Brown v. Northern Illinois University

Filing 79

ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 4/6/2017: For the reasons stated below, defendant's motion 64 for summary judgment is granted in part and denied in part. Summary judgment is granted as to the Title VII cl aim set forth in Count I and denied as to the Equal Pay Act claim set forth in Count III. The Title VII retaliation claim set forth in Count II is dismissed per plaintiff's request. The parties are directed to contact Magistrate Judge Johnston within thirty days of the entry of this order to schedule a settlement conference or arrange for mediation. [see STATEMENT-OPINION] Signed by the Honorable Philip G. Reinhard on 4/6/2017. Mailed notice (kms)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Preston Brown,
Plaintiff,
vs.
Northern Illinois University,
Defendant.

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Case No. 15 C 50154

Judge Philip G. Reinhard

ORDER
For the reasons stated below, defendant’s motion [64] for summary judgment is granted
in part and denied in part. Summary judgment is granted as to the Title VII claim set forth in
Count I and denied as to the Equal Pay Act claim set forth in Count III. The Title VII retaliation
claim set forth in Count II is dismissed per plaintiff’s request. The parties are directed to contact
Magistrate Judge Johnston within thirty days of the entry of this order to schedule a settlement
conference or arrange for mediation.
STATEMENT-OPINION
Plaintiff, Preston Brown, brings this action against defendant, Northern Illinois
University (“NIU”), his former employer, claiming, in his amended complaint [48],
discrimination based on race and gender in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000(e) et seq. (“Title VII”) (Count I) and a violation of the Equal Pay Act, 29
U.S.C. §§ 206(d), 215(a), & 216 et seq., (Count III).1 Defendant moves [64] for summary
judgment.
The facts are taken in the light most favorable to plaintiff, since he is the non-moving
party. Jaburek v. Foxx, 813 F.3d 626, 630 (7th Cir. 2016). Plaintiff is an African-American
male. He began working for defendant in February 2010. He worked as a graduate assistant
from then until summer 2012. From July to November 2012 he worked as extra help. On
December 1, 2012, he was appointed to the position of Research Associate to the Associate Vice
President of Enrollment Management in the Department of Enrollment Management. His duties
included retrieving and analyzing data, creating reports, providing recommendations regarding
the reports, providing recommendations following review of the reports, attending meetings,

1

The amended complaint also included a Title VII retaliation claim (Count II) but plaintiff has
elected not to pursue that claim and asks that it be dismissed. Pl. Resp. Memo., p. 1 [73].

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working on hiring committees as assigned, and assisting the Associate Vice President of
Enrollment Management with the duties of the office. He was supervised by Kimberly BusterWilliams from December 2012 to June 2014, Dr. Eric Weldy2 from July 2014 to January 2015,
and Dani Rollins from January 2015 to March 2015.
In August 2013, plaintiff took the responsibilities of a half-time research associate in the
department of testing services. Plaintiff met with the individual who was leaving the half-time
research associate position, identified tasks that needed to be done, and notified his supervisor of
the tasks that needed to be done. These duties included uploading data from the Hobsons
software system3, manually reviewing uploaded data for accuracy, and managing relationships
with vendors. Plaintiff was directed by his supervisor, Kimberly Buster-Williams to perform
these duties until they could be reassigned but the duties were never reassigned from plaintiff. In
October 2013, plaintiff took over the duties of the Associate Director of Admissions handling the
marketing efforts of the university, the management of the Hobsons software system, and the
overall oversight of all of the software duties. From July 2014 through March 2015, plaintiff had
two graduate assistants working for him. He did not supervise anyone but these two graduate
students.
Buster-Williams, an African-American woman, was initially hired as the Director of
Admissions. After her first year, in 2012, she took on the additional position of Acting
Associate Vice President for Enrollment Management. She held both positions simultaneously
for one year. While she was working both positions she was paid an additional $20,000 per year.
She then moved to strictly being the Acting Associate Vice President of Enrollment Management
for her final year at NIU.
From some time in 2011 to October 2013 Michele Hill, a white woman, served as
Associate Director of Admissions for Marketing and Hobsons at NIU. In October 2013, plaintiff
took over the responsibilities of this position. Hill then supervised the call center. Hill’s salary
was not reduced after this change even though she had less responsibilities than previously. She
continued to be paid $15,000 per year more than plaintiff.
Crystal Garvey, a white woman, was the Coordinator of University Admission Systems.
In 2014 she also took over all the duties of the Director of Undergraduate Admissions in addition
to continuing to work as the Coordinator of Undergraduate Admissions Systems. Garvey was
given additional pay starting in June 2014 and continuing into 2015 for serving as the Director of
Undergraduate Admissions. As Director of Undergraduate Admissions, Garvey supervised
twelve to fifteen admissions counselors and other staff. Dr. Weldy testified that Garvey did not
request additional pay for taking on these duties but that he decided to give her additional pay

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Dr. Weldy is the Vice President of Student Affairs and Enrollment Management at NIU. Dr.
Weldy is an African-American man.
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Hobsons is a customer relationship management program.

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because he was asking her to do her current job as well as to do an additional job for a short
period of time.
Dr. Daniel House, the Director of Institutional Research, took on the additional duties of
the Associate Vice President for Enrollment Management when Buster-Williams left NIU. He
continued to serve as the Director of Institutional Research while taking on these additional
duties. As Associate Vice President for Enrollment Management, Dr. House’s duties included
supervising plaintiff and collaborating with Dr. Weldy, the Vice President of Student Affairs and
Enrollment Management. Dr. House was given additional compensation for taking on these
additional duties. Dr. House is a white man.
Dr. Weldy had the ultimate say on signing off on requests for additional pay for
employees in his division. Whether the employee ended up getting the additional pay had to be
approved by Human Resources after Dr. Weldy signed-off on the request. Plaintiff requested
additional pay from Dr. Weldy in September or October 2014 and again in January 2015. Dr.
Weldy was unwilling to sign-off on plaintiff’s request for additional compensation for
performing the additional duties assigned to plaintiff. Plaintiff testified he worked
approximately 37.5 to 45 hours per week in the period July 2014 to March 2015.
Sharon Handelsman served as special assistant to Dr. Weldy and interim director of
admissions beginning in August 2013. She testified in her deposition that she had asked that
plaintiff be given additional money before taking over Hobson’s responsibilities from Hill. She
testified she asked for the additional compensation because of the overall amount of work
plaintiff was doing. She testified that even prior to taking on part of Hill’s responsibilities, he
was doing a lot. Dkt # 72-1, p. 42.
Handelsman also testified that though plaintiff did not officially report to her, after
Buster-Williams left, he, in effect, reported to her. She testified she never had any problems
with plaintiff’s performance. Dr. Weldy testified in his deposition that Handelsman had given
him negative feedback on plaintiff’s job performance. He testified the negative feedback was
“[j]ust really his general knowledge of the [Hobsons] analyst system or lack thereof. Also from
the standpoint of his desire to do work and to follow through.” Dkt # 65-4, p. 54-55.
Plaintiff filed a grievance with the university based on his not receiving additional
compensation for the additional duties he was assigned. This grievance did not mention any
discrimination based on race or gender. In connection with this grievance, plaintiff submitted
time sheets showing his hours worked. Dr. Weldy testified in his deposition that he was
concerned by the hours plaintiff listed as worked because “those were the hours that someone at
a VP or presidential level would work.” Dkt # 65-4, p. 56-57. When asked if he believed the
hours reported were true and correct and showed the amount that plaintiff worked during those
time periods, Dr. Weldy responded: “Personally, no.” Dkt # 65-4, p. 58. In its LR56.1 statement
of facts, defendant states that Dr. Weldy’s response to plaintiff’s grievance was “that the denial
of the grievance was based on budgetary restraints of the university and the fact that employees
throughout the university were asked to take on new or additional duties without additional
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financial compensation.” Dkt # 65, ¶ 51. Plaintiff agrees this was Dr. Weldy’s testimony. Dkt #
71, ¶ 51 Resp.
Plaintiff tendered his resignation and ceased working for NIU in March 2015. On April
3, 2015 plaintiff filed an EEOC charge alleging NIU did not adequately compensate him and
constructively discharged him because he is an African-American male. On April 8, 2015, the
EEOC issued plaintiff a right-to-sue letter regarding the April 3, 2015 charge. Plaintiff filed a
second EEOC charge, on June 9, 2015, alleging retaliation and discrimination based on race and
sex. The EEOC issued plaintiff a right-to-sue letter on this charge on January 4, 2016.
To survive summary judgment in a Title VII case, plaintiff must point to evidence in the
record which “would permit a reasonable factfinder to conclude that the plaintiff’s race,
ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse
employment action.” David v. Board of Trustees of Community College District No. 508, 846
F.3d 216, 224 (7th Cir. 2017). The court’s role “is not to inquire into the wisdom of an
employment decision, but simply to determine if the employer is dissembling to cover up a
discriminatory purpose.” Id., at 229 (quotation marks and citation omitted).
Plaintiff contends his race and gender were the reason he did not receive additional pay
for additional duties. Plaintiff’s evidence can be summarized as follows: 1) he is AfricanAmerican and a man and, at certain times during the course of his employment, employees
holding different positions than his, who were either white or women or both, received additional
compensation for taking on additional job duties while he did not; 2) Dr. Weldy did not believe
plaintiff worked all of the hours plaintiff put on the time sheets plaintiff attached to his
grievance; 3) Dr. Weldy’s testimony that Handelsman had given negative feedback as to
plaintiff’s job performance contradicted Handelsman’s testimony that she never had any
problems with plaintiff’s performance.
Plaintiff argues there is “absolute, distinct and specific proof that Dr. Weldy harbored
animus against plaintiff” because Dr. Weldy “time and again” gave other employees additional
pay for taking on additional duties.” Dr. Weldy did not do the same for plaintiff but rather
“testified that he did not believe what [plaintiff] put on his time sheets, basically accusing
[plaintiff] of falsifying documents.” However, plaintiff presents no evidence from which it can
be inferred that plaintiff’s race or sex was a factor in Dr. Weldy’s not believing plaintiff’s
reported hours were “true and correct.” Dr. Weldy testified “those were the hours that someone
at a VP or presidential level would work.” The level of plaintiff’s job in the university’s
hierarchy appears to be the reason Dr. Weldy did not believe plaintiff’s report of his hours was
not true and correct. Nothing in the record supports the inference Dr, Weldy disbelieved the
number of hours reported by plaintiff because of plaintiff’s race or sex. Drawing such an
inference would be speculative not reasonable.
Likewise, nothing in the record suggests race or sex was a factor in Dr. Weldy testifying
that Handelsman gave negative feedback on plaintiff’s job performance when (taking the
evidence most favorably to the plaintiff) she, in fact, had no problems with plaintiff’s
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performance. “[S]ummary judgment is the ‘put up or shut up’ moment in a lawsuit.” Citizens
for Appropriate Roads v. Foxx, 815 F.3d 1068, 1077 (7th Cir. 2016). Plaintiff must provide
sufficient evidence to back up his claims. Id. Even assuming Dr. Weldy was lying, rather than
just mis-remembering, about receiving negative feedback from Handelsman, there is no evidence
from which it can be inferred the lie was motivated by plaintiff’s race or sex. There is no
evidence Dr. Weldy, himself an African-American man, had any animosity toward AfricanAmericans or men. Without such evidence, any attempt to assign a motivation for the lie would
simply be a guess.
Moreover, neither poor performance nor an assertion plaintiff overstated his hours was
offered as a reason for not giving plaintiff additional compensation by Dr. Weldy. The reason
Dr. Weldy offered was budgetary constraints which led to employees throughout the university
being asked to take on new or additional duties without additional financial compensation. Since
poor performance and overstating hours were not stated reasons for the action, they cannot be
considered “dissembling to cover up a discriminatory purpose.” David, 846 F.3d at 229.
Plaintiff identifies two white women, one African-American woman, and one white man
he contends were similarly situated to him but received more favorable treatment. He argues this
proves his race and sex were the reasons he did not receive additional pay.4
Plaintiff asserts Michele Hill, a white woman, is similarly situated to him and was treated
more favorably than he. He argues Hill was, in effect, demoted, with her job responsibilities
reassigned to plaintiff, but she continued to be paid the same salary she had been receiving
before the reassignment. Hill was paid $15,000 more per year than plaintiff even after he
assumed her duties.
Defendant argues plaintiff cannot base his Title VII claim on Hill as a similarly-situated
employee who was treated more favorably than plaintiff because Hill left the position of
Associate Director of Admissions for Marketing and Hobsons in October 2013. The limitations
period for filing an EEOC charge is 300 days after the alleged unlawful employment practice.
Defendant maintains it is on this date in October 2013, when Hill’s duties changed, that the
limitations period began to run. The court previously found [39] that “all discrete discriminatory
acts that occurred before June 7, 2014 are outside the statutory limitations period.
“[A]n unlawful employment practice occurs, with respect to discrimination in
compensation . . . , when a discriminatory compensation decision or other practice is adopted,
when an individual becomes subject to a discriminatory compensation decision or other practice,
or when an individual is affected by application of a discriminatory compensation decision or
other practice, including each time wages, benefits, or other compensation is paid, resulting in
4

Under the McDonnell Douglas framework for evaluating disparate pay claims, plaintiff has
clearly met the burden of showing he is a member of a protected class and that he was performing his job
in an acceptable manner. David, 846 F.3d at 226. The parties do not dispute whether there was an
adverse employment action. The dispute is whether similarly-situated employees who were not AfricanAmerican or male were treated more favorably than plaintiff.

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whole or in part from such a decision or other practice.” 42 U.S.C. § 2000e-5(e)(3)(A).
Plaintiff’s claim is that up to the time of his leaving defendant’s employ he was subject to the
unlawful employment practice of not being paid for the additional work he took on from Hill.
Thus, plaintiff was “affected” by the asserted discriminatory compensation decision each time he
was paid, up to and including, his final paycheck received at the end of his employment in March
2015. Groesch v. City of Springfield, 635 F.3d 1020, 1025 (7th Cir. 2011). The EEOC charge,
therefore, was timely.
However, while the charge was timely, plaintiff has not shown that Hill is similarly
situated to plaintiff for purposes of Title VII analysis. Plaintiff’s claim is that he took on
additional duties and did not have his compensation increased. Hill’s situation is different. She
did not take on additional duties. Her duties were reduced not increased.
The “court is not a super personnel department that second guesses employers’ business
judgments.” Riley v. Elkhart Community Schools, 829 F.3d 886, 895 (7th Cir. 2016) (internal
quotation marks and citation omitted). Plaintiff cites no authority which holds that an employer
must reduce the pay of an employee whose job duties have been reassigned nor that an employer
must increase the pay of the person to whom those duties were reassigned. The wisdom of doing
so or not doing so is not for the court to decide. Plaintiff has not presented any evidence of any
instance where defendant “in effect” demoted an employee and then reduced that employee’s
compensation and increased the compensation of the person taking over the duties of the
demoted employee. Much less has he presented any evidence that women or Caucasians
received increased pay in those circumstances but men or African-Americans did not.
Unlike Hill, who received the same pay for reduced duties, Buster-Williams, Garvey, and
Dr. House all received additional pay for taking on additional positions while plaintiff did not
receive any additional compensation for the additional duties he took on. Plaintiff argues they
were similarly situated to him but were treated more favorably in this regard because they were
either female (Garvey and Buster-Williams) or white (Garvey and Dr. House).
“[W]hether employees are similarly situated is a flexible common-sense, and factual
inquiry. Relevant factors include whether the employees (i) held the same job description, (ii)
were subject to the same standards, (iii) were subordinate to the same supervisor, and (iv) had
comparable experience, education, and other qualifications – provided the employer considered
these latter factors in making the personnel decision.” David, 846 F.3d at 225-26 (quotation
marks and citations omitted).
Buster-Williams was plaintiff’s supervisor. She served as the Director of Admissions
and simultaneously as the Acting Associate Vice President for Enrollment Management.
Plaintiff was a Research Associate to the Associate Vice President of Enrollment Management.
The additional duties he took over were those of a half-time research associate in the Department
of Testing Services and an Associate Director of Admissions for Marketing and Hobsons.
Plaintiff clearly did not have the same job description as Buster-Williams. Her job was

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significantly higher in the University’s hierarchy than plaintiff’s. Both of the positions she was
performing had greater levels of responsibility than the work plaintiff was doing.
Garvey was the Coordinator of University Admission Systems. She took over the duties
of the Director of Undergraduate Admissions in addition to continuing to work as the
Coordinator of Undergraduate Admissions Systems. As Director of Undergraduate Admissions,
Garvey supervised twelve to fifteen admissions counselors and other staff. The additional duties
plaintiff took over were not on par with those taken over by Garvey. He supervised only two
graduate assistants. The duties he took over were those of a half-time research associate and an
Associate Director of Admissions for Marketing and Hobsons. These positions were lower in
the University’s hierarchy than that of Director of Undergraduate Admissions taken over by
Garvey.
Dr. House is the Director of Institutional Research for the University. He took on the
additional duties of the Associate Vice President for Enrollment Management while continuing
to serve as the Director of Institutional Research when Buster-Williams left. Both the Director
of Institutional Research for the University and the Associate Vice President for Enrollment
Management positions are significantly higher in the University’s hierarchy than plaintiff’s
Research Associate position, and the half-time research associate duties and Associate Director
of Admissions for Marketing and Hobsons he took over.
Dr. House, Garvey and Buster-Williams were not similarly situated to plaintiff. Each of
their positions was a higher level position than plaintiff’s and the additional duties each of them
took on were those of higher level positions than the duties plaintiff took on. Buster-Williams
and Dr. House were plaintiff’s supervisors. “[W]hether employees are similarly situated is a
flexible common-sense, and factual inquiry.” Id. Looking at the facts, common sense says none
of them was similarly situated to plaintiff. Based on the foregoing, defendant is entitled to
summary judgment on the Title VII claim.
“The Equal Pay Act forbids employers from paying different rates to men and women for
the same work at the same establishment. In order to establish a prima facie case under the
Equal Pay Act, a plaintiff must show: (1) higher wages were paid to [an employee of the
opposite sex as plaintiff], (2) for equal work requiring substantially similar skill, effort and
responsibilities, and (3) the work was performed under similar working conditions.”, Id., at 230
(internal quotation marks and citation omitted). “In determining whether two jobs are equal, we
look to whether the jobs have a common core of tasks, i.e., whether a significant portion of the
two jobs is identical. Once a plaintiff establishes a common core of tasks, we ask whether any
additional tasks make the jobs substantially different.” Id. (internal quotation marks and citations
omitted). “In making this determination, the court looks to the actual job duties performed by
each employee, not his or her job description or title.” Id. (internal quotation marks and citation
omitted).
Plaintiff’s complaint alleges defendant paid wages to plaintiff “at a rate less than it paid
to other employees of the opposite sex for the same or substantially similar work.” The
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complaint specifically identifies Garvey, Buster-Williams and Hill as women who were paid
more than plaintiff. In his brief, plaintiff only advances an argument as to Hill. He says nothing
about Garvey or Buster-Williams. Plaintiff has presented no evidence at all concerning how his
job required substantially similar skill, effort and responsibilities as those of Garvey and BusterWilliams. Moreover, it is evident from the discussion of the evidence above concerning
plaintiff’s Title VII claim, that plaintiff has not established “a common core of tasks” between
his job and the jobs of Garvey and Buster-Williams. Both Garvey and Buster-Williams held
higher level positions than plaintiff. Plaintiff has failed to provide sufficient evidence to back up
his Equal Pay Act claim as to Garvey and Buster-Williams. Citizens, 815 F.3d at 1077.
As to Hill, plaintiff argues “a review of the facts that support the Equal Pay Act claim
show that there is no question that Plaintiff has demonstrated that Michele Hill was paid more,
for a job that was basically taken over in a significant way by [plaintiff], under the exact same
working conditions.”5 “On summary judgment a court may not make credibility determinations,
weigh evidence, or decide which inferences to draw from the facts; these are jobs for a
factfinder.” Washington v. Haupert, 481 F.3d 543, 550 (7th Cir. 2007) (quotation marks and
citations omitted). The facts are viewed most favorably to plaintiff, the non-moving party. Id.
It is undisputed that Hill was paid $15,000 more than plaintiff when she served as
Associate Director of Admissions for Marketing and Hobsons. Plaintiff testified in his
deposition that he took over the full-time duties of Hill’s position in October 2013. This
included anything related to the management of the Hobsons software as well as the marketing
effort of the university and the overall oversight of all of the software duties. It is undisputed
that plaintiff did not receive an increase in compensation when he took over these duties. So, at
the time plaintiff was performing the full-time duties of the Associate Director of Admissions for
Marketing and Hobsons, plaintiff was paid $15,000 less than Hill was paid when she held the
position.
Hill testified in her deposition that when she took over responsibility for the call center
plaintiff “took over some of the e-mailing that was going on” from her. Dkt # 72-4, p. 27. When
asked if plaintiff took over any of her other responsibilities in Hobsons she replied: “Not that I
know of. I was still working in Hobsons as part of my new call center added responsibilities.”
Dkt # 72-4, p. 27. There is also evidence that plaintiff took over a significant part of Hill’s
duties as Associate Director of Admissions for Marketing and Hobsons but not all of those
duties. Defendant also notes that plaintiff could not identify all of the duties of the Associate
Director of Admissions for Marketing and Hobsons when asked to do so in his deposition.

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Plaintiff argues defendant is precluded from making any argument in support of its motion on
the Equal Pay Act claim because defendant’s opening brief relied only on the plaintiff’s failure to file an
EEOC charge within 300 days of the cause of action’s accrual as a basis for challenging the Equal Pay
Act claim. Defendant withdrew that argument in its reply brief. (The Equal Pay Act does not require the
filing of an EEOC charge.) However, defendant’s opening brief, in addressing plaintiff’s Title VII claim,
does contain argument as to why Hill was not performing the same job as plaintiff and plaintiff
controverted this argument in his response brief. The issue of substantial similarity has been raised
sufficiently for the court to address it.

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However, it is not for the court to weigh the evidence or make credibility determinations
on summary judgment. Washington, 481 F.3d at 550. Taking the evidence most favorably to
plaintiff, Hill, a woman, was paid more than plaintiff was paid, when she was performing the
same job duties under the same working conditions. Though narrowly, plaintiff has established a
prima facie case under the Equal Pay Act. David, 846 F.3d at 230.
Once the prima facie case is made, the burden shifts to defendant to establish one of four
statutory defenses. Warren v. Solo Cup Co. 516 F.3d 627, 629-30 (7th Cir. 2008). “The statutory
defenses kick in if the difference in pay is attributed to ‘(i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or (iv) a differential
based on any other factor other than sex.’ 29 U.S.C. § 206(d).” Id., at 630. Defendant has not
argued any of the statutory defenses apply. Defendant argues only that plaintiff and Hill had
different job duties but that is a disputed material fact.
For the foregoing reasons, defendant’s motion [64] for summary judgment is granted in
part and denied in part. Summary judgment is granted as to the Title VII claim set forth in Count
I and denied as to the Equal Pay Act claim set forth in Count III. The Title VII retaliation claim
set forth in Count II is dismissed per plaintiff’s request. The parties are directed to contact
Magistrate Judge Johnston within thirty days of the entry of this order to schedule a settlement
conference or arrange for mediation.
Date: 4/06/2017

ENTER:

United States District Court Judge

Electronic Notices. (LC)

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