McNamee v. Family Focus Inc

Filing 64

OPINION AND ORDER: The 62 Motion for Summary Judgment is GRANTED, and the 57 Request for attorney fees is GRANTED. The Clerk is to ENTER FINAL JUDGMENT. Signed by Senior Judge James T Moody on 7/31/2017. (Copy mailed to pro se party)(jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
COREY McNAMEE,
Plaintiff,
v.
FAMILY FOCUS, INC.,
Defendant.

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No. 2:14 CV 260

OPINION and ORDER
Corey McNamee (“plaintiff”), a pro se plaintiff, brings suit against his former
employer, Family Focus, Inc. (“Family Focus” or “defendant”). Plaintiff alleges
defendant paid him less than female caseworkers in violation of the Equal Pay Act (the
“EPA”), 29 U.S.C. § 206 et seq. (DE # 1.) Defendant has moved for summary judgment.
(DE # 62.) For the reasons stated below, the motion will be granted.
I.

LEGAL STANDARD
Summary judgment must be granted when “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). A genuine issue of material fact exists when “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). Not every dispute between the parties makes
summary judgment inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id. To determine whether a genuine issue of material fact exists,

the court must construe all facts in the light most favorable to the non-moving party
and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606 F.3d 355,
358 (7th Cir. 2010).
A party opposing a properly supported summary judgment motion may not rely
merely on allegations or denials in his or her own pleading, but rather must “marshal
and present the court with the evidence she contends will prove her case.” Goodman v.
Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to
establish the existence of an essential element on which he or she bears the burden of
proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
2006).
Plaintiff did not file a response to the motion for summary judgment, despite
being given proper notice of the motion. (See DE # 61.) Pursuant to Northern District of
Indiana Local Rule 7-1(d)(4), a party’s failure to file a response within the time
prescribed may subject the motion to summary ruling. Nevertheless, “[s]trict
enforcement of [local rules] does not mean that a party’s failure to submit a timely filing
automatically results in summary judgment for the opposing party.” Wienco, Inc. v.
Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992). Rather, that failure “causes all
factual assertions alleged by the opposing party to be deemed admitted.” Id.
Accordingly, defendant’s “statement of material facts” (DE # 63 at 2–14) is deemed
admitted and undisputed. The court still must “make the further finding that given the

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undisputed facts, summary judgment is proper as a matter of law.” Wienco, Inc., 965
F.2d at 568.
II.

BACKGROUND
Plaintiff began working for Family Focus on September 1, 2008, as a caseworker,

and held that position until February 14, 2014, when he was terminated. (DE # 62-2 ¶ 7.)
A caseworker’s starting wage was calculated using a base hourly wage rate (which
could be changed by Family Focus each year) with the addition of one percent per year
of direct experience the individual possessed at the time of the hire. (Id. ¶¶ 13–14.)
Plaintiff’s starting wage was $13.92 per hour. (Id. ¶ 8.) That number consisted of Family
Focus’s caseworker base rate from 2008 ($13.26) plus an additional 5% (or $.66) which
was awarded due to plaintiff’s five years of prior experience. (Id.)
Each caseworker’s hourly pay was then adjusted over time based on a series of
yearly wage increases. Family Focus awarded performance-based wage increases in
2009, 2011, and 2012. (Id. ¶ 16.) These increases correlated to each individual employee’s
yearly performance evaluation score, which ranged on a scale of one to five, with five
being the highest. (Id. ¶¶ 15–17.) Specifically, Family Focus increased hourly wage rates
based on the following scale: in 2009, score of “three” (2% increase), score of “four”
(2.5% increase), score of “five” (3% increase); in 2011, score of “three” (2% increase),
score of “four” (3% increase), score of “five” (3% increase); in 2012, score of “three” (1%
increase), score of “four” (2% increase), score of “five” (3% increase). (Id. ¶ 19–23.) No
increases were given for scores of one or two. (Id.) Family Focus asserts it applied this

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policy to all caseworkers, regardless of gender. (Id.) There were no wage increases in
2010, and in 2013 all employees received a 3% wage increase. (Id ¶ 16.)
In 2009, plaintiff received a score of three and a 2% increase, in 2011 he received a
score of four and a 3% increase, in 2012 he received a score of three and a 1% increase,
and in 2013 he received the across-the-board 3% increase. (Id. ¶ 8.) Thus, at the time of
his termination, plaintiff earned $15.22 per hour. (Id.)
At various times, multiple female caseworkers had a higher per-hour-wage than
plaintiff. (See id. at 17–18.) This included Kim, Kara, and Demteress, who, like plaintiff,
started as caseworkers in 2008 and received higher wages than plaintiff for the entire
span of his employment at Family Focus.1
However, not all female caseworkers were paid more than plaintiff. For instance,
in February 2014, plaintiff was paid more than six female caseworkers: Nicole C.
($13.82), Crystal ($13.79), Sonya ($14.84), Renee ($15.19), Yarikza ($15.16), and Lisa
($15.16). (Id. ¶ 40.) Additionally, plaintiff stated in his deposition that male caseworkers
were also paid more than him. (DE # 62-1 at 18 (“[A]ll caseworkers were getting paid
more than me, males and females. It wasn’t just females.”).)
Based on those facts, plaintiff filed suit in this court on July 24, 2014, alleging
violations of the EPA and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq

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The last names of the women have been redacted from the motion for summary
judgment, and are not included in this order either. However, the women’s wage
information including their last names was filed with the court under seal. (See DE
# 39.)
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(the “ADA”). (DE # 1.) His pro se complaint also hinted at discrimination on the basis of
race, which if true, would violate Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-5. (See id.) On September 24, 2014, defendant moved to dismiss plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE # 9.) The court
granted the motion in part and dismissed plaintiff’s ADA and Title VII claims, leaving
only the EPA claim in tact. (DE # 17.)
On August 11, 2016, defendant filed a second motion to dismiss (DE # 50)
pursuant to Federal Rules of Civil Procedure 37(d) and 41(b) for plaintiff’s failure to
prosecute the action and failure to comply with the Magistrate Judge’s order dated
October 5, 2015 (DE # 26). Specifically, defendant argued that plaintiff had failed to
provide responses to discovery requests and had failed to appear for his scheduled
deposition. (DE # 50 at 3.) The court denied the motion to dismiss and granted plaintiff
a final extension to respond to the outstanding discovery requests. (DE # 54.)
Additionally, the court granted defendant an award of attorney fees and costs related to
the discovery issue, with the exact amount to be determined at a later date. (Id.)
On February 10, 2017, defendant filed a motion for summary judgment as to the
only remaining claim. (DE # 62.) Plaintiff did not respond to the motion in any manner.
The motion is now ripe for ruling.

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III.

DISCUSSION
A.

Motion for Summary Judgment
i.

The Prima Facie Case

In order for this Equal Pay Act claim to survive summary judgment, plaintiff
must first establish a prima facie case of wage discrimination. See Bartlett v. NIBCO Inc.,
No. 3:08-CV-597, 2010 WL 1779887, at *7 (N.D. Ind. Apr. 28, 2010). To establish a prima
facie case of wage discrimination, plaintiff must “show that: (1) higher wages were paid
to a [fe]male employee, (2) for equal work requiring substantially similar skill, effort
and responsibilities, and (3) the work was performed under similar working
conditions.” Cullen v. Ind. Univ. Bd. Of Trustees, 338 F.3d 693, 698 (7th Cir. 2003).
Evidence in the record demonstrates that certain female caseworkers were paid
more per hour than plaintiff. (See DE # 62-2 at 17.) Thus, at a minimum, plaintiff has
met the first prong of the prima facie case.
However, defendant has not argued that plaintiff fails to establish a prima facie
case. (See DE # 63.) Instead, defendant argues that even assuming plaintiff has
established a prima facie case, summary judgment should still be granted against
McNamee because any wage disparity between plaintiff and female caseworkers is
based on factors other than sex. (DE # 63 at 14.) Accordingly, the court will bypass the
remainder of the analysis of the prima facie case and will instead determine whether
defendant has established an adequate affirmative defense to the EPA claim.

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ii.

Affirmative Defense

Once a plaintiff establishes a prima facie case, the burden of persuasion shifts to
the employer to prove one of four statutory affirmative defenses. Cullen, 338 F.3d at 702.
The employer has the opportunity to show that “the pay disparity [was] 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 sex.” Fallon v. Illinois, 882
F.2d 1206, 1211 (7th Cir. 1989) (citing 29 U.S.C. § 206(d)(1)). If defendant meets its
burden, “the plaintiff must then prove the proffered reason is a pretext for
discrimination.” Id. at 1213.
Defendant asserts that both the second affirmative defense (a merit system) and
the fourth affirmative defense (i.e., a differential based on any factor other than sex)
which is “a broad catch-all exception [that] embraces an almost limitless number of
factors, so long as they do not involve sex.” Dey, 28 F.3d at 1462 (7th Cir. 1994). In
assessing the fourth affirmative defense, “it is not [the court’s] province to second-guess
the employer’s business judgment.” Dey, 28 F.3d at 1462. In other words, “[t]he
justification need not be a ‘good reason,’ but merely a gender-neutral one.” Warren v.
Solo Cup Co., 516 F.3d 627, 630 (7th Cir. 2008).
Specifically, Family Focus argues it determined caseworkers’ wages based on
two gender-neutral company policies: (1) application of an annual wage rate for new
hires, adjusted for the new caseworker’s years of previous experience, training, and
related qualifications; and (2) percentage wage increases based on performance

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evaluation scores in some years and on across-the-board rates in other years. (See DE
# 63 at 8, 17–18.)
Family Focus has identified ten female caseworkers who earned a higher hourly
wage than plaintiff. (See DE # 63.) Defendant has provided wage information for each of
these women, for the period that plaintiff was employed by Family Focus, including
details regarding the calculation of each woman’s starting wage rate and the calculation
of her yearly wage increases. (DE # 62-2 ¶¶ 27–52.) The evidence demonstrates that the
wage rates were calculated pursuant to Family Focus’s two company policies without
consideration of gender.
Family Focus’s first company policy took prior experience into consideration.
The Seventh Circuit has found this to be an appropriate “factor other than sex.” Merillat
v. Metal Spinners, Inc., 470 F.3d 685, 697 (7th Cir. 2006) (“Under the EPA, differences in
education and experience may be considered factors other than sex.”).
The second company policy allowed wages to be altered based on employee
performance evaluation scores.2 Courts agree that employee merit or performance is a
legitimate basis for a pay disparity where—as is the case here—the merit pay program
is administered systematically and uniformly. See Brennan v. Victoria Bank & Trust Co.,
F.2d 896, 901 (5th Cir. 1974) (upholding defendant’s merit system program as “a
systemic, formal system guided by objective, written standards”); Corning Glass Works v.

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These scores measured on-job performance based on the following factors: key
responsibilities, availability, communication and teamwork, customer service, quality
and productivity, and organizational perspective/professionalism. (DE # 62-2 ¶ 18.)
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Brennan, 417 U.S. 188, 201 (1974) (holding that wage differentials based upon bona fide
job evaluation are outside the purview of the EPA); United States v. City of Chicago, 73 C
661, 1979 WL 45, at *2 (N.D. Ill. Oct. 17, 1979) (“The [EPA] use of ‘merit system’ has been
construed to mean a system of increases in compensation based on performance of
duties.”). The evidence in the record demonstrates that Family Focus established a
regulated system for evaluating employees’ performance. (See DE # 62-2 ¶¶ 17–18.)
Defendant then used those scores to implement wage adjustments in an objective,
uniform manner; individuals who received the same performance scores received the
same wage adjustments, regardless of gender. (See id. ¶ 52.)
Of course, performance scores would not be an appropriate factor to consider
when determining wage adjustments if the scores were influenced by each caseworker’s
respective gender. But, none of the evidence presented to the court indicates that
plaintiff’s performance scores were impacted by his gender in any way. Nor has any
evidence been presented that plaintiff’s female coworkers’ scores received any positive
adjustment due to their gender.
Accordingly, the undisputed facts before the court demonstrate that Family
Focus used appropriate factors other than sex, applied uniformly, to determine the
wages of its caseworkers. Therefore, Family Focus has met its burden of persuasion by
proving a statutory affirmative defense to the EPA claim.
The burden now returns to plaintiff to introduce evidence that Family Focus’s
facially gender-neutral wage policy was a pretext for discrimination on the basis of

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gender. See Cullen, 338 F.3d at 704. Plaintiff presents no evidence of this sort. Since there
is a legitimate, nondiscriminatory reason for the difference in pay, and since there is no
genuine issue of material fact over its validity, summary judgment is appropriate on
this claim. See Rowels v. Ill. Dep’t of Employment Sec., No. 99 C 6450, 2004 WL 1243870, at
*2 (N.D. Ill. June 8. 2004).
iii.

Hours and Opportunities

In his deposition, plaintiff presented an alternate theory for recovery under the
EPA, based on a lower amount of hours worked, rather than a lower hourly wage rate.
(DE # 62-1 at 29.) According to plaintiff’s theory, defendant limited his opportunities at
work, as compared to other caseworkers, and this effectively limited the number of
hours he was able to work, including overtime hours. (Id. at 27–29.) Such a limitation in
hours, plaintiff argues, resulted in less overall pay compared to other workers. (See id.)
However, the court finds that plaintiff cannot support an EPA claim under this
theory for two reasons. First, the EPA supports claims only when higher wages are paid
to an employee of one gender for equal work. See Cullen, 338 F.3d at 698. If one
employee works substantially more hours than another, the two have not performed
equal work.
Second, plaintiff has provided no legal support for the notion that an EPA claim
may be based on a denial of opportunities to earn hours at work. Meanwhile, defendant
points to two decisions from other district courts in which the denial of opportunities
was found not to give rise to an EPA claim. See True v. New York State Dep’t of Corr.

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Servs., 613 F. Supp. 27, 31 (W.D.N.Y. 1984) (denial of overtime opportunities to female
employees does not constitute a valid EPA claim); Lancaster v. Holt, Rinehart, & Winston,
Inc., No. TCA 81-777, 1982 WL 539, at *2 (N.D. Fla. Oct. 20, 1982) (“The meaning of
“wages” under the [EPA] is to be taken in its normal usage. . . . It, however, does not
encompass employment conditions or opportunities . . . .”).
Therefore, the court finds that summary judgment is appropriate on plaintiff’s
EPA claim under this second theory, as well.
B.

Attorney Fees

In its order dated November 8, 2016, the court granted defendant “an award of
reasonable expenses, including attorney fees, against plaintiff and in favor of defendant
for the time and expense incurred as a result of plaintiff’s lack of response to the
discovery served on him and failure to appear for his deposition, and the costs incurred
in bringing [the corresponding] motion [to dismiss].” (DE # 54 at 1–2.) The court gave
defendant until December 8, 2016, to file its request for attorney fees and expenses,
itemized by task and time expended where appropriate. (Id. at 2.) Plaintiff was ordered
to file his response, if any, on or before December 22, 2016. (Id.)
In response to the court’s order, defendant’s counsel, John E. Hughes, has
submitted a detailed billing statement establishing reasonable attorney fees and costs in
the amount of $1,688.71. (DE # 57.) This accounts for the actions taken by Hughes as a
result of plaintiff’s lack of response to the discovery served on him and plaintiff’s failure

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to appear pursuant to a notice of deposition. (See id.) Plaintiff filed no response to the
billing statement.
Accordingly, the court awards Family Focus $1,688.71 in attorney fees and costs.
This total amount includes $152.71 for deposition expenses and $1,536.00 in fees (6.4
attorney hours at a rate of $240.00 per hour). (Id.)
IV.

CONCLUSION
For the reasons set forth above, the motion for summary judgment (DE # 62) is

GRANTED, and the request for attorney fees (DE # 57) is GRANTED. The Clerk is to
ENTER FINAL JUDGMENT stating:
Judgment is entered in favor of defendant Family Focus,
Inc., and against plaintiff Corey McNamee, for the amount
of $1,688.71. Corey McNamee shall take nothing by way of
his complaint.
SO ORDERED.
Date: July 31, 2017
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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