Shi, Nian-Qing v. Board of Regents of The University of Wisconsin System

Brief in Opposition

W.D. Wis.July 11, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ NIAN-QING SHI Plaintiff, Case No.: 15-cv-546 v. BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM Defendant. ______________________________________________________________________________ PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ INTRODUCTION Dr. Nian-Qing Shi (“Shi”) has worked for the University of Wisconsin’s School of Medicine and Public Health (“SMPH”) conducting research on heart conditions since 2003. While she started out primarily working on the research of her supervisor, Dr. Jonathan Makielski, Shi has branched out to win grants and serve as the principal investigator on numerous research projects of her own. Despite this, Shi recently came to realize that she is one of the lowest-paid Senior Scientists at the School of Medicine and Public Health, paid an annual salary of $62,004.00 despite her thirteen (13) years of services to SMPH. In comparison, Shi’s colleague, Dr. John Kyle (“Kyle”), who came to SMPH in 2012 to work in Makielski’s lab, has not been awarded any grants of his own, nor has he served as a principal investigator on any grants since coming to SMPH. Kyle is paid an annual salary of Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 1 of 27 2 $94,869.00. This is more than $30,000.00 higher than Shi’s salary. Kyle replaced a female scientist, Dr. Carmen Valdivia, who had worked for Makielski for nearly two decades and was paid $61,678.00 at the end of her employment. Viewing all evidence in the light most favorable to Shi, as the rules of summary judgment require, she has established ample basis for a jury to conclude that SMPH paid her $30,000.00 less than it paid her male colleague for equal work, and that SMPH has not established that its reason for this pay disparity was a reason “other than sex.” Therefore, the Court should deny SMPH’s motion for summary judgment. FACTUAL BACKGROUND I. Dr. Nian-Qing Shi Shi earned her Ph.D. from the University of Wisconsin in 2000. (Dkt. # 16, Defendant’s Proposed Findings of Fact (“DPFOF”) at ¶1.) After graduation, Shi worked in research and development for an industrial company, where her salary as of 2003 was $77,000.00. (DPFOF ¶4, 6.) In 2003, Shi came to SMPH of Wisconsin to work for Dr. Jonathan Makielski (“Makielski”) as an assistant scientist, where she was told she would have to take a pay cut and was offered a salary of $44,000.00. (Plaintiff’s Proposed Findings of Fact (“PPFOF”) at ¶1-3.) Shi was assigned to the Cardiac Ion Channels Lab operational unit, later called the “Cellular and Molecular Arrhythmia Research Program,” or CMARP, within the School of Medicine and Public Health’s Division of Cardiovascular Medicine. (PPFOF ¶5.) CMARP researches ion channels and uses various models in order to study heart attacks. Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 2 of 27 3 (PPFOF ¶6.) In CMARP, Shi used her knowledge and training in yeast biology to aid in research on heart attacks. (PPFOF ¶¶ 25, 59.) From the start of Shi’s employment, she has worked on one of Makielski’s projects, called the KATP project. (PPFOF ¶¶ 10, 14.) When Shi was hired by Makielski, one of her job duties was to “assume day- to-day management of scientific projects.” (PPFOF ¶¶ 8, 10.) In 2008, Shi was promoted to “associate scientist.” (PPFOF ¶11.) Around this time, Makielski told Shi that she would spend half of her time developing her own research and half of her time working on Makielski’s projects, and that she would need to secure her own funding for her salary. (PPFOF ¶ 12.) Shi independently obtained three grants to support her research during this time, as well as assisting Makielski in securing a renewal of his KATP grant. (PPFOF ¶¶ 13, 14, 17, 18.) Shi is named as “key personnel” on the KATP grant. (PPFOF ¶14.) She was named “senior author,” a position of prominence in research publications, on a 2009 paper published in Circulation Research based on her work with Makielski. (PPFOF ¶15.) In 2010, Shi was promoted to the position of “Senior Scientist.” (PPFOF ¶16.) At this time, she was funded by grants she had won based on her own research and by Makielski’s KATP grant. (PPFOF ¶17.) Shi continues to work on Makielski’s KATP project, for which she conducts experiments, works with technicians and students on experiments, and works on manuscripts. (PPFOF ¶20.) She also works on manuscripts and publications of her research and has performed work on an industrial contract she sought out and was awarded. (PPFOF ¶¶ 29, 30.) In addition Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 3 of 27 4 to this work, Shi presents at national conferences, reviews grants and abstracts for the American Heart Association, and serves as a reviewer for various journals. (PPFOF ¶32.) II. John Kyle Dr. John Kyle (“Kyle”) previously worked in the Section of Cardiology at the University of Chicago, where he “conduct[ed] research on ion channels and gap junctions” and supervised other lab employees, as well as having part of his salary supported by teaching undergraduate courses. (PPFOF ¶¶ 34, 35.) Kyle had previously worked with Makielski at the University of Chicago, and the two had an ongoing social relationship. (PPFOF ¶36.) In 2011, Makielski contacted Kyle to replace Dr. Carmen Valdivia, a senior scientist who had been working on Makielski’s sodium channel and KATP projects but was leaving CMARP. (PPFOF ¶¶ 37, 38.) Valdivia’s annual salary in 2011 was $61,678.00. (PPFOF ¶38.) Kyle was “excited about the potential” of the research Makielski was doing, and was considering retiring to Madison. (PPFOF ¶¶ 40, 41.) Makielski offered Kyle a salary of $93,000.00 to match the salary he was paid at the University of Chicago, though Kyle does not recall ever asking for this amount. (PPFOF ¶¶ 42, 43.) Makielski had discretion to set Kyle’s salary. (PPFOF ¶44.) Kyle was hired as a senior scientist into the CMARP operational area at an annual salary of $93,000.00. (PPFOF ¶45.) When he began work in 2012, at least fifty percent of his time was spent physically in the lab. (PPFOF ¶¶ 50, 51.) At no time has Kyle served as a Principal Investigator on grants at SMPH. (PPFOF ¶54.) Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 4 of 27 5 Nor does Kyle teach any courses at SMPH. (PPFOF ¶55.) One of Kyle’s duties is to manage the CMARP laboratory, which his supervisor Makielski described as “ordering and maintaining equipment or seeing that others do it and making sure the supplies are ordered or directing others to do that.” (PPFOF ¶56.) Kyle also acts as a “liaison between the principal investigators and the technicians,” making sure equipment is taken care of, and making administrative decisions in Makielski’s absence. (PPFOF ¶56, 66-68.) Currently, Kyle conducts research focused on voltage- gated ion channels, reviews grants, contributes to the writing of papers, supervises undergraduate students, and evaluates data. (PPFOF ¶¶ 63-65.) Makielski told Kyle “numerous times” that he was not expected to get independent funding, and he works solely on Makielski’s projects. (PPFOF ¶63.) III. Compensation At the University of Wisconsin-Madison For a Senior Scientist with the title code “E10BN” the salary minimum is $50,736.00 and the maximum is $62,004.00. (PPFOF ¶70.) Of all of the individuals employed by SMPH as “Senior Scientists,” Shi’s annual compensation of $62,004.00 is the lowest and equal to three male employees all of whom have been at SMPH for a shorter amount of time than Shi. (PPFOF ¶ 75.) The University of Wisconsin’s Pay Adjustment Policy allows for salary adjustments for UW staff members, including academic staff members such as Shi, for factors such as equity, market, and performance. (PPFOF ¶¶ 71-74.) Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 5 of 27 6 ARGUMENT I. Summary Judgment Standard Summary judgment should be granted only if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) quoting Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court should not resolve factual disputes or weigh conflicting evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 153 (2000). Instead, “the evidence of the non-movant is to be believed” by the court and “all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Thus, “although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence favoring the non-movant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’” Reeves, 530 U.S. at 150 (internal citations omitted). The summary judgment standard “must be applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 393 (7th Cir. 1998); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994). Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 6 of 27 7 In this case, SMPH has failed to establish that no question of fact exists as to whether it’s admitted failure to pay a female employee the same salary as a male employee in the same position was due to a factor “other than sex.” First, Shi sets forth facts sufficient to raise a question of fact as to whether Shi has established her prima facie case, that she was paid less than a male employee for performing equal work under similar working conditions. Second, questions of fact exist as to whether SMPH paid Shi less than her male counterpart for a reason other than sex. Given the questions that remain in this matter, it cannot be resolved with dispositive motions. II. Standard Under the Equal Pay Act Shi has asserted her claims under the Equal Pay Act, 29 U.S.C. § 206(d)(1), which states that “no employer…shall discriminate…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.” A plaintiff asserting a claim under the Equal Pay Act must first establish her prima facie case: (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) employees have similar working conditions. Fallon v. State of Ill., 882 F.2d 1206, 1208 (7th Cir. 1989) (citing Corning Glass Works v. Brennan, 417 U.S. 188, Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 7 of 27 8 195 (1974)). Once this prima facie case is established, the burden of proof shifts to the employer to show that the pay disparity is due to a seniority system, merit system, a system which measures earnings by quantity or quality of production, or “a differential based on any other factor other than sex.” Fallon, 882 F.2d at 1211; 29 U.S.C. § 206(d)(1). SMPH maintains that Shi cannot establish her prima facie case because she cannot identify a male employee who performs an equal job with equal skill and in a similar working environment. (D.’s Br. 10-20.) Once an employee has established her prima facie case, the employer bears both the burden of production and of persuasion on the affirmative defense that it paid its male and female employees differently for a factor other than sex. King v. Acosta Sales and Marketing, Inc., 678 F.3d 470, 474 (7th Cir. 2012). SMPH must also show that the non-discriminatory reason it asserts for the difference in pay between its employees was the actual reason for the disparity. Id. To prevail on this affirmative defense at the summary judgment stage the employer must point to a record that would compel any reasonable juror, even one drawing all reasonable inferences in the employee’s favor, to find that the pay differential stems from education and experience. Fallon v. State of Ill., 882 F.2d 1206, 1213 (7th Cir. 1989). III. Whether Shi Can Establish Her Prima Facie Case is a Question of Fact The three elements of a prima facie case, that employees of the opposite sex are paid different wages for equal work performed under similar working conditions, are met in this case. See Fallon, 882 F.2d at 1208. A plaintiff “must establish, based upon ‘actual job performance and content—not job titles, Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 8 of 27 9 classifications or descriptions that the work performed…is substantially equal.’” Fallon, 882 F.2d at 1208 (citing EEOC v. Mercy Hospital and Medical Center, 709 F.2d 1195, 1197 (7th Cir.1983)). The work need not be identical; it is sufficient if the duties are “substantially equal.” Epstein, 739 F.2d at 277.1 Whether two jobs require equal skill, effort, and responsibility, and are performed under similar working conditions is a factual determination. Fallon, 881 F.2d at 1208 (citing EEOC v. Madison Community United School District No. 12, 818 F.2d 577, 581 (7th Cir.1987)); see also Lavin-McEleney v. Marist College, 239 F.3d 476, 480 (2d Cir. 2001); Hein v. Or. Coll. Of Educ., 718 F.2d 910, 913 (9th Cir. 1983) (whether two jobs are substantially equal is a question of fact). The central question is whether the two jobs have a “common core” of tasks. Fallon, 881 F.2d at 1209 (citing Brewster v. Barnes, 788 F.2d 985, 991 (4th Cir.1986). Plaintiff has presented sufficient evidence that would permit a reasonable jury to find that she and Dr. John Kyle’s jobs had a “common core” of tasks, and that their positions required “equal skill, effort, and responsibility.”2 Indeed, the 1 SMPH mis-identifies the standard for Plaintiff at summary judgment, claiming that the Plaintiff “must actually establish each element of her prima facie case at summary judgment. (D.’s Br. 8.) Neither of the cases cited to by SMPH support this claim. In Howard the Seventh Circuit reviewed the uncontroverted factual record and noted that the plaintiff’s male counterparts had additional duties and therefore did not perform equal work. Howard v. Lear Corp. EEDS and Interiors, 234 F.3d 1002, 104-05 (7th Cir. 2000). In Bragg, the plaintiff provided no evidence concerning the wages paid to other employees, or any evidence of men doing work of equal skill, effort, and responsibility, meaning summary judgment was appropriate. Bragg v. Navistar Intern. Transp. Corp., 164 F.3d 373, 378 (7th Cir. 1998). In the instant case, Plaintiff has presented evidence that would allow a reasonable jury to determine she has met her prima facie case, and so her case should survive summary judgment. 2 In her initial Complaint, Plaintiff identified other potential comparators who are paid a greater salary than she is. After conducting discovery, Dr. John Kyle is the closest comparator to the Plaintiff. Plaintiff alleges that she was paid less than Kyle for work requiring equal skill, effort, and responsibility, and that there is no legitimate reason other than sex for the disparity in compensation. Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 9 of 27 10 factual record demonstrates that at times throughout her employment Shi in fact had greater responsibility than Kyle. A. Shi’s Work Requires Equal or Greater Skill, Effort, and Responsibility Than Kyle’s To prove her prima facie case, Shi must show she was paid less than a male employee for equal work, meaning a job that requires “equal skill, effort, and responsibility.” 29 U.S.C. § 206(d)(1). The “equal work” standard requires that jobs be “substantially equal,” not necessarily “identical.” 29 C.F.R. § 1620.13. When considering whether positions are “equal,” the “broad remedial purpose of the law must be taken into consideration.” 29 C.F.R. § 1620.14. “The crucial inquiry is whether the jobs to be compared have a common core of tasks; i.e., whether a significant portion of the two jobs is identical.” Cullen v. Ind. Univ. Bd. of Trustees, 338 F.3d 693, 698 (7th Cir. 2003). Once a “common core” of tasks is established, the court inquires as to whether any additional tasks make the jobs “substantially different.” Id.; see also 29 C.F.R. § 1620.14. Here, the “core tasks” performed by Shi and Kyle are common. Both conduct research in Makielski’s lab on the same projects, and both perform tasks related to that research, such as supervising students and technicians, reviewing data, and working on manuscripts for publications. (PPFOF ¶¶ 27-30, 64-68.) Each have some additional tasks; Kyle is responsible for ordering equipment and making administrative decisions in the CMARP lab if Makielski is absent (PPFOF ¶67), and Shi is responsible for serving as the principal investigator on and managing her own grants. (PPFOF ¶¶ 18-19.) Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 10 of 27 11 1. Shi and Kyle’s Work Required Equal Skill Shi and Kyle performed work requiring equal skill. Both worked in the CMARP group within the Division of Cardiovascular Medicine, in which researchers work with various models to try to understand arrhythmia and find cures. (PPFOF ¶¶ 5-6, 45.) The Position Vacancy Listings, which their mutual supervisor Makielski testified were both specifically tailored for Shi and Kyle, list nearly identical job duties. (Compare PPFOF ¶¶2, 8 with 46, 48.) Makielski testified that this listing accurately described Shi’s job duties, and Kyle testified that his Position Vacancy Listing accurately reflected his understanding of his job duties upon his hire.3 (PPFOF ¶¶9, 47.) The same skills are required to conduct this research, much of it on the same research projects led by Makielski. In fact, when submitting a budget justification to the NIH for his KATP grant, Makielski identified the complementary skills of both Shi and Kyle in NIH budget justification for his KATP project, stating that each scientist’s skills would augment the research. (PPFOF ¶¶ 58-61.) SMPH magnifies Kyle’s electrophysiology background in its brief (D.’s Br. 13) but ignores that Shi’s specialized knowledge of yeast biology is also an asset to Makielski’s research. (See PPFOF ¶25, Shi used her yeast biology background to clone a potassium channel, research which led to a patent.) Both parties have specialized skills that they apply in their work. 3 The plaintiff’s burden at this stage is to show that actual job performance consisted of work requiring equal skill, not simply to point to common descriptions or classifications. Markel v. Bd. of Regents of the Univ. of Wis. Sys., 276 F.3d 906, 913 (7th Cir. 2003) (internal citations omitted). Here, Shi’s supervisor, Makielski, identified the Position Vacancy Listing as an accurate listing of the actual job duties Shi performed, and Kyle testified that the duties outlined in this description were the duties he performed. The actual work performed by Shi and Kyle was substantially similar. Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 11 of 27 12 A question of fact remains as to whether Shi and Kyle perform work requiring equal skill. Shi performs bench work in CMARP including techniques for developing models for conducting research on arrhythmia in mice, designing and conducting experiments, and analyzing data, in addition to preparing manuscripts for publication and supervising lab employees. (DPFOF ¶¶ 16, 21-27.) Shi’s specialized skills from her yeast biology background are used in her work; for example, she used these skills to clone a potassium channel that is activated during heart attacks. This discovery led to a patent. (PPFOF¶ 25.) Kyle does not have a similar background in yeast biology. (PPFOF¶ 61.) SMPH notes that one of the techniques performed by Kyle is “voltage clamping,” an electrophysiology technique used by Kyle when he conducts experiments as part of Makielski’s research. (D.’s Br. 13-14.) Kyle testified that “voltage clamping” means manipulating the electric field in order to study ion channels. (PPFOF ¶ 52.) Like the cloning skills Shi possesses from her yeast biology background, this is a cell biology technique that Kyle employs in the lab. A reasonable interpretation of these facts is that both Shi and Kyle exercise equal, though different, lab skills in their work. Just because the technical skills that Shi and Kyle use in their work are different does not establish that they are unequal. This is similar to the argument recently rejected in Kaplan v. United States, 126 Fed. Cl. 72 (2016). Defendant maintained that because plaintiff and her comparator, employed in different departments, both had to be experts in their different fields, their work did not Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 12 of 27 13 require “equal skill.” Id. at 84-85. The court noted that, “the requirement of technical expertise, on its own, does not lead to the conclusion that plaintiff and her alleged…comparators’ jobs did not require the same ‘amount or degree’ of skill.” Id. SMPH attempts the same argument here. Simply because Shi uses yeast biology techniques and Kyle uses electrophysiology techniques does not mean those jobs do not require equal skill. 2. Shi’s Work Required Equal or Greater Effort Than Kyle’s The federal regulations are clear to note that “equal effort” may be demonstrated “even though the effort may be exerted in different ways on the two jobs.” 29 C.F.R. § 1620.16(a). As demonstrated in the equal skills section, Shi and Kyle may have had slightly different, complementary skills, but different is not inherently unequal, as SMPH suggests. The same is the case here; both Shi and Kyle performed tasks requiring equal effort. Shi and Kyle both worked on Makielski’s KATP and sodium channel research projects, supervised lab personnel, and aided in revising and writing manuscripts for publication. Shi and Kyle both spent significant portions of their time performing “bench work,” or conducting experiments, as part of those projects. (DPFOF ¶¶ 21, 23; PPFOF ¶¶ 50-52.) A reasonable jury could find that Shi and Kyle’s work involved equal effort. In fact, given that Shi was required by Makielski to seek out her own grants and conduct independent research, while Kyle was required only to work on Makielski’s research, a reasonable jury could find that Shi’s work required greater Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 13 of 27 14 effort. (Compare PPFOF ¶12-13, 18-19 with 63.) Shi won her own grants on which she served as a principal investigator, while Kyle has not served as a principal investigator on any grants at SMPH. (Id.) As a principal investigator, Shi had to not only seek out her own funding, but had to manage the research and the funding she had been awarded. This suggests that Shi’s worked involved more effort than Kyle’s, or at least that the effort Shi was required to exert in winning grants and managing her own research as a principal investigator was equivalent to Kyle’s effort in managing equipment and making administrative decisions in Makielski’s absence. (PPFOF ¶¶ 67-68.) The comparison of two university faculty members in Cullen, quoted by SMPH, provides a useful distinction from the instant case. (D.’s Br. 14-15.) In that case, one professor had been tasked with creating master’s and doctoral courses of study to save a department on probation, while the other professor was required to secure grants for the department. Cullen, 338 F.3d at 699. The court found these two positions required unequal effort. Id. Here, Shi was required to secure grants for her research within CMARP in addition to contributing to Makielski’s research, while Kyle only worked on Makielski’s projects and did not seek or manage grants of his own. (PPFOF ¶¶ 12-13, 18-19, 63.) If this case is comparable to Cullen, it is that Shi’s work compares to that of Dr. Quillen, whose position required greater effort than Dr. Cullen’s. Given these facts about the efforts of Shi and Kyle, the evidence is “susceptible of different interpretations or inferences by the trier of fact,” and summary judgment is not appropriate. Downs v. Gebco Mach., Inc., 2013 Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 14 of 27 15 WL 451861 (S.D. Ill. Feb. 6, 2013) (citing Hunt v. Cromartie, 526 U.S. 541, 553 (1999)). 3. Shi’s Work Required Equal or Greater Responsibility Than Kyle’s There is a question of fact as to whether Shi’s position required equal or greater responsibility than Kyle’s. SMPH’s sole basis to support its argument that Shi has less responsibility than Kyle is that Kyle “assumes overall supervisory responsibility for the laboratory’s research projects” in Makielski’s absence. (D.’s Br. 17.) However, Makielski also testified that Shi had responsibilities for the “day-to- day management of scientific projects” and directed the “scientific aspects” of Makielski’s projects. (PPFOF ¶10.) In comparison, Makielski testified that Kyle’s supervisory duties involved “ordering and maintaining equipment or seeing that others do it and making sure the supplies are ordered or directing others to do that.” (PPFOF ¶56.) Shi has also served as a principal investigator on her own grants at SMPH, a role which means the individual is responsible for managing the research and the grant. (PPFOF ¶¶ 18-19.) Kyle has not served as a principal investigator on any grants since coming to SMPH. (PPFOF ¶54.) Both Shi and Kyle are listed as “key personnel” on Makielski’s NIH grants. (PPFOF ¶57.) A reasonable jury could conclude that Shi and Kyle have equal responsibility; or even that Shi had more responsibility than Kyle. In Merillat v. Metal Spinners, Inc., plaintiff Merillat and her proposed comparator Wehr were both division vice presidents. 470 F.3d 685 (7th Cir. 2006). Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 15 of 27 16 However, all parties in that case agreed that Wehr was Merillat’s supervisor. Id. at 696. In addition, Wehr was responsible for “corporate-wide” planning, unlike Merillat. Id. This case is completely different. Kyle does not supervise Shi. (PPFOF ¶69.) While Makielski’s declaration submitted to support SMPH’s brief claimed that Kyle assumes “supervisory responsibility” for the lab in Makielski’s absence, the deposition testimony of both Kyle and Makielski reveals this “responsibility” to be little more than managing the ordering of materials and making “administrative” decisions. (PPFOF ¶¶ 56, 67.) This is nowhere near the degree of distinction between Merillat and Wehr. Merillat, 470 F.3d at 696 (noting “all parties agree that Wehr’s job duties included functioning as Ms. Merillat’s supervisor.”) As for his responsibilities in “educating multiple University of Wisconsin-Madison students,” according to Kyle, this amounted to overseeing lab duties and undergraduate projects – he does not teach any courses at SMPH. (PPFOF ¶¶ 55, 65.) Shi also had responsibility for the “training and evaluating of undergraduate students, graduate students, and research specialists.” (PPFOF ¶¶ 8, 9.) A question of fact remains as to whether Shi and Kyle had equal responsibility, and how Shi’s responsibility as a principal investigator on her independent research compares with Kyle’s responsibilities in managing the lab. Based on the evidence before the Court, Shi has established that she and Kyle perform equal work requiring equal skill, effort, and responsibility. At a minimum, questions of fact remain as to whether the minute differences between the two (expertise in yeast biology vs. electrophysiology; management of grants as a Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 16 of 27 17 principal investigator vs. of equipment in the lab) truly render Shi and Kyle’s positions too different for comparison under the Equal Pay Act. This record does not warrant summary judgment for SMPH. B. Shi Is Paid Less than Kyle Should Shi demonstrate that SMPH’s failure to pay her a salary equal to that of male employees performing equal work and establish a willful violation, the relevant statute of limitations for her claim will be September 1, 2012 through the present. 29 U.S.C. § 255(a) (three-year statute of limitations for a willful violation). As of January 1, 2012, Shi’s annual salary was $60,782.00. (DPFOF ¶ 38.) This salary was increased to $61,390.00 as of July 1, 2013, and to $62,004.00 as of July 1, 2014. (Id. at ¶¶ 38, 39.) Dr. John Kyle was hired in 2011 at a salary of $93,000.00. (Id. at ¶ 43.) Effective July 1, 2013, this salary was increased to $93,930.00; as of July 1, 2014, he was paid $94,869.00 annually. (Id.) Shi has therefore established the first prong of her prima facie case that she was paid less than male employees. Indeed, Shi is paid less than nearly every Senior Scientist at SMPH, and is paid the same as three other employees who have all worked at SMPH for a shorter period than Shi. (PPFOF ¶75.) C. Shi and Kyle Have Similar Working Conditions Shi can also demonstrate that she and Kyle performed their work under similar working conditions and performed similar job duties. Though SMPH again attempts to artificially limit application of the Equal Pay Act to industrial settings (D.’s Br. 19) and maintain that the law does not protect professionals such as Dr. Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 17 of 27 18 Shi, it fails to prove this point, and fails to demonstrate that Shi and Kyle did not have similar working conditions. Indeed, Shi and Kyle work in the same lab and from 2012 to 2015 both worked primarily under the supervision of Dr. Makielski. (PPFOF ¶¶ 4, 45.) During this time, Shi was working in large part on her own research under grants she herself had won, while Kyle worked only on Makielski’s grants. (PPFOF ¶¶ 12-13, 18-19, 63.) SMPH’s argument that “professional” jobs like those held by Shi and Kyle were not those intended to be covered by the Equal Pay Act ignores the history of the EPA. When passed in 1963, the EPA exempted entire classes of employees such as professionals because those groups had been excluded from the Fair Labor Standards Act as it was passed in 1938, but later amendments provided equal pay protection to these formerly exempted employees in 1972. See 29 U.S.C. § 206(b). Professional employees such as Shi are explicitly covered by the Equal Pay Act. This argument also ignores the standards set forth in the federal regulations, which state that a “flexible standard of similarity” is the proper basis for this requirement. 29 C.F.R. § 1620.18. In the case relied upon by SMPH, Sims-Fingers v. City of Indianapolis, the employees compared are managers of municipal parks of varying sizes. 493 F.3d 768 (7th Cir. 2007). The plaintiff and her proposed comparator managed parks of different sizes and with different amenities, and had different backgrounds. Id. at 770-71. In addition, the plaintiff was paid only $626.60 less than her proposed comparator annually. Id. at 770. The court noted that the Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 18 of 27 19 “size of the pay differential, though not determinative, is highly relevant.” Id. at 771. Here, the differences between Shi and Kyle are small; e.g., she has a background in yeast biology, he in electrophysiology. (PPFOF ¶¶ 51, 59.) Both have worked, for the relevant timeframe, under the same supervisor in the same lab and on many of the same research projects, save the grants that Shi has been awarded in her own right. But the pay differential is large. In 2015, Kyle was paid over $30,000.00 more than Shi. (DPFOF ¶¶ 39, 43.) A reasonable jury, drawing all inferences most favorably to Shi, could conclude that she performed equal work requiring equal skill and responsibility of that performed by Kyle, and that she did so under similar working conditions, while being paid $30,000.00 less. Questions of fact remain as to whether the job duties performed by Kyle and Shi are the same, and as such, summary judgment based on whether Shi can establish her prima facie case is unwarranted. IV. SMPH Has Failed to Show That Kyle was Paid More than Shi Based on Factors Other Than Sex. Once the prima facie case has been established, it is the burden of the employer to demonstrate that the pay difference between a male and female employee is due to a factor “other than sex.” Wollenburg, 201 F.3d at 976. SMPH claims that Kyle was paid more than Shi because of his higher prior wages, market forces, and the state’s compensation plans. SMPH’s burden is to prove that these reasons were the actual reason that it paid Shi less than Kyle for performing the same work. See King, 678 F.3d at 474; Wollenburg, 201 F.3d at 976. The reasons Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 19 of 27 20 provided by SMPH to justify its compensation decisions amount to post-hoc rationalizations for its conduct, and fail to meet this high burden. A. Prior Wages Do Not Explain The Salary Difference Between Shi and Kyle Prior to her hire at SMPH, Shi was earning a salary of $77,000.00 in private industry. (DPFOF ¶6.) Upon her hire, Shi asked her supervisor Makielski to equalize her salary with what she was earning in her previous position; Makielski instead told Shi she would need to take a pay cut. (PPFOF ¶3.) In contrast, when Makielski learned of Kyle’s higher salary from the University of Chicago, he “gulped and I said ‘I will see what I can do.’” (PPFOF ¶42.) Makielski stated that he had the discretion to offer Kyle that amount. (PPFOF ¶44.) SMPH also claims the high salary offered to Kyle was necessary because he had been earning $93,000.00 per year in his previous position at the University of Chicago. (D.’s Br. 21-22.) But Kyle himself said he never made this a requirement for his move to SMPH; in fact, he noted several other factors, such as interest in the research, a desire to work with his friend Makielski, and interest in retiring in Madison, as other reasons to accept the position. (PPFOF ¶39-41, 43.) In addition, Kyle’s job duties at the University of Chicago, including conducting research, supervising lab employees, and teaching one or two undergraduate courses – which in part supported his salary. (PPFOF ¶¶34-35.) At SMPH, however, Kyle does not teach any classes, meaning he was not actually accepting a job equivalent to that which he held at the University of Chicago. (PPFOF ¶¶ 34-35.) A reasonable Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 20 of 27 21 interpretation of these facts is that SMPH was not, as it claims, “required” to match Kyle’s prior salary, but that Makielski chose to do so. The Seventh Circuit cautioned that evidence that a male employee required a higher salary than a similarly situated female employee should be considered with care, “as undue reliance on salary history to explain an existing wage disparity may serve to perpetuate differentials that ultimately may be linked to sex.” Dey v. Cold Const. & Development Co., 28 F.3d 1446, 1462 (7th Cir. 1994). Unlike Kyle in the instant case, the comparator in Dey rejected an initial, lower salary offer and negotiated a salary closer to what he had been earning at his previous position. Id. In this case, Kyle has no memory of asking that his salary be made equal to what he was being paid at the University of Chicago, and he identified several other factors – interest in the work, wanting to work with his friend Makielski, the desirability of moving to Madison – as reasons for him to take the position in SMPH. (PPFOF ¶¶40-41.) Nor is there any evidence that Kyle actually negotiated his salary; the salary range set on his Position Vacancy Listing was specifically tailored to him. (PPFOF ¶48.) A reasonable jury could conclude that Kyle was not paid a higher salary because it was necessary due to his prior wages, given the question of fact as to whether Kyle negotiated for that salary, and because Shi, too, was paid more at her previous position, and took a pay cut when she came to SMPH. Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 21 of 27 22 B. Market Forces Do Not Explain the Salary Difference SMPH’s claim that “market forces” explain the difference in compensation also leaves many factual questions unanswered. First, SMPH claims that Kyle’s “specialized knowledge and experience in electrophysiology” justify a compensation gap of over $30,000.00. As with SMPH’s “prior wages” argument, additional facts suggest that this is a more complicated question. First, Kyle was replacing an employee, Carmen Valdivia, with those same specialized skills in electrophysiology but who was paid only $61,678.00 annually, demonstrating that $93,000.00 is not simply the “market value” for electrophysiology skills. (PPFOF ¶¶ 38, 49.) SMPH has presented no evidence of the “market value” of Kyle’s skills. In contrast, consider this Court’s decision in Schultz v. Department of Workforce Development, in which the defendant stated it had “looked at what economists in the federal government were paid” in determining how to compensate the plaintiff’s comparator. 752 F.Supp.2d 1015, 1028 (W.D. Wis. 2010). The plaintiff in that matter failed to raise an issue of fact surrounding this defense. Id. Here, SMPH has presented no evidence of the market value of Kyle’s skills. Indeed, the only evidence is the salary paid to his predecessor, Valdivia, who was paid significantly less than the salary Kyle was offered. (PPFOF ¶38.) Second, this ignores that Shi also has specialized skills that Kyle lacks. Indeed, in a grant application, Makielski described Shi and Kyle’s skills as complementary, noting that while Kyle had an electrophysiology background, Shi had skills working with yeast that were an asset to the work. (PPFOF ¶¶ 25, 59.) Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 22 of 27 23 SMPH’s comparison of Kyle’s “years of experience” with Shi’s also ignores the relevant timeframe. SMPH states that when Kyle was hired in 2012 he had experience in “academic laboratories” but that Shi’s experience when she was hired in 2003 was “limited” to an industrial laboratory. (D.’s Br. 24.) But Shi is not arguing that when she was hired in 2003 she should have been paid an equivalent salary to that paid to Kyle when he was hired in 2011. The relevant comparison is the work Shi had done by the time Kyle was hired. By 2011, Shi had added nearly a decade of work in an academic laboratory to her CV, all of this in CMARP, working specifically on Makielski’s sodium channel and KATP projects. She had applied for and won two grants based on her own research, had been awarded patents based on inventions that arose from that research, and had been the “senior author” on one paper that had resulted from her work with Makielski. (PPFOF ¶13, 15, 18, 25.) Given Shi’s extensive experience in CMARP by the time Kyle was hired, a reasonable jury could conclude that Shi’s experience in fact outstripped Kyle’s at this point. Kyle had no publications related to potassium channels when he came to SMPH. Whether Kyle’s experience truly justified this massive difference in wages is a question of fact for a jury to determine. See, e.g., Ewald v. Royal Norwegian and Embassy, 82 F.Supp.3d 871, 945-947 (D. Minn. 2014) (reviewing the skills of the plaintiff and her comparator and determining that the comparison “should have favored [the plaintiff]”). Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 23 of 27 24 C. “Other Factors” Do Not Explain the Salary Difference The final argument advanced by SMPH to justify paying Shi $30,000.00 less than her male counterpart is the catchall “factor other than sex.” (D.’s Br. 25-27.) SMPH lists Shi’s raises throughout her initial hiring in 2003 and says that because the “Wisconsin Governor, Legislature, and Board of Regents,” limited Shi’s salary increases, while Kyle was not subject to the same constricts, this disparity is justified. (D.’s Br. at 26.) This ignores the actual mechanisms and requirements for providing raises at SMPH, as well as the discretion exercised by Makielski when he chose to cut Shi’s salary when she came to SMPH but to match Kyle’s in the same situation. (PPFOF ¶¶ 3, 39-44.) First, SMPH ignores the actual guidelines setting forth the faculty salary minima and maxima for U-Madison. For a Senior Scientist with the title code “E10BN,” the position held by both Shi and Kyle, the salary minimum is $50,736.00 and the maximum is $62,004.00. (Salary Ranges & Minima for Unclassified Staff, Bates No. 184.) While Shi’s salary is within this range, Kyle’s is not, suggesting that university limitations on salary are not the actual reason for the disparity between the two. (PPFOF ¶70.) SMPH’s suggestion that its hands were tied and Shi’s salary could not be made equal with Kyle’s also ignores SMPH of Wisconsin Office of Human Resources Pay Adjustments Policy. (PPFOF ¶¶ 71-74.) This policy sets forth methods for providing salary adjustments to UW-Madison staff to “allow the campus to address market and equity concerns, recognize changes in position duties, and reward staff Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 24 of 27 25 for performance.” (PPFOF ¶72.) Among the recognized reasons for making such an adjustment is “equity.” (PPFOF ¶72.) An equity base-building adjustment may be used to correct an inequity…identified through analyses of the compensation of staff with comparable training, experience, and responsibilities. A division may submit an equity adjustment request when significant inequities are created by hiring new employees at rates higher than those of existing staff, provided that the pay rates for the new employees are necessary to recruit well-qualified candidates. (Id.) Adjustments for “market” and “performance” are also available under this OHR policy. (PPFOF ¶73.) Shi, as an “academic staff” member, would be eligible for such adjustments. (PPFOF ¶74.) As Makielski set the salaries for both Shi and Kyle, and was responsible for submitting both for promotions, he was well aware of the disparity of salary between the two. No such salary adjustments were ever sought for Shi, but the existence of this policy demonstrates that it was not simply “economic and political factors in the State of Wisconsin” that resulted in the salary gulf between Kyle and Shi. (See D.’s Br. 26.) Other factors that could have led to the increase of Shi’s salary over the years further negate SMPH’s claim that external forces alone account for the salary disparity. No performance reviews were conducted for Shi until September 2014. (PPFOF ¶21.) Performance reviews are required upon completion of six and twelve months of employment (PPFOF ¶22), however no such reviews appear in Shi’s personnel file. (PPFOF ¶23.) The only reviews of Shi’s performance appear when Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 25 of 27 26 she was promoted to the Associate Scientist and Senior Scientist positions, respectively. (Id.) After each of these promotions, Shi was given the required 10% salary increase. (PPFOF ¶24.) As with the initial decision to give Shi a pay cut when she came to SMPH, and deciding to match Kyle’s salary when he came from the University of Chicago despite paying him far more than the salary paid to the female scientist who previously filled that position, all of these compensation decisions ultimately come down to Makielski’s discretion. Besides setting the initial salaries for both Shi and Kyle, Makielski was responsible for conducting performance reviews throughout Shi’s employment. (PPFOF ¶22, 44.) CONCLUSION Despite being awarded grants and conducting her own research as a principal investigator, Shi is compensated with the lowest salary paid to any Senior Scientist at SMPH. Another male employee in the same lab, who works under the same supervisor on many of the same research projects, is paid over $30,000.00 more each year. Questions of fact remain as to whether Dr. Shi’s work is equal to that of Dr. John Kyle, and if so, whether SMPH can carry its heavy burden to demonstrate that this pay disparity is due to a factor other than sex. Viewing all evidence in the light most favorable to Shi, a reasonable jury may find that SMPH’s actions have violated the Equal Pay Act. As such, Shi respectfully requests that this Court deny SMPH’s motion for summary judgment. Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 26 of 27 27 Dated this 11th day of July, 2016. HAWKS QUINDEL, S.C. Attorneys for Plaintiff, Nian-Qing Shi By: /s/ Nicholas E. Fairweather Nicholas E. Fairweather, State Bar No. 1036681 Email: nfairweather@hq-law.com Caitlin M. Madden, State Bar No. 1089238 Email: cmadden@hq-law.com 222 West Washington Avenue, Suite 450 Post Office Box 2155 Madison, Wisconsin 53701-2155 Telephone: 608-257-0040 Facsimile: 608-256-0236 Case: 3:15-cv-00546-jdp Document #: 48 Filed: 07/11/16 Page 27 of 27