Lauterbach v. Illinois State Police, The

Filing 30

OPINION: Motion for Summary Judgment 14 is DENIED. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 7/28/2015. (GL, ilcd)

E-FILED

Tuesday, 28 July, 2015 03:26:47 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KARI J. LAUTERBACH,
Plaintiff,
v.
THE ILLINOIS STATE POLICE,
Defendant.

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12-cv-03228

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Now before the Court in this gender–employment
discrimination suit is the Motion for Summary Judgment filed by
Defendant the Illinois State Police (“ISP”) (d/e 14). Plaintiff Kari J.
Lauterbach has brought a two-count complaint against ISP alleging
two theories of discriminatory pay because her pay as a Senior
Public Service Administrator in the ISP’s Bureau of Information
Services was not commensurate with that of her male colleagues.
Count 1 alleges that she was not paid equally for equal work in
violation of the Equal Pay Act, 29 U.S.C. § 206(d). Count 2 alleges
that ISP discriminated against her on the basis of gender under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Page 1 of 38

Because each of Lauterbach’s claims present genuine issues of
material fact concerning the nature of Lauterbach’s work and the
application of ISP’s merit compensation system, ISP’s Motion for
Summary Judgment is DENIED.
I.

BACKGROUND

In 1979, Kari Lauterbach completed her Associate Degree of
Applied Science in data processing at Lakeland College and began
working for the Illinois State Police in the entry-level position of
Programmer I. Her starting salary was $1,048 per month. Over the
course of her career with ISP, Lauterbach received four promotions:
to Programmer II in October 1980; to Programmer III in July 1982;
to Programmer IV in August 1985; and to Information Systems
Executive 2 in April 1988. In August 1993, Lauterbach’s position
changed classifications to Senior Public Service Administrator
(SPSA), a broad-banded employee class comprising several layers of
“code,” or non-law-enforcement, management within ISP. As code
employees, Lauterbach and her colleagues were subject to a merit
compensation system governed by the Illinois Personnel Code, 20
ILCS 415/1 et seq., and the Illinois Department of Central
Management Services’ Personnel Rules and Pay Plan, 80 Ill. Admin.
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Code §§ 301–05, 310, & 320, et seq. The merit compensation
system provided pay increases including lockstep pay increases by
classification, merit-based salary increases, and discretionary
increases. Discretionary increases include salary adjustments for
additional responsibilities and “special” salary adjustments to serve
the best interest of the ISP.
Three layers of management fell within the SPSA classification:
bureau chiefs, who reported directly to ranking law-enforcement
management of the bureaus’ respective divisions; assistant bureau
chiefs who reported to the bureau chiefs; and section managers who
reported to assistant bureau chiefs. As an SPSA, Lauterbach
herself held several different job titles and roles in the management
hierarchy between 1993 and her retirement in 2012. She first
became a section manager in 1993. In October 2006, she became
an interim assistant bureau chief while her bureau chief, Steve
Bova, was out for three months to attend command college training,
and an assistant bureau chief, Steve Nation, became the interim
bureau chief. While interim assistant bureau chief, Lauterbach
also retained all her responsibilities as a section manager. Upon
Bova’s return, Lauterbach briefly reverted to section manager only
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to return to the position of interim assistant bureau chief when
Bova left the Bureau of Information Services for good in February
2007. She continued in her duties as both interim assistant
bureau chief and section manager until January 2008, when she
became interim bureau chief upon Nation’s departure. She reverted
to interim assistant bureau chief in March 2008 upon the hiring of
Jamie Blakley as bureau chief, and she remained in that role until
her retirement in 2012. Notably, each of Lauterbach’s positions—
section manager, assistant bureau chief, and bureau chief, as well
as interim positions—was classified as an SPSA. Lauterbach
describes the people holding positions under the broad-banded
employee class of SPSA as “supervisors, managers of sections with
a different number of employees reporting to each of us.” (Def.’s
Mem. Law Supp. Def.’s Mot. Summ. J. [hereinafter “Def.’s Mem.
Summ. J.”], d/e 15, Ex. 1, at 13.) Although on at least two
occasions Lauterbach requested command college training like that
which her male colleagues had received, she was turned down
because she was told that she could not be gone from the Bureau of
Information Services for three months at a time.

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Through several ISP administrative reorganizations,
Lauterbach’s position was switched to the Bureau of Information
Services, under the auspices of first the Division of Information
Technology Command and then, following a merger with the Bureau
of Application Testing and Methodology in approximately June
2009, the Division of Administration. Starting in the mid-1990s
and continuing until her retirement in 2012, Lauterbach identified
at least two fellow SPSAs—Jamie Blakley and David Law, both
men—who she came to learn earned greater salaries through the
merit compensation system even though each of them had at one
time held the title of assistant bureau chief or interim assistant
bureau chief and, Lauterbach believed, their work was equal to
hers.1

In her Complaint, Lauterbach also identifies Doug Phillips, Cindy
Eicher, and Carol Gibbs as fellow SPSAs who performed equal work,
and she alleges that Eicher, Gibbs, and she all received pay
unequal to that of their male colleagues. Lauterbach also does not
brief significant arguments concerning the equal work of fellow
SPSA Ken Loyd, nor the comparative application of the merit
compensation system to fellow SPSA Steve Nation. Because neither
Lauterbach nor ISP develops substantial factual comparisons to
Phillips, Eicher, Gibbs, Loyd, or Nation in their briefs, the Court
joins the parties in focusing its analysis on Blakley and Law. For
similar reasons, the Court also will not address undeveloped
1

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Specifically, Law, who had begun working for ISP in 1976 at a
monthly salary of $622, had received eight promotions as well as
additional salary increases, including one salary adjustment for
additional responsibilities and one “special” salary adjustment,
pushing his monthly salary to $8,810 by the time he retired in
2009. For his part, Blakley had begun working for ISP in 1980 at a
monthly salary of $842. Over the course of his career in the state
system, Blakley earned eight promotions as well as additional
salary increases, including one salary adjustment for additional
responsibilities. His employment history also included transfers to
the Lottery and the Department of Children and Family Services
and a stint in private sector employment. By the time of
Lauterbach’s retirement in 2012, Blakley earned a monthly salary
of $8,335. Lauterbach herself, despite four promotions and other
salary increases, including two salary adjustments for additional
responsibilities, earned a monthly salary of only $7,590.
Because of this salary discrepancy with her male colleagues,
Lauterbach has brought a two-count complaint against ISP alleging

arguments, articulated in the Complaint, concerning the pay of
subordinate male employees.
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two theories of discriminatory pay. Count 1 alleges that she was
not paid equally for equal work in violation of the Equal Pay Act, 29
U.S.C. § 206(d). Count 2 alleges that ISP discriminated against her
on the basis of gender under Title VII of the Civil Rights Act of 1964.
Following ISP’s Answer to the Complaint, the parties proceeded
immediately to discovery. ISP filed the present Motion for Summary
Judgment on October 1, 2014. Following the Court’s denial of
Lauterbach’s Motion to Strike an affidavit in support of ISP’s Motion
for Summary Judgment, the Court granted the parties additional
time to file any supplemental briefing. The parties filed no
supplements, and the Motion for Summary Judgment is now fully
briefed and ready for disposition.
II.

LEGAL STANDARD ON SUMMARY JUDGMENT

Summary judgment is proper if the moving party shows that
no genuine dispute exists as to any material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). When ruling on a motion for summary judgment, the
Court must consider the facts in the light most favorable to the
nonmoving party, drawing all reasonable inferences in the

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nonmoving party’s favor. Woodruff v. Mason, 542 F.3d 545, 550
(7th Cir. 2008).
The moving party bears the initial responsibility of informing
the court of the basis for the motion and identifying the evidence
the moving party believes demonstrates the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). “There is no genuine issue of material fact when no
reasonable jury could find in favor of the nonmoving party.” Brewer
v. Bd. of Trs. of the Univ. of Ill., 479 F.3d 908, 915 (7th Cir. 2007).
When the nonmoving party bears the ultimate burden of
persuasion on a particular issue, the moving party need only show
there is an absence of evidence to support the nonmoving party’s
case. Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013)
(quoting Celotex, 477 U.S. at 325). The nonmoving party must then
produce evidence, such as affidavits, depositions, or answers to
discovery, to show that there is evidence upon which a jury could
find in her favor. Modrowski, 712 F.3d at 1169 (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). The nonmoving
party cannot rest on the allegations in her complaint but must offer
support for those allegations. See Mosley v. City of Chi., 614 F.3d
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391, 400 (7th Cir. 2010). Moreover, a court may only consider
admissible evidence when reviewing a motion for summary
judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009).
Where the party moving for summary judgment bears the
burden of persuasion at trial, however, such as a defendant
asserting an affirmative defense, the moving party must establish
all the essential elements of that defense with credible evidence that
would entitle it to a directed verdict if not controverted at trial.
Celotex Corp., 477 U.S. at 331. This high standard for defendants
to obtain summary judgment is applied with added rigor in
employment-discrimination cases, where intent and credibility are
crucial issues. Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1162
(7th Cir. 1994) (“[W]e will affirm the decision of the district court [to
grant defendant’s motion for summary judgment] only if, had the
record before that court been the record of a complete trial, the
defendant would have been entitled to a directed verdict.”).
Generally speaking, a district court is “not required to scour
every inch of the record for evidence that is potentially relevant to
the summary judgment motion.” Johnson v. Cambridge Indus.,
Inc., 325 F.3d 892, 898 (7th Cir. 2003); Greer v. Bd. of Educ. of
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Chi., 267 F.3d 723, 727 (7th Cir. 2001) (noting that employment
discrimination cases are fact-intensive and that a court is not
required to scour the record looking for factual disputes). The court
is only required to consider the material specifically cited to by the
parties, although the court may consider other materials in the
record. Fed. R. Civ. P. 56(c)(3).
III.
A.

ANALYSIS

Lauterbach’s prima facie case of gender discrimination
and ISP’s defenses under the Equal Pay Act present
genuine issues of material fact, suitable for a jury to
determine.
The Equal Pay Act provides in part:
No employer . . . shall discriminate . . . between
employees on the basis of sex by paying wages to
employees . . . at a rate less than the rate at which he
pays wages to employees of the opposite sex . . . for equal
work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed
under similar working conditions . . . .

29 U.S.C. § 206(d)(1). To prove her claim under the Equal Pay Act,
Lauterbach must establish a prima facie case that she did not
receive equal pay for equal work. Once she has made her prima
facie case, however, the Equal Pay Act creates a type of strict
liability, shifting the burden of persuasion to ISP to offer a gender-

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neutral justification for unequal pay. Warren v. Solo Cup Co., 516
F.3d 627, 630 (7th Cir. 2008).
1. Lauterbach has raised triable issues of fact in her prima facie
case under the Equal Pay Act.
To establish a prima facie case under the Equal Pay Act,
Lauterbach 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) that the work was performed
under similar working conditions. Warren, 516 F.3d at 629. On
the first element, ISP concedes that, at the time of Lauterbach’s
retirement in 2012, her monthly salary was $7,590, while her male
colleague Jamie Blakley then earned a monthly salary of $8,335,
and her male colleague David Law had earned a monthly salary of
$8,810 at his retirement in 2009. The parties advance no
arguments on the third element of similar working conditions, and
so the Court will assume the existence of similar working conditions
for purposes of the present Motion for Summary Judgment.
Rather, the parties focus their energies on the second element,
whether Lauterbach and her higher-earning male colleagues

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performed equal work requiring substantially similar skill, effort,
and responsibilities.
To demonstrate that she performed equal work, Lauterbach
must establish, based upon actual job performance and content—
not just job titles, classifications, or descriptions—that the work
performed is substantially equal. Fallon v. State of Ill., 882 F.2d
1206, 1208 (7th Cir. 1989). The work need not be identical, but it
is enough to establish a prima facie case if the duties are
“substantially equal.” Id. And though job descriptions alone
cannot be determinative, job descriptions can be highly probative of
substantially equal work. See Epstein v. Sec’y U.S. Dep’t of
Treasury, 739 F.2d 274, 277 n.6 (7th Cir. 1984) (“[J]ob descriptions
may, in some instances, be highly probative of equal work because
one would expect that actual responsibilities would, to some extent,
conform to a job description. Similar job descriptions alone,
however, do not require a finding of substantial equality of jobs
under the Equal Pay Act.”). The crucial finding on the issue of
equal work is whether the jobs to be compared have a “common
core” of tasks, such that a significant portion of the two jobs is
identical. Fallon, 882 F.2d at 1209. If a common core is shown,
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the question then becomes whether any additional tasks make the
jobs substantially different. Id. Critically, the issue of whether two
jobs require equal skill, effort, and responsibility is a factual
determination, suitable for the jury as the trier of fact. Id. at 1208.
ISP contends that Lauterbach’s work was not equal to that
performed by her male colleagues, and that her prima facie case is,
accordingly, flawed. ISP asserts that Lauterbach alleges only
comparable work, not equal work, to her male colleagues. ISP
points to the fact that Lauterbach and her colleagues Blakley and
Law all managed different sections, and that those sections had
different responsibilities. According to ISP, Lauterbach worked on
security and disaster recovery. Blakley maintained the network,
mobile data computing, the desktop, server installation, and
application development. Law worked on applications. ISP also
indicates that Lauterbach’s male colleagues occupied distinct
upper-management positions within ISP: Blakley, for instance, was
an assistant bureau chief nine years before Lauterbach first became
an interim assistant bureau chief. When Lauterbach became an
interim assistant bureau chief, Blakley became the bureau chief
and Lauterbach’s direct supervisor.
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Lauterbach counters that she had the same classification,
SPSA, and job title, assistant bureau chief, as Blakley did, and that
both Lauterbach and Blakley reported to Alan Bugard, at one time
the bureau chief and their direct supervisor. Lauterbach reported
directly to Bugard in part because she served as interim assistant
bureau chief during a period when no permanent assistant bureau
chief was hired. But while she served as interim assistant bureau
chief, Lauterbach did not relinquish her permanent duties as
security section manager. Lauterbach also asserts, though ISP
denies, that nearly forty subordinate employees reported directly to
her, the same number or more than reported to Blakley.
Lauterbach further argues that the job descriptions for her
position and Blakley’s position are nearly identical and that, if
anything, her job description in fact required more skills. Cf. 29
C.F.R. § 1620.15(a) (Equal Employment Opportunity Commission
regulation providing that, where essentially the same skill is
required to perform either of two jobs, the jobs will qualify under
the Equal Pay Act as jobs which require equal skill even where one
job requires exercise of that skill more frequently). To the point,
Lauterbach cites the portion of her job description providing:
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Requires knowledge, skill and mental development
equivalent to completion of four years of college.
Requires a minimum of four years of progressively
responsible professional experience in management
information systems environment. Requires extensive
knowledge in the areas of computer hardware, software,
communications and applications.
Requires extensive experience managing large complex
data processing projects and possess the ability to
manage and direct staff in accomplishing organizational
goals. Must be proficient with data processing design
methodologies, project management techniques,
understand data communication principles, understand
the basic elements mainframe and client server
computing, process good organizational and
communication skills, have the ability to develop an
organizational infrastructure to meet departmental
demands and assist in establishing strategic planning for
the Department, Division, and Bureau.
(Pl.’s Mem. Law Opp. Def.’s Mot. Summ. J., d/e 20, Ex. 7.)
Blakley’s job description provides, in part:
Requires knowledge, skill and mental development
equivalent to completion of four years of college.
Requires a minimum of four years of progressively
responsible professional experience in management
information systems environment. Requires extensive
knowledge in the areas of computer hardware, software,
communications and applications. Requires thorough
knowledge of staff utilization, employee motivation, labor
contracts and employee management.
(Id. Ex. 6 (emphasis added).)

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Lauterbach also points to the portion of Alan Bugard’s
deposition in which Bugard identifies Blakley’s job responsibilities
were “application development” and “management and
maintenance.” (Id. Ex. 2, at 16.) Lauterbach, according to Bugard,
was responsible for “infrastructure,” “the data center,” “the
network,” devices used in ISP officer vehicles, servers, and security.
(Id. at 16–17.) Bugard further opined that Lauterbach’s
responsibilities were greater than Blakley’s. Finally, with respect to
Law, Lauterbach asserts that she assumed all of his duties upon
his retirement at the end of 2009.
Though both Lauterbach and ISP at times resort to arguments
concerning little more than job titles, classifications, or
descriptions, triable issues of fact remain on this issue of equal
work. Like ISP, who asserts that Lauterbach’s male colleagues
occupied distinct upper-management positions belying the notion of
equal work, Lauterbach insists that Blakley, Law, and her
classification as SPSAs and positions as assistant bureau chiefs
demonstrate equal work. But the fact that Lauterbach and her
male colleagues managed different sections with different
responsibilities, as ISP asserts, is ultimately of no moment.
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Lauterbach has shown at least that a common core of tasks exists
between her work and that of her male colleagues. Blakley averred
in his deposition that he was responsible for maintaining the ISP
network, but Bugard averred that the network was Lauterbach’s
responsibility. Similarly, both Lauterbach and Blakley had some
responsibility for servers. Furthermore, both Blakley’s and
Lauterbach’s job descriptions required “progressively responsible
professional experience in [the] management information systems
environment” and “extensive knowledge in the areas of computer
hardware, software, communications and applications.” While not
dispositive on the issue of equal work, these identical provisions of
the job descriptions, in the context of overlapping responsibilities
for computer networks and servers, are at least of probative value
on the issue of equal work.
Lauterbach’s prima facie case goes further still in her
allegations that she supervised as many or more subordinate
employees as Blakley and that she assumed Law’s duties upon his
retirement. Cf. Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461
(7th Cir. 1994) (finding sufficient to establish a prima facie case
under the Equal Pay Act the allegation that female employee’s male
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successor received greater salary). ISP flatly disputes both these
allegations, but construing the facts in the light most favorable to
Lauterbach, these allegations at least present triable issues of fact.
Accordingly, the Court must turn next to determine whether ISP’s
defenses to liability under the Equal Pay Act likewise present
genuine issues of material fact suitable for a jury to determine.
2. ISP has not carried its burden on summary judgment to
establish defenses to Equal Pay Act liability.
Once a plaintiff establishes a prima facie case under the Equal
Pay Act, the burden of proof shifts to the employer to show that the
pay disparity is 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 gender. 29 U.S.C.
§ 206(d)(1)(i)-(iv); see also Corning Glass Works v. Brennan, 417
U.S. 188, 196 (1974). “These are affirmative defenses on which the
employer bears the burden of proof (persuasion).” Fallon, 882 F.2d
at 1211; cf. Celotex Corp., 477 U.S. at 331; Robinson, 23 F.3d at
1162. Indeed, no proof of discriminatory intent is required under
the Equal Pay Act. Warren, 516 F.3d at 629; see also Patkus v.
Sangamon-Cass Consortium, 769 F.2d 1251, 1260 n.5 (7th Cir.

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1985) (“[T]he Equal Pay Act creates a type of strict liability in that
no intent to discriminate need be shown.”). Rather, ISP must prove,
and not just assert, that different pay is warranted for Lauterbach
due to a nondiscriminatory pay system or other reason. King v.
Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012)
(reversing grant of summary judgment for defendant and remanding
Equal Pay Act claim for trial for defendant to “prove, and not just
assert,” nondiscriminatory reasons for pay disparities between men
and women).
ISP asserts that differences in Lauterbach’s pay ($7,590
monthly) relative to Blakley ($8,335) and Law ($8,810) are the
result of a bona fide merit compensation system governed by the
Illinois Personnel Code, 20 ILCS 415/1 et seq., and the Illinois
Department of Central Management Services’ Personnel Rules and
Pay Plan, 80 Ill. Admin. Code §§ 301–05, 310, & 320, et seq.
Lauterbach and her male colleagues were all SPSAs, a broadbanded class of non-sworn code employees whose salaries fell
within a broad pay range under the merit compensation system; in
May 2011, for instance, SPSAs’ monthly salaries ranged from
$4,295 to $10,500 under the system. And under the system,
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SPSAs’ differing salaries are attributable to the merit compensation
system’s appropriate, nondiscriminatory variables of entrance base
pay, movement between salary systems, promotions, salary
adjustments, annual merit compensation increases, and bonuses
based on annual performance ratings.
According to ISP, in general terms, Lauterbach, Blakley, and
Law “had different entrance base salaries, different movements
between salary systems, different promotions, and varying annual
merit compensation increases and bonuses.” Specifically,
Lauterbach began work at ISP in 1979 at a monthly salary of
$1,048. Law began in 1976 at $622 monthly, and Blakley in 1980
at $842. Blakley also transferred from ISP to other state
employment with the Lottery and the Department of Children and
Family Services and eventually left for private sector employment in
2004, returning in 2008. Lauterbach received four promotions over
the course of her career; Blakley and Law, on the other hand,
received eight promotions each. Finally, Lauterbach received two
salary adjustments for additional responsibilities. Meanwhile, Law
received one salary adjustment for additional responsibilities and
one “special” salary adjustment to serve the best interest of the ISP,
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and Blakley received just one salary adjustment for additional
responsibilities. According to ISP, these facts show that Lauterbach
and her male colleagues were all subject to the merit compensation
system and, because the rules of that system applied equally to
Lauterbach and her male colleagues, ISP is not liable to Lauterbach
under the Equal Pay Act.
ISP’s description of its merit compensation system is
ultimately, however, question-begging. Under the Equal Pay Act,
the inquiry is not whether any merit pay system exists, but rather
whether differences in pay are due to the proper application of that
merit pay system. And the essence of a merit pay system is
whether employees subject to that system are paid on the basis of
their merit. ISP finds it sufficient to note that the merit
compensation exists and that even Lauterbach agrees it probably
applied to her and her male colleagues. But nowhere does ISP offer
any explanation about why Lauterbach’s work did not merit the
salary increases that would have made her salary comparable to
that of her male colleagues, or, conversely, why her male colleagues
work did merit their salary increases. Nor does ISP attempt to
justify the greater number of promotions Lauterbach’s male
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colleagues received on the basis of merit. (More on these
promotions below.) Nor does ISP have any merit-based reason to
explain why Lauterbach received salary adjustments for additional
responsibilities and yet still fell short of her male colleagues’
salaries. Because ISP bears the burden of persuasion on the issue
of a bona fide merit pay system under the Equal Pay Act, ISP’s
Motion for Summary Judgment is deficient where it presents no
evidence—let alone credible evidence that would entitle it to a
directed verdict if not controverted at trial. See Celotex Corp., 477
U.S. at 331; Robinson, 23 F.3d at 1162.
Moreover, accepting the facts in the light most favorable to
Lauterbach as the nonmoving party, the allegations in this case
present triable issues of fact suitable for jury determination in any
event. Indeed, Lauterbach has marshaled plenty of evidence in
discovery that, accepted as true, would permit a reasonable jury to
find in her favor. Specifically, Lauterbach asserts that she
undertook a project in the mid-1990s to rewrite job descriptions for
her subordinate employees after she was told the bureau chief
would consider submitting her for a salary adjustment. When
Lauterbach completed the job-description project, however, her
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salary adjustment was put on hold because a salary adjustment for
a male colleague had become a higher priority.2 (Def.’s Mem.
Summ. J., d/e 15, Ex. 1, at 26.) Lauterbach describes two other
instances of projects for which she received no salary adjustments
in 2000 and 2007. (Id. Ex. 3, at 9.) More generally, Lauterbach
alleges that salary adjustments were given to male colleagues who
had less responsibility or who had completed only “minimal
projects.” (Id. Ex. 1, at 26.) And in 2002, Lauterbach claims that
she was told that no salary adjustments were being given, but that
paperwork was nevertheless submitted for salary adjustments for
two of her male colleagues, one of which was granted. (Id. Ex. 3, at
7.)
Lauterbach further details opportunities she was denied but
that were given to her male colleagues that would have resulted in
salary increases under the merit compensation system. For
instance, Lauterbach asserts that Blakley was sent to command

Though unclear from the record, the Court notes that this incident
may be the same incident Lauterbach details in her answer to ISP’s
interrogatories, in which Lauterbach was told in 1993 that her
salary adjustment had been put on hold because another colleague,
Steve Miller, should receive a salary adjustment before her. (Def.’s
Mem. Summ. J., d/e 15, Ex. 3, at 7.)

2

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college training to receive credits needed to earn a promotion but,
when she requested command college training on at least two
occasions, she was turned down because she could not be gone
from ISP for three months at a time. (Id. Ex. 1, at 20.) At one point
after 2007, paperwork was prepared to make Lauterbach an
assistant bureau chief, but her “interim” designation was ultimately
never removed. (Id. at 28.) When she interviewed for the position of
assistant bureau chief in 2008, a man was selected for the position
instead but, after Lauterbach filed a complaint with Illinois’s Office
of Equal Employment Opportunity alleging gender and friendship
favoritism, the selected man never took the position, and the
position remained unfilled. (Id.) And finally, even when Lauterbach
was given interim titles with additional responsibilities, she was
required to retain all her existing duties without salary
adjustments, while her male colleagues received salary adjustments
for new responsibilities that replaced their existing duties. (Def.’s
Mem. Summ. J., d/e 15, Ex. 3, at 9.)
The Court notes still more facts that undercut the
nondiscriminatory application of ISP’s merit compensation system
to Lauterbach relative to her male colleagues. To detail just one
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example, recall that Lauterbach received four promotions over the
course of her career while Blakley received eight during his. Logs of
salary and job classification transactions reveal that Lauterbach
began work at ISP in 1979 as a “Programmer I” and needed just
three promotions to reach “Programmer IV” in 1985. (See Docket
Entry of Dec. 8, 2014 (CD-ROM, containing personnel documents,
on file with the Court).) Blakley, by contrast, began work at ISP in
1980 as a “Programmer Trainee” and needed a promotion to reach
“Programmer I” in 1981. (Id.) Blakley then received another five
promotions before he reached “Programmer IV” in 1988. (Id.) In
short, Lauterbach received just three promotions to reach
“Programmer IV;” Blakley received a total of six promotions—two
more promotions than Lauterbach received in her entire career with
ISP—to reach “Programmer IV.” While a nondiscriminatory reason
for these differing career paths may exist under ISP’s merit
compensation system, the number of promotions, alone, belies ISP’s
assertion that differences in pay between Lauterbach and Blakley
are attributable in part to Lauterbach’s four career promotions
compared to Blakley’s eight.

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Whether a nondiscriminatory reason justifies lower pay for
Lauterbach than her male colleagues is, in this case, ultimately
suitable for a jury to decide. ISP has presented some evidence that
Lauterbach received fewer promotions, justifying a lower salary, and
numerically more salary adjustments than Blakley or Law,
undercutting the suggestion of gender discrimination. But ISP has
presented no evidence to show why these decisions, under the merit
compensation system, were merit-based. ISP’s burden is to prove,
not just assert, that Lauterbach’s lower pay was nondiscriminatory.
See King, 678 F.3d at 474. ISP has not carried this burden with
respect to its merit compensation system. Furthermore, ISP has
advanced no argument on any other affirmative defense under the
Equal Pay Act. See, e.g., 29 U.S.C. § 206(d)(iv) (providing an
affirmative defense for differences in pay “based on any other factor
other than sex”); Fallon, 882 F.2d at 1211 (describing the exception
at § 206(d)(iv) as a “broad, catch-all exception [that] embraces an
almost limitless number of factors so long as they do not involve
sex”). Lauterbach, on the other hand, has presented enough of her
own evidence to highlight genuine issues of material fact as to
whether ISP applied the merit compensation system in a
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nondiscriminatory fashion. Therefore, ISP has not carried its
burden of persuasion on summary judgment on Lauterbach’s claim
under the Equal Pay Act.
B.

Lauterbach’s prima facie case and burden of persuasion to
show gender discrimination under Title VII present
genuine issues of material fact, suitable for a jury to
determine.
In Count 2 of her Complaint, Lauterbach alleges that ISP

discriminated against her on the basis of gender under Title VII of
the Civil Rights Act of 1964. Title VII prohibits employers from
discriminating against their employees based on “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
Lauterbach’s Title VII claim is based on the same allegations of
unequal pay for equal work as is her Equal Pay Act claim. And
indeed Title VII and the Equal Pay Act cover the same sort of
substantive legal harm, discriminatory pay. See Fallon, 882 F.2d at
1213 n.6 (“Obviously, though, there is a good deal of overlap
between the two acts.”). But unlike the Equal Pay Act, which shifts
the burden of persuasion to defendants to prove an affirmative
defense to gender-based pay discrimination, the plaintiff in most
Title VII claims bears the burden of persuasion at all times. See,

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e.g., id. (“The risk of nonpersuasion . . . is always (except for a few
exceptions) on a Title VII plaintiff.”).
The differences of burden distribution between the Equal Pay
Act and Title VII lead to different legal standards to be applied on
summary judgment, if not necessarily to different outcomes on the
claims. To escape liability to Lauterbach under the Equal Pay Act,
ISP must demonstrate that its merit compensation system, not
gender discrimination, determined Lauterbach’s pay by a showing
of credible evidence that would entitle it to a directed verdict if not
controverted at trial. Celotex Corp., 477 U.S. at 331; Robinson, 23
F.3d at 1162. For the Title VII claim, however, ISP needs only to
show an absence of evidence to support Lauterbach’s claim of
gender discrimination in pay, while Lauterbach’s burden on
summary judgment is to produce some evidence that a jury could
find in her favor. Modrowski, 712 F.3d at 1168–69; cf. Fallon, 882
F.2d at 1213 (discussing differences in burdens of proof between
Equal Pay Act and Title VII and vacating grant of summary
judgment in plaintiff’s favor for, in part, failing to observe these
differences).

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To establish her claim under Title VII, Lauterbach may
proceed under either a direct or an indirect method to prove
unlawful discrimination. Lauterbach has chosen the indirect
method.3 Under the indirect method, as first established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), Lauterbach must first successfully state a prima facie case
of gender discrimination in pay. See also, e.g., Coleman v.
Donahoe, 667 F.3d 835, 845 (7th Cir. 2012) (applying the
McDonnell Douglas framework). If she states a prima facie case,
ISP then has a burden of production to articulate a legitimate,
nondiscriminatory reason for her unequal pay. Id. If ISP meets its
burden of production, Lauterbach must finally prove that ISP’s
proffered reason is a pretext for discrimination. Id. On summary
judgment, each of these steps obliges Lauterbach to identify
evidence from the record that establishes genuine issues of material

And probably wisely so. The direct method of proof of a Title VII
claim presents a high hurdle for plaintiffs, requiring evidence
which, if believed by the trier of fact, would prove that ISP
intentionally discriminated against Lauterbach because she is a
woman without reliance upon inference or presumption. See Eiland
v. Trinity Hosp., 150 F.3d 747, 751 (7th Cir. 1998). No such direct
evidence is apparent on the record before the Court.
3

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fact suitable for determination by a jury. Modrowski, 712 F.3d at
1169.
1. Lauterbach has raised triable issues of fact in her prima facie
case under Title VII.
To establish a prima facie case under the indirect method of
Title VII, Lauterbach must offer evidence that (1) she is a member of
a protected class; (2) her job performance met ISP’s legitimate
expectations; (3) she suffered an adverse employment action; and
(4) another similarly situated individual who was not in the
protected class was treated more favorably than she was. Coleman,
667 F.3d at 845. ISP appears to concede the first three elements of
Lauterbach’s prima facie case, focusing its briefing exclusively on
whether Lauterbach was similarly situated to her male colleagues
who were paid more.
Employees are similarly situated where they are directly
comparable to one another in all material respects. Brummet v.
Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005).
Salient factors in the determination that employees are similarly
situated often include whether the employees held the same job
description, were subject to the same standards, were subordinate

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to the same supervisor, and had comparable experience, education,
and other qualifications. Id. at 692–93. The similarly-situated
inquiry is a common-sense one: Two employees must share enough
common features to allow a meaningful comparison. Humphries v.
CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007). “[T]hey need
not be identical in every conceivable way.” Coleman, 667 F.3d at
846. Indeed, the Supreme Court has cautioned that “precise
equivalence . . . between employees is not the ultimate question.”
McDonald v. Santa Fe. Trail Transp. Co., 427 U.S. 273, 283 n.11
(1976). The goal is to identify an employee–comparator, not a
“clone.” Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 916
(7th Cir. 2010). Critically, the determination whether employees are
similarly situated—like the determination of equal work under the
Equal Pay Act—is “usually a question for the fact-finder, and
summary judgment is appropriate only when no reasonable factfinder could find that plaintiffs have met their burden on the issue.”
Coleman, 667 F.3d at 846–47 (citations omitted).
ISP contends that Lauterbach and her male colleagues Blakley
and Law were not similarly situated employees because they
managed different sections with different responsibilities:
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Lauterbach worked on security and disaster recovery; Blakley
maintained the network, mobile data computing, the desktop,
server installation, and application development; Law worked on
applications. ISP also points out that Lauterbach and her male
colleagues “were at times [each other’s] supervisors” and that
Lauterbach’s male colleagues occupied distinct upper-level
management positions. (Def.’s Mem. Summ. J., d/e 15, at 21–22.)
Finally, ISP asserts that Blakley was an assistant bureau chief nine
years before Lauterbach first became an interim assistant bureau
chief.
Lauterbach counters, as she did to establish her prima facie
case under the Equal Pay Act, that she and her male colleagues
held the same job classification of SPSA, the same job title of
(interim) assistant bureau chief, the same supervisor when both she
and Blakley reported to bureau chief Alan Bugard, the same level of
responsibility, and roughly the same number of subordinate
employees. The Court also notes the similarities in the job
descriptions for Lauterbach and Blakley, as previously discussed in
the analysis of Lauterbach’s Equal Pay Act claim. And as
previously discussed, the Court further recognizes the issues of
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material fact concerning Lauterbach’s and Blakley’s respective
responsibilities for ISP’s network and servers, as well as whether
Lauterbach took over Law’s duties upon his retirement.
Arguably, if Lauterbach has satisfied her burden at summary
judgment with respect to her prima facie case under the Equal Pay
Act, she has perforce satisfied the same prima facie burden under
Title VII. Under the Equal Pay Act, the plaintiff’s prima facie case
must ultimately show that an employer paid different wages to
employees of opposite sexes for equal work in jobs requiring equal
skill, effort, and responsibility under similar working conditions.
Title VII, by contrast, a prima facie case requires only that the
plaintiff, a member of a protected class, received adverse treatment
compared to nonmembers of the class who had similar jobs.
“Under the disparate treatment model of a Title VII action, there is a
relaxed standard of similarity between male- and female-occupied
jobs, but a plaintiff has the ultimate burden of proving an intent to
discriminate on the basis of sex.” Brinkley-Obu v. Hughes Training,
Inc., 36 F.3d 336, 343 & n.14 (4th Cir. 1994) (citations omitted)
(noting in footnote that in County of Washington v. Gunther, 452
U.S. 161 (1981), the Supreme Court “determined that failure to
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prove the equal work standard of the Equal Pay Act did not bar a
plaintiff’s cause of action under Title VII for discrimination in
compensation.”).
In light of the issues of material fact Lauterbach has raised
and the substantial similarities evinced in job classification, job
title, job description, supervisor, and supervisory responsibilities,
Lauterbach has marshaled enough evidence for a reasonable factfinder to conclude that she has carried her burden to establish a
prima facie case under Title VII. See Coleman, 667 F.3d at 846–47.
The Court must, therefore, turn next to the issue of ISP’s legitimate
and nondiscriminatory reasons for Lauterbach’s lower pay and
Lauterbach’s enduring burden of persuasion to show that ISP’s
articulated reasons are pretextual.
2. Lauterbach has raised triable issues of fact on the issue of
whether ISP’s merit compensation system is pretextual.
As discussed earlier, ISP asserts that its merit compensation
system, governed by the Illinois Personnel Code and the Illinois
Department of Central Management Services’ Personnel Rules and
Pay Plan, is a bona fide merit pay system. Lauterbach, moreover,
does not dispute that ISP’s merit compensation system discharges

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its burden of production under McDonnell Douglas. Lauterbach
does dispute, however, that the merit compensation system was
applied to her in a nondiscriminatory way. Rather, she alleges, and
it is ultimately her burden to prove, that the merit compensation
system was merely pretext to pay her less than her male colleagues.
Pretext means “a lie, specifically a phony reason for some
action.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995).
A phony reason does “not require that plausible facts presented by
the defendant not be true, but only that they not be the reason for
the employment decision.” Hasham v. Cal. State Bd. of
Equalization, 200 F.3d 1035, 1045 (7th Cir. 2000). “The question is
not whether the employer’s stated reason was inaccurate or unfair,
but whether the employer honestly believed the reasons it has
offered to explain” its action. Coleman, 667 F.3d at 852. Even
“circumstantial evidence can be offered to prove that Defendant's
purported reasons for the promotion decision are not worthy of
belief and thus pretextual.” Hasham, 200 F.3d at 1045.
To meet her burden to show pretext on summary judgment,
Lauterbach must “identify such weaknesses, implausibilities,
inconsistencies, or contradictions” in ISP’s asserted reason “that a
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reasonable person could find [the reason] unworthy of credence.”
Coleman, 667 F.3d at 852. One permissible form of pretext
evidence is the very fact that similarly-situated colleagues outside
Lauterbach’s protected class received more favorable treatment.
See id. at 857–58 (“Our precedents also teach that the similarlysituated inquiry and the pretext inquiry are not hermetically sealed
off from one another. We have often noted that the prima facie case
and pretext analysis often overlap.”). As discussed in the context of
the Title VII prima facie case, Lauterbach has at least raised jury
questions as to whether similarly-situated male colleagues were
paid more under the merit compensation system than she was.
And, as discussed in the context of ISP’s defenses to Equal Pay
Act liability, Lauterbach has identified still other weaknesses in
ISP’s assertion that her lower pay was justified under the merit
compensation system. Lauterbach alleges that she did not receive
salary adjustments for additional responsibilities when she
deserved them on three occasions in the mid-1990s, 2000, and
2007. (Def.’s Mem. Summ. J., d/e 15, Ex. 1, at 26; id. Ex. 3, at 9.)
Meanwhile, her male colleagues did receive such salary
adjustments ahead of her when merited, as well as at times when
Page 36 of 38

their merit was more questionable. (Id. Ex. 1, at 26.) Furthermore,
in 2002, Lauterbach alleges that she was told that no salary
adjustments were available and yet paperwork was submitted for
two of her male colleagues to receive salary adjustments, one of
which was approved. (Id. Ex. 3, at 7.) Lauterbach also alleges that
she was denied opportunities given to her male colleagues that
would have given her a chance for pay increases under the merit
compensation system, such as command college training. (Id. Ex.
1, at 20.) Paperwork was not completed to remove her interim
status as assistant bureau chief, and when the man selected
instead of her to fill the position would no longer take it, the
position simply went unfilled rather than go to Lauterbach. (Id. at
28.) And as the Court noted, the difference in pay between
Lauterbach and Blakley is hard to understand with reference to
their respective promotions when Blakley required six promotions
to reach the same job title Lauterbach held after only three.
In sum, the evidence Lauterbach has presented would permit
a rational jury to find in her favor on the issue of pretext. Because
she has presented sufficient evidence to create genuine issues of

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material fact, her Title VII claim must also be presented to a jury,
and summary judgment must be denied.
IV.

CONCLUSION

Each of the steps in determining ISP’s liability to Lauterbach
under both the Equal Pay Act and Title VII present genuine issues
of material fact, suitable for a jury to determine. For this reason,
the Motion for Summary Judgment (d/e 14) is DENIED.
IT IS SO ORDERED.
ENTER: July 28, 2015
FOR THE COURT:

s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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