Sims-Fingers, Kim v. City of Indianapolis ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2198
KIMBERLY M. SIMS-FINGERS,
Plaintiff-Appellant,
v.
CITY OF INDIANAPOLIS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:04-cv-01952-VSS-SEB—V. Sue Shields, Magistrate Judge.
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ARGUED FEBRUARY 15, 2007—DECIDED JUNE 27, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and KANNE,
Circuit Judges.
POSNER, Circuit Judge. The plaintiff, the manager of a six-
acre park owned by the Indianapolis and Marion County
park system, complains that she is paid less than some
of the male managers in the park system and that the
difference in pay violates the Equal Pay Act. (She also
claims that it violates Title VII; we take up that claim at the
end of our opinion.) The Equal Pay Act requires an em-
ployer to pay his male and female employees at the same
rate “for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which
2 No. 06-2198
are performed under similar working conditions.” 29
U.S.C. § 206(d)(1). The district court granted summary
judgment for the city on both the Equal Pay Act and Title
VII claims.
There are 32 parks in the park system and 27 park
managers. The plaintiff concedes that some female manag-
ers are paid more than some male managers; in fact, in
2003 she herself was paid more than 7 of the 16 male
managers and less than 7 of the female ones, while another
of the female managers ranked second out of all the
managers, which meant that she outranked 15 of the 16
men. The average salary difference between the male and
female managers is just a shade more than $100 in favor
of the men, a difference of only one-third of one percent.
Obviously these figures do not support an inference of
sex discrimination. But the Equal Pay Act defines dis-
crimination as paying at different rates for “equal” work,
29 U.S.C. § 206(d)(1), and this implies that our plaintiff can
complain about being paid less than a male manager for
equal work and that any male managers in the Indianapolis
park system who are paid less than female managers for
equal work also can complain—equally. Corning Glass
Works v. Brennan, 417 U.S. 188, 195 (1974); Fyfe v. City of
Fort Wayne, 241 F.3d 597, 599-601 (7th Cir. 2001); Schwartz
v. Florida Bd. of Regents, 807 F.2d 901, 902-03 (11th Cir.
1987). But the plaintiff has failed to make a prima facie
case of unequal pay for equal work.
The Indianapolis park system is heterogeneous. There
are large parks and small, parks that have swimming pools
or ponds and parks that do not, parks that generate
significant income and ones that do not, and parks that
have greater or fewer employees than other parks or
greater or fewer patrons. Because the parks are so different,
the skills and effort required of the managers and the
No. 06-2198 3
amount of responsibility that they bear vary. Managing a
park that has a swimming pool involves greater responsi-
bility than managing a park that has no water, because of
the danger of a patron’s drowning and the difficulty of
proper maintenance of a large pool. Similarly, the more
money the park takes in, the more responsibility the
manager’s job entails, since he can get into serious trouble
if revenue dries up or money is discovered missing from
the till. Eight of the nine male managers who are paid more
than the plaintiff manage larger parks than she that either
have water facilities or generate significantly higher
income and patronage than her small park.
She focuses on the higher salary paid the ninth male
manager, Robinson. At a time when she was paid
$34,373.56 a year, he was paid $35,000.16—even though the
park that he was assigned to manage had not opened yet.
(It has since. www.indygov.org/eGov/City/DPR/Parks/
List/Bethel+Park.htm (visited June 12, 2007).) However,
during the waiting period he had to work with neighbor-
hood associations to plan programs for the park. It was
to be a large park—at least 100 acres, almost 17 times
larger than her park, and to offer the following amenities
not available at her park:
Game Room
Computer Room
Fitness Center
Horseshoe Pits (5)
Baseball Diamond
Playground
Football Field
Seasonal Swimming Pool
4 No. 06-2198
In addition, Robinson has a master’s degree in human
relations, a relevant credential for such an “outreach”
effort. There is no basis on which a reasonable trier of
fact could find that such a job involves no greater skill,
effort, and responsibility than the plaintiff’s job of running
a very small, established park having much more lim-
ited facilities than were planned for Robinson’s park.
Moreover, in determining whether equal pay is being
paid for equal work, the size of the pay differential, though
not determinative, Hodgson v. American Bank of Commerce,
447 F.2d 416, 420 (5th Cir. 1971), is highly relevant.
Brousard-Norcross v. Augustana College Association, 935 F.2d
974, 979 (8th Cir. 1991); Flockhart v. Iowa Beef Processors, Inc.,
192 F. Supp. 2d 947, 970-72 (N.D. Iowa 2001); compare
Peltier v. City of Fargo, 533 F.2d 374, 375-76, 378-79 (8th Cir.
1976). The smaller the differential, the more likely it is to be
justified by a small difference in the work. The pay dif-
ferential between the plaintiff and Robinson is less than
2 percent, and we do not see how anyone could say that her
work and his are so far equal that it should be inferred that
he is overpaid relative to her.
Furthermore, when jobs are heterogeneous a suit under
the Equal Pay Act is in danger of being transmogrified
into a suit seeking comparable pay—a theory of liability
for sex discrimination under Title VII that has been re-
jected by this and the other courts to consider it. Loyd v.
Phillips Bros., Inc., 25 F.3d 518, 524-25 (7th Cir. 1994);
American Nurses’ Association v. Illinois, 783 F.2d 716 (7th Cir.
1986); AFSCME v. Washington, 770 F.2d 1401, 1406-07 (9th
Cir. 1985); Lemons v. City of Denver, 620 F.2d 228, 228-30
(10th Cir. 1980). The comparable-pay movement asks that
wages in different jobs be proportional to the differences
between the jobs in the difficulty, required skill level,
No. 06-2198 5
amenities, and so forth. Paula England, Comparable
Worth: Theories and Evidence 1 (1992); Washington County v.
Gunther, 452 U.S. 161, 166 and n. 6 (1981); American Nurses’
Association v. Illinois, supra, 783 F.2d at 719-20. The con-
cern is that traditional women’s jobs, such as secretarial
work, are paid less relative to traditional men’s jobs,
such as driving a truck, than the objective differences
between the jobs merit. Liability on the basis of a theory
of comparable worth is even less tenable under the Equal
Pay Act than under Title VII, because the former Act
requires equal pay only for equal work, and the whole
idea of the comparable-worth movement is that equal pay
should sometimes be required for unequal work. Beavers v.
American Cast Iron Pipe Co., 975 F.2d 792, 800-01 (11th Cir.
1992); cf. Wernsing v. Department of Human Services, 427 F.3d
466, 467-70 (7th Cir. 2005); EEOC v. Madison Community
Unit School District, 818 F.2d 577, 580, 582 (7th Cir. 1987).
Managing a 100-acre park with a swimming pool and
managing a six-acre park with a basketball court are not as
different as working as a secretary and driving a truck,
but they are sufficiently different that deciding how far
the salaries for the two jobs “should” differ strains the
competence of the litigation process. Managing a park
with a pool is, as we said, a more responsible job than
managing a park without one, other things being the
same. How large a wage premium should that greater
responsibility command? Who knows? Our society leaves
such decisions to the market, to the forces of supply and
demand, because there are no good answers to the norma-
tive question, or at least no good answers that are within
the competence of judges to give.
The proper domain of the Equal Pay Act consists of
standardized jobs in which a man is paid significantly
6 No. 06-2198
more than a woman (or anything more, if the jobs are truly
identical) and there are no skill differences. An example
might be two sixth-grade music teachers, having the
same credentials and experience, teaching classes of
roughly the same size in roughly comparable public
schools in the same school district. Buntin v. Breathitt
County Board of Education, 134 F.3d 796, 797, 799 (6th Cir.
1998); Brock v. Georgia Southwestern College, 765 F.2d 1026,
1032-35 (11th Cir. 1985). The jobs of the managers of the
different parks in the sprawling Indianapolis park system
are nonstandard, mainly because the parks are so differ-
ent from one another.
We turn last and briefly to the Title VII claim. Title VII
does not require equal work, but neither does it allow
for recovery on the basis of the theory of comparable
worth. So merely showing that a man and a woman who
perform different jobs for the same employer are paid
differently does not get a Title VII plaintiff to first base. As
that is all the evidence of sex discrimination that the
plaintiff has presented, her Title VII claim was properly
dismissed as well. Cullen v. Indiana University Board of
Trustees, 338 F.3d 693, 704 (7th Cir. 2003); Loyd v. Phillips
Bros., Inc., supra, 25 F.3d at 524-25; Buettner v. Arch Coal
Sales Co., Inc., 216 F.3d 707, 718-19 (8th Cir. 2000). We
therefore need not consider the bearing of the Supreme
Court’s recent decision in Ledbetter v. Goodyear Tire &
Rubber Co., 127 S.Ct. 2162, 2165-69 (2007), on the timeliness
of the plaintiff’s Title VII claim; the decision has no bear-
ing on her claim under the Equal Pay Act. Id. at 2165, 2176.
AFFIRMED.
No. 06-2198 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-07