Opinion
No. 00 C 1479
September 24, 2001
ORDER
Plaintiff, Cheryl A. Pershey, claims her former employer, Heritage Environmental Services, LLC, discriminated against her on the basis of her sex by paying her less than her male co-workers. Pershey claims violations of the Equal Pay Act ( 29 U.S.C. § 206 (d)(1)), the Illinois Mimmum Wage Law (820 ILOS 105/4(b)), and Title VII of the Civil Rights Act ( 42 U.S.C. § 2000e-2 (a)(1)). Heritage has moved for summary judgment. For the reasons stated below, the motion is denied.
FACTUAL BACKGROUND
Heritage, headquartered in Indianapolis, Indiana, is a privately held company that performs environmental engineering and consulting, laboratory testing, product recovery and manufacturing, waste treatment and disposal, and property cleanup. (http://www.heritage-enviro.com/overview.htm; Affidavit of Lester K.Li, Vice President and Chief Financial Officer for Heritage, Ex. C to Defendant's Evidence in Support of Heritage's Motion for Summary Judgment ("Def.'s Evidence") ("Li Aff.") ¶ 3.) It has approximately one thousand employees worldwide. (Li Aff. ¶ 4.)
On January 8, 1992, Heritage hired Pershey as a purchasing clerk in the accounts payable department, an entry-level position, at an hourly rate of $8.00. (Deposition of Cheryl A. Pershey, Exhibit E to Plaintiffs Rule 56.1(b)(3) Statement of Evidentiary Appendix ("Pl.'s Evidence") ("Pershey Dep."), at 52; Li. Aff. ¶ 6). At the time of her hiring, Pershey had a high school diploma and claims to have had a post-secondary degree in Mechanical Drafting from Pines Vocational Technical School in Pine Bluff, Arkansas. Previously, she had worked in relatively low-paying, hourly book-keeping jobs and as a truck dispatcher; she had no experience in the areas in which Heritage provides services. (Pershey Dep., at 23.) Pershey testified that in January 1992, her first month with Heritage, she began to take classes at Joliet Junior College. (Exhibit F to Pl.'s Evidence, Affidavit of Cheryl Pershey ("Pershey Aff.") ¶ 15-16; Pershey Dep., at 13.) In the Fall of 1996, Pershey began attending Lewis University and, in May 1999, received her Associate Degree from Lewis with honors. (Pershey Aff. ¶ 15, 16.)
During her deposition, Pershey was asked whether, at the time she began working for Heritage, her education level was "high school graduation." (Pershey Dep., at 13.) She answered, "Yes." ( Id..) Later in the deposition, however, Pershey testified that she had also received a degree in Mechanical Drafting from Pines in or around 1984. ( Id.. at 23.) Pershey noted that she had received a "Drafting Certificate" from Pines on her Application for Employment, which was submitted to the court by Heritage. (Ex. A to Def'.'s Evidence.)
Pershey earned this Associate Degree while employed by Heritage as a Technical Sales Representative (TSR). She received a one-time bonus of $500. (Pershey Aff. ¶ 16.)
Effective September 28, 1992, less than nine months after she began working at Heritage, Pershey was promoted from purchasing clerk to Customer Service Representative (CSR). Pursuant to this promotion, Pershey received an increase in pay to $8.75 per hour. (Li Aft. ¶ 7.) Heritage raised Pershey's pay three times during the two and one-half years she worked as a CSR. ( Id..) The last of these three raises, which occurred on November 28, 1994, brought Pershey's salary to $25,000 per year. ( Id..)
Effective February 1, 1995, Heritage again promoted Pershey, this time to Technical Sales Representative (TSR). When Heritage promoted Pershey to TSR, it increased her annual salary by 20%, from $25,000 to $30,000. ( Id.. ¶ 8.) As a TSR, Pershey's primary responsibilities were to maintain Heritage's existing customer base and seek new business opportunities. (Pershey Dep., at 98.) She was the TSR for the Chicago, Central Illinois, and Southeast Iowa Territory (Territory 41). The prior TSR for this territory, Walter Grabowski, had been hired as a TSR in July 1991 at an annual salary of $40,000; at the time of his voluntary departure in November 1994, Grabowski was earning $45,467. (Ex. Q to Pl.'s Evidence, Affidavit of Walter Grabowski ("Grabowski Aff") ¶ 3.) At the time of Pershey's promotion to TSR, Laurel Kohl, female, was the TSR for the Wisconsin-Minnesota territory. When Kohl left Heritage on November 4, 1996, Pershey assumed control of that territory as well. (Pershey Dep., at 126-28.)
The parties dispute Pershey's level of experience at the time of her promotion to TSR. Heritage asserts that Pershey had absolutely no outside sales experience. (Heritage's Statement of Material Facts ¶ 15.) In support of this assertion, Heritage cites the following exchange from Pershey's deposition:
Q: But you had not had any outside sales experience yet [at the time you applied for the TSR position]? A: No. Q: You hadn't part-time worked in outside sales at that point? A: No.
(Pershey Dep., at ¶ 8.) Pershey nevertheless claims that she did have outside sales experience prior to her becoming a TSR. (Pershey Aft ¶ 17.) Specifically, Pershey paints to instances as a CSR where she accompanied TSRs such as Grabowski and Kohl on sales calls.
Pershey also cites an April 14, 1994 letter from a client to Steve Petiti, Heritage's Vice President of Sales, commending Pershey's "responsiveness" and "dedication." (Ex. O to Pl.'s Evidence.) This letter, however, does not constitute evidence of any sales experience.
During her five year tenure as a Heritage TSR, Pershey was awarded four salary increases-bringing her salary of $30,000 to $39,260. (Li Aff. ¶ 27.) This translates to an average annual raise of 7% and cumulative raise of 30.9%; the record does not indicate the percentage increase per year. (Li Aff ¶ 27, 28.) For those same five years, 1996 through 2000, the targeted annual raises for TSRs at Heritage were 3.0%, 2.4%, 3.5%, 3.0%, and 2.5%, a cumulative increase of 15.2%. ( Id.. ¶ 28.) Heritage claims that pay raises are based on a TSR's performance, including whether he or she brings in new business and/or increases business with existing customers. (Li Dep., at 77-79.) Heritage contends that Pershey's performance as a TSR was "in the acceptable, middle-of-the-road range." ( Id. Aft ¶ 26.) Pershey insists that her performance evaluations were consistently "good" until she filed a Charge of Discrimination (March 10, 2000), after which point these evaluations "plummeted." (Pershey Aff. ¶ 11.) The record contains two of Pershey's performance evaluations-one from January 5, 1997 and one from December 18, 1998. (Ex. A to Def's Evidence.) On the first, Pershey's performance was characterized as good; the evaluation did not include a numerical grading scale. On the second, Pershey received an "overall average rating" of 3.18, which placed her between "meets job requirements" (3) and "exceeds job requirements" (4). ( Id..) In addition to these evaluations, the record contains an "Employee Counseling Report" for Pershey filled out on February 14, 2000. ( Id..) This report does not provide a "score," but states that Pershey's "dependability" and ability to follow instructions were "below standard." ( Id..)
Heritage has not provided the actual annual raises for all TSRs between 1996 and 1999. It does note, however, that (1) Grabowski received increases of 2.4%, 3.5%, and 2.5% for 1997, 1998, and 1999 (Li Aff ¶ 25); and (2) Rush did not receive a salary increase from the time he was hired in April 1999 until June 23, 2000, the date of Pershey's resignation. (Li Aff ¶ 23.) The record does not indicate whether Rush received a raise from June 23, 2000 until October 2000, when his employment with Heritage was terminated.
Despite this allegation, Pershey does not claim that she has been retaliated against by Heritage because of her complaints.
In "roughly late 1997," Walter Grabowski, who had been rehired by Heritage as a TSR, was driving to a client's office with Roger Bowser, Heritage's then vice president of National Accounts. (Grabowski Aft ¶ 2.) Grabowski and Bowser were discussing salaries and salary reviews at Heritage, and Bowser told Grabowski that Pershey was to receive a substantial pay raise. ( Id.) Bowser told Grabowski it was surprising to him how underpaid Pershey was compared to other TSRs. ( Id..) Grabowski asked, "Lawsuit underpaid?" And Dowser responded, "Yes, lawsuit underpaid." ( Id..) Heritage admits that this conversation occurred. (Def.'s Response, at ¶ 6.) Neither party has stated whether Pershey received this "substantial pay raise;" but the record does indicate that Pershey's compensation jumped from $31,641 in 1997 to $36,000 in 1998. (Ex. C to Pl.'s Evidence.)
In the Fall of 1999, many of Heritage's TSRs had a lunch at which they discussed their salaries. (Ex. R to Pl.'s Evidence, Affidavit of Steven Rush ("Rush Aff.") ¶ 7.) Steven Rush, who was hired as a TSR in 1999 at a salary of $60,000 was present at this lunch and was surprised to hear that Pershey's salary was so much lower than his. ( Id.) On March 10, 2000, Pershey filed a Charge of Discrimination with the Equal Employment Opportunity Commission. (Ex. A to Pershey's Amended Complaint.) Pershey stated in the charge that she believed she was being discriminated against on the basis of her sex because, inter alia, she was "paid significantly less than [her] male counterparts. [She] currently earns $39,260 a year in salary. Past and present male Technical Service Representatives earn at least $50,000 a year." (14.) Pershey resigned from Heritage effective June 23, 2000. (Li. Aft ¶ 8.)
The Pay Rates and Qualifications of Other Heritage TSRs
In order to compare Pershey to other TSRs, both parties rely on a chart prepared by Heritage which contains the following information for the 56 individuals who were "TSRs at Heritage between 1996 and 2000: their office location, hire date, starting salary, termination date (if applicable), experience with Heritage, years of industrial/professional experience, education, sex, 1996-2000 compensation less annual bonus, and 1996-1999 bonus. (Ex. B to Def.'s Evidence; Ex. C to Pl.'s Evidence.) Pershey has focused on the pay rates and qualifications of the following TSRs as evidence of Heritage's discrimination: Grabowski; Rush; Bryan Diehl; William Cedoz; Daniel Harty; Tim Getzloff; and Mike Kasal. (Plaintiffs Memorandum Opposing Motion for Summary Judgment, at 3-4.) It is important to note that all but one of these individuals (Cedoz) was hired from outside Heritage rather than promoted from within the company, as Pershey was. The court offers an objective review of their respective records:
Grabowski, male, was hired by Heritage as a TSR on July 22, 1991 at a base salary of $40,000 per year. (Grabowski Aft ¶ 3.) Grabowski, who held a Bachelor's Degree in Environmental Health at the time of his hire, left Heritage voluntarily on November 18, 1994. When he left, Grabewski was replaced by Pershey, who sat at Grabowski's desk in Heritage's Romeoville, Illinois office and was given Grabowski's former company car. (Pershey Aff. ¶ 5.) Heritage rehired Grabowski as a TSR on April 28, 1995 at a base salary of $45,467 that time, Pershey was earning $30,000 as a TSR. ( Id..) Upon rehire, Qrahowski had ten years of environmental experience, including seven in environmental sales. (Ex. C to Pl.'s Evidence.) He was ultimately terminated by Heritage in October 1999; his final base salary was $53,000. ( Id.. ¶ 4.)
Rush, male, was hired by Heritage as a TSR on April 5, 1999 at a base salary of $60,000 per year. He was assigned the Wisconsin-Minnesota territory, which, until that time, had been assigned to Pershey in addition to the Illinois/Iowa territory for which she was responsible. When Rush was hired, Pershey's base annual salary was approximately $38,200. (Ex. C to Pl.'s Evidence.) Rush had a Bachelor's Degree in Broadfield Occupational Safety (this field of study is not explained in the record) and nine years of experience in the environmental industry (the last seven of which involved sales). ( Id..) Rush's employment with Heritage was terminated effective October 2000. (Rush Aff. ¶ 9.) Diehl, male, was hired by Heritage as a TSR on April 16, 1998 at a base salary of $65,000. (Ex. C to Pl's. Evidence.) At the time of his hire, Diehl had a high school diploma, three years' worth of college course credit in business management (but no college degree), and fifteen years of experience in the industry (including ten years of sales experience at a company by the name of Clean Harbours). Id.; Ex. FF to Pl.'s Evidence (Diehi's Application for Employment).)
Cedoz, male, was hired by Heritage as a Route Driver on December 24, 1996 at a salary of $20,800. On October 19, 1998, Cedoz was promoted to TSR; according to Heritage, the promotion sent Cedoz to work for Heritage Crystal Clean, a TSR affiliate in Toledo, Ohio. At the time of this promotion, Cedoz had a high school diploma and, in addition, had studied biomedical equipment repair for one year. (Ex. C to Pl's. Evidence.) The parties dispute Cedoz' salary upon promotion. Heritage asserts that Cedoz received a 44% salary increase, from $20,800 to $30,000. (Li. Aff. ¶ 11.) Heritage adds that: at some point after October 19, 1998, Heritage Crystal Clean "spun-off" Cedoz was then rehired by Heritage on February 2, 2000; and, at that time, received a salary increase to $45,000. (Li. Second Aff. ¶ 6, Evidence Submitted in Reply in Support of Defendant's Motion for Summary Judgment.) Pershey claims that Cedoz' salary was increased from $20,800 to $45,000 on February 2, 2000, an increase of 116.35%. (Pl's Evidence ¶ 23.) While it seems illogical that Cedoz would have not received any raise from 1996 to 2000, Pershey's version is supported by one of Heritage's "Employment Record Changes" forms. According to the form, Ceder.' salary was increased from $20,800 to $45,000 on February 2, 2000. (Exhibit BB to Pl's. Statement.)
Harty, male, was hired as a TSR by Heritage on July 26, 1999 at a base annual salary of $50,000. (Ex. C to Pl.'s Evidence.) At the time of his hire, Hardy had a two-year Associate Degree in Liberal Arts. ( Id.) According to Harty's application for employment with Heritage, he worked for nineteen years as a TSR at Safety Kleen and, when laid off from Safety Kleen in May 1999, his salary was $90,000. (Ex. HH to Pl.'s Evidence (Harty's Application for Employment).)
Tim Getzloff, male, was hired by Heritage as a TSR on September 27, 1999 at a base salary of $55,000. (Ex. C to P1's. Evidence.) At the time of his hire, Getzloff had a high school diploma (but no additional education) and twelve years of experience in the environmental field. ( Id..) Getzloff was earning $53,000 at his prior job. ( Id.)
Heritage has since moved this office to Lemont, Illinois. (Pershey Aff. ¶ 6.)
Pershey also points to three individuals, not included in Heritage's chart, who became TSRs in the Lemont, Illinois office after Pershey resigned: Mike Kasal (hired externally), Sherry Hayes (promoted), and a woman named Megan (promoted) (Li, in his deposition, could not recall her last name). (Li. Dep., at 107.) Li testified that, to the best of his recollection, Kasal's initial annual base salary was over $45,000. (Li. Dep., at 108.) The record does not describe Kasal's prior education or other qualifications. Hayes' initial annual base salary was, as far as Li could recall, in the low-to-mid $30,000 range. ( Id..) The record does not describe Hayes' qualifications either. Li testified that Megan's initial annual salary was likely similar to that of Kasal, thus over $45,000. ( Id.. at 108.)
Heritage claims that the individuals cited by Pershey are distinguishable because they were hired externally and points to the following individuals who, like Pershey, were promoted internally:
Randall Blackburn, male, was hired by Heritage as a Route Driver on May 12, 1998 at a rate of $14.50/hour. (Ex. C to Pl's Evidence.) At the time of his hire, Blackburn had 4 years of experience in environmental management; the record does not indicate his level of education. ( Id..) Effective March 1, 1999, Blackburn was promoted to TSR. (14.) At the time of his promotion, Blackburn had been earning $14.99/hour (annually $31,179 without overtime). ( Id..) The promotion increased his salary 12% to $35,000 per year. (Li Aft ¶ 10; Ex. C to Pl's Evidence.)
Troy Gamble, male, was hired by Heritage as an Internal Environmental Coordinator on September 16, 1992 at a rate of $11/hour. ( Id..) At the time of his hire, Gamble had three years of non-environmental experience (and no sales experience) and possessed a Bachelor's Degree in General Science with a minor in Chemistry. (14.) Gamble was promoted to TSR effective July 7, 1995; Heritage raised his salary from $33,000 to $38,000, a 14% increase. (Li Aff. ¶ 13; Ex. C to Pl.'s Evidence.)
Jason Hatfield, male, was hired by Heritage as a Laboratory Manager on March 24, 1997 at an annual salary of $28,000. (Ex. C to Pl.'s Evidence.) At the time of his hire, Hatfield had a Bachelor's Degree in Public Affairs with a concentration in Environmental Management. ( Id.) His professional experience prior to joining Heritage consisted of two and one-half years as an environmental project manager for a government service contractor. ( Id..) On April 30, 2000, Heritage promoted Hatfield to TSR, raising his salary 14%, from $38,483.63 to $44,000 ( Id..)
Rodney Pierce, male, was hired by Heritage as an Internal Environmental Coordinator on January 13, 1998 at an annual salary of $28,000. (Ed.) At the time of his hire, Pierce had a Bachelor's Degree in Chemistry; the record does not indicate whether he had any prior industry experience. ( Id..) On July 26, 1999, Heritage transferred Pierce to a CSR position and raised his salary to $32,000. Then, on May 1, 2000, Heritage promoted Pierce from CSR to TSR and increased his salary 19% to $38,000. ( Id..)
Darci Ray, female, was hired by Heritage as a Laboratory Technician in November 1994 at a salary of $11.15/hour. ( Id..) At the time of her hire, Ray had a Bachelor's Degree in Biology and Chemistry and had prior experience as a chemist and laboratory technician. On June 16, 1995, Ray was promoted to Internal Environmental Coordinator, earning an annual salary of $26,400. ( Id..) On December 1, 1997, Heritage promoted Ray to TSR with a 15% salary increase, from $32,718.14 to $37,500. ( Id..)
Ed Walsh, male, was hired by Heritage as a Laboratory Technician in December 19, 1994 at a salary of $11.92/hour. ( Id..) At the time of his hire, Walsh had a Bachelor's Degree in Chemistry and had worked at Heritage as a temporary laboratory analyst for seven months. ( Id..) On July 16, 1995, Walsh was promoted to Internal Environmental Coordinator, earning an annual salary of $26,400. ( Id.) On June 16, 1997, Walsh was promoted to TSR with a 10% salary increase, from $30,720.04 to $33,792. ( Id..)
Nicole Williams, female, was hired by Heritage as the New Hire Program Coordinator on August 2, 1994 at a rate of $11/hour. ( Id..) At the time of her hire, Williams had a Bachelor's Degree in Biology; in fact, she began working at Heritage "straight out of college." ( Id..) On June 22, 1998, Williams was promoted to Project Manager; the record does not indicate the salary Williams received upon this promotion. ( Id..) On February 1, 2000, Heritage promoted Williams to TSR with a 23% salary increase, from $31,000 to $38,000. ( Id..)
Procedure for Determining Pay Scale of Heritage TSRs
Pershey claims that her relatively low pay rate must be the result of discrimination. She asserts that, since 1992, Heritage has used a pay-grade system for all of its positions, including that of TSR. These pay-grades, she notes, were kept in a spiral bound booklet called the Position Incumbent Questionnaire, or "PIQ" (Pershey Aft. ¶ 2), which was made available to Heritage employees in the lunchroom. (Pershey Aff. ¶ 4.) According to the PIQ, the pay grade for a TSR is E15 (Li Dep., at 12-13), which translates to a base salary range of $26,550 to $41,300. (Ex. L to Pl.'s Evidence; Pershey Aft ¶ 4.) Various Heritage recruiting/hiring documents reference this pay-grade system. For example, in June 1999, Heritage posted an opening for a TSR position in Cincinnati; according to the posting, the pay-grade for the position was "E15." (Ex. B to Pl's. Evidence.) And, in or around March 2001, Heritage posted a TSR opening on its website; again, the posting listed the pay-grade as "E15." (Ex. G to Pl.'s Statement)
Heritage denies that it used a pay-grade system to determine salaries between 1996 and 2000. (Def. Resp., at 7.) Lester Li, Vice-President and Chief Financial Officer of Heritage, was one of three executives at Heritage with the authority to approve the amount of initial salary set for a newly hired or promoted TSR. (Li Aft ¶ 2.) Li testified that Heritage attempted to establish standards for some of its jobs in or around 1992, but admitted the company has consciously not chosen to follow those pay-grades. (Li Dep., at 7-18.) Li insisted that Heritage does not have any formal pay ranges for the TSR position (14. at 10); instead, the criteria for pay rates are "generally understood" by management. (Li Dep., at 31.) When the TSR is being promoted internally, he or she generally receives a 15% to 20% raise and a salary of no less than $30,000. (Defendant's Statement ¶ 24, 26; Li Dep., at 38, 87-88.) An employee eligible for such a promotion may receive a higher salary increase, depending on such factors as job performance, education, and technical sales experience. (Li Dep., at 87-88.) When an individual hem outside Heritage is hired for a TSR position, Heritage will set his or her salary only after considering the employee's education (preferably someone with a Bachelor's or Master's Degree in a related field such as Environmental Science or Environmental Health), technical sales experience, general sales experience, market factors (such as the individual's salary with his or her former employer), and whether the individual was hired to start in a new location or territory where Heritage's name and reputation have not yet been established. (Li Dep., at 31-36.)
Pershey and Grabowski both attested that no one at Heritage ever mentioned a policy whereby (1) employees were given a 15% to 20% raise when promoted to TSR or (2) Heritage considered such factors as education, experience, and prior salary history in setting the compensation of TSRs. (Pershey Aff. ¶¶ 12, 13; Grabowski Aff. ¶¶ 6, 7.) Moreover, Rush attested that, when Heritage hired him, it did not discuss the factors on which his starting salary would be based. (Rush Aft'. ¶ 5.) Nor did Heritage inform him that it set starting salaries differently for those hired externally than for those promoted internally. ( Id..). In sum, Pershey argues that the factors offered by Li in his deposition, which were never reduced by Heritage to writing, are merely post-hoc rationalizations for Heritage's sex discrimination.
Procedural History
Pershey filed an original complaint in this court on March 10, 2000; she amended this complaint on October 12, 2000. The Amended Complaint alleges that Heritage violated: the Equal Pay Act (Count I), the Illinois Mininmum Wage Law (Count II), and Title VII (Count III). The sole basis for each claim is that Heritage paid Pershey less than it paid comparable male TSRs. On February 28, 2001, Heritage moved for summary judgment on all three counts. The court notes that, in support of this motion, Heritage submitted only (1) select pages from Pershey's deposition (Exhibit A), appended to which are Pershey's application for employment with Heritage, the January 5, 1997 evaluation, the December 12, 1998 evaluation, and the February 14, 2000 "Employee Counseling Report;" (2) select pages from Lester Li's deposition, appended to which is the TSR chart; and (3) Li's affidavit. Heritage has not offered any documentary evidence to support the compensation policies it claims were in place during the relevant time period.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is granted only if "the pleadings, depositions, answer to interrogatories, and admissions on file together with 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." FED. R. Civ. P. 56(C); Krause v. City of La Crosse, 246 F.3d 995, 999-1000 (7th Cir. 2001). "If no reasonable jury could find for the party opposing the motion, it must be granted." Krause, 246 F.3d at 999-1000 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
B. Pershey's Salary Discrimination Claims
Pershey claims that Heritage discriminated against her by paying her less money than Grabowski, Diehl, Cedoz, Rush, Harty, Getzloff, and Kasal in violation of the Equal Pay Act (EPA), the Illinois Mininmum Wage Law, and Title WI.
Because Pershey primarily focuses on. the initial salary given to each of these TSRs, including herself, the court does not address any potential argument that Heritage's failure to "catch up" Pershey's salary with these male co-workers was also discriminatory.
1. The Equal Pay Act and Illinois Mininmum Wage Law
The EPA "forbids an employer from paying workers of one sex less than workers of the opposite sex for equal work that requires equal skill, effort, and responsibility a ad which is performed under similar working conditions, except where the differential is due to a seniority system, a merit system, a system which measures quantity or quality of production, or a factor other than sex." Wollenburg v. Comtech Mfg. Co., 201 F.3d 973, 975 (7th Cir. 2000) (citing 29 U.S.C. § 206 (d)(1)). To establish a prima facie case under § 206(d)(1) of the EPA, a plaintiff must show that: (1) different wages were paid to employees of the opposite sex; (2) the employees do equal work which requires equal skill, effort, and responsibility; and (3) the employees have similar working conditions. Wollenburg, 201 F.3d at 975. For purposes of its summary judgment motion, Heritage has conceded that Pershey has established a prima facie case tinder the EPA and, by extension, the IMWL. (Heritage's Reply in Support of its Motion for Summary Judgment, at 2.)
Section 105/4(b) of the Illinois Mininmum Wage Law mirrors Section 206(d)(1) of the EPA; consequently, for purposes of Heritage's motion, the court will address both claims together. See Orphanos v. Charles ladus., Ltd., No. 95 C 4039, 1996 WL 437380, at *4 (N.D. Ill. July 29, 1996) (indicating that the success of a plaintiff s IMWL claim is tied to that of her EPA claim).
As the Seventh Circuit has noted, "even if the man and woman are doing the same work for different pay, if the difference is due to a factor unrelated to gender, there is no violation [of the EPA]." Lindale v. Tokheim, 145 F.3d 593, 597 (7th Cir. 1998). It is the burden of the defendant, however, to prove that "the pay disparity stems from a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex." Wollenburg, 201 F.3d at 976. Heritage attempts to carry this burden of persuasion by presenting evidence to demonstrate that, between 1995 and 2000, it consistently applied "factor[s] other than sex" in setting the compensation of Pershey and other Heritage TSRs. The "factor other than sex" justification for a wage differential "is a broad "catch-all exception [that] embraces an almost limitless number of factors, so long as they do not involve sex." Dey v. Colt Constr. Day. Co., 28 F.3d 1446, 1462 (7th Cir. 1994) (quoting Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989)). Courts do not require that the "factor other than sex" be related to the requirements of the position in question. See Dey, 28 F.3d at 1462; Covington v. Southern Ill. Univ., 816 F.2d 317 (7th Cir. 1987); see also Davis v. Tri Mfg. Inc., No. 7H99-0142-C-M/H, 2000 WL 33281133, at *14 (SD. Ind. Dec. 18, 2000) ("These factors need not be related to the requirements of the particular position in question, nor must they be business-related."). Instead, the only relevant inquiry is "whether the factor is bona fide [and] whether it has been discriminatorily applied. . . ." Dey, 28 R3d at 1462 (citing Fallon, 882 F.2d at 1211).
Heritage claims its two unwritten, yet "generally understood," policies justify the challenged pay disparity and qualify as "factor[s] other than sex" for purposes of the EPA. The first of these policies concerns Heritage employees promoted to TSR. These employees, according to Li, generally receive salary increases of 15% to 20% with a "floor" annual salary of $30,000. The second of these policies involves TSRs hired externally. According to Heritage, the initial annual salary of these individuals depends upon such factors as past compensation history, education level, and technical sales experience.
At first blush, these policies appear to direct a judgment in Heritage's favor. Indeed, the Seventh Circuit has held that salary histories, see Covington (holding that a policy of not decreasing an employee's salary after a change of assignment within the university constituted a factor other than sex), education, and experience, see Dey; Fallon, are each "factor[s] other than sex" for purposes of an EPA analysis. Significantly, in many respects, the initial salaries for TSRs between 1996 and 2000 tracked these policies. For example, most of the nine individuals promoted to TSR received salary increases in or around the 15% to 20% range: Pershey herself received a 20% increase from $25,000 to $30,000; Randall Blackburn received an increase of 12%, from $31,179 to $35,000; Troy Gamble received an increase of 15% from $33,000 to $38,000; Rodney Pierce received an increase of 19% from $32,000 to $38,000; and Darci Ray received an increase of 15% from $32,718.14 to $37,500. Ed Walsh, male, received an increase of only 10% from $30,720.04 to $33,792 and Nicole Williams, female, received a relatively large increase of 23% from $31,000 to $38,000. And as for those hired externally, salary history, education, and experience may very well have been factors considered by Heritage in setting their starting salary. Daniel Harty, for example, had nineteen years of experience as a TSR for another company and, in his last position (from which he had been laid off) earned $90,000. Similarly, Bryan Diehl had fifteen years of experience (including ten in sales) and. had earned $58,000 in his previous position. These qualifications could arguably justify the receipt of a higher salary than Pershey who, at the time of her promotion to TSR, had only a high school diploma (and, construing the facts in favor of Pershey, a Mechanical Drafting certificate) and very little, if any, experience in the industry other than that as a CSR at Heritage.
If Cedoz, as Pershey argues, received a one-time salary increase of 116.35%, then he is obviously the stark exception. If, on the other hand, Cedoz received a raise from $20,800 to $30,000, the 45% increase could potentially be justified by Heritage's alleged policy of a "floor" TSR salary of $30,000.
Upon further analysis, however, the court shares Pershey's concerns that Heritage's policies may be little more than post-hoc rationalizations crafted after Pershey filed suit. This concern is not due to Heritage's alleged pay-grade system. In fact, the court is not sure why Pershey has pointed the court to a system which, if used, would have allowed Heritage to randomly choose a point within a fifteen thousand dollar range. The court is instead skeptical of Heritage's bona fides for the following two reasons. First, while it makes some sense that Heritage would have to shell out more money to hire a TSR externally, it does not explain the size of the disparity. In 1999, when Pershey was set to earn approximately $39,000, Heritage hired Rush at $60,000, Getzloff at $55,000, and Harty at $50,000. There is no indication in the record that Heritage was unable to hired qualified individuals from the outside to work as TSRs at lower salaries. Nor is there any evidence that Heritage attempted to offer its external hires a lower salary, and was forced, by market factors, to raise its bid. The court notes further that, while neither party has presented a gender breakdown of the applicant pool, no women were hired from outside Heritage between 1996 and 2000.
Second, the court notes that in a company of approximately 1, 000 employees, not one management employee or TSR has corroborated Li's deposition testimony. In fact, the evidence suggests that at least one member of Heritage's management team, Roger Bowser (VP of National Accounts in late 1997), did not "generally understiand]" Li's alleged policies. Had Bowser known that TSRs promoted internally were paid less than TSRs hired from outside Heritage, the court would not expect him to have characterized Pershey as "lawsuit underpaid." Furthermore, Pershey, Grabowski and Rush, all former TSRs, testified that no one at Heritage told them that Heritage: (1) set starting salaries differently depending on whether the employee was promoted internally or hired externally; (2) had a policy of giving employees a 15% to 20% raise when promoting them internally; or (3) considered such factors as education, experience, and prior salary in setting the compensation of those hired externally.
The court recognizes that a jury may very well find that Heritage set initial salaries for TSRs between 1996 and 2000 based on the policies described by Li in his deposition. In order to have carried its burden for purposes of this motion, however, Heritage needed to satisfy the court that there are no disputes of fact concerning these policies. See Sargis v. Amoco Corp., 996 F. Supp. 790, 796 n. 13 (N.D. Ill. 1998) (citing Covington, 816 F.2d at 319 (finding defendant had a "policy" of maintaining an employee's salary after a job change); Koerts v. MCI telecommunications Corp., No. 95 C 1039, 1997 WL 30987, at *11 (N.D. Ill. Jan. 22, 1997) (employer provided evidence that salaries were calculated using "an objective, nondiscretionary salary matrix")). As it stands, the case turns on the credibility of Lester Li, and it is the province of the jury and not this court to assess Li's credibility. See Outlaw v. Newkirk, 259 K3d 833, 838 (7th Cir. 2001) (issues of credibility defeat summary judgment only "[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility') (quoting Advisory Committee Notes, 1963 Amendment to FED. R. CIV. P. 56(E)); Logan v. Caterpillar, Inc., 246 F.3d 912, 924 (7th Cir. 2001) ("[W]e can not make a credibility determination on a motion for summary judgment [.]").
The decision is limited to the facts of this case; a written compensation policy is by no means an evidentiary necessity for purposes of defending an EPA claim.
Heritage's motion for summary judgment on Pershey's Equal Pay Act claim is therefore denied, without prejudice.
2. Title VII
Pershey's Title VII claim requires a slightly different analysis. In a wage discrimination claim under Title VII, the burden of persuasion remains at all times on the plaintiff who must show intent to discriminate. Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995). In other words, here, Pershey must establish that the disparity in pay between her and her male co-workers resulted from an actual desire on the part of Heritage to pay Pershey less than these male employees because of her gender. See Ghosh v. Indiana Dept. of Envtl Mgmt., 192 F.3d 1087, 1094 (7th Cir. 1999).
McDonnell Douglas burden-shifting approach applies to her claim. See Stroup v. Clark, No. 99 C 50029, 2001 WL 114404, at *6 (ND. Ill. Feb. 2, 2001) (citing Ghosh, 192 F.3d at 1094). Under this approach, a prima facie case requires Pershey to produce evidence that she was paid less than a similarly-situated male or males. See Johnson, 70 F.3d at 478. As already discussed, she has done so. Heritage, as it must, has responded with what it claims are legitimate nondiscriminatory reasons for the pay disparity the two unwritten, yet "generally understood," policies. Such a proffer satisfies Heritage's burden of production.
Pershey now must demonstrate that these reasons are a pretext for discrimination. "Pretext under the McDonnell Douglas burden-shifting method of proof does not mean a mistake, but a phony reason for some action; [t]hat is, [Persheyl must provide evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the [employment action] in question, or were insufficient to motivate the [action] ." Logan v. Kautex Textron North America, 259 F.3d 635, 640 (7th Cir. "2001) (internal quotations omitted). As the court's discussion in the EPA section demonstrates, material disputes of fact exist as to the bona fides of Heritage's policies. Accordingly, summary judgment on Pershey's Title VII claim for unequal pay is denied. In reaching this decision, the court recognizes that Pershey will face grave difficulty in meeting her ultimate burden of proving intentional discrimination. Pershey was in charge of two territories as a TSR, at which tune she was apparently earning less than any other TSR. No other TSR had a starting salary in that position lower than hers; but arguably no other TSR had less directly relevant prior experience or less bargaining power. The court is not prepared to conclude on this record, however, that there are no disputes of fact on the issue.
CONCLUSION
For the foregoing reasons, the court denies Heritage's motion for summary judgment (Doc. 17-1).