Bеtty WARREN, Plaintiff-Appellant, v. SOLO CUP COMPANY, a foreign corporation, Defendant-Appellee.
No. 06-3504.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 12, 2007. Decided Feb. 20, 2008.
516 F.3d 627
AFFIRMED
John H. Otto, Zimmerly, Gadau, Selin & Otto, Champaign, IL, for Plaintiff-Appellant.
Davi L. Hirsch, Klein Dub & Holleb, Highland Park, IL, for Defendant-Appellee.
Before KANNE, ROVNER, and SYKES, Circuit Judges.
Betty Warren alleges her employer, Solo Cup Company, compensated her male coworker at a higher hourly rate based on his gender in violation of the Equal Pay Act and Title VII. The district court granted summary judgment in favor of the employer. Warren appealed and we affirm.
I. Background
In 1999 Betty Warren began working at Solo Cup Company (“Solo“), a manufacturer of disposable cups and plates, as a “packer,” earning $6.04 per hour. In 2000 Warren switched positions and became a “tool crib attendant,” earning $6.31 per hour. She received three raises over the next two years and eventually reached an hourly wage of $7.52. When Warren began working in the tool crib, Solo tracked its parts using manual inventories recorded on a written card system. Eventually Solo computerized its tool crib, using a software system to track and inventory parts. This modernization made it important for tool crib attendants to possess computer skills.
In December 2002 Solo contemplated hiring a tool crib attendant to cover the third shift so the tool crib would be continually staffed. Having recently decided to lay off all of its full- and part-time security guards, Solo decided to offer the new tool crib position to Don Lorenz, one of its sеcurity guards. As a security guard, Lorenz started at $6.50 per hour and worked his way up to $7.43. Solo offered him a raise with the new position, to $7.75 per hour. Tony Peyton, the head of Solo‘s human resources department, testified that Lorenz‘s raise was based on his “computer skills and his potential“; Lorenz holds a bachelor‘s degree in anthropology and two master‘s degrees in education and urban рlanning, respectively.
Warren, who has a high school diploma, was upset when she learned Lorenz was earning more money than she was for similar work in the tool crib. She went to
Warren filed a three-count complaint in federal district court, alleging she was paid unequal wages due to her gender in violation of both Title VII,
II. Analysis
We review the district court‘s grant of summary judgment de novo, “construing all facts, and drawing all reasonаble inferences from those facts” in favor of Warren. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir.2002). Summary judgment is appropriate “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 a judgment as a matter of law.”
A. EPA Claim
Warren first argues that Solo violated the EPA because her hourly rate as a crib attendant was less than Lorenz‘s. The EPA prohibits employers from paying employees different wages based on gender.
We assume, arguendo, that Warren established a prima facie case, so the burden
So “[i]n effect, the provisions of the Equal Pay Act establish a rebuttable presumption of sex discrimination such that once an employee has demonstrated that an employer pays members of one sex more than members of the opposite sex, the burden shifts to the employer to offer a gender neutral justification for that wage differential.” Varner, 226 F.3d at 932. The justification need not be a “good reason,” but merely a gender-neutral one. Wernsing v. Dep‘t of Human Servs., 427 F.3d 466, 468 (7th Cir.2005). The justification “must also be bona fide. In other words, an employer cannot use a gender-neutral factor to avoid liability unless the factor is used and applied in good faith; it was not meant to provide a convenient escape from liability.” Fallon, 882 F.2d at 1211.
Solo has carried its burden. The company established a bona fide, gender-neutral rationale for the discrepancy in pay: Lorenz is more skilled in using computers than Warrеn and has a bachelor‘s and two master‘s degrees. “Under the EPA, differences in education and experience may be considered factors other than sex.” Merillat, 470 F.3d at 697 (citing Cullen v. Ind. Univ. Bd. of Trs., 338 F.3d 693, 702 (7th Cir.2003)). Warren has a high school diploma and admitted her computer skills were deficient. Although Lorenz‘s bachelor‘s and master‘s degrees do not include a specific emphasis on computers, the evidence is undisputed that he knew more about computers than Warren. Moreover, the record establishes that at times Warren went out of her way to avoid using a computer at work because it was unfamiliar to her. Solo‘s motion for summary judgment on Warren‘s EPA claim was properly granted.
B. Title VII Claim
Warren next argues Solo paid her a lower hourly rate than Lorenz in violation of Title VII. She proceeds under the indirect method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), so the initial burden is on Warren to establish a prima facie case of discrimination. This requires Warren to show that (1) she is a member of a protected class; (2) she was performing her job to Solo‘s expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees outside of the proteсted class. Id.
Warren failed to establish a prima facie case because she is not similarly situated to Lorenz.4 An employee is similarly
The fourth factor is the focus of this case: Warren and Lorenz have very different educatiоnal backgrounds, experiences, and qualifications. Warren has a high school diploma; Lorenz has a bachelor‘s and two master‘s degrees. Moreover, Lorenz‘s computer skills are superior to Warren‘s. Warren maintains Lorenz‘s advanced degrees and computer skills are irrelevant because the tool crib job description requires neither. But the tool crib job desсription is not conclusive on this question. Employers are permitted to compensate employees differently based on skills that are not specifically required in a given job description so long as the employer considers those skills when making the compensation decision. See Bio, 424 F.3d at 597.
Lorenz and Warren are not materially comparable in education, experiеnce, and computer aptitude, and Solo considered these differences when deciding to pay Lorenz a higher hourly rate. Accordingly, Solo‘s motion for summary judgment on Warren‘s Title VII discriminatory pay claim was properly granted.
The judgment of the district court is AFFIRMED.
ROVNER, Circuit Judge, dissenting in part.1
In defense of its decision to pay Lorenz more than Warren for doing the same work, Solo has focused almost entirely on one factor that distinguishеs the two employees: Lorenz‘s computer skills. In the course of acquiring his bachelor‘s degree and two master‘s degrees, Lorenz had been trained in how to use computers and was comfortable doing so. Warren, by contrast, had no training related to computers and described her proficiency in that regard as “kind of mediocre.” R. 11-3, Warren Dep. at 51. Because the crib attendant position involved the use of a computer, Lorenz‘s greater facility with computer work amounts to a facially legitimate, non-discriminatory reason to pay him more than Warren. If the record before us were limited to the comparative skills of Lorenz and Warren, that would be enough to sustain the entry of summary
However, Solo‘s action (or rather, its inaction) vis-à-vis another cоmputer-savvy employee, Sandra Weir, calls into question the veracity of its rationale for paying Lorenz more than Warren. Solo has articulated the same reason for hiring Lorenz into the crib attendant position as it has for deciding to pay him more: his computer expertise. But, as it turns out, Lorenz was not the only individual interested in the position who had such expertise. Sandra Weir was a security guard at Solo who, like Lorenz, lost that job when the company decided to outsource its security. Weir, like Lorenz, had computer training and experience: she had taken a college course in computers several years earlier, and she had held two prior jobs in which she used computers to track parts inventories, which is exactly what the crib attendant рosition involved. Moreover, in the months proceeding the decision to outsource the security positions, Weir had told Holzhauer, the individual responsible for the tool crib, and Peyton, the manager of Human Resources, that she was interested in a crib attendant position. This was in contrast to Lorenz, who had never approached anyone in the company about that pоsition. Weir had also told Holzhauer and Peyton about her experience with computers, so they were on notice of that experience. Yet, despite Weir‘s expressed interest in position, the company never interviewed her for or contacted her about the position; the company did not even follow up with Weir about the extent of her computer-relаted training and experience. The job was offered only to Lorenz. Indeed, after Weir learned that she was losing her job to outsourcing, she again spoke with Peyton about a position in the tool crib, and he told her there was no opening. If, as Solo has represented, the company‘s prime focus in selecting someone for the position was on computer expertise, then its disregard of Weir as a candidate is, to say the least, curious.
My colleagues profess to be mystified as to the import of Weir and her credentials, ante at 630-31 n. 4, but to me the relevance is obvious. I understand, of course, that Weir is not a party to this suit and that Solo is not being sued for its decision to place Lorenz in the crib attendant position. Yet, even if the facts concerning the company‘s decision to pass over Weir in favor of Lorenz for the crib attendant position are viewed as “other acts” evidence, see
Solo has hinted at a second reason for compensating Lorenz at a higher rate than Warren—his higher level of education. Why Lorenz‘s multiple degrees are relevant to a position in the tool сrib is not apparent to me. The areas in which Lorenz had obtained his degrees had nothing to do with the responsibilities of the position. The fact is, Lorenz‘s three degrees rendered him vastly overqualified for a position that required only a high school degree or the equivalent. But for our purposes, the more relevant point is that Solo has not established that Lorenz‘s overall levеl of education was an independent reason for its decision to pay him more than Warren. Lorenz‘s computer expertise has always been the central and dispositive factor Solo has relied on. See R. 32, Defendant‘s Amended Reply in Support of its Motion for Summary Judgment at 13 ¶ 33 Response (describing “computer skills and computer work” as “the critical inquiry” regarding the pay disparity between Lorenz and Warren); id. at 33 (“The focal point is the computer component to the tool crib position in December 2002.“); see also R. 11-4, Peyton Dep. at 74 (“[Lorenz‘s] computer skills led us to believe that he was the best candidate.“); R. 11-6, Holzhauer Dep. at 39 (“the person I was looking for needed to be very computer-literate to be able to handle the work that was rеquired“). His substantial post-secondary education simply explained how Lorenz came to possess that expertise. See R. 11, Defendant‘s Memorandum in Support of its Motion for Summary Judgment at 13 (“During his educational training, Lorenz stated he took computer courses that Solo believed made him uniquely qualified for a tool crib attendant position following implementation of the computer component of the MP2 Inventory Control Program.“). Solo has, it is true, made vague allusions to Lorenz‘s “background” and “potential” as reasons for paying him more than Warren. R. 11-4, Peyton Dep. at 44. Perhaps Solo believed that Lorenz‘s multiple degrees made him an attractive prospect for future promotion to more responsible positions within the company. If so, however, the company has not adequately developed this as a second and independent reason for deciding to pay him more than Warren.
The evidence Warren has proffered as to Weir suffices to establish a question of fact as to the veracity of Solo‘s rationale for paying Lorenz more than Warren for doing the same work and as to whether Warren was similarly situated to Lorenz in material respects. For that reason, I would reverse the grant of summary judgment as to Warren‘s disparate claims under the Equal Pay Act and Title VII.