Celeste DAVID, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, doing business as City Colleges of Chicago, Defendant-Appellee.
No. 15-2132
United States Court of Appeals, Seventh Circuit.
Decided January 13, 2017
846 F.3d 216
Before FLAUM and RIPPLE, Circuit Judges, and PETERSON, District Judge.*
Argued January 14, 2016. * Of the Western District of Wisconsin, sitting by designation.
This argument is absurd. By focusing on the three weeks during which they ignored Bayer‘s motion to dismiss, Berke and Flynn gloss over their failure to do anything to advance Dzik‘s case over the previous eighteen months, including not providing discovery. We have explained that “attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney‘s somnolent behavior may have on a litigant.” Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006) (quoting Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004)). And counsel have not even suggested that, if the lawsuit had not been dismissed, Dzik could have complied with Bayer‘s discovery demand and substantiated their firm‘s representation that, despite not filling a Yasmin prescription for nearly a year preceding her injury, Dzik was still taking the drug. Their brief also fails to explain why Flynn (who, presumably, was not vacationing with Berke and his wife) was not watching the case while Berke was away. Furthermore, nearly four months elapsed between Bayer‘s e-mail to Dzik‘s counsel identifying her case as subject to Section III and the court‘s dismissal, yet counsel took no (documented) action during that period.
District courts handling complex, multidistrict litigation “must be given wide latitude with regard to case management” in order to achieve efficiency. In re Asbestos Prods. Liab. Litig. (No. VI), 718 F.3d 236, 243, 246-48 (3rd Cir. 2013); accord In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 496 F.3d 863, 867-68 (8th Cir. 2007); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1252-53 (9th Cir. 2006). That discretion extends to dismissing individual suits for noncompliance with the court‘s orders, including discovery orders. In re Guidant Corp., 496 F.3d at 867-68; In re PPA Prods. Liab. Litig., 460 F.3d at 1252-53. Considering that Dzik‘s lawyers—in their own words—did “mostly nothing” after filing this lawsuit, the district court did not abuse its discretion by dismissing the case with prejudice.
The judgment of the district court is AFFIRMED.
Jemelle D. Cunningham, Attorney, Lad Law Group, P.C., Chicago, IL, for Plaintiff-Appellant.
Valerie Harper, Attorney, City Colleges of Chicago, Chicago, IL, for Defendant-Appellee.
RIPPLE, Circuit Judge.
Ms. David subsequently brought this action alleging that she was denied a pay increase on the basis of her race, sex, and age, in violation of the
I
BACKGROUND
A.
Ms. David began working for CCC in October 1980. She held different positions throughout her career, but her final position at CCC was Manager of End-User Services in CCC‘s Office of Information Technology (“OIT“). In that position, Ms. David worked in computer support: she oversaw staff at the help desk and compiled internal reports of student data and external reports of staffing, building, and salary data required by the Illinois Community College Board and the Illinois Board of Higher Education. According to the job description for the Manager of End-User Services position, the qualifications include a “Bachelor‘s Degree in Computer Science, Information Science, Computer Information Systems, Data Processing, or an appropriate related field.”1 The job description also provides, however, that “[a] combination of educational and work experience may be taken into consideration at the discretion of the administration.”2 Ms. David‘s salary at the time of her retirement in 2012 was $75,594.67.
In 2011, due to the expiration of the contract with Sync Solutions, OIT made an effort to hire internally former Sync Solutions consultants to support PeopleSoft and other key applications. One of those individuals was Reyes.7 In October 2011, Reyes applied for, and received, the position of “Functional Applications Analyst,” which required a Bachelor‘s Degree in a relevant field.8 In that position, he “was responsible for configuring the PeopleSoft Student Administration pillar” and reported directly to Valerie Davis, District Director of PeopleSoft Student Systems. Initially, Reyes continued to assist Ms. David with her PeopleSoft security duties, specifically generating required reports. Once he had taught Ms. David his methods for performing these tasks, she began performing these functions on her own, and Reyes focused exclusively on the PeopleSoft student administration application.
On August 1, 2011, prior to CCC‘s hiring Reyes, Ms. David had announced her intention to retire on June 30, 2012. Approximately one month later, Ms. David met with Craig Lynch, the Vice Chancellor for OIT, who had the authority to make promotion recommendations to the Chancellor.10 Ms. David asked Lynch for a new job title and more pay because she was performing additional tasks related to PeopleSoft security. Lynch told Ms. David to complete a Job Analysis Questionnaire (“JAQ“), a form that CCC employees can fill out to request more pay or a different title. Lynch also said that he would look into her job description and pay level. At some point during the meeting, Lynch inquired of Ms. David, “aren‘t you about to retire[?]”11
Lynch reviewed Ms. David‘s job description and acknowledged that it did not include a description of Ms. David‘s PeopleSoft security duties. However, he con
In her deposition, Barnes testified that she does not recall specifically responding to Lynch, but believes that she spoke to him. It is undisputed, however, that she would have been disinclined to seek a raise for Ms. David because giving her a raise over a certain amount would have resulted in a fine by the State University Retirement System (“SURS“).15 Moreover, Barnes did not believe that Ms. David‘s position should be retitled or that she should receive a raise “because the creation and approval of a new position and salary would take several months, and [Ms. David] was retiring in June 2012.”16
As Lynch had instructed, Ms. David filled out a JAQ. The questionnaire never was processed, and Ms. David remained at her same pay level, $75,594.67, and in her position of Manager of End-User Services, until her retirement.
In February 2012, Ms. David filed an internal Equal Employment Opportunity Complaint. On that form, Ms. David claims that she met with Lynch on three different occasions to discuss her pay and title. On each occasion, according to Ms. David, Lynch referenced her impending retirement. CCC‘s internal EEO office confirmed receipt of Ms. David‘s complaint form on February 3, 2012, but was unable to resolve the complaint before Ms. David retired in June.
When Ms. David retired at the end of June 2012, the PeopleSoft security functions reverted back to Reyes. He did not receive any increase in pay for taking on these additional duties. However, after Reyes‘s position was claimed by the union, he received a mandatory pay increase to $85,280 pursuant to the collective bargaining agreement.
Six months after Ms. David retired, Reyes applied for the newly created,17 non-union position of Senior Systems Security Analyst.18 During his interview, he told the committee that he would like to retain his job duties as a Functional Applications Analyst as well.19 Reyes was hired into the
In April 2013, CCC hired Rosane Rodriguez, a Hispanic female over forty, to the position of Technical Applications Developer with an annual salary of $85,000. Rodriguez has a Bachelor of Science degree in Computer Information Services, which is a requirement of the position. She was hired into that position to develop an “interaction hub portal”22 and also to assist Reyes with the PeopleSoft security duties.
B.
Ms. David filed a four-count complaint alleging that she had been discriminated against on the basis of her age, gender, and race, in violation of the ADEA, Title VII, and the Equal Pay Act.23 CCC moved for summary judgment on all counts. Ms. David claimed that Lynch‘s comments about her impending retirement, his failure to process her JAQ, and CCC‘s slow response to her EEO complaint demonstrated both age discrimination and pretext. She further maintained that Reyes and Rodriguez performed equivalent work but were compensated at a much higher level. The disparities, she maintained, evidenced gender, race, and age discrimination. Finally, she contended that Lynch‘s and Barnes‘s explanations for failing to accord her a new title or higher pay were unworthy of credence.
The district court ruled in favor of CCC.24 It turned first to isolating the adverse employment actions of which she complained. It first noted that Ms. David had to establish that she suffered an adverse employment action on the basis of her gender, race, or age, and observed that the only materially adverse actions that Ms. David alleged were unequal pay and failure to reclassify her position. Although Ms. David had argued that Lynch‘s and Barnes‘s failure to properly process her JAQ and CCC‘s failure to attend promptly to her EEO complaint were materially adverse actions, the court disagreed. It observed that neither action affected “the claimant‘s employment status such as hiring, discharge, denial of promotion, reassignment to a position with significantly different job responsibilities, or an action that causes a substantial change in benefits.”25 “Instead those failures [we]re, at most, the vehicles by which CCC did engage in materially adverse employment actions—that is, CCC‘s denial of David‘s request for a better job title and more pay.”26
The court then concluded that Ms. David had not come forward with a similarly situated employee who was treated more
Ms. David fared no better in comparing herself to Rodriguez. The district court noted that Rodriguez‘s position, like Reyes‘s, required a college degree. Additionally, Rodriguez‘s position centered on the development of “the interaction hub,”29 which admittedly was not part of Ms. David‘s responsibilities. The district court therefore concluded that neither employee was sufficiently similar to Ms. David to serve as a comparator.
With respect to her age claim, the district court also concluded that Lynch‘s remarks concerning Ms. David‘s impending retirement, without more, did not establish that Lynch was motivated by Ms. David‘s age in denying her a new title or more pay.
Turning to Ms. David‘s Equal Pay Act claim, the court noted that, in order to establish a prima facie case, the plaintiff first “must show that different wages are paid to employees of the opposite sex. Second, plaintiff must show that she did equal work which requires equal skill, effort and responsibility. Third, plaintiff must show that the employees have similar working conditions.”30 If Ms. David were to establish this, the court continued, the burden would then shift to CCC to show that the pay disparity was due to “(1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production or (4) any other factor other than sex.”31 The district court concluded that, even if Ms. David had established a prima facie case under the Equal Pay Act, “that claim must fail based on the facts that doom [Ms.] David‘s Title VII and ADEA claims,” namely that the disparity in pay is attributable to Reyes‘s college degree.32
Ms. David timely appealed.33
DISCUSSION
A.
“We review de novo a district court‘s grant of summary judgment. Summary judgment is appropriate when, after construing the record in the light most favorable to the nonmoving party, we conclude that no reasonable jury could rule in favor of the nonmoving party.” Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted).
After the district court had issued its decision in this case and after the case was briefed on appeal, we decided Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Ortiz explicitly instructed district courts to “stop separating ‘direct’ from ‘indirect’ evidence and proceeding as if they were subject to different legal standards.” Id. at 765. Instead, the test “is simply whether the evidence would permit a reasonable factfinder to conclude that the plaintiff‘s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Id. Ortiz, however, did not alter “[t]he burden-shifting framework created by McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id. at 766. As we have explained, both before and after Ortiz, McDonnell Douglas is a means of organizing, presenting, and assessing circumstantial evidence in frequently recurring factual patterns found in discrimination cases. See, e.g., Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (observing that a “prima facie case in Title VII litigation . . . refers to a common, but not exclusive, method of establishing a triable issue of intentional discrimination” (emphasis added) (internal quotation marks omitted)); Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013) (explaining that “the original purpose of McDonnell Douglas . . . was to outline a series of steps that, if satisfied, would support a plaintiff‘s right to reach a trier of fact“).34 As Ortiz and our other case law make clear, however, McDonnell Douglas is not the only way to assess circumstantial evidence of discrimination. In adjudicating a summary judgment motion, the question remains: has the non-moving party produced sufficient evidence to support a jury verdict of intentional discrimination? Morgan, 724 F.3d at 997 (“The central question at issue is whether the employer acted on account of the plaintiff‘s race (or sex, disability, age, etc.).“).
Because the McDonnell Douglas framework survived Ortiz, and because Ms. David has presented her argument in those terms, we will begin our assessment of the evidence by employing that construct and addressing first whether Ms. David has established a prima facie case of discrimination. We will then, however, assess cumulatively all the evidence presented by Ms. David to determine whether it permits a reasonable factfinder to determine that her smaller salary was attributable to her age, race, or sex.
B. Title VII and ADEA Disparate Pay Claims
Ms. David‘s Title VII and ADEA claims are essentially disparate pay claims: she claims that employees who were younger, non-African-American, or male were paid more than she was paid for equivalent
1.
Generally speaking, under McDonnell Douglas, the plaintiff has the initial burden of establishing that “(1) she is a member of a protected class, (2) she performed reasonably on the job in accord with her employer[‘s] legitimate expectations, (3) despite her reasonable performance, she was subjected to an adverse employment action, and (4) similarly situated employees outside of her protected class were treated more favorably by the employer.” Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th Cir. 2014) (internal quotation marks omitted), overruled on other grounds by Ortiz, 834 F.3d at 765. “If the plaintiff satisfies that burden, then the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which point the burden shifts back to the plaintiff to submit evidence that the employer‘s explanation is pretextual.” Id. Although previously we have noted that “[i]t is somewhat unclear what standard guides the determination of a prima facie case of disparate pay under Title VII,” Cardoso v. Robert Bosch Corp., 427 F.3d 429, 433 (7th Cir. 2005) (emphasis in original), in a more recent case, we have applied the standard McDonnell Douglas framework for evaluating disparate pay claims under Title VII and the ADEA, see Warren v. Solo Cup Co., 516 F.3d 627, 630 (7th Cir. 2008). Consequently, that will provide the basis for analyzing Ms. David‘s pay claims under Title VII and the ADEA.
There is no question that Ms. David is a member of a protected class, that she was performing her job in an acceptable manner, and that she was being paid less than Reyes and Rodriguez. We must focus therefore on whether Reyes and Rodriguez were similarly situated to Ms. David. We have observed that whether employees are similarly situated is a “flexible, common-sense, and factual” inquiry.
Turning first to Reyes, Ms. David claims that the position that Reyes ultimately was hired into, the Senior Systems Security Analyst position, essentially was her old job. She relies on statements by her supervisor, Robin Jackson, and by Reyes that CCC was looking to fill Ms. David‘s “old position.”36 Regardless of how the position is referenced in conversation, however, Ms. David must establish that she and Reyes were “directly comparable in all material respects.” Alexander v. Casino Queen, Inc., 739 F.3d 972, 981 (7th Cir. 2014) (internal quotation marks omitted).
Looking first to the job descriptions, it is clear that Ms. David‘s position—“Manager, End-User Services,“—bears little resemblance to Reyes‘s position—“Senior Systems Security Analyst.”37 Ms. David‘s position was focused on developing policies and supervising staff related to the delivery of services. It required a Bachelor‘s Degree in Computer Science or a related field, but also allowed for “[a] combination of educational and work experience [to] be taken into consideration at the discretion of the administration.”38 It required technical expertise in DOS and Windows, previous experience installing and/or administering other operating programs, and proficiency in basic software applications.39 The Senior Systems Security Analyst, by contrast, was responsible for “[d]efin[ing], configur[ing], and administer[ing]” the PeopleSoft system; “[e]nsur[ing]” the security of the systems; and “[e]valuat[ing], test[ing], monitor[ing], and maintain[ing] Oracle security configurations and security administration policies.”40 In short, the focus of the Senior Systems Security Analyst position was the development, implementation, and servicing of the computer systems themselves. The position required a Bachelor‘s Degree in Computer Science, seven years of experience in “systems analysis, design, software support and application of security controls,” and “[e]xperience working with PeopleSoft applications.”41
Ms. David does not maintain that she had the qualifications or the skills to perform the Senior Systems Security Analyst position. Instead, she maintains that “Reyes . . . testified, that as a Senior Security Analyst, he performs the exact same duties that David performed before she retired.”42 Reyes‘s deposition testimony, however, does not support this assertion. Reyes testified that, when he was hired into the Senior Systems Security Analyst position, he was “perform[ing] the same job duties that [Ms. David] had previously performed” along with the duties of “the functional application analyst position that I had before in addition to the senior
Ms. David also maintains that she was similarly situated to Rodriguez because Rodriguez “also performed PeopleSoft security duties.”44 The fact that one of Ms. David‘s job duties eventually found its way to Rodriguez, who was hired over one year after Ms. David retired, does not establish that they were similarly situated for purposes of pay. Again, even a cursory comparison of Ms. David‘s job duties with those of a Technical Applications Developer—the position held by Rodriguez—establishes that Rodriguez‘s job was focused on software installation, testing, documentation, and maintenance.45 Ms. David does not maintain that she had the qualifications—a Bachelor‘s Degree in Computer Science—or skills to perform these functions.
The core duties of Reyes‘s and Rodriguez‘s positions focused on the development, installation, and monitoring of software programs that Ms. David did not, and could not, perform. Neither person is similarly situated to Ms. David for purposes of her disparate pay claim, and she has failed to establish a prima facie case of discrimination under Title VII.46
2.
In assessing cumulatively all the record evidence without the assistance of the McDonnell Douglas paradigm, it is clear that a reasonable jury could not conclude that any pay disparity was the result of Ms. David‘s age, race, or sex.
In addition to the evidence concerning the responsibilities and pay of Reyes and Rodriguez, Ms. David believes several other pieces of evidence point to an illicit motive: (1) CCC‘s failure to process her JAQ and complete its EEO investigation prior to her retirement; (2) Lynch‘s reference to Ms. David‘s retirement when she inquired about a change in title and raise; and (3) Lynch‘s and Barnes‘s lack of credible reasons for not retitling her position or awarding her a raise.
Ms. David notes that it would not have been impossible to complete the review, retitle her position, and give her a raise before retirement. She notes that, because the Senior Security Systems Analyst position was approved at approximately the time that she retired, her position also could have been evaluated and upgraded before her retirement.
The timing of the approval of the Senior Security Systems Analyst position, however, confirms rather than undermines Barnes‘s rationale. It took the CCC ten months, from the time of Ms. David‘s announcement of her retirement in August 2011 until June 2012, to assess its OIT needs and approve the Senior Security Analyst position.51 Ms. David has not presented any evidence that the review of her position could have been accomplished in a shorter period of time.
More importantly, however, there simply is no reason to believe that Lynch, who was responsible for making recommendations,52 believed that Ms. David‘s performance of PeopleSoft security functions warranted a promotion or a pay increase. Indeed, Ms. David admitted that Lynch believed that she was not entitled to a pay increase and that, if her job title
Ms. David now claims that Lynch should not be believed because he was not her immediate supervisor and, therefore, would not have known whether her job functions warranted a pay increase. It is undisputed, however, that Lynch was responsible for the OIT department and had the authority to make promotion recommendations. Ms. David‘s argument, at bottom, is simply that Lynch did not have sufficient first-hand knowledge to make an informed promotion recommendation. This is an attack on the wisdom of Lynch‘s decision—or, more accurately, on the wisdom of CCC‘s decision to bestow on Lynch the responsibility for making promotion recommendations—not on the honesty of Lynch‘s explanation. Our role, however, is not to inquire into the wisdom of an employment decision, but simply to determine if “the employer is dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Ms. David has not come forward with any evidence that this is the case.
Finally, Ms. David notes that Lynch, during at least one of the meetings concerning her desired promotion and increase in pay, mentioned her impending retirement. Ms. David would like us to construe those comments as age-related. The Supreme Court rejected such an approach in Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). In that case, the employer had terminated the employment of a sixty-two-year-old man to prevent his pension plan from vesting. The Court observed that pension plans typically vest “once the employee completes a certain number of years of service with the employer. . . . Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.‘” Id.
Similarly, eligibility for retirement may be based on age, years of service, or a combination of the two. Ms. David has not identified any record evidence that explains how retirement eligibility is determined at CCC. We therefore cannot equate retirement eligibility with age.
Moreover, Ms. David was not simply eligible for retirement when she had her initial meeting with Lynch about upgrading her position and pay; she had announced her intention to retire several months earlier. Thus, when Lynch referenced her impending retirement, he was not making any assumptions about retirement eligibility based on Ms. David‘s age; he merely was referencing her current employment status as a “short timer.”
Indeed, all of the evidence of “discrimination” points to this conclusion. Ms. David had made clear that, as of June 2012, she no longer would be an employee of CCC. Having made that announcement, CCC had little motivation to expend time and resources retitling or reclassifying her position. That may not have been an enlightened decision. But there simply is nothing in the record to support an inference that the decisions were based on Ms. David‘s age, sex, or race, rather than her announcement of her voluntary retirement.
Because the evidence does not permit a reasonable factfinder to conclude that Ms. David‘s age, sex, or race was the cause of her lower pay, see Ortiz, 834 F.3d at 765, the district court properly granted summary judgment to CCC on Ms. David‘s Title VII and ADEA claims.
“The Equal Pay Act forbids employers from paying different rates to men and women for the same work at the same establishment.” Jaburek v. Foxx, 813 F.3d 626, 632 (7th Cir. 2016) (internal quotation marks omitted). In order to establish a prima facie case under the Equal Pay Act, a plaintiff must show: “(1) higher wages were paid to a male employee, (2) for equal work requiring substantially similar skill, effort and responsibilities, and (3) the work was performed under similar working conditions.” Merillat v. Metal Spinners, Inc., 470 F.3d 685, 695 (7th Cir. 2006) (internal quotation marks omitted). In determining whether two jobs are equal, “we look to whether the jobs have a ‘common core of tasks, i.e., whether a significant portion of the two jobs is identical.’ Once a plaintiff establishes a ‘common core’ of tasks, we ask whether any additional tasks make the jobs ‘substantially different.‘” Id. (citation omitted) (quoting Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d 693, 698 (7th Cir. 2003)). In making this determination, the court “look[s] to the actual job duties performed by each employee, not to his or her job description or title.” Id.
Ms. David maintains that Reyes was paid a higher salary for, essentially, performing her old job functions. According to Ms. David, “Reyes testified that his posit[i]on as Senior Security Analyst was the exact same job as David before she retired.”54 This does not reflect accurately Reyes‘s testimony. Reyes testified that, in the Senior Systems Security Analyst position, he performed Ms. David‘s PeopleSoft security responsibilities, along “with the functional application analyst position that I had before in addition to the senior security analyst.”55 He also testified that the duties listed in the Functional Analyst and Senior Systems Security Analyst Job descriptions “accurately reflect the duties” that he performed in those positions.56 As explained in some detail above, those duties involve the development, implementation, and servicing of the computer systems.57 The record reveals that Ms. David did not perform similar duties in her position or that she had the skills to perform these functions. Reyes‘s position, therefore, included responsibilities that were “substantially different” from those performed by Ms. David and that Ms. David could not perform. She therefore has not established a prima facie case under the Equal Pay Act.
Conclusion
For the reasons set forth in this opinion, the judgment of the district court is affirmed.
AFFIRMED
KENNETH F. RIPPLE
UNITED STATES CIRCUIT JUDGE