Gauen v. Board of Education Highland Community Unit School District No 5
Filing
39
ORDER DENYING 27 MOTION for Summary Judgment Defendant's Combined Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment and Exhibits filed by Board of Education Highland Community Unit School District No 5. ( Final Pretrial Conference set for 8/9/2017 11:00 AM in East St. Louis Courthouse before Judge David R. Herndon.). Signed by Judge David R. Herndon on 7/5/17. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KAREN GAUEN, Ed.D.,
Plaintiff,
v.
No. 16-0207-DRH-RJD
BOARD OF EDUCATION OF THE
HIGHLAND COMMUNITY UNIT
SCHOOL DISTRICT NO. 5,
Defendant.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court is defendant’s motion for summary judgment and
reply (Docs. 27 & 36). Obviously, plaintiff opposes the motion (Doc. 31).
Based
on the applicable case law, the record and the following, the Court denies the
motion for summary judgment.
On February 26, 2106, Karen Gauen, filed suit against the Board of
Education of the Highland Community Unit School District (“Board”) for
employment discrimination on the basis of sex, 42 U.S.C. § 2000e-(f)(3) (Count I –
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Title VII), 42 U.S.C. 206(d) (Count II – Equal Pay Act) and 820 ILCS 112 (Count III
– Illinois Equal Pay Act of 2003).
Basically, Gauen alleges the Board paid her less
compensation for her services as principal and assistant principal than her male
counterparts. The Board filed its answer and affirmative defenses on April 26,
2016 (Doc. 6).
Thereafter, the Board filed its motion for summary judgment and
Gauen filed her opposition. As the motion is ripe, the Court turns to address the
merits of the motion.
Facts 1
Dr. Karen Gauen currently is employed as the principal of the Highland High
School, a position she has held for the past four school years, from the start of the
2013-2014 school year. Previously, Gauen was employed as the assistant principal
at Highland High School for the 2012-2013 school year. Before these positions,
she was employed as an educator, including a classroom teacher, for more than
thirty-five years.
She had no relevant administrative experience as either assistant
principal or principal prior to those jobs. She has worked for the Highland school
district for over twenty-four years, mostly at the high school.
Gauen has a
doctorate in Education Administration. At the time she was promoted to assistant
principal, she was the only administrator in the District to have earned National
Board Certification.
In total, Gauen has over 40 years of experience in the
education field.
Gauen applied for assistant principal for the 2012-2013 school year after she
1 For the most part, the facts are not in dispute.
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saw the opening that the District posted. The Superintendent of the District,
Michael Sutton, selected Gauen to be assistant principal. As assistant principal
for one year, Gauen’s salary was $79,000 plus an additional $1,000 for having the
National Board Certification. Barry Thomas, Gauen’s predecessor for assistant
principal, made $105,349 (after subtracting the 12.57% increase he received for
retirement) the year before Gauen became assistant principal. At the time of his
retirement, Thomas had twenty-six years of administrative experience.
Steve
Lanxon, another assistant principal at the same time as Gauen was, made $95,527.
Lanxon also served as the Athletic Director for the District. At this time, Lanxon
had seventeen years of prior administrative experience as assistant principal at
Highland High School.
Lanxon retired at the end of the 2014-2015 school year
and he made $102,767.
Thereafter, the District posted the vacancy for principal for the 2013-2014
school year.
Gauen applied for the position.
Three male applicants for the
position were interviewed for the position; while Gauen was not interviewed for the
position. The District hired Gauen as principal. For the 2013-2014 school year,
Gauen’s salary was $89,000 annual base plus $1,000 for having the National Board
Certification. Gauen’s current annual base salary is $103,977. She has a total of
four years of administrative experience. Gauen lived in the District when she was
hired as assistant principal and principal.
Derek Hacke, Gauen’s predecessor as principal, made $107,825 (after
deducting $10,000 in salary he got as a substitute for health insurance) the year
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before Gauen became principal.
2009-20100 school year.
Hacke became principal at the start of the
At the time of his hire, Hacke had nine years of
administrative experience as both assistant principal and principal at a high
school. His starting salary as principal at Highland High School was $100,000
annual base salary (after deducting $10,000 in salary he got as a substitute for
health insurance).
In order to accept the principal position at Highland High
School, Hacke had to move his family from Roxana Community School District No.
1to the District.
Subsequently, the District hired Chris Becker to fill the 2013-2014 assistant
principal position vacated by Gauen. 2 Prior to this, Becker had eight years of
administrative experience as a high school assistant principal.
assistant principal was $90,000 annual base salary.
Becker’s salary as
In order to accept the
assistant principal job at the Highland High School, Becker had to move his family
from Chatham, Illinois.
The job posting for the principal position states this in part:
Qualifications:
Proven record of dynamic educational leadership, including excellent
interpersonal and communication skills with students, staff, and
parents
Knowledge of curriculum and instruction
Successful teaching/administrative background
Ability to be part of an effective management team
Strong knowledge of school facilities management
2 Becker also applied for the 2013-2014 principal position.
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Ability to produce an effective school climate
Ability to face the challenges caused by growing enrollment
Certification: Must hold or be eligible for Type 75 administrative
certificate in the State of Illinois
(Doc. 27-7).
Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). The Court considers the entire evidentiary record and must
view all of the evidence and draw all reasonable inferences from that evidence in the
light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir.
2013). To defeat summary judgment, a nonmovant must produce more than “a
mere scintilla of evidence” and come forward with “specific facts showing that there
is a genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir.
2013). Ultimately, summary judgment is warranted only if a reasonable jury
could not return a verdict for the nonmovant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
In Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), the
Seventh Circuit instructed district courts to “stop separating ‘direct’ from ‘indirect’
evidence and proceeding as if they were subject to different standards.” Id. at 765.
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The test “is simply whether the evidence 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.”
Id.
The Seventh
Circuit reiterated that burden shifting frame work created by McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “is a means of
organizing, presenting, and assessing circumstantial evidence in frequently
recurring factual patterns found in discrimination cases.”
David v. Board of
Trustees of Community College District No. 508, 846 F.3d 216, 224 (7th Cir.
2017)(citing Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 383 (7th Cir.
2016))(observing that a “prima facie case in Title VII litigation … refers to a
common, but not exclusive, method of establishing a triable issue of intentional
discrimination”).
However, “McDonnell Douglas is not the only way to assess
circumstantial evidence of discrimination. In adjudicating a summary judgment
motion, the question remains: has the non-moving party produced sufficient
evidence to support a jury verdict of intentional discrimination?” David, 846 F.3d at
224 (citations omitted).
First, the Court must address whether Gauen has established a prima facie
case of discrimination and then assess cumulatively all the evidence presented by
Gauen to determine whether it permits a reasonable factfinder to determine that
her smaller salary was attributable to her gender.
Analysis
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Here, the Board argues that it is entitled to summary judgment as it is the
school district’s practice to determine and establish administrator’s salaries based
upon, among other things, a candidate’s prior administrative experience and
seniority in the position and not based on gender.
Specifically, the Board
maintains that Gauen cannot show that she was treated less favorable than
similarly situated male employees and that the Board provided a legitimate
non-discriminatory reason for the salary discrepancies as the decision is based
primarily upon administrative experience. Thus, the Board maintains that Gauen
cannot establish a prima facie case under either Title VII or the EPA claims.
Guaen counters that she was paid less than her male counterparts because
she is a female. She contends that she repeatedly sought an explanation from
Sutton. Specifically, on one occasion she asked Sutton why she was paid less than
Becker and that Sutton replied that she was a “hometown girl” and “could not
expect to get as much as a man moving his family.” Further, she argues that on
other occasions when she complained about her lower pay to her male
counterparts, Sutton told her” “Take it or leave it. You can go somewhere else.”
She further maintains that the District’s explanation surfaced for the first time after
Gauen filed an EEOC charge of pay discrimination against the District.
Equal Pay Act Claims 3
3 The Court considers both the Federal and the Illinois Equal Pay Act claims together. Similar to the
Federal Equal Pay Act, the Illinois Equal Pay Act prohibits employers from discriminating between
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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 state a claim for such discrimination under the Act, a
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.” Warren v. Solo Cup
Co., 516 F.3d 627, 629 (7th Cir. 2008) (quoting Stopka v. Alliance of Am.
Insurers, 141 F.3d 681, 685 (7th Cir. 1998)). Additionally, to determine if the
work that Gauen did was equal to the work that a male employee 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.” Cullen v. Ind. Univ. Bd. of
Trustees, 338 F.3d 693, 698 (7th Cir.
2003) (quotation marks and citation
omitted). If a plaintiff establishes a prima facie case, the burden shifts to the
defendant to show by a preponderance of the evidence that the pay disparity “is due
to one of four factors. These factors are (1) a seniority system, (2) a merit system,
employees based on sex by paying lower wages for the same or substantially similar work, requiring
equal skill, effort, and responsibility, and which are performed under similar conditions, except
when such payment is made under a seniority system, merit system, a system that measures
earnings by quantity or quality of production, or similar differential not based on sex. See 820 ILCS
112/10(a); 29 U.S.C. § 206(d). Further, there is no legal authority suggesting that the two statutes
should be analyzed differently.
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(3) a system which measures earnings by quantity or quality of production or (4)
any other factor other than sex.” 29 U.S.C. § 206(d)(1)(i)-(iv); Fallon v. State of
Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989). 4 “These are affirmative defenses on
which the employer bears the burden of proof (persuasion).” Fallon, 882 F.2d at
1211; King v. Acosta Sales and Marketing, Inc., 678 F.3d 470, 474 (7th Cir. 2012).
Here, the Court finds that Gauen has made out a prima facie case under the
EPA. In fact, defendants do not dispute this. The evidence is clear that higher
wages were paid to male employees, that the duties and responsibilities of the
principal and assistant principal are the same no matter who is performing those
positions and that the work was performed under the similar working conditions at
Highland High School.
Defendant maintains that it has shown that the pay disparity is attributable
to “any factor other than sex” in that it is the District’s practice to determine and
establish administrator’s salaries based upon a candidate’s prior administrative
experience and seniority in the position. Specifically, defendant maintains that the
record supports the District’s explanation for the pay disparity and that it is
bolstered by the fact the Gauen did not have administrative experience as either an
assistant principal or principal. Despite this explanation for the pay disparity, the
Court finds that a reasonable jury could conclude that Gauen was paid less because
of her gender. First, a jury could find Sutton’s comment that she was a “hometown
4 “The Equal Pay Act creates a type of strict liability in that no intent to discriminate need to be
shown.” Fallon, 882 F.2d at 1213 (quoting Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251,
1260 n.5 (7th Cir. 1985)).
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girl” and “could not expect to get as much as a man moving his family” to be
discriminatory in nature. Further, there is evidence of pay discrimination in the
treatment of Gauen in relation to Becker. He was passed over as principal; hired
as assistant principal and paid more as assistant principal than Gauen was paid a
principal. Gauen was picked to be principal despite the fact that she had less prior
administrative experience than Becker did. This evidence alone contradicts the
District’s claim that it attached decisive importance to prior administrative
experience in evaluating the ability, and therefore the pay, of administrative
personnel. Moreover, a year later as assistant principal Becker was paid $11,000
more than Guaen was paid as assistant principal.
Clearly, there are genuine
issues of material fact that preclude summary judgment on the EPA claims.
Title VII claim
Generally speaking, under McDonnell Douglas, the plaintiff has the initial
burden of establishing that “(1) she is a member of a protected class, (2) she
performed reasonably on the job in accord with her employer['s] legitimate
expectations, (3) despite her reasonable performance, she was subjected to an
adverse employment action, and (4) similarly situated employees outside of her
protected class were treated more favorably by the employer.” Andrews v. CBOCS
West, Inc., 743 F.3d 230, 234 (7th Cir. 2014) (internal quotation marks omitted),
overruled on other grounds by Ortiz, 834 F.3d at 765. “If the plaintiff satisfies that
burden, then the employer must articulate a legitimate, nondiscriminatory reason
for the adverse employment action, at which point the burden shifts back to the
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plaintiff to submit evidence that the employer's explanation is pretextual.” Id.
Although previously the Seventh Circuit noted that “[i]t is somewhat unclear what
standard guides the determination of a prima facie case of disparate pay under Title
VII,” Cardoso v. Robert Bosch Corp., 427 F.3d 429, 433 (7th Cir. 2005), in a more
recent case, the Seventh Circuit applied the standard McDonnell Douglas
framework for evaluating disparate pay claims under Title VII and the ADEA, see
Warren v. Solo Cup Co., 516 F.3d 627, 630 (7th Cir. 2008). Consequently, that will
provide the basis for analyzing Gauen’s Title VII claim
There is no question that Gauen is a member of a protected class, that she
was performing her job in an acceptable manner, and that she was being paid less
than he male counterparts. Thus, the Court must focus therefore on whether her
counterparts were similarly situated to Gauen. The Seventh Circuit observed that
whether employees are similarly situated is a “flexible, common-sense, and factual”
inquiry.
David, 846 F.3d at 225 (citation omitted).
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.” Id.
(quoting Warren, 516 F.3d at 631)(quoting Bio v. Fed. Express Corp.¸424 F.3d
593, 597 (7th Cir. 2005)). Courts are looking for comparators, not “clone[s].”
Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010); see also
Crawford v. Indiana Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006) (the
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question is whether “members of the comparison group are sufficiently comparable
to [the plaintiff] to suggest that [the plaintiff] was singled out for worse treatment”).
Whether a comparator is similarly situated 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.” Srail v. Village
of Lisle, 588 F.3d 940, 945 (7th Cir.2009). There must be “enough common factors
... to allow for a meaningful comparison in order to divine whether intentional
discrimination was at play.” Barricks v. Eli Lilly and Co., 481 F.3d 556, 560 (7th
In assessing all the evidence and based on the reasoning above, it is clear that
a reasonable jury could conclude that any pay disparity was the result of Gauen’s
gender and that the pay disparity was not based on the District’s asserted reasons.
As to the similarly situated prong, the Court finds that there are questions of
material fact that preclude summary judgment. Gauen and her male counterparts
held the same jobs; Gauen and her male counterparts were subject to the same
standards; and Gauen and her male counterparts were subordinate to the same
supervisor.
However, as to comparable experience, education and other
qualifications, the Court finds that there are questions of material fact as whether
the District considered these factors in making the personnel decision. Thus, the
Court finds that summary judgment is not warranted.
Conclusion
Accordingly, the Court DENIES the motion for summary judgment (Doc. 27).
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The Court SETS this matter for Final Pretrial Conference on August 9, 2017 at
11:00 a.m. Further, the Court DIRECTS the parties to contact Magistrate Judge
Daly’s chambers if a settlement conference would be beneficial at this time.
IT IS SO ORDERED.
Signed this 5th day of July, 2017.
Digitally signed by Judge
David R. Herndon
Date: 2017.07.05
15:47:34 -05'00'
United States District Judge
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