Downs v. Gebco Machine, Incorporated et al

Filing 68

ORDER DENYING 57 Motion for Summary Judgment. Signed by Chief Judge David R. Herndon on 2/6/2013. (kar)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANCES DOWNS,
Plaintiff,
v.
GEBCO MACHINE, INC., ET AL,
Defendants.

No. 11-CV-00153-DRH-SCW
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
I.

Introduction and Background

Pending before this Court is defendants’ motion for summary judgment
(Doc. 57) and memorandum in support of the motion (Doc. 58).

Defendants

claim that they are entitled to summary judgment because plaintiff’s claims are
time barred; because defendants have no control over Union membership; and
because plaintiff cannot establish a prima facie case against defendants because
she was not paid less than a male employee and did not perform substantially
equal work. Plaintiff opposes the motion (Doc. 60).
Frances Downs filed her second amended complaint

(Doc. 43) against

defendants Gebco Machine Company (“Gebco”) and George Vogeler (“Vogeler”) on
October 4, 2011. Plaintiff’s complaint alleged two counts of sex discrimination,
one under the federal Equal Pay Act of 1963 (the “EPA”), which is part of the Fair

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Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“the FLSA”), and the other
under the State of Illinois’ Equal Pay Act of 2003, 820 ILCS 112/1 et seq. (the
“Illinois EPA”). In the second amended complaint, plaintiff alleges Gebco is a
corporation operating a steel fabrication and machining plant in Granite City,
Illinois, and Vogeler is the president of Gebco.

Plaintiff asserts she has been

employed at Gebco as a “secretarial/bookkeeper” since 1983, has repeatedly
asked to be covered under the retirement plan offered by Gebco’s union, and has
been consistently denied membership in Gebco’s union.

The plaintiff alleges

Gebco “has exercised control over participation in the union’s membership,”
allowing “certain male employees to become members of the union[,] including
those in management[,] so the male[] coworkers could specifically be covered by
the union’s retirement plan. Plaintiff further alleges that Vogeler was allowed to
join the union even though he was not a machinist, and two other males, an
accountant, Rensing, and a janitor, Bronnbauer, were also allowed to join the
union, even though they were not machinists, so they could qualify for the union’s
retirement plan, but her request was denied.
In count one, under the EPA, plaintiff alleges she was similarly situated as
the male accountant in the same department and work area, was in a
substantially equal job, performed similar duties requiring the same skill, effort
and responsibility, yet was paid lower wages than he.

Plaintiff claims Vogeler

asked her if she could assume the duties of the male accountant when he left the
company and she has since performed all of these aforementioned duties.

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Plaintiff further asserts Vogeler has been an owner of and managed Gebco during
the entire time of her employment, and has made all the employment decisions
including plaintiff’s work duties, lack of benefits, inability to join the union, and
disparity of pay. In count two, under the Illinois EPA, plaintiff reincorporates the
same allegations as count one.
II.

Summary Judgment

Summary judgment should be granted where “the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The

moving party bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the record or affidavits that
demonstrate an absence of a genuine issue of material fact.

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). All justifiable inferences are to drawn in favor
of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
If the moving party meets its burden, the non-moving party has the burden
of presenting specific facts to show there is a genuine issue of material fact.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond
the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S.
at 324. In ruling on a motion for summary judgment, the non-moving party’s

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evidence “is to be believed,” and all justifiable inferences drawn from it in the light
most favorable to the non-moving party. Hunt v. Cromartie, 526 U.S. 541, 552
(1999). Summary judgment in favor of the party with the burden of persuasion is
“inappropriate when the evidence is susceptible of different interpretations or
inferences by the trier of fact.” Id. at 553.
III.

Analysis

Defendants first argue that plaintiff’s claims are time barred and should
have been filed under the Act no more than two years after the date of the alleged
violation, or within three years in the case of a willful violation.

Defendants

further argue that under the Illinois Act, plaintiff’s claim had to have been filed
within five years of the date of underpayment. Plaintiff contends that under 29
C.F.R. § 1620.13, Gebco’s failure to award her equal pay to the higher paid male
member who was her predecessor constitutes a prima facie continuing violation.
The EPA is violated each time an employer extends an “unequal” paycheck
to an employee for equal work. Gandy v. Sullivan County, Tenn., 24 F.3d 861,
864 (6th Cir. 1994). A plaintiff’s action will not be time-barred if at least one
discriminatory act occurs within the relevant limitations period. Id. In a case
with facts similar to this, the Seventh Circuit vacated a district court’s grant of
summary judgment for time-barred filing, holding that each paycheck was a fresh
discriminatory act. Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir.
2003).

Relying on the United States Supreme Court holding in Bazemore v.

Friday, 478 U.S. 385 (1986), the Reese court concluded that the plaintiff’s suit

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was not untimely “solely because the initial act of discrimination occurred when it
did.” Reese, 347 F.3d at 1013.
It is immaterial that a member of the higher paid sex ceased to be
employed prior to the period covered by the applicable statute of
limitations period for filing a timely suit under the EPA. The
employer’s continued failure to pay the member of the lower paid sex
the wage rate paid to the higher paid predecessor constitutes a prima
facie continuing violation. Also it is no defense that the unequal
payments began prior to the statutory period.
29 C.F.R. § 1620.13(b)(5). See also Brinkley-Obu v. Hughes Training, Inc., 36
F.3d 336, 347 (4th Cir. 1994).
In this case, focusing on the plaintiff and Gebco’s actions with regard to
her, not the employment status of her predecessors, each unequal paycheck
plaintiff received is characterized as a continuing violation of the EPA.

It is

immaterial that Rensing and Bronnbauer ceased to be employed by Gebco as of
2004. Thus, plaintiff’s action is not time-barred under the EPA and summary
judgment is not appropriate on this ground.
Defendants also claim summary judgment is appropriate because plaintiff’s
allegations of discrimination are due solely to her denial of membership in the
Union, and Vogeler “has no role or influence on the determination of Union
membership.” Plaintiff argues that Vogeler had control over Union membership
since he allowed a janitor and an accountant to become members in order to
obtain Union benefits. She also avers that Vogeler, as the decision maker for the
corporation, her employer, had control over her wages, tasks, benefits and

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assignments, and is therefore the proper party responsible for denying her equal
wages for substantially equal work.
In Tamayo v. Blagojevich, the Seventh Circuit found that the EPA defines
an “employer” as including “any person acting directly or indirectly in the interest
of an employer in relation to an employee and includes a public agency.” 526
F.3d 1074, 1088 (7th Cir. 2008).

Further, “[t]he [EPA] expressly contemplates

that an employee may have multiple employers.” Id. Under this definition, both
Gebco and Vogeler are plaintiff’s employers for purposes of this case. Whether
either of these parties exercises control over the union is a question for the trier of
fact.
Even if this Court were to find that plaintiff’s denial of membership in the
Union is not within the control of Gebco or Vogeler, she still has claims of
discrimination against Vogeler and Gebco under the EPA and the Illinois EPA that
are unrelated to Union membership. Although plaintiff claims Vogeler and Gebco
denied her membership in the Union, thereby causing her to have lower
remuneration, her claims of pay discrimination do not depend solely on whether
she was permitted to join the Union. Moreover, 29 C.F.R. § 1620.23 states that
collective bargaining agreements are not a defense to an employer paying unequal
rates of pay.

Therefore, summary judgment is not appropriate based on

defendants’ claim that they have no control over Union membership.
Lastly, defendants seek summary judgment claiming plaintiff failed to
establish a claim under the Acts. Defendants’ claim that plaintiff was actually

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making more money from Gebco than Rensing rests solely on her deposition
testimony that Rensing was also getting pension money from Union and limited to
earning only $1000 per month after he retired from Gebco. Plaintiff testified in
her deposition that before Rensing retired and began drawing a lower salary
combined with retirement benefits for his job, he was paid more than Gebco paid
plaintiff for doing the same work. Defendants also fail to consider the monetary
value of other benefits to which plaintiff claimed she should have been entitled.
“An employee’s only burden under the [EPA] is to show a difference in pay
for ‘equal work on jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working conditions.” King
v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012). “Actual job
performance and content, not job titles, are key.”

Soto v. Adams Elevator

Equipment Co., 941 F.2d 543, 548 (7th Cir. 1991). The question of whether two
jobs require equal skill, effort and responsibility is a factual determination. Id.
Here, plaintiff alleges she took over Rensing’s accounting duties when he
left Gebco, doing substantially the same work. Defendants argue Rensing had
other supervisory duties besides his accounting duties that plaintiff did not
assume after he left Gebco.

But Vogeler testified in his deposition only that

Rensing had the authority to perform these other duties and not that Rensing
actually did perform them.

Clearly, the evidence “is susceptible of different

interpretations or inferences by the trier of fact.” Hunt, 526 U.S. at 553. Thus,
whether plaintiff performed the same actual job as Rensing, and received lower

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wages for it, is a factual determination yet to be made. Therefore, the Court finds
summary judgment is not appropriate on defendants’ final claim.
IV.

Conclusion

Based on the aforementioned reasons, the Court concludes genuine issues
remain for the trier of fact regarding the proffered reasons for the disparity in pay
between plaintiff and both Rensing and Bronnbauer. Accordingly, defendants’
motion is DENIED on this basis.
IT IS SO ORDERED.
Signed this 6th day of February, 2013.

Digitally signed by
David R. Herndon
Date: 2013.02.06
16:36:15 -06'00'
Chief Judge
United States District Court

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