Snider, Karen v. Belvidere Township ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4102
KAREN SNIDER,
Plaintiff-Appellant,
v.
BELVIDERE TOWNSHIP, and H. ROBERT FALKENSTEIN,
in his official capacity as Belvidere Township
Assessor and in his individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 98 C 50133--Philip G. Reinhard, Judge.
Argued May 17, 2000--Decided June 19, 2000
Before Bauer, Coffey and Kanne, Circuit Judges.
Bauer, Circuit Judge. Karen Snider ("Snider")
filed suit against her employer, Belvidere Town-
ship, and her supervisor, Robert Falkenstein
("Falkenstein"), after she was fired for com-
plaining about alleged sex-based pay discrimina-
tion in the Assessor’s office. The District Court
granted summary judgment in favor of the defen-
dants, finding that a portion of Smith’s claim
was time-barred, that she failed to state a claim
under the Equal Pay Act and that her speech was
not a matter of public concern and thus not
constitutionally protected. Plaintiff appeals. We
affirm.
I. BACKGROUND
Karen Snider worked as a residential deputy
assessor for Belvidere Township from April 1,
1991 until her termination on March 27, 1997.
Snider claims she was fired because she publicly
protested the lower salaries paid to women in the
Assessor’s office. The defendants deny that and
counter that Snider was fired because she was
insubordinate and disrupted the harmony of the
office.
The controversy was centered around the hiring
of a less experienced male commercial deputy
assessor whose salary was equal to Snider’s.
Snider found out that his salary matched hers at
a March 25, 1997 township Board meeting. She
admittedly went to the Board meeting because she
knew that the payroll portion of the budget was
going to be discussed and approved and she wanted
to find out what her raise was going to be and
how much the new male deputy assessor (John
Elder) would be making. To her dismay, she
learned that her salary was being raised to
$11.80/hour and that Mr. Elder was starting at
$11.80/hour. She, of course, expressed her dis-
pleasure to the Board, saying it was unfair that
they should be paid equally because she had six
years seniority and was more qualified than Mr.
Elder. The Board approved the salaries anyway.
Two days later, on March 27, 1997, Falkenstein
called a department meeting to discuss things.
The department at that time consisted of Falkens-
tein, Snider and two other female deputy asses-
sors, both of whom had also attended the Board
meeting two days previously. Falkenstein was
upset that his full-time staff members had gone
to the Board meeting, behind his back, without
speaking to him first. The tempers of Snider and
Falkenstein then flared and they ended up in a
shouting match, with Snider accusing Falkenstein
of paying the men in the office more than the
women. Falkenstein responded by telling Snider
that if she did not like her salary she was free
to resign, but that if she did not do so he would
not tolerate any further disruption of the harmo-
ny of the office or continued questioning of his
authority. Snider did not back down and was fired
for insubordination before the meeting ended.
Snider’s charge of discrimination filed with the
EEOC was not successful and she filed suit in the
district court. Her Complaint alleged violations
of Title VII of the Civil Rights Act, violations
of the Equal Pay Act and a section 1983 First
Amendment claim./1 The District Court entered
summary judgment in favor of the defendants on
all of Smith’s claims. She appeals, claiming a
multitude of errors: that the District Court
erred in holding her Title VII claim based upon
the wages of another male who left the Assessor’s
office in 1996 was time-barred, erred in finding
that she failed to state a claim under the Equal
Pay Act, and erred in ruling that her speech did
not touch upon a matter of public concern and was
thus not constitutionally protected. We affirm.
II. DISCUSSION
We review the District Court’s grant of summary
judgment under the familiar de novo standard,
drawing all reasonable inferences in favor of the
non-movant. Vakharia v. Swedish Covenant Hospi-
tal, 190 F.3d 799, 805 (7th Cir. 1999); Johnson
v. Zema Systems Corp., 170 F.3d 734, 742 (7th
Cir. 1999). In order to overcome summary judg-
ment, Snider must show specific facts sufficient
to raise a genuine issue for trial. See Fed. R.
Civ. P. 56(c); Vakharia, 170 F.3d at 805. "A
genuine issue for trial exists only when a rea-
sonable jury could find for the party opposing
the motion based on the record as a whole." Roger
v. Yellow Freight System, Inc., 21 F.3d 146, 149
(7th Cir. 1994).
A. Timeliness Of Title VII Claim For Wage
Discrimination
Snider sought to prove her Title VII claim, in
part, by relying on the higher salary of another
male deputy assessor, Jerome Witek. Mr. Witek
made $12.00/hour to Snider’s $11.07/hour. The
District Court, however, held that Snider’s Title
VII claim based on Witek’s wages was time-barred.
Section 2000e-5(e) of Title VII provides that a
charge of discrimination must be filed within 300
days after the alleged unlawful employment prac-
tice occurred. 42 U.S.C. sec.2000e-5(e). Failure
to timely file the charge with the EEOC bars any
subsequent civil rights suit in the courts. Terry
v. Bridgeport Brass Company, 519 F.2d 806, 808
(7th Cir. 1975). In this case, the District Court
found that the 300 day time began to run on June
30, 1996, the day Mr. Witek left the employ of
the Assessor’s office. Snider filed her charge
with the EEOC on June 5, 1997, 340 days later.
Snider, however, argues that her claim did not
accrue when Witek’s employment ceased, but,
rather, accrued anew each time she received her
diminished paycheck. She characterizes her argu-
ment this way in an attempt to place herself
within the "continuing violation doctrine," an
exception which allows a complainant to obtain
relief for a time-barred act of discrimination by
linking it with acts that fall within the statu-
tory limitations period. See Filipovic v. K & R
Express Systems, Inc., 176 F.3d 390, 395-97 (7th
Cir. 1999); Koelsch v. Beltone Electronics Corp.,
46 F.3d 705, 707-08 (7th Cir. 1995). Her attempt,
however, ignores the precedent we established in
Dasgupta v. University of Wisconsin Board of
Regents, 121 F.3d 1138 (7th Cir. 1997), that the
continued receipt of lower paychecks does not
revive past allegedly discriminatory conduct. Id.
at 1139-40.
We continue to believe that in situations such
as this, where a plaintiff is complaining that
she is paid less than similarly situated members
of the opposite sex because of her gender, the
claim of discrimination accrues when the male
leaves his employment. This is because the male’s
departure ends the allegedly discriminatory wage
differential (assuming there are no other men
being paid more than the plaintiff for a job
requiring equal skill, effort and responsibili-
ty). Our brethren in the Second and Sixth Cir-
cuits join us in so holding. See Pollis v. New
School for Social Research, 132 F.3d 115, 118-19
(2nd Cir. 1997); EEOC v. Penton Industrial Pub-
lishing Co., 851 F.2d 835, 837-39 (6th Cir.
1988). As the Sixth Circuit said, to find other-
wise, would "redu[ce] the statutes of limitations
in employment discrimination cases to a nullity."
Penton, 851 F.2d at 839.
Under this reasoning, Snider’s Title VII wage
discrimination claim had to be filed within 300
days of Witek’s departure. It was not. It was
filed more than forty days after the time limit
and is therefore barred. The order of the Dis-
trict Court finding that plaintiff’s Title VII
claim was time-barred is affirmed.
B. Equal Pay Act Claims
The Equal Pay Act prohibits sex-based wage
discrimination. 29 U.S.C. sec.206(d)(1); Dey v.
Colt Construction and Development Co., 28 F.3d
1446, 1461-62 (7th Cir. 1994). To establish a
prima facie case under the Act, the plaintiff
must show: "(1) that different wages are paid to
employees of the opposite sex; (2) that the
employees do equal work which requires equal
skill, effort, and responsibility; and (3) that
the employees have similar working conditions."
Soto v. Adams Elevator Equipment Co., 941 F.2d
543, 548 (7th Cir. 1991), quoting Fallon v. State
of Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989).
The District Court found that Snider failed to
establish the first two of these elements and
summarily granted judgment in favor of the defen-
dants. We affirm that judgment, but under a
slightly different analysis./2
In Counts I and II of her Complaint, Snider
alleges that the defendants violated the Equal
Pay Act by starting the less experienced and less
qualified John Elder at a salary higher than
hers. It is true, that at the time she found out
that Elder was hired to be a full-time commercial
deputy assessor at a salary of $11.80/hour,
Snider was making less money. However, her argu-
ment ignores the fact that Elder’s employment was
to begin on April 1, 1997, the very same day her
40 cent/hour raise was to become effective, thus
erasing the pay differential. As the defendants
correctly point out, the plaintiff cannot estab-
lish her cause unless she can show that similarly
situated males were receiving higher wages for
the same work. Snider has not done this. In
short, she has failed to state a cause of action
under the Equal Pay Act. Weiss v. Coca-Cola
Bottling Company of Chicago, 990 F.2d 333, 338
(7th Cir. 1993).
The District Court considered whether Snider
would be able to support her Equal Pay Act claim
with evidence of Jerome Witek’s higher wages,
concluding that she could not because Witek’s job
duties did not "involve equal skill and equal
effort when compared to [Snider’s] job duties."
We, however, do not reach the second prong of the
test as we believe that Snider’s Equal Pay Act
claim with regard to Witek is barred because she
never filed an Equal Pay Act claim with regard to
Witek and the time in which she could do so has
long passed. A claim for discrimination under the
Equal Pay Act must be filed no more than two
years after the date of the alleged violation, or
within three years in the case of a wilful
violation. 29 U.S.C. sec.255(a). There being no
evidence of a wilful violation, the two year
statute is controlling and plaintiff must have
filed her cause complaining of Witek’s wage no
later than June 30, 1998 (two years after Witek
left the Assessor’s office). She has not done
this. Also, our review of her Complaint shows
that nowhere in Counts I and II does she even
reference Jerome Witek’s pay, let alone complain
that it violates the Equal Pay Act. There being
no timely claim with regard to Witek, then, we do
not consider the evidence regarding his wages.
The record shows that Elder’s starting salary
was $11.80/hour, the same as Snider’s salary. The
Equal Pay Act mandates the same pay for members
of both genders performing equal work. Snider
received the same pay and her claim under the
Equal Pay Act fails. The order of the District
Court granting summary judgment in favor of the
defendants on these counts is affirmed.
C. First Amendment Claims
Snider believes that she was fired from her job
as a residential deputy assessor because she
complained publicly about the alleged sex-based
pay discrimination in the Assessor’s office. She
brought a claim for the defendants’ violation of
her First Amendment right to freedom of expres-
sion, but the District Court granted summary
judgment as to those counts, finding that her
statements were not a matter of public concern.
We agree with the District Court.
We analyze First Amendment claims asserted by
public employees in two steps. First, we deter-
mine whether the employee’s speech addresses a
matter of public concern. Weicherding v. Riegel,
160 F.3d 1139, 1142 (7th Cir. 1998), citing
Connick v. Myers, 461 U.S. 138, 146 (1983). If it
does, we then balance the employee’s interest in
her expression against the state’s interest in
promoting the efficiency of the public service it
performs through its employees. Id., citing
Pickering v. Board of Education, 391 U.S. 563,
568 (1968). We do not reach the second prong, the
balancing test, unless the employee establishes
that her speech involves a matter of public
concern. Wright v. Illinois Department of Chil-
dren & Family Services, 40 F.3d 1492, 1501 (7th
Cir. 1994); Vukadinovich v. Bartels, 853 F.2d
1387, 1390 (7th Cir. 1988). "Whether an employee-
’s speech addresses a matter of public concern
must be determined by the content, form, and
context . . . as revealed by the whole record."
Gray v. Lacke, 885 F.2d 399, 410 (7th Cir. 1989),
cert. denied, 494 U.S. 1029 (1990), citing,
Connick, 461 U.S. at 147-48. The question of
whether the speech relates to a matter of public
concern is for the court. Campbell v. Towse, 99
F.3d 820, 826 (7th Cir. 1996).
Here, the District Court found that "there is
nothing about Snider’s activities which would
indicate she was acting as anything but an em-
ployee complaining about her salary." This con-
clusion is amply born out by the evidence in the
record. Snider admittedly went to the March 25
Board meeting, not to complain about the alleged
sexual discrimination, but merely to find out how
much her raise was going to be and how much the
new male deputy assessor would be making. She
never complained that the males were being paid
more than the females. She complained only about
the fairness of her salary vis a vis other
employees, given her tenure. This, together with
the fact that Snider said she would have com-
plained about the perceived salary disparity
regardless of whether the new employee was a male
or female, convinces us that Snider’s statements
related solely to a personal issue, not to a
public concern.
Snider’s complaints regarding her salary related
to a personal concern. She simply wanted to be
paid more than anyone else with less seniority.
Such workplace speech, while personally impor-
tant, does not address a matter of public con-
cern, and thus does not merit First Amendment
protection. Thus, the order of the District Court
granting summary judgment for the defendants on
Snider’s First Amendment claims is affirmed.
III. CONCLUSION
For the foregoing reasons, the judgment of the
District Court is affirmed.
AFFIRMED.
FOOTNOTES
/1 She also alleged a violation of the Age Discrimi-
nation in Employment Act, but dismissed the count
before the court ruled on her motion for summary
judgment.
/2 In considering the District Court’s decision on
appeal, we may affirm on a ground other than that
relied on by the District Court so long as it is
adequately supported in the record and the law.
Divane v. Krull Electric Co., 200 F.3d 1020, 1026
(7th Cir. 1999).