Nadeem v. Viscosity Oil Company
Filing
93
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 3/26/2024. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KANWAL NADEEM,
Plaintiff,
v.
VISCOSITY OIL COMPANY,
Defendant.
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Case No. 19-cv-08253
Judge John Robert Blakey
MEMORANDUM OPINION AND ORDER
Plaintiff sues her former employer, Viscosity Oil Company for willfully
violating the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (count I) and for sex
discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. (count II). 1
Defendant moves for summary judgment. [67]. For the reasons explained below, this
Court denies Defendant’s motion.
Plaintiff’s Amended Complaint [29] also asserted a Title VII retaliation claim (count III), but this
Court dismissed that claim, see [50].
1
1
I.
Factual Background 2
On December 22, 2014, Viscosity hired Plaintiff—a female—to work as a
Financial Analyst. [69] ¶ 4. When she was hired, Plaintiff had three and a half years
of work experience and had recently earned her master’s degree in business
administration (MBA). Id. ¶ 5. Plaintiff was not a certified Public Accountant (CPA).
Id. ¶ 9. Before working at Viscosity, Plaintiff had been earning $45,000 per year
without a bonus. Id. At Viscosity, Plaintiff was offered a starting salary of $53,000
per year, plus bonuses and benefits. Id. ¶ 7. According to Defendant, Plaintiff began
employment at the E1A level, based upon her education, credentials, qualifications,
and prior employment. Id. ¶ 6.
As a Financial Analyst, Plaintiff’s duties included preparing and analyzing
financial reports, performing financial forecasting and budgeting, and preparing tax
returns and related schedules. Id. ¶ 8. Throughout her tenure at Viscosity, Plaintiff
had just one job description, which Viscosity created in May 2014. [83] at 13, ¶ 27.
The Financial Analyst position required a bachelor’s degree in accounting and three
to five years’ experience in a “financial role.” Id. at 14, ¶ 32.
The following facts come from Defendant’s LR 56.1(a)(2) statement of material facts, [69], and
Plaintiff’s response to Defendant’s statement of material facts and statement of additional facts [83].
Defendant did not respond to Plaintiff’s LR 56.1(b)(3) statement of additional facts. Therefore, those
facts not contradicted by Defendant’s LR 56.1(a)(2) statement are deemed admitted. See Cossio v.
Tourtelot, No. 15-cv-7746, 2019 WL 4749917, *3–4 (N.D. Ill. 2019) (citing L.R. 56.1) (noting “all
material facts set forth in the non-moving party's statement of additional facts will be deemed
admitted ‘unless controverted by the statement of the moving party.’”) (emphasis in original); see also
Greer v. Bd. of Educ. Of the City of Chi., Ill., 267 F.3d 727, 727 (7th Cir. 2001) (“Employment
discrimination cases are extremely fact-sensitive, and neither appellate courts nor district courts are
obliged in the adversary system to scour the record looking for factual disputes.”).
2
2
Defendant’s Human Resources Director, Marie Gurrola, represents that all
Viscosity employees follow a structured, transparent promotional ladder, which is
posted on the company’s internal website. [69] ¶ 3. But according to Plaintiff, a
transparent promotion ladder did not exist during Plaintiff’s employment. [83] at 2,
¶ 3. Plaintiff testified that Viscosity employees did not reference job titles or job
duties by any of the employment level codes (i.e., E1A, E1B) that Defendant describes.
Id. at 9, ¶ 4.
Instead, when Viscosity employees discussed promotions or
advancement within the company, they only used job titles as descriptors.
Id.
Relevant correspondence in the record corroborates Plaintiff’s representation. Id. at
13–14, ¶ 29. For example, Plaintiff’s job offer letter does not reference her position
by an employment level code. Id.
During her first annual review in early 2016, Plaintiff asked her supervisor,
Luis Jimenez, to promote her to “Senior Financial Analyst.” Id. at 8, ¶ 2. Jimenez
promised Plaintiff the promotion and told her he was “working on it.” Id. Later that
year, in December 2016, Plaintiff informed Jimenez that she was interested in
applying to a Senior Financial Analyst position that she had seen posted on LinkedIn.
Id. at 8, ¶ 3. Jimenez again assured Plaintiff that he was working on getting her the
promotion, but that the LinkedIn posting was made in error. Id. The posting did not
contain any employment level code, such as “E1B.” Id. at 8, ¶ 1. Shortly after, the
company removed the post from LinkedIn. Id. at 8, ¶ 3. Defendant claims it removed
the post for “reasons unrelated” to Plaintiff. [69] ¶ 4.
3
On April 18, 2017, Viscosity promoted Plaintiff to “Financial Analyst E1B.”
[83] at 9, ¶ 7. Although the position carried an increased salary, Plaintiff claims this
was not a “real promotion” because her job responsibilities did not change; she did
not report to anyone new; did not have the opportunity to delegate tasks to more
junior financial analysts; and did not receive an updated job description, despite
asking Jimenez for one. Id.
A week or two later, Viscosity hired (using the services of the recruiting
company, Robert Half) Roman Duda—a male—as a temporary Financial Analyst. Id.
at 10, ¶ 9. Like Plaintiff, Duda reported to Jimenez. Id. Plaintiff trained Duda on
Viscosity’s systems and began sharing the workload with him. Id. at 10, ¶ 10. During
this time, Plaintiff and Duda worked well together and performed similar duties. Id.
at 10, ¶ 11.
In July 2017, Viscosity hired Duda to fill the Senior Finance and Control
Analyst position Jimenez had discussed with Plaintiff. Id. at 10, ¶ 12. But Duda’s
email signature, skype signature, and other corporate representations reflected the
Financial Analyst title. Id.
The job description for Duda’s position required “a bachelor’s degree in
business administration and/or management, engineering, information technology,
finance, accounting, or a related field, and six years of “relevant exempt level
experience in accounting, finance, legal, auditing, project management, governance,
or other related business area.” Id. at 14, ¶ 31. Duda joined Viscosity with an MBA,
12 years of experience as a Financial Analyst at BP Products of North America, and
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three years of experience as a Senior Accountant at OAG Worldwide. [69] ¶ 13. Duda
was also a Certified Public Accountant. Id. When Viscosity hired Duda, Plaintiff, in
comparison, had only seven years of applicable experience in accounting. [83] at 14,
¶ 33. Although Plaintiff was not a CPA, she did hold an MBA. [69] at 5, 9.
Throughout his employment at Viscosity, Duda was absent from work due to
illness or personal time during the last week of nearly every month. [83] at 10, ¶ 13.
During some months, Duda was absent for more than one week at a time. Id. In
Duda’s absence, Jimenez tasked Plaintiff with Duda’s job responsibilities, in addition
to her own. Id. at 10, ¶ 14. To manage both of their responsibilities, Plaintiff often
worked late nights and weekends. Id. Plaintiff’s workload was particularly heavy
because it often included month-end financial reports, since Duda was often absent
at the end of the month. Id. Viscosity does not directly deny these facts; but Jimenez
testified that Duda had more responsibilities than Nadeem and the two were “not
performing equal work.” Id. ¶ 19.
For over a year, Plaintiff performed all of the duties that were listed in Duda’s
job description that were not, in fact, the responsibilities of Jimenez or Bellusci. Id.
at 11, ¶ 15. This included extensive financial work with Viscosity operations in
Mexico, Canada, Brazil, and Malaysia, working with Jimenez on various financial
department initiatives, working with the marketing department on budgets and
forecasting, performing month-end duties, issuing checks to vendors, creating
scorecards and forecasts, and others. Id. at 11, ¶ 16. During this period, Viscosity
5
continued to add work to Plaintiff’s plate without paying her any additional salary.
[69] ¶ 24.
By the summer of 2018, Plaintiff was becoming burned out from the burden of
performing Duda’s responsibilities in addition to her own. [83] at 11, ¶ 17. Plaintiff
had followed up on her promotion requests at her annual reviews in 2017 and 2018,
to no avail. Id. Growing frustrated, Plaintiff told Sharon Bellusci, who was thenFinancial Controller, that if another job opportunity arose before Viscosity promoted
her, she would leave the company.
Id. ¶ 18.
Plaintiff previously had similar
conversations with Bellusci in 2016, 2017, 2018 about her frustration with her
workload, low wages, and that Viscosity remained slow to promote deserving women.
Id. In response, Bellusci suggested that Plaintiff speak with Tatiana Villefort, the
Human Resources manager for Viscosity’s parent company, Petronus Lubricants
International. Id. at 11–12, ¶ 19. Plaintiff followed Bellusci’s advice and spoke with
Villefort about her frustrations, sharing her personal observation that Viscosity
remained a “hard place” for a woman to advance. Id.
The apparent last straw for Plaintiff came in late August 2018 during a
conversation with Duda in the staff kitchen. See id. at 12, ¶ 20. Plaintiff testified
that the two discussed frustrations they were experiencing as employees at Viscosity.
Id. Plaintiff told Duda she was frustrated because it had been over two years since
Jimenez first told her she would receive the Senior Financial Analyst promotion, and
she still had not. Id. Plaintiff also told Duda she believed she was being severely
underpaid. Id. Duda responded sympathetically to Plaintiff and confessed that his
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salary was $89,000 per year, $35,000 more than Nadeem’s. Id. at 12, ¶ 21. According
to Plaintiff, Duda also disclosed that he had been hired as a Senior Financial Analyst,
not as a Financial Analyst, but that Jimenez would not let Duda use “Senior” in his
title because Jimenez believed it would cause problems with Plaintiff. Id. at 12, ¶ 22.
Plaintiff testified that she was “stunned” by Duda’s revelations. Id. at 12, ¶ 21.
Viscosity denies that Jimenez ever told Duda that he could not use the “Senior”
descriptor and denies flagging any issues with Plaintiff about their respective roles
and titles. [69] ¶ 21.
After her conversation with Duda, Plaintiff immediately reported what she had
learned to Bellusci. [83] at 12–13, ¶ 23. Plaintiff and Bellusci then conferred with
Jeff Hoch, Viscosity’s CEO, and ultimately, Plaintiff told Hoch she had no choice but
to resign. Id. After using up her vacation days as her notice period, Plaintiff resigned
from Viscosity on September 7, 2018. [83] at 7, ¶ 24–25.
II.
Legal Standard
Summary judgment is proper where there is “no dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuine dispute as to any material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the
burden of establishing that there is no genuine dispute as to any material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In determining whether a genuine issue of material fact exists, this Court must
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construe all facts and reasonable inferences in the light most favorable to the nonmoving party. King v. Hendricks Cty. Comm’rs, 954 F.3d 981, 984 (7th Cir. 2020).
The non-moving party bears the burden of identifying the evidence creating an issue
of fact. Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1021–22 (7th Cir.
2018). To satisfy this burden, the non-moving party “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Barnes v. City of Centralia,
943 F.3d 826, 832 (7th Cir. 2019). Thus, a mere “scintilla of evidence” supporting the
non-movant’s position does not suffice; “there must be evidence on which the jury
could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252.
III.
Discussion 3
A. Title VII Claims
Defendant argues that summary judgment should be granted as to Plaintiff’s
Title VII claim because: (1) Plaintiff was not similarly situated to Duda, her alleged
comparator; and (2) Plaintiff has failed to meet her burden of providing evidence of
discriminatory intent. 4
This Court addresses Plaintiff’s claims in the order they are addressed by Defendant’s summary
judgment motion. See [68].
3
Defendant’s opening memorandum only addresses Plaintiff’s wage discrimination claim under Title
VII. [68] at 1. Plaintiff concedes in her memorandum opposing summary judgment that she does not
have a claim for wage discrimination under Title VII. [82] at 6. Rather, Plaintiff contends that she
has a Title VII failure to promote claim, [82] at 6, which she alleged in her Complaint. Thus, Defendant
specifically challenges Plaintiff’s Title VII failure to promote claim only in its Reply. See [86].
4
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Under Title VII, an employer may not fail to promote an individual because of
that person’s sex. 42 U.S.C. § 2000e-2(a)(1). In Ortiz v. Werner Enterprises, Inc., 834
F.3d 760, 765 (7th Cir. 2016), the Seventh Circuit clarified the methods of proof in
employment discrimination cases. Id. The court explicitly instructed district courts
to consider the evidence “as a whole, rather than asking whether any particular piece
of evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or
the ‘indirect’ evidence.” Ortiz, 834 F.3d at 765.
The holistic analysis set forth in Ortiz supplements, rather than alters, the
burden-shifting framework for discrimination claims that the Supreme Court created
in McDonnell Douglas Corp v. Green, 411 U.S. 792, 793 (1973). See David v. Bd. Of
Trs. Of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017) (discussing Ortiz’s
impact on methods of proof in employment discrimination cases). The question on
summary judgment remains, “has the non-moving party produced sufficient evidence
to support a jury verdict of intentional discrimination?” Id. (citing Morgan v. SVT,
LLC, 724 F.3d 990, 997 (7th Cir. 2013)).
Courts now conduct the McDonnell Douglas analysis if the parties present
arguments “in those terms,” but also assess the plaintiff’s evidence “cumulatively”
under Ortiz. See David, 846 F.3d at 224. Here, Plaintiff organizes her argument
utilizing the McDonnell Douglas framework. Accordingly, the Court will first assess
the evidence by applying the McDonnell Douglas framework to determine whether
Plaintiff has established a prima facie case of discrimination. Then, it will review the
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record holistically, asking whether it permits a reasonable factfinder to conclude that
Viscosity failed to promote Plaintiff because of her sex. See Ortiz, 834 F.3d at 765.
(1)
McDonnell Douglas Analysis
(a) Prima Facie Case
To demonstrate a prima facie case for failure to promote under Title VII,
Plaintiff must produce evidence showing that: “(1) she was a member of a protected
class; (2) she was qualified for the position sought; (3) she was rejected for the
position; and (4) the employer promoted someone outside of the protected group who
was similarly or less qualified,” Kinney v. St. Mary’s Health, 76 F.4th 635, 646 (7th
Cir. 2023) (citing Logan v. City of Chicago, 4 F.4th 529, 537 (7th Cir. 2021)), or was
“not better qualified” for the position, Riley v. Elkhart Cmty. Schs., 829 F.3d 886, 892
(7th Cir. 2016).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant
to “articulate (not to prove) a legitimate, nondiscriminatory reason for the promotion
decision.” Kinney, 76 F.4th at 646. If the defendant meets that burden, then the
burden shifts back to the plaintiff to offer evidence that the given explanation is
pretextual, meaning “not merely wrong but false.” Id. Pretext is “a lie, specifically a
phony reason for some action.” Id. (citing Chatman v. Board of Educ. of Chicago, 5
F.4th 738, 746 (7th Cir. 2021)).
Defendant’s only challenge to Plaintiff’s prima facie case appears to be to prong
four; namely, that Plaintiff was not similarly situated to her alleged comparator, Mr.
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Duda. [86] at 2-3. It is undisputed that Duda, a male, is outside of Plaintiff’s
protected class, female.
To meet her burden on this prong for a failure to promote claim, Plaintiff must
provide evidence from which a reasonable juror could conclude that she was similarly
or better qualified for the position than her comparator, Duda. See Kinney, 76 F.4th
at 646; Riley, 829 F.3d at 892. Defendant asserts that Plaintiff had only three and a
half years of finance experience, 5 whereas Duda had over 20 years of experience in
the petroleum finance industry, and Plaintiff was not a Certified Public Accountant,
whereas Duda earned a CPA. [86] at 3. Defendant notes that Plaintiff claims to have
performed “similar” or “complementary” tasks to Duda, thereby acknowledging that
Duda had different responsibilities. Id. Therefore, Defendant argues, Duda is not
comparable to Plaintiff “in all material respects” and her claim should fail on this
basis. Id. The Court disagrees.
For purposes of a Title VII failure to promote claim, the material respects to
which Duda and Plaintiff must be similarly situated are those qualifications required
to perform the job; and here, Plaintiff has set forth sufficient evidence from which a
reasonable jury could conclude that she was similarly situated to Duda as to the job’s
required qualifications.
Plaintiff had three and a half years of experience in finance when she was hired in 2014. [69] ¶ 5.
When Duda was hired, however, Plaintiff had seven years of finance experience. And this Court
assesses Plaintiff’s relative qualifications at the time of the alleged adverse employment action, i.e.,
the promotion decision. See e.g., Gates v. Caterpillar, Inc., 513 F.3d 680, 689–91 (7th Cir. 2008)
(assessing plaintiff’s qualifications for position at the time of the adverse employment action). Plaintiff
did not request to be promoted until 2016, and Duda was not permanently hired until July 2017.
5
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For starters, the job description for the Senior Finance Accounting and Control
Analyst position required a bachelor’s degree in business administration and/or
management, engineering, information technology, finance, accounting, or a related
field, and six years of relevant exempt level experience in accounting, finance, legal,
auditing, project management, governance, or other related business area. [83] at
14, ¶ 31. Plaintiff met these qualifications. When Viscosity hired Duda full-time in
July 2017, Plaintiff had seven years of applicable experience in accounting, one year
more than the number of years’ experience required. See id. at 14, ¶ 33. Plaintiff
also had an MBA, surpassing the education requirement. [69] ¶ 5. Although Duda
had a CPA and over 20 years of experience in the petroleum finance industry, the
relevant position did not require either of these qualifications. See [83] at 14, ¶ 31.
Furthermore, Plaintiff had something that Duda did not when he was hired to
the position: three and a half years of Financial Analyst experience within Viscosity.
Plaintiff’s similar qualifications for the position are further evidenced by the fact that
she trained Duda and she actually performed his job during his frequent absences
and leaves. Indeed, the record indicates that Jimenez repeatedly promised Plaintiff
the promotion to the position, even after Viscosity hired Duda for the job Plaintiff
often performed in his absence. Id. at 10, ¶ 10; 11 ¶ 17.
Moreover, Defendant does not deny that Plaintiff performed at least similar
job tasks to Duda. See [86] at 3. Instead, Defendant points to the fact that some of
their tasks may have not been the same. Id. But slight divergence in responsibilities
does not preclude a finding that Plaintiff was as qualified as Duda. Plaintiff need
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only show that a jury could reasonably conclude, based upon the evidence, that Duda
was similarly qualified for the position as she was. Kinney, 76 F.4th at 646. Plaintiff
has met this burden.
(b) Non-discriminatory Reasons and Pretext
Because Plaintiff has established a prima facie case of discrimination, the
burden shifts to Defendant to articulate nondiscriminatory reasons for the promotion
decision, and then shifts back to Plaintiff to establish pretext. See Barnes v. Bd. Of
Trs. Of the Univ. of Ill., 946 F.3d 384, 389 (7th Cir. 2020) (citing Riley, 829 F.3d at
891–92).
Defendant argues that this Court should grant summary judgment on
Plaintiff’s Title VII claim because Defendant had a transparent promotional grading
system that applied to all employees regardless of gender, and there is no evidence of
discriminatory intent. [86] at 1–2. Plaintiff denies that any transparent promotional
structure existed during her time at Viscosity. [83] at 2, ¶ 3.
To meet its burden, Defendant need only articulate, not prove, a legitimate,
nondiscriminatory reasons for the promotion decision. Kinney, 76 F.4th at 646. On
this score, Defendant asserts that Plaintiff received a promotion to the level of E1B
but was “not eligible” for a position to Duda’s level. [86] at 8. They do not explain
why she lacked eligibility, however, and the record does not clarify the requirements
to move from a position designated E1B to one designated E2A.
Even if Defendant had met its burden of offering a nondiscriminatory reason
for promoting Duda over Plaintiff, the Plaintiff has also offered evidence of pretext.
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Plaintiff testified that, beginning in 2016, Plaintiff requested, and Jimenez
repeatedly promised her, the Senior Financial Analyst promotion. [83] at 8, ¶ 2–3,
11, ¶ 17. The parties agree that Plaintiff met the requisite qualifications listed in
Viscosity’s job description. Id. at 14, ¶ 31, 11, ¶ 17. When Plaintiff told Viscosity she
had seen the position posted on LinkedIn and planned to apply for it, Viscosity took
down the posting within a day. Id. at 8, ¶ 2. Then Viscosity filled the position with
an outside hire—a male—who Plaintiff ultimately trained and repeatedly covered for.
See id. at 10, ¶ 9–10. Subsequently, Duda confirmed that Jimenez knew he was
misleading Plaintiff: he told Duda not to openly use the title “Senior,” so that Plaintiff
would not get upset that Duda got her promotion. 6 While Defendant denies Jimenez
told Duda to keep his title and promotion from Plaintiff, the denial creates a material
issue of fact and it will be up to a jury to decide who to believe. For now, Jimenez’s
purported coverup, and Viscosity’s use of Plaintiff even after the company hired
Duda, suffice to get Plaintiff to a jury on her claim that Viscosity unlawfully failed to
promote her because of her sex and that the company’s stated assessment of her
relative qualifications constituted pretext.
B. Ortiz Analysis
Under Ortiz, this Court must assess Plaintiff’s evidence cumulatively and
determine whether it would permit “a reasonable fact finder to conclude” that
Defendant characterizes this evidence as “hearsay gossip.” [86] at 7. There is no reason that Plaintiff
cannot present this evidence in an admissible form at trial; therefore, she may use it to oppose
summary judgment. See Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014).
6
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Defendant failed to promote Plaintiff because of her sex. Ortiz, 834 F.3d at 765.
Viewing the record holistically, the answer is yes.
The same evidence that establishes pretext, discussed above, would enable a
reasonable jury to conclude that Viscosity refused to promote Plaintiff to the Senior
Financial Analyst position because of her sex. Plaintiff met all the qualifications
contained in the job description for Duda’s position; she trained Duda when he arrived
at Viscosity as a temporary hire; and she performed his duties regularly while he was
absent from work for illness and personal reasons. See [83] at 10–11. When Plaintiff
expressed interest in applying to the posted opening on LinkedIn, the job posting was
surreptitiously taken down within a day. Id. at 8, ¶ 3. After this exchange, rather
than using LinkedIn again, Defendant used a recruiting company to find its next
Senior Financial Analyst. Id. at 10, ¶ 9. Despite promising Plaintiff—a female—the
promotion for over a year, Jimenez interviewed and hired someone else—a male. Id.
at 10, ¶ 12. Thereafter, record evidence indicates that Jimenez tried to make Plaintiff
think that Duda had not taken her job by telling Duda to hide his title, and Jimenez
continued to promise Plaintiff the promotion while she filled in for Duda’s frequent
absences. Id. at 11–12, ¶¶ 17, 23; [83-1] ¶ 3. All of this evidence supports an inference
of discrimination. As a result, the Court denies Defendant’s motion for summary
judgment as to Plaintiff’s Title VII discrimination claim.
B. Equal Pay Act
Defendant also seeks summary judgment on Plaintiff’s Equal Pay Act claim.
The Equal Pay Act forbids employers from paying different rates to men and women
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for the same work at the same “establishment.” 29 U.S.C. § 206(d)(1). The Act is
broadly remedial and should be construed and applied to fulfill its underlying
purposes: to remedy pay disparity arising from traditional concepts of gender.
Corning Glass Works v. Brennan, 417 U.S. 188, 195, 208 (1974). To establish a claim
under the Equal Pay Act, Plaintiff must show: “(1) higher wages were paid to a male
employee, (2) for equal work requiring substantially similar skill, effort and
responsibilities, and (3) the work was performed under similar working conditions.”
Jaburek v. Foxx, 813 F.3d 626, 632 (7th Cir. 2016) (quoting Warren v. Solo Cup Co.,
516 F.3d 627, 629 (7th Cir. 2008)).
Defendant’s only challenge to Plaintiff’s Equal Pay Act claim is that Plaintiff
cannot establish she was performing “equal work” to Duda. [86] at 8. To determine
if the work that Plaintiff did was equal to the work that Duda did, “‘the crucial inquiry
is whether the jobs to be compared have a common core of tasks, i.e., whether a
significant portion of the two jobs is identical.’” Jaburek, 813 F.3d at 632 (quoting
Cullen v. Ind. Univ. Bd. Of Trustees, 338 F.3d 693, 698 (7th Cir. 2008)). Liability
under the Act turns on whether the two roles required equal work in terms of skill,
effort, and responsibility. Stopka v. All. of Am. Insurers, 141 F.3d 681, 685 (7th Cir.
1998).
In support of summary judgment, Defendant provides affidavits 7 from
Viscosity employees Jimenez and Gurrola, who each opine that “Plaintiff and Duda”
Plaintiff challenges the admissibility of these affidavits, arguing that these employees attest to facts
without personal knowledge. [82] at 4–5. But Viscosity’s HR director, Marie Gurrola, has sufficient
personal knowledge to testify regarding information contained in employment records and company
job descriptions. See Parks v. Phillip Rock Ctr. & Sch., No. 18 C 1523, 2020 WL 1304751, at *3–4 (N.D.
7
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were “not performing equal work.” See [69-1], ¶ 14; [69-2] ¶ 6. Notably, Gurrola’s
testimony is based upon the “enumerated job descriptions for their respective
positions,” [69] ¶ 16; Gurrola did not begin working until just weeks before Plaintiff
resigned. [83] at 13, ¶ 26.
Jimenez likewise testified that Duda had more
responsibilities “as enumerated in the job descriptions for each position.” [69] ¶ 19.
But Plaintiff offers conflicting material evidence that is sufficient to defeat
summary judgment at this stage of the proceedings. After reviewing Duda’s job
description references by both Gurrola and Jimenez, Plaintiff testified that she
performed all of the duties listed therein that Duda actually performed. [83] at 11, ¶
15. Plaintiff specified that she, in fact, performed job duties outlined in paragraphs
1–4, 8–9, 12–15, and 20–26 of the job description daily, before and after Viscosity
hired Duda. [83-2] ¶ 4. The other tasks listed in Duda’s job description, which
Plaintiff did not perform, were not performed by Duda either; they were either
performed by directors such as Jimenez or Sharon Bellusci in her role as Viscosity’s
Controller. [83] at 13, ¶ 28.
Furthermore, disputing Jimenez’s testimony, Plaintiff testified that Jimenez
assigned her Duda’s job duties when Duda was out, and that she regularly performed
his job as well as her job. See id. at 10, ¶ 14. Plaintiff also testified that, when she
learned that Duda had, in fact, been promoted, she was “stunned” because she
Ill. Mar. 19, 2020). The Court thus overrules Plaintiff’s objection to the admissibility of Ms. Gurrola’s
statements. Likewise, Plaintiff’s personal knowledge objection to Mr. Jimenez’s affidavit is without
basis; Jimenez was Plaintiff’s supervisor as well as Duda’s, was a party to the alleged conversations
with Plaintiff regarding a potential promotion and interviewed Mr. Duda. Therefore, the Court
overrules this objection as well.
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assumed, having worked alongside Duda every day and often done his job, that they
had the same jobs. Id. at 12, ¶ 21. Based upon this evidence a jury could reasonably
conclude that Plaintiff’s and Duda’s jobs involved equal work in terms of “skill, effort,
and responsibility,” in reality, if not on paper. See Stopka, 141 F.3d at 685.
The Court therefore declines to grant summary judgment in Defendant’s favor
on Plaintiff’s Equal Pay Act claim.
IV.
Conclusion
For the reasons explained above, this Court denies the Defendant’s motion for
summary judgment [67]. Plaintiff may proceed on her Equal Pay Act claim (count I)
and her Title VII failure to promote claim (count II).
Date: 3/26/2024
Entered:
____________________________
John Robert Blakey
United States District Judge
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