Appeal from the Circuit Court of Cook County; the Hon. Myron
T. Gomberg, Judge, presiding.
JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Pat Erickson, Kimberly La Deur, Joette M. Hager, and Kimberly S. Kolze (plaintiffs) brought this suit against the Board of Education, Proviso Township High School, District No. 209, Cook County, Illinois (defendant). Count I of plaintiffs' complaint alleged a violation of the Equal Pay Act (29 U.S.C. § 206(d)(1) (1976)). Count II alleged discrimination against plaintiffs in violation of the Illinois Constitution of 1970, article I, section 18. The trial judge entered summary judgment for defendant. Plaintiffs appeal.
Defendant operates public high schools known as Proviso East and Proviso West. Plaintiffs acted as teachers and also as coaches of certain girls' athletic teams. It is the theory of plaintiffs that they were discriminated against as regards their compensation for coaching activities on the basis of the fact that they were women. The high schools operated by defendant also employed men as athletic coaches.
The record shows that the defendant has two separate bargaining agreements with the local teachers union of which plaintiffs are members. The scale of pay for teachers in connection with their work as athletic coaches was a matter of contract arrived at after negotiations. The collective bargaining agreements set out the coaching compensation in detail. One of the important matters here involved is that the collective bargaining agreements refer to "men coaches" and also to "women coaches." However, the record shows definitely, and the parties have conceded, that the contract schedule with reference to designations of "men" and "women" does not relate to or describe the coaches. On the contrary, these designations refer to the sex of student participants in athletics who receive coaching from plaintiffs. The coaching itself was such that in some instances male coaches assisted girls in their sports and in one situation a woman had served a coach of a gymnastics team for boys. Thus the compensation for the coaching was not set in accordance with the sex of the coach but rather pertained to the sex of the participants who received the coaching.
Discovery was had by both sides. Defendant's motion contains affidavits together with a statement of facts, copies of collective bargaining agreements and excerpts from plaintiffs' depositions. Plaintiffs themselves did not file affidavits or depositions but simply a legal memorandum directed to the merits of the motion. It appears from the depositions of plaintiffs that some women coaches who worked with the boys' teams received a higher salary than men coaches who worked with the girls. The collective bargaining agreements contain information to this effect.
It is agreed that the Federal Equal Pay Act is applicable to the situation here. This statute provides (29 U.S.C. § 206(d)(1) (1976)):
"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: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee."
In addition a provision of the Illinois Constitution of 1970 is also applicable here. This provision states (Ill. Const. 1970, art. I, sec. 18):
"NO DISCRIMINATION ON THE BASIS OF SEX.
The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts."
It is the theory of plaintiffs that the record discloses various material issues of fact which set forth violations of the Equal Pay Act and of article I, section 18, of the Illinois Constitution of 1970. Thus, plaintiffs in effect contend the record shows there are genuine issues as to material facts so that the trial judge erred in granting summary judgment. (See Ill. Rev. Stat. 1981, ch. 110, par. 2-1005.) However, plaintiffs did not file a factual response to defendant's motion for summary judgment, to demonstrate the presence of any material and disputed facts. Plaintiffs attempted to rely upon the allegations of their complaint. The trial judge concluded that summary judgment for defendant was proper. In this regard, the law is clear that absent facts set out in a counteraffidavit, "[m]ere reliance upon contrary averments in the [opposing] party's answer is insufficient." Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App.3d 569, 576, 442 N.E.2d 648, and cases there cited.
Neither party cites in their brief any legal authority which directly considers the rather unique situation here presented. It seems clear, as a factual matter, that the plaintiffs were not discriminated against because of their sex. As shown, the compensation to be given to athletic coaches did not vary with any particular coach but depended upon, and varied in accordance with, the sex of the pupils who received the coaching. Undoubtedly where there is a wage discrimination against women because of their sex, that situation is definitely covered by the Equal Pay Act. (See Corning Glass Works v. Brennan (1974), 417 U.S. 188, 41 L.Ed.2d 1, 94 S.Ct. 2223; Hodgson v. American Bank of Commerce (5th Cir. 1971), 447 F.2d 416.) Similarly, article I, section 18, of the Illinois Constitution of 1970 is directed at the same type of discrimination. This amendment has been applied by the courts> of Illinois in a salutary effort to stamp out discrimination by governmental bodies of any kind based upon sex. See People v. Ellis (1974), 57 Ill.2d 127, 311 N.E.2d 98.
The defendant cites a number of cases decided under title VII of the Federal Civil Rights Act of 1964 (42 U.S.C. § ...