David v. Board of Trustees of Community College District No. 508 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2132
CELESTE DAVID,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF COMMUNITY
COLLEGE DISTRICT NO. 508, doing
business as CITY COLLEGES OF
CHICAGO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-02508 — Harry D. Leinenweber, Judge.
____________________
ARGUED JANUARY 14, 2016 — DECIDED JANUARY 13, 2017
____________________
Before FLAUM and RIPPLE, Circuit Judges, and PETERSON,
District Judge. ∗
∗ Of the Western District of Wisconsin, sitting by designation.
2 No. 15-2132
RIPPLE, Circuit Judge. Celeste David, an African-American
woman over the age of forty, was an employee of the City
Colleges of Chicago (“CCC”) from 1980 until 2012. She an-
nounced in August 2011 that she planned to retire in June of
the following year. After her announcement, she requested a
change in title and an increase in salary because she was per-
forming additional responsibilities related to the implemen-
tation of a software system; she was not awarded either. Fol-
lowing her retirement, her job duties were performed by
Christopher Reyes, an Asian man under the age of forty, who
was paid substantially more than Ms. David.
Ms. David subsequently brought this action alleging that
she was denied a pay increase on the basis of her race, sex,
and age, in violation of the Age Discrimination in Employ-
ment Act, 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.; and the Equal Pay Act,
29 U.S.C. § 206(d). The district court granted summary judg-
ment to CCC. Because we believe that the record, assessed in
its entirety, does not contain sufficient evidence to permit a
verdict for Ms. David on any of the counts, we now affirm the
judgment of the district court.
I
BACKGROUND
A.
Ms. David began working for CCC in October 1980. She
held different positions throughout her career, but her final
position at CCC was Manager of End-User Services in CCC’s
Office of Information Technology (“OIT”). In that position,
Ms. David worked in computer support: she oversaw staff at
No. 15-2132 3
the help desk and compiled internal reports of student data
and external reports of staffing, building, and salary data re-
quired by the Illinois Community College Board and the Illi-
nois Board of Higher Education. According to the job descrip-
tion for the Manager of End-User Services position, the qual-
ifications include a “Bachelor’s Degree in Computer Science,
Information Science, Computer Information Systems, Data
1
Processing, or an appropriate related field.” The job descrip-
tion also provides, however, that “[a] combination of educa-
tional and work experience may be taken into consideration
2
at the discretion of the administration.” Ms. David’s salary at
the time of her retirement in 2012 was $75,594.67.
In 2001, “CCC implemented a new web application[,] Peo-
pleSoft[,] for the collection and retention of [CCC’s] educa-
3
tional, personnel, and financial data.” PeopleSoft has several
“pillars” directed toward different aspects of school admin-
istration: student administration, human resources, and fi-
4
nancials. When CCC began implementing the PeopleSoft ap-
plication, Ms. David “was assigned to handle the security
function of the application,” which “included: acting upon re-
quests to give or remove a CCC employee or student’s access
to various levels of the PeopleSoft pillars and creating reports
detailing which individuals had what levels of access to the
1 R.18-26 at 2.
2 Id. at 3.
3 R.28 ¶ 19.
4 R.29-12 (Reyes Dep.) at 10.
4 No. 15-2132
5
system.” From the time PeopleSoft was implemented in 2001
until October 11, 2011, CCC contracted with a company called
Sync Solutions “to provide staff augmentation services to the
6
OIT.” During this time, a Sync Solutions IT consultant, Chris-
topher Reyes, assisted Ms. David with her PeopleSoft security
duties.
In 2011, due to the expiration of the contract with Sync So-
lutions, OIT made an effort to hire internally former Sync So-
lutions consultants to support PeopleSoft and other key ap-
7
plications. One of those individuals was Reyes. In October
2011, Reyes applied for, and received, the position of “Func-
tional Applications Analyst,” which required a Bachelor’s De-
8
gree in a relevant field. In that position, he “was responsible
for configuring the PeopleSoft Student Administration pillar”
and reported directly to Valerie Davis, District Director of
9
PeopleSoft Student Systems. Initially, Reyes continued to as-
sist Ms. David with her PeopleSoft security duties, specifically
generating required reports. Once he had taught Ms. David
his methods for performing these tasks, she began performing
5 R.28 ¶ 25.
6 Id. ¶ 21.
7Reyes previously had been employed at CCC as a student intern and, in
1999, was promoted to the position of Customer Services Coordinator. He
was hired by Sync Solutions in June 2001 and earned a salary of approxi-
mately $60,000.
8 Reyes has a Bachelor of Science degree in Computer Information Sys-
tems.
9 R.28 ¶ 57.
No. 15-2132 5
these functions on her own, and Reyes focused exclusively on
the PeopleSoft student administration application.
On August 1, 2011, prior to CCC’s hiring Reyes, Ms. David
had announced her intention to retire on June 30, 2012. Ap-
proximately one month later, Ms. David met with Craig
Lynch, the Vice Chancellor for OIT, who had the authority to
10
make promotion recommendations to the Chancellor.
Ms. David asked Lynch for a new job title and more pay be-
cause she was performing additional tasks related to Peo-
pleSoft security. Lynch told Ms. David to complete a Job Anal-
ysis Questionnaire (“JAQ”), a form that CCC employees can
fill out to request more pay or a different title. Lynch also said
that he would look into her job description and pay level. At
some point during the meeting, Lynch inquired of Ms. David,
11
“aren’t you about to retire[?]”
Lynch reviewed Ms. David’s job description and acknowl-
edged that it did not include a description of Ms. David’s Peo-
pleSoft security duties. However, he concluded that, even if
some change should be made in job description or job title, it
was a lateral move that did not require additional compensa-
tion because the additional duties were “transactional in na-
ture and did not involve analysis, critical thinking [or] prob-
12
lem solving.” Lynch did send an email to CCC’s Executive
13
Director of Compensation and Staffing, Jane Barnes, which
10 Lynch is both African-American and over forty.
11 R.29 ¶ 4 (internal quotation marks omitted).
12 R.28 ¶ 33.
13 Barnes also is African-American and over forty.
6 No. 15-2132
stated: “Celeste David is working in a position that is not in
alignment with her description. … Does it make sense to reti-
tle her (not sure if she would need additional compensation)?
Let me know. I need to update her on what the possibilities
14
are.”
In her deposition, Barnes testified that she does not recall
specifically responding to Lynch, but believes that she spoke
to him. It is undisputed, however, that she would have been
disinclined to seek a raise for Ms. David because giving her a
raise over a certain amount would have resulted in a fine by
15
the State University Retirement System (“SURS”). Moreo-
ver, Barnes did not believe that Ms. David’s position should
be retitled or that she should receive a raise “because the cre-
ation and approval of a new position and salary would take
16
several months, and [Ms. David] was retiring in June 2012.”
As Lynch had instructed, Ms. David filled out a JAQ. The
questionnaire never was processed, and Ms. David remained
at her same pay level, $75,594.67, and in her position of Man-
ager of End-User Services, until her retirement.
In February 2012, Ms. David filed an internal Equal Em-
ployment Opportunity Complaint. On that form, Ms. David
claims that she met with Lynch on three different occasions to
discuss her pay and title. On each occasion, according to
Ms. David, Lynch referenced her impending retirement.
CCC’s internal EEO office confirmed receipt of Ms. David’s
14 Id. ¶ 34.
15 See id. ¶ 36.
16 Id. ¶ 37.
No. 15-2132 7
complaint form on February 3, 2012, but was unable to resolve
the complaint before Ms. David retired in June.
When Ms. David retired at the end of June 2012, the Peo-
pleSoft security functions reverted back to Reyes. He did not
receive any increase in pay for taking on these additional du-
ties. However, after Reyes’s position was claimed by the un-
ion, he received a mandatory pay increase to $85,280 pursuant
to the collective bargaining agreement.
Six months after Ms. David retired, Reyes applied for the
17
newly created, non-union position of Senior Systems Secu-
18
rity Analyst. During his interview, he told the committee
that he would like to retain his job duties as a Functional Ap-
19
plications Analyst as well. Reyes was hired into the position
of Senior Systems Security Analyst on December 10, 2012,
20
with an annual salary of $93,808. “At that time, it was
17 The job description reflects that the position was “[a]pproved by [c]las-
sification & [c]ompensation” on June 1, 2012. R.18-20 at 2.
18Ms. David disputes that this is actually a new position. She claims it is
her old position, retitled and with greater qualification requirements.
19 His duties and responsibilities in the Functional Application Analyst
position included: “[t]est[ing] all PeopleSoft customizations, enhance-
ments, interfaces and reports”; “[w]rit[ing] documentation of system de-
signs, functional specifications and test results”; “[p]erform[ing] unit and
system tests and functional regression testing of developed code”; and
“[d]esign[ing], document[ing] and test[ing] interfaces and transactions
with other systems using application programming interfaces.” R.18-18 at
1.
20 See R.28. ¶ 64.
8 No. 15-2132
[CCC’s] practice to grant a 10% pay increase to CCC employ-
ees who were internally promoted into positions designated
21
in Salary Schedule N (non-Union).”
In April 2013, CCC hired Rosane Rodriguez, a Hispanic
female over forty, to the position of Technical Applications
Developer with an annual salary of $85,000. Rodriguez has a
Bachelor of Science degree in Computer Information Services,
which is a requirement of the position. She was hired into that
22
position to develop an “interaction hub portal” and also to
assist Reyes with the PeopleSoft security duties.
B.
Ms. David filed a four-count complaint alleging that she
had been discriminated against on the basis of her age, gen-
der, and race, in violation of the ADEA, Title VII, and the
23
Equal Pay Act. CCC moved for summary judgment on all
counts. Ms. David claimed that Lynch’s comments about her
impending retirement, his failure to process her JAQ, and
CCC’s slow response to her EEO complaint demonstrated
both age discrimination and pretext. She further maintained
that Reyes and Rodriguez performed equivalent work but
were compensated at a much higher level. The disparities, she
maintained, evidenced gender, race, and age discrimination.
21 Id.22 R.29-12 (Reyes Dep.) at 9.
23 The district court’s jurisdiction was premised on 28 U.S.C. § 1331.
No. 15-2132 9
Finally, she contended that Lynch’s and Barnes’s explana-
tions for failing to accord her a new title or higher pay were
unworthy of credence.
24
The district court ruled in favor of CCC. It turned first to
isolating the adverse employment actions of which she com-
plained. It first noted that Ms. David had to establish that she
suffered an adverse employment action on the basis of her
gender, race, or age, and observed that the only materially ad-
verse actions that Ms. David alleged were unequal pay and
failure to reclassify her position. Although Ms. David had ar-
gued that Lynch’s and Barnes’s failure to properly process her
JAQ and CCC’s failure to attend promptly to her EEO com-
plaint were materially adverse actions, the court disagreed. It
observed that neither action affected “the claimant’s employ-
ment status such as hiring, discharge, denial of promotion, re-
assignment to a position with significantly different job re-
sponsibilities, or an action that causes a substantial change in
25
benefits.” “Instead those failures [we]re, at most, the vehi-
24 The district court employed, throughout its opinion, the lexicon and
methodology common at the time it ruled. As we discuss at some length
later in the opinion, see infra at 12–13, the terms “direct” and “indirect”
evidence no longer retain the significance they were once thought to have
in the analysis of discrimination cases. See Ortiz v. Werner Enters., Inc., 834
F.3d 760, 765 (7th Cir. 2016).
25R.40 at 6 (quoting Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th
Cir. 2004), overruled on other grounds by Ortiz, 834 F.3d at 765).
10 No. 15-2132
cles by which CCC did engage in materially adverse employ-
ment actions—that is, CCC’s denial of David’s request for a
26
better job title and more pay.”
The court then concluded that Ms. David had not come
forward with a similarly situated employee who was treated
more favorably than she was treated. The court noted that, in
order to be similarly situated, the employee had to be similar
27
“in all material respects.” Ms. David’s proposed compara-
tors, however, did not meet this requirement. With respect to
Reyes, the court explained that, when CCC hired Reyes from
Sync Solutions as a full-time Functional Applications Analyst,
he had a Bachelor of Science degree in Computer Information
Systems, a qualification that Ms. David did not have. More-
over, in his position, Reyes performed “totally different” du-
ties than what he performed while working for CCC as a Sync
28
Solutions consultant; specifically, he worked on PeopleSoft
Administration—a pillar on which Ms. David never worked.
Later Reyes applied for, and was given, the position of Senior
Systems Security Analyst. In sum, the district court rejected
Ms. David’s claim that Reyes simply was doing her old job,
but with higher pay than she received. The district court
noted that the new position filled by Reyes required a Bache-
lor of Arts or Science degree in Computer Science, with seven
years of related experience in systems analysis, design, soft-
26 Id. at 6–7 (emphasis in original).
27Id. at 12 (emphasis in original) (quoting Warren v. Solo Cup Co., 516 F.3d
627, 630–31 (7th Cir. 2008)).
28 Id. at 14 (internal quotation marks omitted).
No. 15-2132 11
ware support and application of security controls. Ms. Da-
vid’s job description, however, did not require a bachelor’s
degree, or the same kind of software experience.
Ms. David fared no better in comparing herself to Rodri-
guez. The district court noted that Rodriguez’s position, like
Reyes’s, required a college degree. Additionally, Rodriguez’s
position centered on the development of “the interaction
29
hub,” which admittedly was not part of Ms. David’s respon-
sibilities. The district court therefore concluded that neither
employee was sufficiently similar to Ms. David to serve as a
comparator.
With respect to her age claim, the district court also con-
cluded that Lynch’s remarks concerning Ms. David’s impend-
ing retirement, without more, did not establish that Lynch
was motivated by Ms. David’s age in denying her a new title
or more pay.
Turning to Ms. David’s Equal Pay Act claim, the court
noted that, in order to establish a prima facie case, the plaintiff
first “must show that different wages are paid to employees
of the opposite sex. Second, plaintiff must show that she did
equal work which requires equal skill, effort and responsibil-
ity. Third, plaintiff must show that the employees have simi-
30
lar working conditions.” If Ms. David were to establish this,
the court continued, the burden would then shift to CCC to
show that the pay disparity was due to “(1) a seniority system,
(2) a merit system, (3) a system which measures earnings by
29 Id. at 16 (internal quotation marks omitted).
30 Id. at 18–19 (internal quotation marks omitted).
12 No. 15-2132
quantity or quality of production or (4) any other factor other
31
than sex.” The district court concluded that, even if Ms. Da-
vid had established a prima facie case under the Equal Pay
Act, “that claim must fail based on the facts that doom
[Ms.] David’s Title VII and ADEA claims,” namely that the
32
disparity in pay is attributable to Reyes’s college degree.
33
Ms. David timely appealed.
II
DISCUSSION
A.
“We review de novo a district court’s grant of summary
judgment. Summary judgment is appropriate when, after
construing the record in the light most favorable to the non-
moving party, we conclude that no reasonable jury could rule
in favor of the nonmoving party.” Bagwe v. Sedgwick Claims
Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation
omitted).
After the district court had issued its decision in this case
and after the case was briefed on appeal, we decided Ortiz v.
Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Ortiz ex-
plicitly instructed district courts to “stop separating ‘direct’
from ‘indirect’ evidence and proceeding as if they were sub-
ject to different legal standards.” Id. at 765. Instead, the test “is
31 Id. at 19 (internal quotation marks omitted).
32 Id. at 19–20.
33 Our jurisdiction is premised on 28 U.S.C. § 1291.
No. 15-2132 13
simply whether the evidence would permit a reasonable fact-
finder to conclude that the plaintiff’s race, ethnicity, sex, reli-
gion, or other proscribed factor caused the discharge or other
adverse employment action.” Id. Ortiz, however, did not alter
“[t]he burden-shifting framework created by McDonnell
Douglas Corp v. Green, 411 U.S. 792 (1973).” Id. at 766 (parallel
citations omitted). As we have explained, both before and af-
ter Ortiz, McDonnell Douglas is a means of organizing, pre-
senting, and assessing circumstantial evidence in frequently
recurring factual patterns found in discrimination cases. See,
e.g., Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th
Cir. 2016) (observing that a “prima facie case in Title VII liti-
gation … refers to a common, but not exclusive, method of es-
tablishing a triable issue of intentional discrimination” (em-
phasis added) (internal quotation marks omitted)); Morgan v.
SVT, LCC, 724 F.3d 990, 997 (7th Cir. 2013) (explaining that
“the original purpose of McDonnell Douglas … was to outline
a series of steps that, if satisfied, would support a plaintiff’s
34
right to reach a trier of fact”). As Ortiz and our other case
law make clear, however, McDonnell Douglas is not the only
way to assess circumstantial evidence of discrimination. In
adjudicating a summary judgment motion, the question re-
mains: has the non-moving party produced sufficient evi-
dence to support a jury verdict of intentional discrimination?
Morgan, 724 F.3d at 997 (“The central question at issue is
whether the employer acted on account of the plaintiff’s race
(or sex, disability, age, etc.).”).
34See also Pearson v. Ill. Bell Tel. Co., No. 15 C 653, 2016 WL 7374235, at *6
(N.D. Ill. Dec. 20, 2016) (“McDonnell Douglas identifies one pattern that the
evidence might fit that would enable a reasonable juror to find discrimi-
nation … .”).
14 No. 15-2132
Because the McDonnell Douglas framework survived Ortiz,
and because Ms. David has presented her argument in those
terms, we will begin our assessment of the evidence by em-
ploying that construct and addressing first whether Ms. Da-
vid has established a prima facie case of discrimination. We
will then, however, assess cumulatively all the evidence pre-
sented by Ms. David to determine whether it permits a rea-
sonable factfinder to determine that her smaller salary was at-
tributable to her age, race, or sex.
B. Title VII and ADEA Disparate Pay Claims
Ms. David’s Title VII and ADEA claims are essentially
disparate pay claims: she claims that employees who were
younger, non-African-American, or male were paid more
than she was paid for equivalent work, or, at the very least,
were compensated for taking on additional work when she
35
had not been compensated.
35 Ms. David also claims that CCC’s failure to process her JAQ and its de-
lay in investigating her EEO (pay) complaint constituted actionable ad-
verse employment actions. Title VII protects an employee from discrimi-
natory actions with respect to “compensation, terms, conditions, or privi-
leges of employment.” 42 U.S.C. § 2000e-2(a)(1). “To be actionable,” there-
fore, “there must be a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits. In
other words, the adverse action must materially alter the terms and con-
ditions of employment.” Stutler v. Ill. Dep’t of Corr., 263 F.3d 698, 703 (7th
Cir. 2001) (citation omitted) (internal quotation marks omitted). Neither
the failure to process the JAQ nor the failure to complete the EEO investi-
gation affected the terms and conditions of Ms. David’s employment. In-
No. 15-2132 15
1.
Generally speaking, under McDonnell Douglas, the plain-
tiff has the initial burden of establishing that “(1) she is a
member of a protected class, (2) she performed reasonably on
the job in accord with her employer[’s] legitimate expecta-
tions, (3) despite her reasonable performance, she was sub-
jected to an adverse employment action, and (4) similarly sit-
uated employees outside of her protected class were treated
more favorably by the employer.” Andrews v. CBOCS West,
Inc., 743 F.3d 230, 234 (7th Cir. 2014) (internal quotation marks
omitted), overruled on other grounds by Ortiz, 834 F.3d at 765.
“If the plaintiff satisfies that burden, then the employer must
articulate a legitimate, nondiscriminatory reason for the ad-
verse employment action, at which point the burden shifts
back to the plaintiff to submit evidence that the employer’s
explanation is pretextual.” Id. Although previously we have
noted that “[i]t is somewhat unclear what standard guides the
stead, as the district court noted, the questionnaire and the complaint pro-
cess simply were means to an end: they were the methods by which
Ms. David was attempting to secure a new title and a raise. It was the fail-
ure to receive a new title and the raise that is at the heart of her complaint.
Ms. David relies on Burlington Northern & Santa Fe Railway Co. v.
White, 548 U.S. 53 (2006), for the proposition that “[a]n employment action
is materially adverse[] if it would deter a reasonable worker from com-
plaining of discrimination,” Appellant’s Br. 14, and further argues that
CCC’s failure to process the JAQ or the EEO complaint would have this
effect. The standard that Ms. David invokes, however, relates to Title VII’s
antiretaliation protection, which incorporates a broader definition of mate-
riality than Title VII’s protection against discrimination. Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 64 (observing that the “antiretaliation provi-
sion, unlike the substantive provision, is not limited to discriminatory ac-
tions that affect the terms and conditions of employment”). Ms. David’s
claims, however, do not include retaliation, only discrimination.
16 No. 15-2132
determination of a prima facie case of disparate pay under Title
VII,” Cardoso v. Robert Bosch Corp., 427 F.3d 429, 433 (7th Cir.
2005) (emphasis in original), in a more recent case, we have
applied the standard McDonnell Douglas framework for eval-
uating disparate pay claims under Title VII and the ADEA, see
Warren v. Solo Cup Co., 516 F.3d 627, 630 (7th Cir. 2008). Con-
sequently, that will provide the basis for analyzing Ms. Da-
vid’s pay claims under Title VII and the ADEA.
There is no question that Ms. David is a member of a pro-
tected class, that she was performing her job in an acceptable
manner, and that she was being paid less than Reyes and Ro-
driguez. We must focus therefore on whether Reyes and Ro-
driguez were similarly situated to Ms. David. We have ob-
served that whether employees are similarly situated is a
“flexible, common-sense, and factual” inquiry. Coleman v. Do-
nahoe, 667 F.3d 835, 841 (7th Cir. 2012). Relevant factors in-
clude “whether the employees (i) held the same job descrip-
tion, (ii) were subject to the same standards, (iii) were subor-
dinate to the same supervisor, and (iv) had comparable expe-
rience, education, and other qualifications—provided the em-
ployer considered these latter factors in making the personnel
decision.” Warren, 516 F.3d at 631 (quoting Bio v. Fed. Express
Corp., 424 F.3d 593, 597 (7th Cir. 2005)).
Turning first to Reyes, Ms. David claims that the position
that Reyes ultimately was hired into, the Senior Systems Se-
curity Analyst position, essentially was her old job. She relies
on statements by her supervisor, Robin Jackson, and by Reyes
36
that CCC was looking to fill Ms. David’s “old position.” Re-
gardless of how the position is referenced in conversation,
36 See Appellant’s Br. 16–17.
No. 15-2132 17
however, Ms. David must establish that she and Reyes were
“directly comparable … in all material respects.” Alexander v.
Casino Queen, Inc., 739 F.3d 972, 981 (7th Cir. 2014) (internal
quotation marks omitted).
Looking first to the job descriptions, it is clear that Ms. Da-
vid’s position—“Manager, End-User Services,”—bears little
resemblance to Reyes’s position—“Senior Systems Security
37
Analyst.” Ms. David’s position was focused on developing
policies and supervising staff related to the delivery of ser-
vices. It required a Bachelor’s Degree in Computer Science or
a related field, but also allowed for “[a] combination of edu-
cational and work experience [to] be taken into consideration
38
at the discretion of the administration.” It required technical
expertise in DOS and Windows, previous experience in-
stalling and/or administering other operating programs, and
39
proficiency in basic software applications. The Senior Sys-
tems Security Analyst, by contrast, was responsible for
“[d]efin[ing], configur[ing], and administer[ing]” the Peo-
pleSoft system; “[e]nsur[ing]” the security of the systems; and
“[e]valuat[ing], test[ing], monitor[ing], and maintain[ing] Or-
acle security configurations and security administration poli-
40
cies.” In short, the focus of the Senior Systems Security An-
37 Compare R.18-26 (Manager, End-User Services Job Description), with
R.18-20 (Senior Systems Security Analyst Job Description).
38 R.18-26 at 2–3.
39 See id. at 3.
40 R.18-20 at 1.
18 No. 15-2132
alyst position was the development, implementation, and ser-
vicing of the computer systems themselves. The position re-
quired a Bachelor’s Degree in Computer Science, seven years
of experience in “systems analysis, design, software support
and application of security controls,” and “[e]xperience work-
41
ing with PeopleSoft applications.”
Ms. David does not maintain that she had the qualifica-
tions or the skills to perform the Senior Systems Security An-
alyst position. Instead, she maintains that “Reyes … testified,
that as a Senior Security Analyst, he performs the exact same
42
duties that David performed before she retired.” Reyes’s
deposition testimony, however, does not support this asser-
tion. Reyes testified that, when he was hired into the Senior
Systems Security Analyst position, he was “perform[ing] the
same job duties that [Ms. David] had previously performed”
along with the duties of “the functional application analyst po-
sition that I had before in addition to the senior security ana-
43
lyst.” In short, when he was hired into the Senior Systems
Security Analyst position, he was performing Ms. David’s old
job duties, the job duties from his own prior position (Func-
tional Application Analyst), and the new responsibilities of
the Senior Systems Security Analyst position. There simply is
no evidence in the record that Reyes, in his position of Senior
Systems Security Analyst, was performing only duties equiv-
alent to that which Ms. David had performed.
41 Id. at 2.
42 Appellant’s Br. 17 (quoting R.29 ¶ 37).
43 R.29-12 (Reyes Dep.) at 8 (emphasis added).
No. 15-2132 19
Ms. David also maintains that she was similarly situated
to Rodriguez because Rodriguez “also performed PeopleSoft
44
security duties.” The fact that one of Ms. David’s job duties
eventually found its way to Rodriguez, who was hired over
one year after Ms. David retired, does not establish that they
were similarly situated for purposes of pay. Again, even a
cursory comparison of Ms. David’s job duties with those of a
Technical Applications Developer—the position held by Ro-
driguez—establishes that Rodriguez’s job was focused on
software installation, testing, documentation, and mainte-
45
nance. Ms. David does not maintain that she had the quali-
fications—a Bachelor’s Degree in Computer Science—or skills
to perform these functions.
The core duties of Reyes’s and Rodriguez’s positions fo-
cused on the development, installation, and monitoring of
software programs that Ms. David did not, and could not,
perform. Neither person is similarly situated to Ms. David for
purposes of her disparate pay claim, and she has failed to es-
46
tablish a prima facie case of discrimination under Title VII.
44 Appellant’s Br. 12.
45 See R.18-13 (Technical Applications Developer Job Description).
46 Ms. David also makes a slightly different argument. She claims that she
was treated differently on the basis of her age, race, and sex because when
younger, non-African-American, male employees were assigned addi-
tional duties, they were provided assistance or greater pay, but she was
not provided either when she assumed responsibilities related to Peo-
pleSoft security. The record simply does not bear this out. Ms. David be-
gan performing the PeopleSoft security responsibilities on her own in No-
vember 2011 and did not receive any assistance or extra pay for those re-
sponsibilities prior to her retirement in June 2012. In June 2012, after
20 No. 15-2132
2.
In assessing cumulatively all the record evidence without
the assistance of the McDonnnell Douglas paradigm, it is clear
that a reasonable jury could not conclude that any pay dispar-
ity was the result of Ms. David’s age, race, or sex.
In addition to the evidence concerning the responsibilities
and pay of Reyes and Rodriguez, Ms. David believes several
other pieces of evidence point to an illicit motive: (1) CCC’s
failure to process her JAQ and complete its EEO investigation
prior to her retirement; (2) Lynch’s reference to Ms. David’s
retirement when she inquired about a change in title and
raise; and (3) Lynch’s and Barnes’s lack of credible reasons for
not retitling her position or awarding her a raise.
Neither Lynch, the head of the OIT department, nor
Barnes, recalled receiving a JAQ from Ms. David. In light of
Ms. David’s request for a new title and increase in pay, how-
ever, Lynch did review her job description and concluded
that it did not reflect the PeopleSoft security duties that she
47
had been performing. In November 2011, Lynch sent an
email to Barnes noting that Ms. David’s PeopleSoft security
Ms. David retired, Reyes took back those responsibilities, but “no one as-
sisted him” until Rodriguez was hired in April 2013. R.29-11 (Jackson
Dep.) at 24. Reyes, therefore, performed the PeopleSoft security responsi-
bilities without assistance for even longer than Ms. David did. Moreover,
Ms. David does not dispute that “Reyes did not receive any increase in
pay for taking on these additional duties”; rather, she admits that his sub-
sequent pay increase was due to the union claiming his position. R.28
¶¶ 60–61.
47 R.28 ¶ 33.
No. 15-2132 21
duties were “not in alignment with her description” and in-
quiring if CCC should “retitle her” and “if she would need
48
additional compensation.” Barnes, who was the person to
whom Ms. David’s JAQ would have been directed, “did not
believe that CCC should retitle Plaintiff into a new position
because the creation and approval of a new position and sal-
ary would take several months, and Plaintiff was retiring in
49
June 2012.” Additionally, Barnes was concerned that CCC
would incur a penalty by SURS if it increased Ms. David’s pay
50
more than six percent in the year prior to her retirement.
48 Id. ¶ 34 (internal quotation marks omitted).
49 Id. ¶ 37.
50 See id. ¶ 36. Ms. David argues that this rationale is unworthy of credence
because, among other reasons, the statute on which CCC “rests this posi-
tion … makes no mention of a ‘fine’ or penalty.” Appellant’s Br. 27. This
is a nonstarter. Section 5/7-172(k) of Chapter 40 of the Illinois Compiled
Statutes provides that,
[i]f the amount of a participating employee’s reported
earnings for any of the 12-month periods used to deter-
mine the final rate of earnings exceeds the employee’s 12
month reported earnings with the same employer for the
previous year by the greater of 6% or 1.5 times the annual
increase in the Consumer Price Index[], … the participat-
ing … instrumentality … shall pay to the Fund, in addi-
tion to any other contributions required under this Arti-
cle, the present value of the increase in the pension result-
ing from the portion of the increase in salary that is in ex-
cess of the greater of 6% or 1.5 times the annual increase
in the Consumer Price Index[] … .
Thus, Illinois law clearly imposes an additional monetary burden on an
employer who raises the salary of an employee during his or her last
22 No. 15-2132
Thus, despite CCC’s failure to process the JAQ, Ms. David
nevertheless received a review of her request.
Ms. David notes that it would not have been impossible to
complete the review, retitle her position, and give her a raise
before retirement. She notes that, because the Senior Security
Systems Analyst position was approved at approximately the
time that she retired, her position also could have been eval-
uated and upgraded before her retirement.
The timing of the approval of the Senior Security Systems
Analyst position, however, confirms rather than undermines
Barnes’s rationale. It took the CCC ten months, from the time
of Ms. David’s announcement of her retirement in August
2011 until June 2012, to assess its OIT needs and approve the
51
Senior Security Analyst position. Ms. David has not pre-
sented any evidence that the review of her position could
have been accomplished in a shorter period of time.
More importantly, however, there simply is no reason to
believe that Lynch, who was responsible for making recom-
52
mendations, believed that Ms. David’s performance of Peo-
pleSoft security functions warranted a promotion or a pay in-
crease. Indeed, Ms. David admitted that Lynch believed that
she was not entitled to a pay increase and that, if her job title
year of employment in excess of six percent or one-and-one-half times
the increase in the Consumer Price Index.
51It was another six months before the position actually was filled by
Reyes.
52 R.29-2 (Lynch Dep.) at 5.
No. 15-2132 23
was re-written, it “would be a lateral move, with no change
53
in pay.”
Ms. David now claims that Lynch should not be believed
because he was not her immediate supervisor and, therefore,
would not have known whether her job functions warranted
a pay increase. It is undisputed, however, that Lynch was re-
sponsible for the OIT department and had the authority to
make promotion recommendations. Ms. David’s argument, at
bottom, is simply that Lynch did not have sufficient first-hand
knowledge to make an informed promotion recommenda-
tion. This is an attack on the wisdom of Lynch’s decision—or,
more accurately, on the wisdom of CCC’s decision to bestow
on Lynch the responsibility for making promotion recom-
mendations—not on the honesty of Lynch’s explanation. Our
role, however, is not to inquire into the wisdom of an employ-
ment decision, but simply to determine if “the employer is
dissembling to cover up a discriminatory purpose.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
Ms. David has not come forward with any evidence that this
is the case.
Finally, Ms. David notes that Lynch, during at least one of
the meetings concerning her desired promotion and increase
in pay, mentioned her impending retirement. Ms. David
would like us to construe those comments as age-related. The
Supreme Court rejected such an approach in Hazen Paper Co.
v. Biggins, 507 U.S. 604, 611 (1993). In that case, the employer
had terminated the employment of a sixty-two-year-old man
to prevent his pension plan from vesting. The Court observed
53 R.28 ¶ 33.
24 No. 15-2132
that pension plans typically vest “once the employee com-
pletes a certain number of years of service with the employer.
… Because age and years of service are analytically distinct,
an employer can take account of one while ignoring the other,
and thus it is incorrect to say that a decision based on years of
service is necessarily ‘age based.’” Id.Similarly, eligibility for retirement may be based on age,
years of service, or a combination of the two. Ms. David has
not identified any record evidence that explains how retire-
ment eligibility is determined at CCC. We therefore cannot
equate retirement eligibility with age.
Moreover, Ms. David was not simply eligible for retire-
ment when she had her initial meeting with Lynch about up-
grading her position and pay; she had announced her inten-
tion to retire several months earlier. Thus, when Lynch refer-
enced her impending retirement, he was not making any as-
sumptions about retirement eligibility based on Ms. David’s
age; he merely was referencing her current employment sta-
tus as a “short timer.”
Indeed, all of the evidence of “discrimination” points to
this conclusion. Ms. David had made clear that, as of June
2012, she no longer would be an employee of CCC. Having
made that announcement, CCC had little motivation to ex-
pend time and resources retitling or reclassifying her position.
That may not have been an enlightened decision. But there
simply is nothing in the record to support an inference that
the decisions were based on Ms. David’s age, sex, or race, ra-
ther than her announcement of her voluntary retirement.
Because the evidence does not permit a reasonable fact-
finder to conclude that Ms. David’s age, sex, or race was the
No. 15-2132 25
cause of her lower pay, see Ortiz, 834 F.3d at 765, the district
court properly granted summary judgment to CCC on
Ms. David’s Title VII and ADEA claims.
C. Equal Pay Act Claim
“The Equal Pay Act forbids employers from paying differ-
ent rates to men and women for the same work at the same
establishment.” Jaburek v. Foxx, 813 F.3d 626, 632 (7th Cir.
2016) (internal quotation marks omitted). In order to establish
a prima facie case under the Equal Pay Act, a plaintiff must
show: “(1) higher wages were paid to a male employee, (2) for
equal work requiring substantially similar skill, effort and re-
sponsibilities, and (3) the work was performed under similar
working conditions.” Merillat v. Metal Spinners, Inc., 470 F.3d
685, 695 (7th Cir. 2006) (internal quotation marks omitted). In
determining whether two jobs are equal, “we look to whether
the jobs have a ‘common core of tasks, i.e., whether a signifi-
cant portion of the two jobs is identical.’ Once a plaintiff es-
tablishes a ‘common core’ of tasks, we ask whether any addi-
tional tasks make the jobs ‘substantially different.’” Id. (cita-
tion omitted) (quoting Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d
693, 698 (7th Cir. 2003)). In making this determination, the
court “look[s] to the actual job duties performed by each em-
ployee, not to his or her job description or title.” Id.Ms. David maintains that Reyes was paid a higher salary
for, essentially, performing her old job functions. According
to Ms. David, “Reyes testified that his posit[i]on as Senior Se-
26 No. 15-2132
curity Analyst was the exact same job as David before she re-
54
tired.” This does not reflect accurately Reyes’s testimony.
Reyes testified that, in the Senior Systems Security Analyst
position, he performed Ms. David’s PeopleSoft security re-
sponsibilities, along “with the functional application analyst
position that I had before in addition to the senior security an-
55
alyst.” He also testified that the duties listed in the Func-
tional Analyst and Senior Systems Security Analyst Job de-
scriptions “accurately reflect the duties” that he performed in
56
those positions. As explained in some detail above, those
duties involve the development, implementation, and servic-
57
ing of the computer systems. The record reveals that Ms. Da-
vid did not perform similar duties in her position or that she
had the skills to perform these functions. Reyes’s position,
therefore, included responsibilities that were “substantially
different” from those performed by Ms. David and that Ms.
David could not perform. She therefore has not established a
prima facie case under the Equal Pay Act.
Conclusion
For the reasons set forth in this opinion, the judgment of
the district court is affirmed.
AFFIRMED
54 Appellant’s Br. 31.
55 R.29-12 (Reyes Dep.) at 8 (emphasis added).
56 Id. at 13–14.
57 See supra note 19 and at 17–18.