Summary
holding that the plaintiff was not entitled to seek an independent common law claim for wrongful discharge because remedies for discrimination and retaliatory discharge were available under Title VII, the American with Disabilities Act, and the Indiana Civil Rights Act
Summary of this case from Pierce v. Zoetis, Inc.Opinion
Cause No. IP00-1047-C-H/G.
September 30, 2004
Michael K Sutherlin, Law Office of Michael Sutherlin Associates Indianapolis, IN, for Plaintiff.
Richard P Winegardner, Barnes Thornburg, Indianapolis, IN, for Defendants.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff, Nadine Davenport, was fired from her job as Human Resources ("HR") Director at the Indiana Masonic Home (the "Home") on April 9, 1999. Ms. Davenport alleged that defendants discriminated against her on the basis of sex and race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), and discriminated against her on the basis of a disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. She also asserted several state law claims including breach of contract, promissory estoppel, intentional interference with a business relationship, intentional interference with a contract, and intentional infliction of emotional distress.
On March 27, 2003, this court found that Ms. Davenport's Title VII and ADA claims were time barred because she filed her Equal Employment Opportunity Commission ("EEOC") charge of discrimination more than 300 days after she was terminated and knew of her termination, and no grounds existed upon which the statute of limitations might be tolled. Since that decision, plaintiff has dropped all claims against individual defendants and has withdrawn or abandoned all claims except two against the Home itself: wrongful discharge in violation of public policy under Indiana law, and violation of the Equal Pay Act. Defendants have moved for summary judgment on both claims. As explained below, the court grants defendants' motion for summary judgment. Davenport's common law claim for wrongful discharge would not be recognized by the Indiana courts because the statutes that establish the relevant public policies also provide comprehensive remedial schemes that require no common law supplement. Davenport's Equal Pay Act claim fails because the undisputed evidence shows that her responsibilities and her relevant experience were substantially more limited than those of the other HR Directors to whom she compares herself.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Only "genuine" disputes over "material facts" can prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law, and a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.
On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes. However, the existence of some metaphysical doubt does not create a genuine issue of fact. "A party must present more than mere speculation or conjecture to defeat a summary judgment motion." Liberty Lobby, 477 U.S. at 252; Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001); Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997).
When deciding a motion for summary judgment, the court must decide whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that the moving party must prevail as a matter of law. Packman, 267 F.3d at 637. The court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The court should neither "look the other way" to ignore genuine issues of material fact nor "strain to find" material factual issues where there are none. Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1363-64 (7th Cir. 1988).
Undisputed Facts
The following facts are undisputed for purposes of defendants' motion, viewing the record evidence in the light reasonably most favorable to plaintiff Davenport and giving her the benefit of favorable, reasonable inferences from that evidence.
The Indiana Masonic Home provides elder care, including nursing home care, assisted living, and retirement community living to members of the Grand Lodge of Free and Accepted Masons. Ashbaugh Dep., Def. Ex. 2 at 60-61, 73-76, 89-90. David Ashbaugh has been the Home's CEO since 1996. Def. Ex. 1, ¶ 5. The Home's Board of Directors is and was responsible for decisions to hire and fire departmental directors, including the HR Director, and for setting the pay of those directors. Def. Ex. 1, ¶ 16.
Plaintiff Davenport started as the Home's HR Director on March 16, 1998. Davenport Dep., Def. Ex. 3 at 43-44. She was hired to stem employee turnover problems at the Home, and the Home's Board intended that she "concentrate her efforts on recruiting, training and retaining entry level employees." Pl. Ex. 15; see also Hammond Dep., Pl. Ex. 3 at 41. As of October 20, 1998, she was in training to direct employee benefit services, such as pension, health, dental, and worker's compensation, and was attending, but not chairing, the Home Safety Committee. Def. Ex. 8; Pl. Ex. 12. Gail Hammond, Davenport's predecessor as HR Director and her immediate supervisor at the Home, kept the responsibilities for directing benefit services. Def. Ex. 1, ¶ 15.
Before working at the Home, Davenport earned a bachelor degree in social work from Indiana University and had several years of experience in social work related occupations. Pl. Ex. 4. Immediately prior to her employment with the Home, she was employed by the AFL-CIO as a placement coordinator. In that position, Davenport helped students into a schooling program and then helped them find jobs with area businesses and agencies. Davenport Dep., Pl. Ex. 1 at 46-47. Plaintiff concedes that she "never was an HR director or facilitator before her employment with the [Home]." Pl. Br. 201 at 3.
The Home's Board terminated Davenport's employment on April 9, 1999. Def. Ex. 1, ¶ 19. Hammond's employment was terminated on the same day. Hammond Dep., Pl. Ex. 3 at 74. Throughout Davenport's term at the Home, her salary was $38,000 per year, or an equivalent hourly rate of $18.27 per hour. Davenport Dep., Def. Ex. 3 at 89; Def. Ex. 1, ¶ 14. She did not have a written contract of employment with the Home. Davenport Dep., Def. Ex. 3 at 100-102, 244.
In an evaluation of Davenport by Hammond on October 26, 1998, Hammond stated that "overall I believe she has done a good job doing the job we asked her to do. I recommend a 4% increase." Pl. Ex. 14. In a standardized evaluation on the same date, Hammond rated her work as "below expectations" on two job duties, "meets expectations" on six duties, and "exceeds expectations" on three duties. Pl. Ex. 13.
Hammond was Davenport's immediate predecessor in the position of HR Director at the Home. He was HR Director from October 1996 to November 1997. Def. Ex. 1, ¶ 8. Prior to Hammond's employment at the Home, he had worked for six and a half years as HR Manager for Timbercrest Retirement Community, where he performed all human resources, wage and salary administration, and retirement plan administration functions for a staff of 162 employees. Def. Ex. 1B, Ex. 1, ¶ 7. Plaintiff does not dispute that, as the Home's HR Director, Hammond "performed all duties relating to human resources and safety, including hiring, promoting, disciplining, counseling, advising and terminating employees, administrating the provision of employee benefits, including pensions, preparing the salary budget, leading safety meetings and other administrative duties." Def. Ex. 1, ¶ 10. For his work as the Home's HR Director, Hammond was paid $42,016 per year, equivalent to $20.20 per hour. Def. Ex. 1, ¶ 9.
Davenport's immediate successor as the Home's HR Director was Eldean James Bryan, who was HR Director from November 1999 through November 2001. Def. Ex. 13, ¶ 2. Prior to Bryan's employment at the Home, he had worked nine years as HR Director at St. Vincent Mercy Hospital, where he "was responsible for, among other things, administrating (and negotiating for) employee benefits, implementing a union-avoidance strategy and developing criteria-based job descriptions and performance reviews." Def. Ex. 1D, Ex. 13, ¶ 4. Prior to his employment at St. Vincent, Bryan had been HR Director at Blue Cross Blue Shield of Indiana and had held HR positions at Hillenbrand Industries, General Electric, Armour Dial, Cummins Engine, American Fletcher National Bank, and Texas Instruments. Id. Plaintiff does not dispute that, as the Home's HR Director, Bryan "performed all duties relating to human resources and safety, including hiring, promoting, disciplining, counseling, advising and terminating employees, administrating the provision of employee benefits, including pensions, preparing the salary budget, leading safety meetings and other administrative duties." Def. Ex. 1, ¶ 13. Bryan was paid $45,011 per year, equivalent to $21.64 per hour. Def. Ex. 1, ¶ 12. Other facts are noted below, keeping in mind the standard that applies on a motion for summary judgment.
Discussion
I. Wrongful Discharge
At this late stage of the case, Davenport's principal claim is that the Home fired her in violation of public policy because she had opposed discrimination against other employees on the basis of race and disability. Although this is now her principal claim, Davenport did not assert it until the eve of the scheduled trial. Over defendants' objections, the court deemed the complaint amended to add the claim so that it could be addressed on the merits. The claim fails on the merits, however. The common law claim for wrongful discharge cannot stand in the face of the comprehensive remedial schemes of Title VII, the ADA, and the Indiana Civil Rights Act, which would offer Davenport relief if she had a valid claim on the merits and if she had filed a timely charge of discrimination.
Davenport's wrongful discharge claim invokes a limited exception to Indiana's doctrine of employment at will. When the relationship between parties is employment at will, employment may be terminated by either party at any time with or without reason. Wior v. Anchor Industries, Inc., 669 N.E.2d 172, 175 (Ind. 1996); see also Orr v. Westminster Village North, 689 N.E.2d 712, 722 (Ind. 1997) (re-affirming the vitality of the employment-at-will doctrine in Indiana). Davenport does not dispute that she was an at-will employee at the Home. See Davenport Dep., Def. Ex. 3 at 100-102, 244; Def. Ex. 6; Pl. Br. 201 at 11-21.
Indiana courts recognize an exception to the employment-at-will doctrine if an employee is discharged for exercising a statutory right or for refusing to participate in an unlawful act for which the employee would personally be held liable. The seminal case is Frampton v. Central Indiana Gas Co., 297 N.E.2d 425 (Ind. 1973), where an employee was fired for filing a worker's compensation claim. The worker's compensation statute did not expressly authorize a right of action for retaliatory discharge, but the Indiana Supreme Court found that such a right of action was available and was needed to accomplish the purpose of the worker's compensation statute. Id. at 427-28. The court concluded more broadly that "when an employee is discharged solely for exercising a statutorily conferred right an exception to the general rule [of employment at will] must be recognized. Id. at 428.
The Indiana court later expanded the Frampton public policy exception in McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392-93 (Ind. 1988). McClanahan had been fired for refusing to drive a truck carrying an excessive load, which would have violated Illinois law. The court stated: "We agree . . . that firing an employee for refusing to commit an illegal act for which he would be personally liable is as much a violation of public policy declared by the legislature as firing an employee for filing a workmen's compensation claim. A separate but tightly defined exception to the employment-at-will doctrine is appropriate under these facts." Id. at 393.
The Indiana Court of Appeals has found that the public policy exception for wrongful discharge also applies where an employee is discharged for refusing to commit an act unlawful under federal law, as well as under state law. Walt's Drive-A-Way Service, Inc. v. Powell, 638 N.E.2d 857, 858 (Ind.App. 1994) (affirming relief to truck driver fired for refusing to drive more hours than allowed by U.S. Department of Transportation regulations, an act which would have subjected him to civil and criminal penalties). Indiana courts generally refuse to apply the public policy exception in the absence of some statute defining the public policy, however. See Wior, 669 N.E.2d at 177 n. 5.
Davenport claims that she was fired for refusing to violate federal anti-discrimination laws and for merely following EEOC requirements and trying to obtain diversity in the workplace at the Home. She claims that she was told to stop hiring African Americans and qualified individuals with disabilities, and to fire those employees that she had already hired. She further claims that if she had acquiesced to demands that she refuse employment to qualified individuals on the basis of race or disability, she personally would have been held liable under various laws, including civil rights statutes. Thus, she claims, her case falls squarely within the wrongful discharge exception.
Defendants argue that Davenport is not entitled to seek an independent common law remedy of wrongful discharge because she had remedies for discrimination and/or retaliatory discharge available under other relevant statutes. This court agrees. Davenport certainly was able to assert claims under other relevant statutes, but she failed to do so within the time limits established by those same statutes.
The lack of any other effective remedy was an important factor motivating the Indiana court to provide discharged employees with a common law cause of action. The Indiana Supreme Court found in Frampton that, absent the opportunity to bring a wrongful discharge claim based on public policy, the plaintiff would have been left without a remedy and subject to retaliatory discharge for filing for worker's compensation, effectively nullifying the act's protections. Frampton, 297 N.E.2d at 427-28; see also Reeder-Baker v. Lincoln National Corp., 644 F. Supp. 983, 986 (N.D. Ind. 1986) (recognizing that "the Frampton exception to the at-will doctrine was intended to protect an employee without a remedy").
The Seventh Circuit and district courts in Indiana have repeatedly predicted that Indiana courts would not recognize a common law claim for wrongful discharge contrary to public policy where the underlying statute establishes its own remedies and procedures for discrimination and retaliatory discharge. Groce v. Eli Lilly Co., 193 F.3d 496, 504 (7th Cir. 1999); Combs v. Indiana Gaming Co., 2000 U.S. Dist. Lexis 16658, 2000 WL 1716452 (S.D. Ind. Aug. 30, 2000); Reeder-Baker, 644 F. Supp. 983. In Groce, the Seventh Circuit affirmed the dismissal of the plaintiff's wrongful discharge claim because the plaintiff did not pursue the remedies provided by the Indiana Occupational Safety and Health Act and because the Indiana courts were unlikely to expand the public policy exceptions to the at-will doctrine where the plaintiff had failed to invoke the statutory remedies. The court's reasoning is directly applicable here:
Here, the Indiana legislature has created a specific statutory remedy for retaliatory discharge for complaining of a health or safety issue, and Mr. Groce has not fulfilled the statutory requirements. The IOSHA discrimination statute forbids the discharge of an employee who has filed a complaint or instituted a proceeding. According to the record, Mr. Groce did neither; he only reported the claimed safety violation to his employer's safety division. Furthermore, the statute crafts a very specific remedy: investigation by the Commissioner and referral of meritorious claims to the Attorney General for suit in the name of the Commissioner. Had Mr. Groce properly initiated his claim under IOSHA by filing a complaint within 30 days after the safety violation had occurred, the Commissioner of Labor would have investigated and, had the Commissioner found a violation to have occurred, the state attorney general could have brought the suit contemplated by the statute. See [Ind. Code] § 22-8-1.1-38.1(b); see also Commissioner of Labor v. Talbert Mfg. Co., 593 N.E.2d 1229, 1232 (Ind.Ct.App. 1992) (noting that Indiana's discrimination provision, like its federal OSHA counterpart, is "designed to benefit individual workers, particularly those who have filed a complaint with IOSHA"); cf. Campbell v. Eli Lilly, 413 N.E.2d 1054, 1061 (Ind.App. 1980) (holding that plaintiff who did not show a statutory source for the rights he claims to have exercised failed to state a retaliatory discharge claim). The statute could have provided adequate relief for an employee wrongfully discharged for engaging in an activity protected by IOSHA.
Because Mr. Groce did not pursue the remedies provided by the statute on which he wishes to rely, and because the Supreme Court of Indiana is unlikely to expand the at-will exceptions in light of its reaffirmation of "the vitality of the employment-at-will doctrine in Indiana," Orr, 689 N.E.2d at 722, we hold that the district court correctly determined that Mr. Groce has not stated a cognizable claim for retaliatory discharge under Indiana law.193 F.3d at 503-04.
Similarly, in Combs the plaintiff was an at-will employee who sued her employer under Title VII for sexual harassment and discrimination, and under the wrongful discharge doctrine for firing her "in retaliation for exercising her statutorily imposed personal right to oppose and report unlawful sex discrimination and sexual harassment." 2000 U.S. Dist. Lexis 16658 at *3. The plaintiff alleged that she had repeatedly reported her supervisor's offensive sexual conduct to her employer, after which the employer terminated her employment. This court dismissed the wrongful discharge claim, finding that the plaintiff was "attempting to create a cause of action for wrongful discharge in violation of public policy in an area in which the Indiana legislature has already enacted a comprehensive statute providing remedial measures" — namely, the Indiana Civil Rights Act, Ind. Code §§ 22-9-1-1, et seq. Following the reasoning of Groce, where the legislature has spelled out the public policy and the remedy, the remedy is part of the public policy, and it does not need a common law supplement. See Combs, 2000 U.S. Dist. Lexis 16658 at *7. This court further concluded that even if the Civil Rights Act's prohibitions on retaliation did not apply specifically to complaints to company supervisors, as opposed to complaints to the Civil Rights Commission, the fact that the Civil Rights Act provided a comprehensive remedial scheme was sufficient to bar plaintiff's wrongful discharge claim. Id. at *8. The types of retaliation prohibited by the Civil Rights Act reflected a choice the Indiana legislature made when it wrote the statute. Id. Similarly, the Reeder-Baker court held that the plaintiff had no need for the Frampton exception because she had a cause of action under Title VII for unlawful employment practices, including retaliatory discharge. 644 F. Supp. at 986.
Like the plaintiffs in Groce, Combs, and Reeder-Baker, Davenport was not without alternatives to the common law wrongful discharge claim. She contends that she was told to stop hiring African Americans and qualified individuals with disabilities and to fire those employees that she had already hired, and that she was discharged for not acquiescing to those demands. For present purposes, the court must assume those accusations are true. If so, Davenport could have sought remedies under Title VII, the ADA, and the Indiana Civil Rights Act. In fact, Davenport originally asserted wrongful discharge claims in this case under Title VII and the ADA (and not under the common law). Only after this court found that those claims were time barred because of her failure to file a timely administrative charge of discrimination did she try to raise the common law theory.
Each of these statutes provides a comprehensive remedial scheme, including a remedy for retaliatory discharge. See Ind. Code § 22-9-1-6(h) (prohibiting retaliatory discharge for filing a complaint, testifying before, or assisting the Indiana Civil Rights Commission); 42 U.S.C. § 12203 (prohibiting retaliation, interference, or coercion against individuals who oppose any act or practice made unlawful by the ADA, and providing remedies); 42 U.S.C. § 2000e-3(a) (prohibiting discrimination against individuals who oppose any practice made unlawful by Title VII or because they made a charge or testified, assisted, or participated in an investigation into discriminatory practices). Accordingly, there is no need to expand the public policy exception to create a broader common law remedy. Groce, 193 F.3d at 504; Combs, 2000 U.S. Dist. Lexis 16658 at *8. All of these statutory remedies were available to Davenport if she had acted more promptly.
Finally, Davenport attempts to distinguish her case from Combs and Reeder-Baker by distinguishing the "exercising a statutory right" prong of the public policy exception from the "fulfilling a statutory duty" prong. See McClanahan, 517 N.E.2d at 392; Pl. Br. 201 at 17-21. This argument is unconvincing. First, whether conduct is characterized under one prong or the other is in some cases a matter of semantics. Davenport's complaint could easily be characterized as discharge for fulfilling a statutory duty, i.e., for refusing to violate anti-discrimination laws, or alternatively and just as accurately, as discharge for exercising a statutory right to oppose unlawful discrimination. See Pl. Br. 201 at 12-13, 18. Irrespective of this word play, however, the fact remains that Davenport had available to her statutory remedies for the alleged wrongs. She could have invoked those laws to seek remedies for the alleged discrimination and the alleged retaliatory discharge.
The parties dispute whether the public policy exception applies to a violation of a statute providing for only civil liability. The issue is not decisive here. Even assuming that the exception applies to statutes with civil penalties, Davenport had available to her statutory remedies that remove any need to create or extend the common law claim for wrongful discharge.
II. Equal Pay Act
Ms. Davenport also claims that the Home violated the Equal Pay Act, 29 U.S.C. § 206(d), by paying her less than it paid Gail Hammond and Eldean James Bryan for equal work as HR Director. The Equal Pay Act provides in relevant part:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. . . .
To establish a prima facie case under the EPA, Davenport must come forward with evidence tending to show that: (1) different wages are paid to employees of the opposite sex; (2) the employees do equal work which requires equal skill, effort, and responsibility; and (3) the employees have similar working conditions. Wollenburg v. Comtech Mfg. Co., 201 F.3d 973, 975 (7th Cir. 2000); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1461 (7th Cir. 1994); Soto v. Adams Elevator Equip. Co., 941 F.2d 543, 548 (7th Cir. 1991); Epstein v. U.S. Dep't of Treasury, 739 F.2d 274, 277 (7th Cir. 1984); Campana v. City of Greenfield, 164 F. Supp. 2d 1078, 1089 (E.D. Wis. 2001), aff'd mem., 38 Fed. Appx. 339, 2002 WL 1370055 (7th Cir. 2002). If she produces evidence supporting a prima facie case, the burden of proof shifts to the employer, who may assert one of the four affirmative defenses contained in the statute: i.e., that the pay differential is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any factor other than sex. Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); Wollenburg, 201 F.3d at 976; Howard v. Lear Corp. Eeds and Interiors, 234 F.3d 1002, 1004-05 (7th Cir. 2000). Even if a man and woman are doing the same work for different pay, there is no violation of the EPA if the wage differential is based on a factor other than sex.
A. Prima Facie Case
After trying some other theories and comparisons, Davenport has narrowed her EPA argument to a comparison of her pay as HR Director with the pay of her predecessor and successor in that position — Hammond and Bryan, respectively. The Home paid Davenport $38,000 per year, Hammond $42,016 per year, and Bryan $45,011 per year. Davenport has successfully shown the first element of the prima facie case.
To establish the second element of "equal work," Davenport must produce evidence tending to show that her job and Hammond's job or Bryan's job "have a `common core' of tasks, i.e., that a significant portion of the two jobs is identical." Cullen v. Indiana University Bd. of Trustees, 338 F.3d 693, 699 (7th Cir. 2003), citing Fallon v. Illinois, 882 F.2d 1206, 1209 (7th Cir. 1989). Even if she can establish a common core of tasks, however, the court must ask whether any additional tasks make the jobs "substantially different" from each other. Id.; see also 29 C.F.R. § 1620.13(a) (providing that "the equal work standard does not require that compared jobs be identical, only that they be substantially equal"). Ordinarily, "substantial differences" between jobs would be associated with different wage levels even where the jobs are performed by persons of the same sex. 29 C.F.R. § 1620.14(a).
To determine whether two jobs are "substantially different," the court must look at whether the jobs require equal skill, effort, and responsibility. See 29 U.S.C. § 206(d)(1). Skill, effort, and responsibility are three sub-elements that plaintiff must satisfy separately to establish the prima facie case. Cullen, 338 F.3d at 698-99; Howard, 234 F.3d at 1005. Two jobs require the same skill if an employee must have essentially the same skill in order to perform either of two jobs, even if an employee does not exercise the required skill as frequently in one of the jobs. 29 C.F.R. § 1620.15(a). Skill includes consideration of such factors as experience, training, education, and ability. Id. Moreover, possession of a skill not needed to meet the requirements of the job is not relevant to the court's determination of equal skill. Id. Equal effort refers to equality of total physical or mental exertion needed to perform a job. 29 C.F.R. § 1620.16(a). Two jobs require equal responsibility if their performance requires an equal degree of accountability, "with emphasis on the importance of the job obligation." 29 C.F.R. § 1620.17(a).
The record includes three versions of the Home's "Job Summary" to compare Davenport's duties as HR Director with Hammond's and Bryan's duties in the same position. The three job descriptions were dated April 14, 1997 (Def. Ex. 1C, Ex. 7; Pl. Ex. 5); May 8, 1998 (Pl. Ex. 6); and December 10, 1998 (Def. Ex. 13A; Pl. Ex. 7). Hammond was covered by the April 14, 1997 job summary, which he signed on April 15, 1997. The relevant portions of the job summary state, under the heading of Primary Duties, that the HR Director is to "[d]irect and coordinate benefit services and other employer/employee programs including pension, health, dental, workman's compensation, FMLA leave, credit union, and job description development," and to serve as a "permanent member of the Safety Committee." Under the heading of Safety Director, the summary states that the HR Director is to "[c]hair quarterly Safety committee meeting[s]." Def. Ex. 1C.
Davenport was initially covered by the same April 14, 1997 job summary as Hammond, and she signed it on March 11, 1998. Pl. Ex. 5. She claims that she was covered also by the May 8, 1998 and December 10, 1998 revisions of the job summary. See Pl. Exs. 6-7. With respect to benefit services, the May 8, 1998 revision was identical to the April 14, 1997 summary, i.e., the HR Director still had the duty to "[d]irect and coordinate benefit services," although the heading of Safety Director was removed. Pl. Ex. 6. However, the final December 10, 1998 job summary under which Davenport claims she worked contains a modification with respect to the benefit services duty. Whereas in the previous two job summaries the duty was stated as "[ d] irect and coordinate benefit services," the duty was revised to state "[ a] ssist with coordinating benefit services." Pl. Ex. 7 (emphasis added).
Davenport argues that these changes in the language describing the benefit services duty were "slight changes in syntax, rather than completely different job duties." Pl. Br. 201 at 26 n. 7. She argues that she "performed the same core duties and responsibilities as her predecessor and successor," and contends that she was "heavily involved" with employees' benefits, performing tasks such as providing information to employees, helping to receive bids for day-care benefits, assisting in restructuring payroll procedures, corresponding with employees regarding COBRA benefits, helping prepare annual reports, conducting exit interviews, and testifying in court regarding worker's compensation and unemployment cases. Pl. Br. 201 at 23, 27; Pl. Ex. 18, ¶ 3, Exs. 19-26. Moreover, although Davenport affirms that she "was attending, but not chairing, the Safety Committee," Pl. Br. 201 at 6, she claims that she performed tasks "to effectuate" the Safety Committee's efforts, such as meeting with representatives from the City of Franklin. Pl. Ex. 18, ¶ 2.
Davenport also claims that the December 10, 1998 job summary imposed numerous tasks "above and beyond" the tasks listed in the prior two job summaries. Pl. Br. 201 at 6, 26-27. She testified in her deposition that she "was hired to do certain things which weren't typically in a normal description for an HR director." Davenport Dep., Pl. Ex. 1 at 62. The new tasks listed were:
• Employee Assistant Program in House and a large list of networking information to help better serve our employees.
• Act as a mentor for Directors in developing leadership skills, communication skills, coaching skills, and more.
• Crisis intervention-quick responses, with effective solutions.
• Implement Employee Parties, Picnics, and other incentives and bonuses.
• Direct and develop retention programs and projects that deal directly with staff.
• One on One intervention to help assist with retention issues.
• Fill in for support staff when they are gone.
• Track CNA classes very closely — A lot of personal attention.
• Write and rewrite new publications for newspapers.
• Attend and set up Job Fairs, Hiring Fairs, and other public functions to spread the good word of the Masonic Home.
• Implement and coordinated [ sic] a volunteer program for summer youth.
• Work directly and closely with organizations, agencies and Training Facilities to have more public awareness and to hire productive employees.
Pl. Ex. 7.
Bryan also was covered by the December 10, 1998 job summary, which he signed on November 29, 1999. See Def. Ex. 13A. Viewing the evidence in a light favorable to Davenport, the court assumes that Davenport was covered by the same job description for at least part of her employment at the Home, even though she did not sign the document.
The parties' reliance on the job summaries is problematic because the more specific evidence from Davenport and other witnesses shows that the job summaries were not entirely accurate descriptions of the job duties actually performed by Davenport, Hammond, and Bryan. In Epstein, the Seventh Circuit ruled that "job descriptions are not determinative of equal work" under the EPA, and that "the court must weigh the nature of the actual duties performed by the two employees" to be compared. 739 F.2d at 277 (emphasis in original). The court found that the plaintiff had not pointed to any record evidence of actual job duties, except the job descriptions, which would tend to show equal work. Id. Even if two jobs have identical job descriptions, the court is not required to find that the jobs entail equal work. Id. at 277 n. 6; see also EEOC v. Mercy Hospital Medical Center, 709 F.2d 1195, 1197 (7th Cir. 1983) (stating that a plaintiff must show "based upon actual job performance and content — not job titles, classifications or descriptions that the work performed . . . is substantially equal"). Nevertheless, job descriptions may have some evidentiary value because one would expect actual duties to conform, at least to some extent, to a job description. Epstein, 739 F.2d at 277 n. 6.
Record evidence other than the job summaries shows beyond reasonable dispute that Davenport never had primary responsibility for benefit services at any time during her tenure, notwithstanding the language in the job summaries of April 14, 1997 and May 8, 1998. In Davenport's October 1998 self evaluation she indicated that she was "in training" to direct and coordinate benefit services. Def. Ex. 8; Pl. Ex. 12. She acknowledged in her response brief that she "was in training for employment benefit issues." Pl. Br. 201 at 6. Gail Hammond was responsible for handling employee benefits. Def. Ex. 1, ¶ 15. Davenport also affirms that she did not head the Safety Committee. Def. Ex. 8; Pl. Ex. 12. Furthermore, Davenport has not contradicted defendants' evidence showing that both Hammond and Bryan had primary responsibility for benefit services and the Safety Committee — namely, Hammond and Bryan "performed all duties relating to human resources and safety, including hiring, promoting, disciplining, counseling, advising, and terminating employees, administering the provision of employee benefits (including pensions), preparing the salary budget, leading safety meetings and other administrative duties." Def. Br. 191 at 10-11; Def. Ex. 1, ¶¶ 10, 13, Ex. 13, ¶ 3.
The court assumes that Davenport, as she stated, assisted in administering the Home's employee benefit programs and Safety Committee. An assistant for a task, however, is by definition in a supporting role rather than a leading one. Regardless of how valuable an assistant may be to the overall operation, an assistant does not exercise equal responsibility and is not held to the same degree of accountability as a person with the primary responsibility for the task. The record shows that Hammond and Bryan, unlike Davenport, were primarily responsible for directing and controlling the employee benefits programs and for chairing the Safety Committee. The undisputed evidence shows that Hammond and Bryan therefore shouldered additional responsibility and accountability as leaders of those programs. The responsibilities for directing employee benefit services and overall safety, particularly in an elder care facility, were major duties. (Also, Hammond's and Bryan's additional responsibilities required additional experience and skill. Why else would Davenport be "in training" to direct benefit services unless that duty required more experience and skill than she presently had?)
This substantial and undisputed difference in responsibilities means that Davenport has failed to come forward with evidence that would allow a jury to find that she performed work equal to that of Hammond and Bryan, despite holding the same title and sharing many duties. See, e.g., Howard, 234 F.3d at 1005 (affirming summary judgment for employer where HR manager at smaller plant had less demanding job than HR managers at larger plants); Campana v. City of Greenfield, 164 F. Supp. 2d 1078, 1091 (E.D. Wis. 2001), aff'd mem., 38 Fed. Appx. 339, 2002 WL 1370055 (7th Cir. 2002) (granting summary judgment for defendant where plaintiff, who invested city funds and administered property tax collection, among other tasks, had substantially less responsibility than the comptroller who was ultimately responsible for the fiscal health of the entire city).
With respect to the additional tasks listed in the December 10, 1998 job summary, Davenport argues that she performed more tasks than Hammond, who was covered by the April 14, 1997 job summary. An employer cannot successfully assert that a male employee performs additional duties and is thus entitled to higher wages if the lower paid female also performs extra duties requiring equal skill, effort and responsibility. 29 C.F.R. § 1620.20(b). However, even assuming that Davenport actually performed more tasks than Hammond, she does not argue, nor is there any evidence, that these additional tasks required skill, effort, or responsibility equal to or greater than what was required for Hammond's tasks. Hammond had greater responsibilities in other areas — namely, directing benefit services and the Safety Committee. The level of responsibility necessary to direct and control employee benefit programs is clearly greater than the level of responsibility associated with assisting in that duty. The additional tasks in the December 10, 1998 job summary were not of sufficient importance to justify a finding of equal or greater skill, effort, or responsibility. See 29 C.F.R. § 1620.17(b)(3) (describing a situation where one employee may be given extra tasks but that these additional tasks are not of sufficient importance to justify a finding of unequal skill or responsibility).
Davenport has failed to come forward with evidence that would support a finding that Hammond's and Bryan's additional responsibilities associated with leading benefit services and the Safety Committee failed to make their jobs "substantially different" from hers. Moreover, she has presented no evidence that the additional tasks in the December 10, 1998 job summary, assuming that she performed those tasks, make her job equal in required skill, effort, and responsibility to Hammond's job. Accordingly, the court finds as a matter of law that Davenport has not met her burden for the "equal work" element of the prima facie case.
To meet the third element of her prima facie case, Davenport must show that her working conditions were similar to those of Hammond or Bryan. The court must look at whether Davenport and the men worked in like surroundings and were subject to the same hazards. 29 C.F.R. § 1620.18; Corning Glass Works, 417 U.S. at 202. Defendants did not argue this element, so the court has assumed that Davenport could meet this element of the prima facie case.
B. Affirmative Defense
Even if Davenport had come forward with evidence sufficient to reach a jury on a prima facie case under the EPA, defendants have still defeated liability by showing beyond reasonable dispute that the pay differences at issue are due to factors unrelated to sex. See Wollenburg, 201 F.3d at 976. Defendants have proffered an affirmative defense that Hammond and Bryan were paid more as HR Directors because they had more experience. This defense falls under the broad catch-all exception of "any other factor other than sex" in the statute. 29 U.S.C. § 206(d)(1)(iv); see also Fallon, 882 F.2d at 1211. Differences in job experience and training are legitimate, non-discriminatory reasons for a wage difference. Soto, 941 F.2d at 548 (noting that the legislative history of the EPA supports the conclusion that differences in experience and training are available affirmative defenses in an EPA suit), citing Covington v. Southern Illinois Univ., 816 F.2d 317 (7th Cir. 1987); Fallon, 882 F.2d at 1212 ("Employers may prefer and reward experience, believing it makes a more valuable employee, for whatever reason. And it is not our province to second-guess employers' business judgment [citations omitted]."). However, defendants have the burden to prove that there is no genuine issue of fact with respect to the validity of their proffered explanation for the wage disparity. Wollenburg, 201 F.3d at 976.
Defendants claim that Davenport "had no previous HR experience" at the time she was hired. Def. Br. 191 at 4. It would be more accurate to say that Davenport had no previous experience managing human resources for an employer. She had worked with the AFL-CIO Job Corps as a placement coordinator, which provided some specialized experience relevant to the position of HR Director. She had earned a bachelor degree in social work in 1994 and had several years of experience in the social work field before working at the Home. The parties do not dispute that the Home hired Davenport at least in part because of her social work background and her experience in working with people. See Pl. Ex. 15; Hammond Dep., Pl. Ex. 3 at 41.
Davenport admits, however, that she "never was an HR director or facilitator before her employment" with the Home. Pl. Br. 201 at 3. In contrast, the record shows, both Hammond and Bryan had prior experience in traditional HR positions with responsibility for a broad range of HR duties. Prior to his employment at the Home, Hammond worked for six and a half years as HR Manager for Timbercrest Retirement Community. His duties at Timbercrest included benefits development and administration for 162 employees, staff development, and managing residential admissions. Bryan previously had worked for nine years as HR Director at St. Vincent Mercy Hospital, where he administered and renegotiated employee benefits and developed job descriptions and performance reviews. Prior to St. Vincent, he worked for four years as HR Director at Blue Cross Blue Shield and had done similar work for other employers. The issue is not whether the Home should have given Davenport more credit for her social work experience and her special contribution to the Home. The point is that both Hammond and Bryan had much more extensive experience that prepared them to take on the full scope of the HR Director's duties. Such a difference in experience is a lawful reason for differences in pay levels. See Wollenburg, 201 F.3d at 976.
The record supports beyond reasonable dispute defendants' affirmative defense. Hammond's and Bryan's greater degree of prior experience and training in the field of HR justified their higher pay relative to Davenport, who had relatively limited and specialized experience in a relatively few HR duties and responsibilities. She presents no genuine issue of fact over defendants' articulated reason that she was paid less than Hammond and Bryan because she had less overall HR experience. Nor has Davenport presented any evidence to show that job experience was not a bona fide explanation — that is, that it was not used or applied in good faith. See Fallon, 882 F.2d at 1211. A lack of good faith might be indicated by evidence that the Home pays men and women with similar experience in the same position different wages. See, e.g., Dey, 28 F.3d at 1462 (stating that "we may not second-guess the company's decision to pay more for an advanced business degree where there is no evidence that it paid women with similar degrees a lesser amount"); Fallon, 882 F.2d at 1211 (stating that "we ask only whether the [affirmative defense] is discriminatorily applied or if it causes a discriminatory effect"). Although Davenport argues that all women in upper management at the Home, with one exception, receive lower pay than the men in upper management, she provides no evidence that this pay differential is due to sex.
Ms. Davenport argues that defendants used the explanation of job experience as a "pretext" for discrimination. Pl. Br. 201 at 29-30. She has not cited Seventh Circuit cases to support application of pretext analysis under the EPA. Assuming that pretext analysis applies under the EPA, Davenport has failed to come forward with evidence that would allow a reasonable jury to find that the Home's decision to pay less to Davenport, who had less experience and whose work imposed less demanding responsibilities, was based on the fact that she is a woman.
Conclusion
For the foregoing reasons, defendants' motion for summary judgment is granted in its entirety. Final judgment shall be entered dismissing all claims with prejudice.So ordered.