NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 19, 2013*
Decided April 19, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐3679
MICHELLE EVA McDONALD, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 C 5435
VILLAGE OF PALATINE, ILLINOIS,
Defendant‐Appellee. Charles R. Norgle,
Judge.
O R D E R
Michelle McDonald sued the Village of Palatine, Illinois, her former employer,
claiming sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of
1964, see 42 U.S.C. §§ 2000e‐2(a)(1), 2000e‐3(a), and wage discrimination in violation of the
Equal Pay Act, see
29 U.S.C. § 206(d). The district court dismissed the Title VII claims as
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐3679 Page 2
untimely and granted summary judgment to Palatine on the Equal Pay Act claim.
McDonald appeals and we affirm the judgment.
We recount the evidence in the light most favorable to McDonald. In January 2004
Palatine hired her as an “Inspector I, Step 1” in its Community Services Department. That
department employs three types of inspectors: Inspector I, Inspector II, and Sanitarian. As
an Inspector I, McDonald checked residential properties for compliance with Palatine’s
rental licensing code. An Inspector II has the additional duties of examining new
construction and reviewing building plans. Sanitarians primarily conduct health and
sanitation inspections of restaurants, swimming pools, and special events.
In February 2006 McDonald submitted a request to Palatine under the Illinois
Freedom of Information Act for the name, title, salary, and dates of employment for each
person employed in the Community Services Department during 2005. After requesting
from McDonald a seven‐day extension to answer her request, Palatine sent her the
department’s payroll register for 2005.
During the twenty‐eight months that McDonald worked for Palatine, she received
two merit‐based “step increases” and two cost‐of‐living increases. By the time she resigned
on May 1, 2006, she was an Inspector I, Step 3. Her last day of work was May 12. That same
month she filed a charge of discrimination with the Equal Employment Opportunity
Commission claiming sex discrimination, harassment, retaliation, and a violation of the
Equal Pay Act. She received her right‐to‐sue letter from the EEOC on July 27, 2006.
More than two years later, on September 23, 2008, McDonald filed this suit against
Palatine, alleging that she had been harassed, discriminated against, retaliated against, and
paid less than her male coworkers. On Palatine’s motion the district court properly
dismissed McDonald’s claims under Title VII as untimely, since she filed her complaint
more than 90 days after receiving her right‐to‐sue letter. See 42 U.S.C. § 2000e‐5(f)(1); Lee v.
Cook County,
635 F.3d 969, 971 (7th Cir. 2011). We have nothing to add on that issue.
The litigation proceeded on the Equal Pay Act claim. Palatine moved for summary
judgment, principally arguing that this claim, too, was untimely. The Equal Pay Act
includes alternative statutes of limitations—three years if the violation was willful and two
years for any other violation, see
29 U.S.C. § 255(a)—and Palatine argued that McDonald
lacked evidence of a willful violation and had filed her complaint more than two years after
receiving her last paycheck. Palatine also contended that McDonald lacked evidence that
she was paid less than any similarly situated male employee: Her pay rate, like everyone’s
in the Community Services Department, was dictated by a regulated pay plan, and any
male employee who earned a higher salary either had more experience or seniority.
No. 12‐3679 Page 3
McDonald responded by arguing that she should get the benefit of the three‐year
limitations period, not because Palatine had engaged in a willful violation of the Equal Pay
Act, but because, she insisted, the defendant was slow in meeting her FOIA request and did
not even give her records covering 2006. She also identified six potential comparators:
Brandon Allen, Robert Garcia, Allendro Roberts, Frank Cerny, Christopher Fish, and Erik
Moyer. Palatine replied with evidence that the last three had quit working for the
Community Services Department more than three years before McDonald filed suit.
See Snider v. Belvidere Twp.,
216 F.3d 616, 618–19 (7th Cir. 2000) (concluding that female
employee’s claims under Equal Pay Act and Title VII that she was paid less than similarly
situated male employee accrued when male left his job). And the others, Palatine argued, all
held the higher position of Sanitarian, which had different eligibility criteria and job
responsibilities than an Inspector I position. McDonald did not submit an affidavit or
otherwise dispute Palatine’s evidence, instead merely asserting that she had performed
most of the same duties as these men regardless of job title.
In granting Palatine’s motion, the district court concluded that McDonald lacked
evidence of a willful violation and so her claim is barred by the two‐year statute of
limitations. McDonald moved for reconsideration and tried to submit “new” evidence: a
check received on September 11, 2006, from an insurance company reimbursing her for an
$8 premium overpayment. This check, according to McDonald, was her “last paycheck”
from Palatine, and so her Equal Pay Act claim was timely even with the two‐year statute of
limitations. (McDonald based her argument on the theory that, as some courts have
concluded, the statute of limitations for the Equal Pay Act begins to run when the plaintiff
receives her last regular paycheck. See Ikossi‐Anastasiou v. Bd. of Supervisors of La. State Univ.,
579 F.3d 546, 553 (5th Cir. 2009); O’Donnell v. Vencor, Inc.,
465 F.3d 1063, 1068 (9th Cir. 2006);
Pollis v. New Sch. for Soc. Research,
132 F.3d 115, 119 (2d Cir. 1997)). The court denied the
motion, not only because McDonald received the check more than two years before she filed
suit, but also because she possessed it when she opposed Palatine’s motion for summary
judgment and thus it was not “new.”
On appeal McDonald remains focused on the $8 reimbursement check. That check,
she argues, established a material dispute about whether she sued within the two‐year time
limit. It did not. Not only did the district court properly refuse to accept the late submission,
but a refund of an insurance premium is not a paycheck. And even if it were, McDonald did
not file her complaint until 2 years and 12 days after receiving that check. McDonald also
argues that Palatine willfully violated the Act by not correcting the alleged pay imbalance
after receiving her FOIA request, which, she asserts, put the defendant on notice that it was
paying her less than her male coworkers. See E.E.O.C. v. Madison Cmty. Unit Sch. Dist. No.
12,
818 F.2d 577, 585 (7th Cir. 1987) (explaining that violation of Equal Pay Act is willful if
defendant knew it was violating law or was indifferent to that possibility). But the FOIA
No. 12‐3679 Page 4
request said nothing about gender or disparate wages, and so it does not evidence that
Palatine knew about McDonald’s belief that she was being paid less than her male
coworkers.
Moreover, even if the claim were not barred by the statute of limitations, McDonald
did not show that Palatine paid its male employees more money “‘for equal work requiring
substantially similar skill, effort and responsibilities.’” Cullen v. Ind. Univ. Bd. of Trs.,
338
F.3d 693, 698 (7th Cir. 2003) (quoting Stopka v. Alliance of Am. Insurers,
141 F.3d 681, 685 (7th
Cir. 1998)); see
29 U.S.C. § 206(d)(1). Her comparisons to Cerny, Fish, and Moyer are
untimely: The cause of action comparing her pay to theirs accrued when they left their
respective positions in the Community Services Department, see Snider,
216 F.3d at 618–19,
which occurred more than three years before she filed suit. The remaining three potential
comparators—Allen, Garcia, and Roberts—were Sanitarians. Although McDonald asserts
that she did the “same work” as they did, she failed to provide an affidavit or any other
evidence at summary judgment to substantiate that assertion. Thus it is undisputed that
unlike McDonald, who performed residential inspections, Allen, Garcia, and Roberts had
the substantially different responsibilities of conducting health and sanitation inspections at
restaurants, swimming pools, and special events. See Merillat v. Metal Spinners, Inc.,
470 F.3d
685, 695 (7th Cir. 2006); Cullen,
338 F.3d at 698. Sanitarians are required to be Licensed
Environmental Health Practitioners under Illinois law, see 225 ILCS 37/10, 37/15; the three
men but not McDonald had this license, which makes even her assertion that she was doing
the same work wholly implausible. She was not paid less for the same job; she was paid less
for a job with fewer responsibilities and educational requirements. See Sims‐Fingers v. City of
Indianapolis,
493 F.3d 768, 771–72 (7th Cir. 2007).
We have examined the other arguments raised by McDonald and conclude that none
has merit.
AFFIRMED.
