The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Plaintiff Mona Tropp's ("Tropp") motion to strike and Defendant Ingalls Memorial Hospital's ("Ingalls") motion for summary judgment. For the reasons stated below, we grant Tropp's motion to strike and grant Ingalls' motion for summary judgment in its entirety.
Tropp is a fifty-five year old former employee of Ingalls, a five hundred and sixty-three bed acute care community hospital, which is located in Harvey, Illinois. Tropp alleges that she was employed with Ingalls from July 8, 1980 to February 14, 2005, when she submitted a letter of resignation. Tropp contends that she was employed by Ingalls as a Clinical Case Manager ("CCM") from July 1980 through December 2002 and that she "also performed the duties and responsibilities of a registered nurse" ("RN") from December 2002 until February 14, 2005. (A. Compl. Par. 8). Tropp further claims that she "was subject to employment conditions, performance evaluations and assessments, counseling, warnings and discipline which were less favorable that those imposed upon similarly-situated employees under forty," (A. Compl. Par. 6), and that she "was paid unequal and lower pay as compared to males." (A. Compl. Par. 7).
Tropp contends that in 2003, she "received information that she was being paid less than similarly-situated males" and complained to Ingalls of the disparity but that her complaints were not addressed. (A. Compl. Par. 10). Tropp alleges that she again complained of the disparity between her wages and the wages of male counterparts in May 2004 to her supervisor, Catherine Joseph ("Joseph"), and that Joseph did not cure Tropp's concerns but instead Joseph "commenced a course of conduct which harassed and discriminated against" Tropp. (A. Compl. Par. 12). Tropp contends that on July 1, 2004, she "received a warning by . . . Joseph for allegedly not complying with performance standards," (A. Compl. 13), and that when Tropp attempted to discuss the noncompliance issue, Joseph informed Tropp that she was being insubordinate. Tropp further alleges that she "received a written notice of Record of Corrective Action [("RCA")] indicating unsatisfactory work performance" and that the RCA "was based upon false information and therefore was unfounded."
(A. Compl. Par. 14). Tropp also contends that on August 2, 2004, she "received a written communication that she failed to provide sufficient information concerning a patient's discharge instructions" and that when she asked to explain the allegation that "she was refused the opportunity." (A. Compl. Par. 15). According to Tropp, prior to these three disciplinary actions, she "had an impeccable work record at [Ingalls] and was never subject to any discipline and had received excellent and outstanding performance evaluations over the twenty-four . . . years of her employment." (A. Compl. Par. 18).
Tropp also alleges that "[s]imilarly situated younger employees are tardy, slept while on duty, destroyed patient records, were responsible for illegal doctor orders, were responsible for losing patients and also received patient complaints, yet these younger employees received no discipline." (A. Compl. Par. 16). Tropp contends that she complained of the different treatment to Ingalls "through internal grievance process . . . and through communications with the Ingalls' administration" but the issues were not addressed by Ingalls. (A. Compl. Par. 17). According to Tropp, the position of twelve nurses over the age of fifty were eliminated by Ingalls.
Tropp contends that in October 2004, she filed "a charge of discrimination with the Illinois Department of Human Rights" ("IDHR Complaint") (A. Compl. Par. 23), in which she alleged that Ingalls engaged in gender and age discrimination. Tropp alleges that after she filed the IDHR Complaint that Ingalls "retaliated against [Tropp], through the imposition of unequal employment conditions, performance evaluations and assessments, counseling, warnings, discipline, compensation and work hours created an intolerable and hostile work environment," (A. Compl. Par. 24), and that in January 2005, Ingalls reduced her work hours to three and one-half hours per day, three days per week. Tropp contends that as a result of Ingalls' actions that Tropp "was forced to leave her employment with [Ingalls] and [Tropp] was constructively discharged on February 14, 2005." (A. Compl. Par. 27). Tropp contends that in September 2005, she "filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission" and received a right to sue notice. Tropp then filed the instant action, in which she includes claims of gender discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206(d), ("EPA") (Count I), and EPA retaliation claim (Count II), claims of age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA") (Count III), and an ADEA retaliation claim (Count IV). Ingalls moves for summary judgment on all counts and Tropp moves to strike the deposition of Margaret Griffiths ("Griffiths"), which was partially relied upon by Ingalls.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The court must consider the evidence as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255.
I. Motion to Strike Griffiths' Declaration
Tropp moves to strike and bar the declaration of Griffiths, Interim Director of Human Resources and Associate General Counsel of Ingalls, because the declaration relies on documents requested by Tropp in her first set of production requests, which she contends were not produced by Ingalls. Federal Rule of Civil Procedure 26(e) ("Rule 26(e)") states that a party has a duty to amend a prior response when "he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment." Fed. R. Civ. P. 26(e)(2)(B). In addition, Rule 26(e) states that determining the existence of the duty to amend a previous answer is within the sound discretion of the district court. See, e.g., Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir. 1979)(stating that duty to amend is a discretionary decision to be made by the district court).
Tropp argues that paragraphs three, forty-four, forty-six, and forty-seven of Griffiths' declaration should be stricken and barred from Ingalls' statement of material facts pursuant to Local Rule 56.1 because Ingalls did not supply the requested information. Tropp alleges that she requested certain documents in production request number 10, which asked for "[a]ll documents that contain, refer, or relate to list(s) of all job titles and job duties of [Ingalls'] employees." (Mot. to Strike Par. 7). In response to the production request, Tropp contends that Ingalls claimed that the request was "overly broad, unduly burdensome, and not reasonably calculated to the discovery of admissible evidence. . . ." (Mot. to Strike Par. 8). According to Tropp, Ingalls did provide job descriptions for positions including "Staff Nurse/Registered Nurse, Clinical Case Manager, Behavioral Health Social Worker/Professional Counselor, Intake Counselor, Mental Health Counselor, and Certified Occupational Therapist Assistant." (Mot. to Strike Par. 8). Tropp argues that she will be prejudiced if Ingalls is "allowed to object to the production of documents on the basis of irrelevancy, but then when it served [Ingalls'] purposes, introduce and rely upon the documents that were not produced." (Mot. to Strike Par. 9).
Ingalls had a duty to supplement its previous answer and was required to turn over information relating to Ingalls' job titles and descriptions that were utilized by Griffiths in her declaration. Specifically, Ingalls should have supplemented its previous answer with the material now contained in Griffiths' declaration included in exhibits A, B, C, and D, all of which contain information on job titles and descriptions. Ingalls' duty arose when it made the strategic decision to use the job titles and descriptions to support the instant motion for summary judgment. Therefore, we grant Tropp's motion to strike and bar paragraphs three, forty-four, forty-six, and forty-seven of Griffiths' declaration insofar as those paragraphs relate to job titles and descriptions previously requested by Tropp. The stricken material is not considered in our decision below.
II. Unequal Pay Claim (Count I)
Tropp claims that she can establish that Ingalls violated the EPA "when it refused to acknowledge the fact that [Tropp] was performing RN duties and responsibilities, and would not pay her commensurate to other male BHS Department employees performing the same work." (Opp. 6). In order to establish a prima facie case under an EPA claim, Tropp must show that: "(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." Stopka v. Alliance of Am. Insurers, 141 F.3d 681, 685 (7th Cir. 1998). If Tropp establishes a prima facie case, the burden then shifts to Ingalls to establish one of four statutory defenses. Cullen v. Ind. Univ. Bd. of Trustees, 338 F.3d 693, 702 (7th Cir. 2003). Ingalls argues that Tropp is unable to establish a prima facie case and that, in the alternative, "the undisputed facts reveal that any pay differential was based on factors other than sex." (Mot. 3).
A. Compensation of Male RNs
Tropp argues that a male RN counterpart working within the BHS Department, Romeo Vida ("Vida"), received higher wages from Ingalls than did Tropp, who was paid as a CCM. Tropp points to Vida and contends that RNs earned approximately $30 per hour while Tropp earned approximately $20 per hour. Other than her general and unsubstantiated statement regarding RN salaries, Tropp has failed to point to any evidence in the record regarding the amount Vida actually earned. This conclusory statement is insufficient to establish that higher wages were paid to male counterparts. See Abioye v. Sundstrand Corp.,164 F.3d 364, 368 (7th Cir. 1998)(stating that conjecture or speculation cannot defeat a summary judgment motion); see also Celotex Corp., 477 U.S. at 325 (stating that the burden of the moving party may be discharged by showing the court the non-movant's lack of support for its case). Thus, based on the undisputed evidence, no reasonable jury could find that Tropp has met the first prong in establishing a prima facie case under the EPA.
B. Substantially Similar Skill, Effort and Responsibilities
Tropp argues that she performed work as an RN that required similar effort, skill and responsibility to jobs held by male RNs. In determining whether two jobs are similar, courts look to whether the jobs in question have a "common core" of tasks and whether there is anything additional that makes the jobs distinctly different. Cullen, 338 F.3d at 698. In evaluating job duties, "each of the elements listed in the EPA (skill, effort and responsibilities) must be met individually to establish a prima facie case." Id.; see also 29 C.F.R. § 1620.14.
It is undisputed that Tropp is a licensed RN and that all RNs have a base level of skill required to maintain their license. Tropp's RN duties included paperwork and communicating with doctors, family members, and patients, which were all responsibilities that could only be performed by RNs. However, Tropp also admits that she "did not have strong clinical skills, adequate experience, and current qualifications" to be on par with other RNs working in the hospital. In addition, Tropp's duties as a CCM were to lead group therapy sessions and create treatment plans for those patients. (D SOF Par. 28). Tropp's duties as a CCM are not comparable to those of the RNs, even if Tropp performed some duties of an RN. For example, Tropp did not administer medication to patients or provide bed-side patient care, as the RN duties required. (D SOF Par. 38, 43). Also, Tropp has failed to point to evidence that states Vida's job qualifications, skills, and his day-to-day responsibilities other than the general RN job classification and, as such, she is unable to illustrate how she performed work equal to that of Vida. See Cullen, 338 F.3d at 698 (stating that when determining the equality of job duties, each individual element must be met to establish a prima facie case). Further, although RNs in the inpatient units were required to work on weekends, Tropp did not work on weekends, which she considered to be one of the benefits of her job. (D SOF Par. 30). Finally, although supervisors may have labeled Tropp as an "RN/CCM," (P SOF Par. 26); (P Resp. D SOF Par. 11, 13), we look to "the actual job duties performed by each employee, not to his or her job description or title." Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461 (7th Cir. 1994); see also 29 C.F.R. § 1620.17(a) (stating that "[r]esponsibility is concerned with the degree of ...