ms. Merillat attempts to counter these differences in education
and experience by claiming that Wehr actually performed
poorly at his job and had to be taught various skills by Ms.
Merillat. However, such inadequacies by Wehr do not negate
the fact that he has a different educational background and
had different experiences from Ms. Merillat; therefore, he
might well have been regarded as offering more potential to
the company.
16 No. 05-4053
to “the poor performance of the company and economic
softening in the marketplace.” Wiland Dep., R.44, Ex.D-2
at 27. He admitted in his deposition testimony that he
accurately represented to her the reasons for her termina-
tion.5 Id. This statement is consistent with a termination
under a RIF. Even if Ms. Merillat’s performance was
sufficiently acceptable to justify retaining her in better
times, that consideration does not establish that Metal
Spinners’ reasons for terminating her in a RIF situation
were pretextual. See Fairchild, 147 F.3d at 573. In a RIF, it
is not pretextual to terminate an individual perceived to
be a weak performer in an organization even if that indi-
vidual’s performance could also be characterized as
satisfactory or adequate.
Next, Ms. Merillat contends that Wiland preferred to
work with members of his social group and therefore
chose a younger male colleague over Ms. Merillat. In
support of this contention, Ms. Merillat points to the
several occasions on which Wiland had lunch, drinks or
dinner with Wehr, while he had never done any of the
same with Ms. Merillat. However, in this context, socializ-
ing with someone who is not a member of a protected
class does not demonstrate bias against those who are in
a protected class. The fact that Wiland and Wehr had a
more amiable social relationship is not enough to demon-
strate that Wiland’s reasons for terminating Ms. Merillat
were pretextual and that he was actually motivated by
age and/or sex discrimination. See, e.g., Pope v. ESA Servs.,
5
In fact, Ms. Merillat maintains that Wiland told her that
her termination was not because of her job performance, and
Wiland admitted in his deposition that it was “possible” that he
told her that. R.44, Ex.D-2 at 23.
No. 05-4053 17
Inc., 406 F.3d 1001, 1007-08 (8th Cir. 2005) (stating that
the fact that a decision-maker went to lunch with white
managers does not mean that his decision not to promote
a minority employee was pretextual).
Finally, Ms. Merillat points to Wiland’s request that
she remove the cartoon lampooning the differences be-
tween male and female salaries that she had hanging on
her bulletin board. Ms. Merillat argues that this incident
is relevant to show bias toward women in the workplace.
We have said, however, that isolated comments that are
no more than “stray remarks” in the workplace are insuf-
ficient to establish that a particular decision was motivated
by discriminatory animus. See Cullen v. Olin Corp., 195 F.3d
317, 323 (7th Cir. 1999). We have cautioned that this gen-
eral rule may give way where particular remarks in
fact support an inference that unlawful bias motivated
the decision-maker, such as when those remarks are
made by the decision-maker or one having input in a
decision, and are made “(1) around the time of, and (2)
in reference to, the adverse employment action com-
plained of.” Hunt v. City of Markham, Illinois, 219 F.3d 649,
652-53 (7th Cir. 2000). Wiland’s statement regarding the
cartoon fits neither of those categories, nor does it other-
wise demonstrate a bias on Wiland’s part sufficient to
support an inference of discriminatory animus. It is,
therefore, clearly insufficient to sustain a determination
that the reasons for the discharge stated by Wiland and
supported by evidence were pretextual in nature.
Accordingly, we must conclude that although Ms.
Merillat has demonstrated disputed material facts suffi-
cient to prevent summary judgment for failure to meet her
prima facie burden, Metal Spinners has proffered legiti-
mate, non-discriminatory reasons to support her termina-
18 No. 05-4053
tion; in response, Ms. Merillat has not produced evidence
sufficient to create a triable issue of fact with respect to her
burden of demonstrating that those reasons are pretextual.
Accordingly, we affirm the district court’s grant of sum-
mary judgment in favor of Metal Spinners on Ms. Merillat’s
age and sex discrimination claims.
B. Equal Pay Act
1. Prima Facie Case
In order to establish a prima facie case under the EPA,
Ms. Merillat must show: “(1) higher wages were paid to
a male employee, (2) for equal work requiring substan-
tially similar skill, effort and responsibilities, and (3)
the work was performed under similar working condi-
tions.” Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d at 698(quoting Stopka v. Alliance of American Insurers, 141 F.3d 681,
685 (7th Cir. 1998)). The parties do not dispute the first
prong. Wehr’s salary was $62,500; Ms. Merillat’s salary
was $49,800. R.29 at 1. With respect to the third prong,
Ms. Merillat and Wehr worked together in the same office,
and Metal Spinners does not argue that their work was
not performed under similar working conditions. There-
fore, only the second prong is at issue: whether Ms.
Merillat and Wehr’s positions required “substantially
similar skill, effort and responsibilities.”
In order to determine whether or not the 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.” Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d at
698 (internal quotation marks omitted). Once a plaintiff
establishes a “common core” of tasks, we ask whether any
additional tasks make the jobs “substantially different.” Id.No. 05-4053 19
When assessing job duties, each of the elements listed in
the EPA (skill, effort and responsibilities) must be met
individually to establish a prima facie case. Id.; see also
29 C.F.R. § 1620.14. We look to the actual job duties per-
formed by each employee, not to his or her job description
or title. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461
(7th Cir. 1994).
Ms. Merillat asserts that she and Wehr had many of the
same tasks, including: negotiating with suppliers, buying
materials, and allocating materials for production. How-
ever, Metal Spinners submits that there are two areas
in which Ms. Merillat and Wehr’s job duties differed.
These two differences, it asserts, make their respective
jobs “substantially different” for purposes of the Equal Pay
Act: (1) Wehr’s responsibility for “strategic planning”;
(2) Wehr’s supervision of Ms. Merillat. We shall discuss
each of these factors in turn.
Metal Spinners contends that part of Wehr’s job duties
included strategic planning, which it states required him to
“implement new strategies to improve supplier relation-
ships.” Appellee’s Br. at 43. Wehr also testified that his
job duties included “establishing strong relationships
with . . . suppliers.” R.44, Ex.C-1 at 14. Ms. Merillat testi-
fied that, during the six months that she remained at
Metal Spinners after the arrival of Wehr, she participated
in this function because she “sat in on almost every meet-
ing that [Wehr] had with the suppliers.” R.44, Ex.H at 8. In
his deposition, Wiland stated that, before Wehr was hired,
Ms. Merillat was responsible for “obtaining cost effective
purchasing and costing for our metals,” and that she “was
responsible for investigating alternative methods and
practices that would improve the profitability of the
company, specifically pertaining to [her responsibility in]
20 No. 05-4053
supplier relationships.” R.35 at 8. Ms. Merillat testified
that, after Wehr was hired, she continued to work to reduce
the number of suppliers, as Wiland had requested. See
R.33 at 5. She also stated that she continued to “negotiate
with suppliers” after Wehr was hired. R.44, Ex.H at 20.
We believe that it is clear on the record as a whole that,
with respect to strategic planning, Ms. Merillat’s day-to-
day duties with regard to suppliers did not change ap-
preciably; she never assumed corporate-wide responsi-
bility for the planning responsibilities placed on Wehr’s
shoulders upon his accepting the vice-presidential position
at Metal Spinners. Thus, at the time his compensation
was set, it was understood that he would handle sig-
nificant responsibilities that had not been Ms. Merillat’s.
That Ms. Merillat did not see Wehr make significant
contributions toward the achievement of those goals does
not establish that the company’s expectations with re-
spect to Wehr’s performance had changed.
Next, we turn to Wehr’s supervisory duties. All parties
agree that Wehr’s job duties included functioning as
Ms. Merillat’s supervisor. See Wiland Dep., R.44, Ex.D-1
at 9; Merillat Dep., R.44, Ex.H at 7. Ms. Merillat also
admitted, in her deposition, that Wehr had supervisory
duties over the materials department employees. R.44,
Ex.H at 2. She explained that Wehr, not she, had the
authority to hire and fire employees, and that Stevenson
would contact Wehr when she was calling in sick. Id.Stevenson, in her deposition, agreed that Wehr had be-
come her direct supervisor when he was hired. R.37 at 4.
Wehr therefore had supervisory duties that Ms. Merillat
did not exercise. Of course, as we have noted, not all
differences in supervisory duty render two positions
unequal for purposes of the EPA. See Fallon v. State of
No. 05-4053 21
Illinois, 882 F.2d 1206, 1209-10 (7th Cir. 1989). Indeed, there
are some indications that Wehr’s supervisory duties were,
in actuality, minimal. Ms. Merillat submits that, although
Wehr was supposed to function as her supervisor, in
reality, she worked independently, and he did not super-
vise her. See Merillat Dep., R.44, Ex.H at 7 (stating, in
response to a question regarding Wehr’s supervisory
duties with respect to her: “I pretty much work on my
own. If he had questions, he would come and ask me. I
was always there on time. I didn’t call in sick.”).
Ms. Merillat’s 2002 evaluation lends some support to
her contention that she continued to have a degree of
supervisory authority over Stevenson. The evaluation
states that, in 2003, Ms. Merillat must pursue “manage-
ment” and “leadership” skills so that she may “effectively
manage others on her staff.” R.36, Ex.7 at 1. This state-
ment seems to indicate that she was charged at least
with supervising some of the duties of Stevenson, the
only other materials department employee. Nevertheless,
it is clear that, although neither had great supervisory
authority over other personnel, Wehr did have more
authority than Ms. Merillat.
We conclude that the record, fairly read in its totality,
leads to the conclusion that Wehr and Ms. Merillat did
not have equal levels of responsibility. “Responsibility
is concerned with the degree of accountability required
in the performance of the job, with emphasis on the
importance of the job obligation.” 29 C.F.R. § 1620.17(a).
Ms. Merillat has therefore failed to establish a prima
facie case under the Equal Pay Act.
22 No. 05-4053
2. Affirmative Defense
Assuming, arguendo, that Ms. Merillat has established
a prima facie case, the burden would shift to Metal Spin-
ners to establish one of four statutory defenses. Cullen v.
Indiana Univ. Bd. of Trs., 338 F.3d at 702. The statutory
defenses occur when the rate of pay is determined “pursu-
ant to (i) a seniority system; (ii) a merit system; (iii) a
system which measures earnings by quantity or quality of
production; or (iv) a differential based on any factor
other than sex.” 29 U.S.C. § 206(d)(1). Metal Spinners
submits that the fourth defense is applicable because the
difference in pay between Wehr and Ms. Merillat was
based on factors “other than sex.” More specifically,
Metal Spinners contends that the difference in pay was
based, at least in part, on the difference between Wehr’s
and Ms. Merillat’s educational background and industry-
related experiences. Wehr held a bachelor’s degree in
business administration; Ms. Merillat had only a one-year
legal secretary degree. Wehr had previous experience in
the metal industry, had previously overseen two other
purchasing departments and had experience implement-
ing computer systems in metals purchasing. Ms. Merillat
had not worked in the metals industry prior to her tenure
at Metal Spinners. The record reveals, therefore, that
there are real differences between the two employees’
experience and education. Under the EPA, differences in
education and experience may be considered factors other
than sex. See Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d at
702; Dey, 28 F.3d at 1462; Stanley v. Univ. of Southern
California, 13 F.3d 1313, 1322 (9th Cir. 1994) (“Employers
may reward professional experience and education with-
out violating the EPA.”).
Metal Spinners also submits that Wehr’s salary was
determined by market forces. Mr. Wiland noted that,
No. 05-4053 23
when he decided to create the position of Vice President
of Procurement and Materials Management, he enlisted
the help of a search firm and was informed that the market
rate for such a position was $65,000-$75,000. Mr. Wiland
also consulted trade journals to determine the appropriate
market rate for such a position. We have held that an
employer may take into account market forces when
determining the salary of an employee. See Cullen v. Indiana
Univ. Bd. of Trs., 338 F.3d at 703; Stopka v. Alliance of
American Insurers, 141 F.3d 681, 687 (7th Cir. 1998) (accept-
ing a difference in pay as based on a factor other than
gender when motivated by “legitimate market forces”).6
Metal Spinners has put forth evidence that the differ-
ence in pay was based on a factor other than sex; specifi-
cally, the difference was based on Wehr’s education, his
experience and the market forces at the time of his hire.
Ms. Merillat has not put forth evidence to place the facts
6
We recognize that we must be cautious when analyzing an
employer’s claim that “market forces” justify a higher salary, as
companies may use such a theory “to justify lower wages for
female employees simply because the market might bear such
wages.” Taylor v. White, 321 F.3d 710, 718 (8th Cir. 2003); see also
Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974) (finding
a violation of the EPA when a company “took advantage” of a
“job market in which [the employer] could pay women less than
men for the same work”); Siler-Khodr v. Univ. of Texas Health Sci.,
261 F.3d 542, 549 (5th Cir. 2001) (finding an employer’s market
forces argument “not tenable” when it “simply perpetuates the
discrimination that Congress wanted to alleviate when it
enacted the EPA”). The record does not support the inference
that Metal Spinners took advantage of any kind of market
forces that would permit different pay for a male and a female
for the same position.
24 No. 05-4053
surrounding these stated rationales in dispute. Therefore,
summary judgment also was appropriate based on Metal
Spinners’ affirmative defense of the pay differential be-
ing based on a “factor other than sex.” See 29 U.S.C.
§ 206(d)(1)(iv).
Conclusion
For the forgoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-06