Boumehdi, Julie v. Plastag Holdings ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4061
JULIE BOUMEHDI,
Plaintiff-Appellant,
v.
PLASTAG HOLDINGS, LLC,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04-C-672—Charles R. Norgle, Sr., Judge.
____________
ARGUED APRIL 13, 2007—DECIDED JUNE 4, 2007
____________
Before FLAUM, MANION, and WOOD, Circuit Judges.
FLAUM, Circuit Judge. After enduring months of sex-
based comments from her supervisor and complaining to
human resources to no avail, Julie Boumehdi quit her job
at Plastag Holdings, LLC (“Plastag”). Thereafter,
Boumehdi filed suit, alleging that the company violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
2 & e-3, and the Equal Pay Act, 29 U.S.C. § 206(d). The
district court granted summary judgment in favor of
Plastag on all claims. For the following reasons, we
reverse.
2 No. 06-4061
I. BACKGROUND1
Julie Boumehdi worked in various capacities operating
presses at Plastag, a company that manufactures credit
cards, gift cards, calendars, and identification tags for
textile companies. In 1999, Boumehdi transferred from her
position as a press operator on a flexographic press to a
feeder position in Plastag’s lithographic press department.
In that position, Boumehdi assisted the press operator,
Wayne Milbrandt, by mixing inks and preparing plates to
go into the press. Because lithographic presses are gener-
ally considered more complicated and difficult to operate
than flexographic presses, Boumehdi received a 71-cent
per hour raise upon transferring.
A. Boumehdi’s Wages
In June 2000, Boumehdi received a raise after a positive
performance review, and her hourly waged increased from
$15.34 to $15.95. In January 2001, a supervisor realized
that Boumehdi was being paid much less than her male
colleagues, even though she was performing the same job
as well as they were. To equalize her pay, the supervisor
increased Boumehdi’s hourly wage from $15.95 to $17.50.
Two years later, in January 2003, Boumehdi accidently left
her pay stub in plain view, and some of her colleagues
began laughing and making negative remarks about her
pay. After this incident, Boumehdi complained to Michael
Bell, Plastag’s director of human resources, about the
possible pay disparity. Bell told her that the company was
being sold and that any disparity would be taken care of
after the sale.
1
For purposes of this appeal, we recite the facts in the light
most favorable to Boumehdi, the non-movant.
No. 06-4061 3
B. Boumehdi’s Working Conditions
In January 2002, Ed Vega became the supervisor in the
lithographic press department. Beginning in the late
summer or early fall of 2002, and continuing over the next
ten months, Vega made at least eighteen sex-based
comments to Boumehdi. For example, from January to
July of 2003, Vega told Boumehdi five or more times that
women do not belong in the pressroom and think they
know everything.2 Once, while Boumehdi was bending over
in the course of her work, Vega told her to remain in that
position and that it was perfect. He also told her that
women should work in flower shops and that she should
wear low cut blouses and shorter shorts. In 2003, when
Boumehdi was pregnant, Vega asked her if she had gotten
a breast enlargement over the weekend. Later, upon
finding out that Boumehdi had miscarried, Vega asked her
what business she had getting pregnant at her age. On
another occasion, Vega told her that just because she is a
woman does not mean that she should not take out the
trash. In December 2002, January 2003, and April 2003,
Vega told Boumehdi to clean the pressroom, adding that he
did not ask the men to do the cleaning because that’s what
women are supposed to do. In mid-2002 and early 2003,
Vega said that he had to leave work to get a lap dance
down the street. Boumehdi claimed that Vega made
additional comments over the ten-month period, although
she could not specifically recall them.
In February 2003, Boumehdi met with Bell and com-
plained about Vega’s comments. She characterized Vega’s
behavior as “harassing” and “discriminating.” Bell assured
Boumehdi that he would talk to Vega and take care of the
2
In her deposition, Boumehdi testified that Vega made the
“women don’t belong in the pressroom” comment “very often,”
and that he said it “at least five times” during 2003.
4 No. 06-4061
problem. When Vega saw Boumehdi exiting Bell’s office, he
said, “you’re complaining about me, aren’t you?” Vega then
warned her that if “[she] didn’t watch it, [she’d] be scrub-
bing the floors and doing the toilets.” After meeting with
Bell, Boumehdi gave him periodic updates on the situation
with Vega. Bell continued to assure her that he was
looking into the matter. On at least one other occasion,
Vega commented to Boumehdi about her meetings with
Bell. Specifically, as she was exiting Bell’s office, Vega
said, “oh, you’re in HR; you’re complaining about me
again.”
In late February or early March 2003, Boumehdi noticed
that her paycheck for the week of February 24 was 2.5
hours short. At first, she thought the shortage was a
mistake, but when she attempted to talk to Vega about the
problem, he refused to speak to her. Boumehdi complained
to Bell about the shortage and also complained that Vega
did not pay her for working through her lunch, although he
paid her colleagues for doing so. In March or April, Vega
changed Boumehdi’s schedule so that she started later and
quit earlier, meaning that she earned less money each
week.3
In a performance review dated March 3, 2003, Vega gave
Boumehdi the worst rating of her career, which caused her
to receive no annual raise.4 The review stated that
3
Boumehdi also alleges that Vega took away her breaks, but
Boumehdi’s own deposition states that in May or June of 2003,
Vega accused her of taking excessive breaks, and she responded
by saying, “Fine. I won’t take a break, I don’t need a break.” In
other words, Boumehdi voluntarily relinquished her breaks.
4
Plastag employees are rated on a one to four scale, with one
being the best score. Boumehdi’s March 2003 review rated her
at 2.75, and company policy dictates that employees receiving a
(continued...)
No. 06-4061 5
Boumehdi “has overthought jobs to change what material
to run and has been wrong,” “needs to focus on job of
loading press & cleanup,” and “has been seen by other
coworkers & supervisors to take more breaks than ob-
served & to read magazines & paper while press is
running—leaving press operator to check jobs alone.” It
also noted that her “attitude on a given day determines
amount of work to be completed on that day” and that her
“performance level was up & down throughout review
period.”
Boumehdi disputes the criticisms, emphasizing that the
March 2003 review was the first time she received written
notice of her alleged misbehavior, although other employ-
ees had been written up for similar behavior. When
presented with the March 2003 review, Boumehdi refused
to sign it and confronted Vega. He responded that “women
don’t belong in the pressroom” and that “they think they
know everything.” He also told Boumehdi that she better
quit complaining about him to human resources.
Over the next few months, Boumehdi complained to Bell
about Vega’s alleged harassment and retaliatory activity,
but her paychecks continued to come up short and she did
not believe that human resources was responding to
her multiple complaints. On July 7, 2003, Boumehdi left
Bell a note indicating that her work environment had
become intolerable and that she had been singled out and
discriminated against since February. On July 10, 2003,
Boumehdi resigned from Plastag.
C. Proceedings Below
After receiving a “right to sue” letter from the Equal
Employment Opportunity Commission (“EEOC”), Boumeh-
4
(...continued)
score worse (i.e., higher) than 2.5 are ineligible for a raise.
6 No. 06-4061
di filed this lawsuit in the district court, claiming that
Plastag had violated Title VII by subjecting her to a hostile
work environment, disparate treatment, and retaliation.
Boumehdi also claimed that she was constructively
discharged and that Plastag violated the Equal Pay Act.
After discovery closed, the district court granted summary
judgment in favor of Plastag on all claims. It held that the
alleged harassment was not sufficiently severe or perva-
sive to constitute a hostile work environment and that any
mistreatment Boumehdi endured was not severe enough to
amount to a constructive discharge. The district court also
held that Boumehdi could not make a prima facie case of
either disparate treatment or retaliation and that although
Boumehdi had established a prima facie case of wage
discrimination, she had produced insufficient evidence that
Plastag’s asserted justifications were pretextual. Boumeh-
di appeals the district court’s ruling.
II. DISCUSSION
This Court reviews a district court’s entry of summary
judgment de novo. Davis v. Con-Way Transp. Cent. Ex-
press, Inc., 368 F.3d 776, 782 (7th Cir. 2004). Summary
judgment is inappropriate if a genuine issue of material
fact remains in dispute. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); McCoy v. Harrison, 341 F.3d 600,
604 (7th Cir. 2003). To survive summary judgment,
Boumehdi must make a sufficient showing of evidence for
each element of her case that she bears the burden of
proving at trial. Celotex, 477 U.S. at 322-23.
A. Sexual Harassment Claim
To establish a prima facie case of sexual harassment
under Title VII, a plaintiff must show that 1) she was
subjected to unwelcome harassment; 2) the harassment
No. 06-4061 7
was based on her sex; 3) the harassment was sufficiently
severe or pervasive so as to alter the condition of her
employment and create a hostile or abusive atmosphere;
and 4) there is a basis for employer liability. Kampmier v.
Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007). The
parties dispute the third prong of the prima facie case.
To satisfy the third prong, Boumehdi must demonstrate
that Vega’s behavior was both objectively and subjectively
offensive. Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505
(7th Cir. 2004). Boumehdi’s numerous complaints provide
sufficient evidence that she was subjectively offended by
Vega’s comments, and Plastag does not claim otherwise.
See Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807
(7th Cir. 2000) (recognizing that a jury reasonably could
find, based on an employee’s complaints to a superior, that
the employee perceived her environment as hostile).
Courts look to several factors to determine whether
alleged harassment was objectively offensive, including the
frequency of the conduct; its severity; whether it was
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interfered with the
alleged victim’s work performance. Id. at 806-07. The
“occasional vulgar banter, tinged with sexual innuendo of
coarse or boorish workers” generally does not create a
work environment that a reasonable person would find
intolerable. Baskerville v. Culligan Int’l Co., 50 F.3d 428,
430 (7th Cir. 1995).
Plastag argues, and the district agreed, that Vega’s
comments were not sufficiently severe or pervasive to be
objectively offensive because they were not “unwelcome
sexual advances, requests for sexual favors or other verbal
or physical conduct of a sexual nature.” See Rhodes, 359
F.3d at 505. We disagree. Although most of Vega’s alleged
comments were sexist rather than sexual, our precedent
does not limit hostile environment claims to situations in
8 No. 06-4061
which the harassment was based on sexual desire. As a
leading treatise explains:
Although sexual harassment is usually thought of in
terms of sexual demands, it can include employer
action based on [sex] but having nothing to do with
sexuality. For example, a woman, entering a work
environment that previously has been all-male might
encounter severe, sustained hostile treatment by her
male supervisors and/or co-workers.
3 LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 46.01[3]
(2d ed. 2000); see also Oncale v. Sundowner Offshore
Servs., 523 U.S. 75, 80 (1998) (noting that harassing
conduct need not be motivated by sexual desire to support
an inference of discrimination on the basis of sex); Smith
v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999) (same).
Indeed, several of our sister circuits have recognized that
comments evincing anti-female animus can support a
hostile environment claim. See, e.g., Wanchik v. Great
Lakes Health Plan, Inc., 6 Fed. App’x 252, 263 (6th Cir.
2001) (noting that harassment based on sex is manifested
through “behavior that is either lascivious in nature or
that reflects an ‘anti-female animus’ ”); Lipsett v. Univ. of
P.R., 864 F.2d 881, 905 (1st Cir. 1988) (concluding that a
verbal attack charged with anti-female animus could have
contributed to a hostile environment for female employ-
ees); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir.
1988) (recognizing that “[i]ntimidation and hostility
toward women because they are women can obviously
result from conduct other than sexual advances”).
Moreover, Boumehdi identifies two cases from the
Northern District of Illinois in which anti-female state-
ments formed the basis of a hostile environment claim. In
EEOC v. Continental Airlines, the district court denied
summary judgment where the plaintiff ’s co-workers made
between fifteen and twenty sexist remarks over one year,
No. 06-4061 9
including comments that she should go home and cook for
her husband and that she was doing “a man’s job.” No. 04
C 3055, 2006 WL 14510, at *4 (N.D. Ill. Jan. 3, 2006).
Likewise, in Hangerbrauk v. Deloitte & Touche, the district
court denied a defendant’s motion to dismiss where the
plaintiff was subjected to numerous sexist remarks such as
“women are emotionally unstable” and “women who take
maternity leave get a nice vacation.” No. 92 C 3328, 1992
WL 348743, at *2 (N.D. Ill. Nov. 9, 1992). These cases are
consistent with the purpose of Title VII, Supreme Court
precedent, and this circuit’s own case law. We therefore
conclude that Vega’s alleged anti-female remarks are
severe enough to support a hostile work environment
claim.
Boumehdi has also provided sufficient evidence of the
pervasiveness of the alleged harassment to survive
summary judgment. We have stated that there is no magic
number of incidents required to establish a hostile environ-
ment. See Hostetler, 218 F.3d at 808. A jury reasonably
could conclude from Boumehdi’s testimony, which alleged
that Vega made at least eighteen sexist or sexual com-
ments in less than a year’s time and that similar com-
ments were made “very often,” that Vega’s conduct was
pervasive enough to create a hostile work environment.
See, e.g., Cont’l Airlines, 2006 WL 14510, at *10-11 (deny-
ing summary judgment where defendant made fifteen to
twenty gender-based comments in a year); cf. Patt v.
Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir. 2002)
(holding that eight gender-based comments over several
years, several of which were hearsay, were not sufficiently
pervasive to support a hostile environment claim).
10 No. 06-4061
B. Constructive Discharge Claim
Next, Boumehdi claims that the district court erred by
granting summary judgment in Plastag’s favor on her
constructive discharge claim. To establish a claim for
constructive discharge, a plaintiff must prove that unlaw-
ful discrimination made her working conditions so intoler-
able that a reasonable person would be forced to resign.
Pa. State Police v. Suders, 542 U.S. 129, 147 (2004).
Generally, to support such a claim, a plaintiff ’s working
conditions must be even more egregious than the high
standard for hostile work environment claims, because, in
the ordinary case, an employee is expected to remain
employed while seeking redress. Tutman v. WBBM-TV,
Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (quotation and
citation omitted).
In Suders, the leading case on constructive discharge,
the plaintiff was subjected to ongoing sexual harassment,
was denied promotions, complained about alleged mis-
treatment to no avail, and endured retaliation from her co-
workers. 542 U.S. at 135-36. After the plaintiff ’s scheming
co-workers arrested and detained her, she resigned. Id.The Supreme Court concluded that a reasonable jury could
find that the plaintiff had been constructively discharged.
Id. at 152. This Court has likewise set a high bar for
constructive discharge claims. See Taylor v. W. S. Life Ins.
Co., 966 F.2d 1188, 1191 (7th Cir. 1992) (recognizing that
a jury could find constructive discharge where the plain-
tiffs’ boss constantly made racist comments, brandished a
pistol, and held it to one plaintiff ’s head); Brooms v. Regal
Tube Co., 881 F.2d 412, 417 (7th Cir. 1989) (holding that
constructive discharge was established where the defen-
dant’s “repeated instances of grossly offensive conduct and
commentary” culminated in an incident where a co-worker
showed the plaintiff a racist pornographic photograph, told
her that she was hired to perform the task depicted in the
photograph, grabbed the plaintiff, and threatened to kill
her).
No. 06-4061 11
Our precedent recognizes that the primary rationale
behind the heightened standard in constructive discharge
cases is to permit an employer to address a situation
before it causes an employee to quit. See Tutman, 209 F.3d
at 1050. If continued employment would compromise an
employee’s personal safety, however, we do not expect an
employee to remain on the job while the employer tries to
remedy the problem. Boumehdi does not claim that
continued employment at Plastag would physically endan-
ger her, but she has alleged a repeated pattern of offensive
conduct by her supervisor, retaliatory actions after she
complained to human resources, and her employer’s
general failure to respond despite repeated complaints.
Just as an employee has a duty, where reasonable, to
mitigate damages and to wait for the employer to inter-
vene, an employer has a duty to prevent the kind of
treatment Boumehdi endured. See Baskerville, 50 F.3d at
431-32. In this case, even though Plastag had numerous
opportunities to respond to the situation, Boumehdi’s
alleged complaints fell on deaf ears. Therefore, a jury could
conclude that a reasonable person in Boumehdi’s position
would feel she had no choice but to resign. Accordingly, we
reverse the district court’s grant of summary judgment on
the constructive discharge claim.
C. Disparate Treatment Claim
Next, Boumehdi contends that she provided evidence
sufficient to survive summary judgment under the indi-
rect, burden shifting method of proving disparate treat-
ment. Plastag responds that Boumehdi cannot establish a
prima facie case of disparate treatment and that it had
legitimate non-discriminatory reasons for its adverse
actions.
To make a prima facie case of disparate treatment,
Boumehdi must demonstrate that 1) she was a member of
a protected class; 2) she was meeting her employer’s
12 No. 06-4061
legitimate business expectations; 3) she suffered an
adverse employment action; and 4) her employer treated
similarly situated employees outside of the class more
favorably. Ballance v. City of Springfield, 424 F.3d 614,
617 (7th Cir. 2005). Once a plaintiff has established a
prima facie case of disparate treatment, the burden of
production shifts to the defendant to provide a legitimate,
nondiscriminatory reason for the decision. Id. If the
defendant satisfies its burden, then the burden shifts back
to the plaintiff to show that the defendant’s explanation
was pretextual. Id. Only the first prong is undisputed, but
because the second prong is inextricably intertwined with
the pretext analysis, we will address both issues together
in our discussion of pretext. See Keri v. Bd. of Trs. of
Purdue Univ., 458 F.3d 620, 644 (7th Cir. 2006) (noting
that this Court may analyze prima facie elements together
with pretext where the issues overlap substantially).
With regard to the third prong of the prima facie case,
Boumehdi has offered evidence that she was shorted pay,
unfairly evaluated, and constructively discharged. Al-
though this Court has held that low performance ratings,
in and of themselves, do not constitute adverse employ-
ment actions, Rabinovitz v. Pena, 89 F.3d 482, 488 (7th
Cir. 1996), we have recognized that the denial of a raise
constitutes a material, adverse action. See Farrell v. Butler
Univ., 421 F.3d 609, 614 (7th Cir. 2005). Accordingly, even
if Boumehdi ultimately cannot establish that she was
constructively discharged (undoubtedly an adverse employ-
ment action), she has provided evidence of two other
adverse actions: the denial of a raise and underpayment
for completed work. The parties agree that Boumehdi did
not receive a raise based on her March 2003 review, and
she has produced at least five time cards demonstrating
that Plastag underpaid her for hours recorded on the
cards.
Boumehdi also argues that she has provided evidence
from which a jury reasonably could conclude that Plastag
No. 06-4061 13
treated similarly situated employees more favorably. A
similarly situated employee is one who is “directly compa-
rable [to the plaintiff] in all material aspects.” Patterson v.
Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).
When determining whether employees are similarly
situated, courts consider whether the employees 1) had the
same job description; 2) were subject to the same stan-
dards; 3) were subject to the same supervisor; and 4) had
comparable experience, education, and other qualifications.
Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir.
2005).
Boumehdi points out that she was the only employee in
her department who was not paid for skipping her lunch
break, who had her pay shorted consistently, and who did
not receive a raise for her 2003 review. She identifies her
press partner, Wayne Milbrandt, as a similarly situated
employee because he worked on the same machine and had
the same supervisor. Boumehdi contends that she and
Milbrandt produced the same quantity and quality of work
in 2003, because they worked together on the same press.
Nevertheless, in the March 2003 reviews, Vega described
Boumehdi’s performance as “up and down,” while noting
that Milbrandt’s productivity had increased. Moreover,
although Milbrandt’s review said that he needed “to stay
within his breaks given” and Boumehdi’s review also
chastised her for taking excessive breaks, Milbrandt
received a positive review and a raise, while Boumehdi
received a score of 2.75 and no raise.
Plastag responds that Boumehdi and Milbrandt are not
similarly situated because they had different job titles:
Milbrandt was a press operator and Boumehdi was a
feeder. The difference in job title alone is not dispositive,
however, because Boumehdi has offered evidence that she
and Milbrandt worked together on the same machine,
produced the same output, and worked the same shift. Our
similarly situated requirement “should not be applied
mechanically or inflexibly,” Hull v. Stoughton Trailers,
14 No. 06-4061
LLC, 445 F.3d 949, 952 (7th Cir. 2006), and a reasonable
jury could find, based on Boumehdi’s evidence, that she
and Milbrandt were indeed similarly situated.
Plastag also argues that summary judgment was appro-
priate because the company had legitimate, non-discrimi-
natory reasons for shorting Boumehdi’s pay and not giving
her a raise. First, Plastag notes that it denied Boumehdi
a raise because of a company policy denying raises to
employees receiving performance review scores worse than
2.5. Second, Plastag states that it shorted Boumehdi’s
checks because she was improperly adding extra time to
her cards without supervisor approval.
Boumehdi responds that the reasons offered by Plastag
are a pretext for discrimination. To establish pretext,
Boumehdi must identify such weaknesses, implausibilities,
inconsistencies, or contradictions in Plastag’s proffered
reasons that a reasonable person could find them unwor-
thy of credence and hence infer that Plastag did not act for
the asserted non-discriminatory reasons. Reeves v. Sander-
son Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). If
Plastag honestly believed the reasons it gave, however,
Boumehdi loses even if the reasons were foolish, trivial, or
baseless. McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368,
373 (7th Cir. 1992).
Since Vega, Boumehdi’s alleged harasser, was exclu-
sively responsible for the (possibly retaliatory) negative
performance review, Plastag’s reliance on the review as a
legitimate reason for the denied raise is misplaced. Having
determined that a jury reasonably could classify the
negative review as retaliatory, see infra pp. 15-17, we
cannot reverse course and say that the review consti-
tutes a legitimate reason for denying Boumehdi a raise.
Indeed, if a jury believed that Vega told Boumehdi to stop
complaining about him when she confronted him about
the negative performance review, it could likewise con-
No. 06-4061 15
clude that the bad review did not result from Boumehdi’s
performance.
Furthermore, Boumehdi contends that improperly
marked time cards cannot account for her checks regularly
coming up short because marking up timecards was a
regular practice at the company. According to Boumehdi,
Vega instructed her to make various written notations on
the cards. Boumehdi also identifies other employees that
marked up their timecards and were nonetheless paid in
full. Finally, she contends that the asserted reason is
unworthy of credence because even though the company,
in essence, accused her of stealing by seeking payment for
idle time, it never reprimanded her for the practice. We
agree that Boumehdi has produced evidence from which a
jury reasonably could conclude that Plastag’s asserted
reasons for its actions were pretextual. We therefore
reverse the district court’s ruling.
D. Retaliation Claim
Boumehdi also argues that summary judgment should
not have been granted on her retaliation claim. Title VII’s
anti-retaliation provision makes it unlawful for an em-
ployer to “discriminate against” an employee “because he
has opposed any practice made an unlawful employment
practice” by the statute or “because he has made a charge,
testified, assisted, or participated in [a relevant] investiga-
tion, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). An
employee can prove retaliation using either the direct or
indirect method of proof. Under the direct method, a
plaintiff can prove retaliation by presenting direct evidence
of 1) a statutorily protected activity; 2) an adverse action
taken by the employer; and 3) a causal connection between
the two. Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 728
(7th Cir. 2003). Under the direct method, a plaintiff may
offer circumstantial evidence of intentional retaliation,
including evidence of suspicious timing, ambiguous
16 No. 06-4061
statements, behavior toward or comments directed at other
employees in the protected group, and other bits and
pieces from which an inference of discriminatory intent
might be drawn. Troupe v. May Dep’t Stores Co., 20 F.3d
734, 736 (7th Cir. 1994).
Boumehdi has offered evidence that she complained to
Bell about Vega’s gender-based comments, which qualifies
as protected activity. See 42 U.S.C. § 2000e-3(a) (stating
that an employer cannot discriminate against an employee
who opposes an employment practice that is prohibited by
Title VII). Additionally, as discussed above, Boumehdi has
proffered that she suffered adverse actions. The only
question, therefore, is whether she has offered evidence
that the adverse actions directly resulted from her com-
plaints to human resources. The causal link of a retaliation
claim is frequently established by showing that there was
a suspiciously short period of time between the employee’s
complaint and the adverse employment action. See Parkins
v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1039 (7th
Cir. 1998). In this case, Boumehdi’s negative review and
paycheck shortages followed closely on the heels of her
first meeting with Bell. Vega’s comments to Boumehdi
about her meetings with Bell provide additional circum-
stantial evidence of Vega’s intent to punish Boumehdi for
complaining. See Phelan v. Cook County, 463 F.3d 773, 781
(7th Cir. 2006) (recognizing that causation may be proven
through ambiguous statements from which an inference of
discriminatory intent might be drawn). According to
Boumehdi, Vega twice accused her of complaining about
him and warned her that if she didn’t watch it, she’d end
up scrubbing floors. Furthermore, when Boumehdi asked
Vega about her negative annual review, Vega allegedly
warned her to stop complaining about him. These facts
would permit a jury to conclude that Boumehdi’s com-
plaints triggered the subsequent adverse actions.
Finally, Plastag argues that Boumehdi cannot demon-
strate causation because she received one short paycheck
No. 06-4061 17
before she complained to Bell. We disagree. This Court has
held that if the alleged retaliatory behavior pre-existed the
protected activity, the plaintiff must provide some evidence
of ratcheting up or increased harassment to succeed. See
Johnson v. Nordstrom, Inc., 260 F.3d 727, 735 (7th Cir.
2001); McDonnell v. Cisneros, 84 F.3d 256, 259 (7th Cir.
1996). Although one paycheck came up a little short prior
to Boumehdi’s first complaint, the negative performance
review occurred after she complained, and the pay short-
ages became increasingly common and severe (i.e., her
checks came up hours rather than minutes short). Accord-
ingly, a jury could find that Vega ratcheted up his retalia-
tory activity after he learned of Boumehdi’s complaints to
Bell.
E. Equal Pay Act Claim
Finally, Boumehdi claims that the district court erred in
disposing of her Equal Pay Act claim. To prove a violation
of the Equal Pay Act, Boumehdi must first establish a
prima facie case of unequal pay by showing that 1) she was
compensated differently than a male employee; 2) she and
the male employee performed equal work requiring equal
skill, effort, and responsibility; and 3) they had similar
working conditions. Cullen v. Ind. Univ. Bd. of Trs., 338
F.3d 693, 698 (7th Cir. 2003).
Boumehdi produced evidence that she was the lowest
paid feeder in the lithograph department and that she was
the only female feeder in the department. Though she
performed the same functions as Mike Hezinger, who
served as the feeder on the same press during the first
shift, Hezinger earned nearly $2.00 more per hour than
she did. Accordingly, the parties agree that Boumehdi can
establish a prima facie case under the Equal Pay Act. Once
a plaintiff has established a prima facie case, the burden
shifts to the employer to show that the pay disparity was
justified in one of four ways: 1) a seniority system; 2) a
18 No. 06-4061
merit system; 3) a system which measures earnings by
quantity or quality of production; or 4) any other factor
other than sex. See Fallon v. Ill., 882 F.2d 1206, 1211 (7th
Cir. 1989).
Plastag contends that the pay difference was justified
because it was based on seniority, experience, and per-
ceived job performance. Plastag points out that Hezinger
had one more year of seniority than Boumehdi, and it
claims that Hezinger’s job performance was superior.
Boumehdi counters that she entered the department with
years of press experience dating back to 1981, while
Hezinger had no previous press experience. She also
emphasizes that her prior supervisor, when he gave her
the January 2001 raise, said she was just as good as her
male colleagues, including Hezinger. Finally, she contends
that even assuming that the difference in seniority affected
Hezinger’s wages, it cannot account for a $2.00 difference.
Boumehdi’s evidence is sufficient to create a genuine
issue of material fact as to whether the pay disparity
between her and Hezinger was justified. Plastag’s key
measure of perceived performance is the annual perfor-
mance review, the validity of which is in dispute. More-
over, Boumehdi has offered evidence that her prior super-
visor perceived that she performed as well as Hezinger.
Likewise, Boumehdi has produced evidence that her
performance and prior experience were greater than or
equal to Hezinger’s. Finally, a one-year difference in
seniority cannot fully explain the $2.00 per hour disparity,
because the record suggests that a typical annual raise
maxed out around the $1.00 mark.5 We therefore reverse
the district court’s ruling on this issue.
5
The largest raise in the record is the $1.55 equalization raise
Boumehdi received in 2001.
No. 06-4061 19
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment on all claims.6
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
6
We decline to consider Plastag’s successor liability defense so
that the district court may consider it in the first instance.
USCA-02-C-0072—6-4-07