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David v. Board of Trustees of Community College District No. 508

United States Court of Appeals, Seventh Circuit

January 13, 2017

Celeste David, Plaintiff-Appellant,
v.
Board of Trustees of Community College District No. 508, doing business as City Colleges of Chicago, Defendant-Appellee.

          Argued January 14, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:13-cv-02508 — Harry D. Leinenweber, Judge.

          Before Flaum and Ripple, Circuit Judges, and Peterson, District Judge. [*]

          Ripple, Circuit Judge.

         Celeste David, an African-American woman over the age of forty, was an employee of the City Colleges of Chicago ("CCC") from 1980 until 2012. She announced in August 2011 that she planned to retire in June of the following year. After her announcement, she requested a change in title and an increase in salary because she was performing additional responsibilities related to the implementation of a software system; she was not awarded either. Following her retirement, her job duties were performed by Christopher Reyes, an Asian man under the age of forty, who was paid substantially more than Ms. David.

         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 Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the Equal Pay Act, 29 U.S.C. § 206(d). The district court granted summary judgment to CCC. Because we believe that the record, assessed in its entirety, does not contain sufficient evidence to permit a verdict for Ms. David on any of the counts, we now affirm the judgment of the district court.

         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 2001, "CCC implemented a new web application[, ] PeopleSoft[, ] for the collection and retention of [CCC's] educational, personnel, and financial data."[3] PeopleSoft has several "pillars" directed toward different aspects of school administration: student administration, human resources, and financials.[4] When CCC began implementing the PeopleSoft application, Ms. David "was assigned to handle the security function of the application, " which "included: acting upon requests to give or remove a CCC employee or student's access to various levels of the PeopleSoft pillars and creating reports detailing which individuals had what levels of access to the system."[5] From the time PeopleSoft was implemented in 2001 until October 11, 2011, CCC contracted with a company called Sync Solutions "to provide staff augmentation services to the OTT."[6] During this time, a Sync Solutions IT consultant, Christopher Reyes, assisted Ms. David with her PeopleSoft security duties.

         In 2011, due to the expiration of the contract with Sync Solutions, On 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.[9] 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 concluded that, even if some change should be made in job description or job title, it was a lateral move that did not require additional compensation because the additional duties were "transactional in nature and did not involve analysis, critical thinking [or] problem solving."[12] Lynch did send an email to CCC's Executive Director of Compensation and Staffing, Jane Barnes, [13] which stated: "Celeste David is working in a position that is not in alignment with her description. ... Does it make sense to retitle her (not sure if she would need additional compensation)? Let me know. I need to update her on what the possibilities are.[14]

         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 position of Senior Systems Security Analyst on December 10, 2012, with an annual salary of $93, 808."[20]At that time, it was [CCC's] practice to grant a 10% pay increase to CCC employees who were internally promoted into positions designated in Salary Schedule N (non-Union)."[21]

         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 favorably than she was treated. The court noted that, in order to be similarly situated, the employee had to be similar "in all material respects."[27] Ms. David's proposed comparators, however, did not meet this requirement. With respect to Reyes, the court explained that, when CCC hired Reyes from Sync Solutions as a full-time Functional Applications Analyst, he had a Bachelor of Science degree in Computer Information Systems, a qualification that Ms. David did not have. Moreover, in his position, Reyes performed "totally different" duties than what he performed while working for CCC as a Sync

         Solutions consultant;[28] specifically, he worked on PeopleSoft Administration—a pillar on which Ms. David never worked. Later Reyes applied for, and was given, the position of Senior Systems Security Analyst. In sum, the district court rejected Ms. David's claim that Reyes simply was doing her old job, but with higher pay than she received. The district court noted that the new position filled by Reyes required a Bachelor of Arts or Science degree in Computer Science, with seven years of related experience in systems analysis, design, soft- ware support and application of security controls. Ms. David's job description, however, did not require a bachelor's degree, or the same kind of software experience.

         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]

         II

         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 non-moving 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 (1973)." Id. at 766 (parallel citations omitted). 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, LCC, 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 work, or, at the very least, were ...


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