White et al v. Elkhart Community Schools
Filing
117
OPINION AND ORDER DENYING 103 Motion for Summary Judgment filed by Elkhart Community Schools. This case will proceed to trial. Signed by Judge Damon R Leichty on 5/7/2024. (mrm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TARA WHITE,
Plaintiff,
v.
CAUSE NO. 3:19-CV-64 DRL
ELKHART COMMUNITY SCHOOLS,
Defendants.
OPINION AND ORDER
Elkhart Community Schools (ECS) employed Tara White as its director of literacy from July
2017 to August 2023. She claims that she was paid less than her male colleagues in violation of the
Equal Pay Act (EPA), 29 U.S.C. § 206. ECS requests summary judgment. The court denies the motion.
BACKGROUND
Ms. White began her employment with ECS as the coordinator for media services in January
2016 [105-2 ¶ 4]. At the time of her hire, she had over fifteen years working in education, a master’s
degree in school administration and secondary education, a certification in library science and
information technology, an Indiana Professional Educator’s License, a certification in secondary
administration and supervision, and other accolades [111-1, 11-2]. At the end of the 2016-2017 school
year, ECS created a director of literacy position and appointed Ms. White to fill it [111-8 ¶ 6]. Dr. Rob
Haworth, then-superintendent, stated that literacy was ECS’s number one priority [id. ¶ 9].
At the same time ECS created the position, the Director of Elementary Education Jean
Creasbaum announced her retirement [id. ¶ 8]. Dr. Dawn McGrath, who served as the deputy
superintendent at the time, suggested that ECS consolidate the director of elementary instruction
position into the newly created director of literacy position [id.]. At Dr. McGrath’s instruction, Ms.
White created a proposal outlining the job duties, also requesting a salary of $104,000.00 and twenty-
five vacation days [111-12 ¶ 9]. She was told that, pursuant to the ECS class system for administrator
pay, her position could not make more than $93,000.00 [id. ¶¶ 10-11].
In the initial appointment of the director of literacy position to human resources, Dr. Haworth
handwrote a question mark next to the field for “Class” [111-4]. On June 27, 2017, he initialed a
typewritten memorandum that listed the position as Class IV [111-5]. Sometime later, the position
was listed in ECS’s system as Class III [105-2 ¶ 24]. At that time, Class III positions could only make
up to $92,484.00 [id. ¶ 13]. Class IV positions could make up to $107,898.00 [id.]. In December 2017,
that increased to $93,409.00 and $108,977.00 respectively [id. ¶ 14].
Ms. White was ultimately offered and accepted a salary of $92,000.00 and twenty vacation
days, and she was told that she could not negotiate [111-12 ¶ 11]. Dr. McGrath says that Ms. White
competently performed her duties as the director of elementary instruction during the 2017-2018
school year [111-8 ¶ 13]. No one else was appointed to the role during this time [id.]. Ms. White
received excellent evaluations [id. 21 (Ex. 3)].
During this same school year, William Kovach served as ECS’s director of secondary
instruction (or secondary curriculum) [id. ¶ 16]. Dr. McGrath supervised Mr. Kovach [id. ¶ 15]. She
says Mr. Kovach and Ms. White’s positions directly paralleled each other [id. ¶¶ 21-22]. Mr. Kovach
had been in this position since 2016 and had signed a contract for the period July 2016 through July
2019 at $110,640.00 annually [105-2 ¶ 35]. He signed a new contract on August 1, 2017 for an annual
salary of $113,695.00 and twenty-five vacation days [id. ¶ 36]. On January 12, 2018, his salary increased
to $114,835.00 when he signed another new contract [id.]. Mr. Kovach resigned after the 2017-2018
school year [111-8 ¶ 20]. Dr. McGrath says that he struggled in his role [id. ¶¶ 16, 19-20]. After his
resignation, Dr. McGrath mirrored the job description of the director of secondary instruction to
reflect Ms. White’s duties [id. ¶ 20].
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Phil Lederach replaced Mr. Kovach in July 2018 as the director of secondary instruction [1052 ¶¶ 48-49]. Mr. Lederach’s job description was based on Ms. White’s job duties [111-8 ¶ 20]. Mr.
Lederach held the position until he resigned in 2020, at which time the position was eliminated [1053 ¶¶ 14, 20-21]. At the time of his hire, he received $108,980.00 and twenty vacation days [105-2 ¶ 49].
Dr. Robert Woods was hired as the director of elementary instruction in July 2018 [105-1 ¶ 6].
His salary for the period July 1, 2018 through June 30, 2020 was $110,685.00 [id.] He was previously
employed at ECS as the director of business operations and his compensation did not increase when
he was transferred [id. ¶¶ 5-6].
The director of secondary instruction position held by Mr. Kovach and Mr. Lederach was
Class V [id. ¶ 26; 105-2 ¶ 34]. As of 2018, Class V positions could make up to $129,735.00 [105-2 ¶
14]. The record does not indicate what class the director of elementary instruction position was.
Wes Molyneaux was hired to serve as the coordinator of technology integration for the 20162017 school year [id. ¶ 38]. In December 2016, ECS made Mr. Molyneaux an administrator and gave
him a new title, director of instructional technology [id. ¶ 44]. In August 2017, Mr. Molyneaux signed
a contract for an annual salary of $92,000 and twenty-five vacation days [id. ¶ 62]. His duties centered
on technology rollout and integration [id. ¶ 43]. This was a Class III position [105-1 ¶ 28].
In September 2018, ECS became concerned “about the equity and fairness” of the class system
used to set the salaries of its administrators [111-6 Tr. 46]. Superintendent Mark Mow established an
Administrative Salaries Committee to discover and address potential issues [111-12 ¶ 41]. Ms. White
was appointed to be a member of the committee [id. ¶ 40]. One concern was that there were potential
discrepancies based on gender that could be legally actionable [id. ¶ 41]. Another concern was that Dr.
Haworth ultimately had sole control over class designations [111-7 Tr. 28]. The committee presented
findings indicating there may have been a gender pay gap [111-12 ¶ 44]. At one meeting of the
committee, District Counsel W. Douglas Thorne stated that “women just aren’t as good at negotiating
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their contracts as men” [id. ¶ 43]. Mr. Mow later hired a subconsultant to address administrator
compensation and disbanded the committee [105-1 ¶¶ 17-18].
In November 2018, Ms. White met with Mr. Mow to discuss a salary increase, as she was
concerned that she was not receiving equal pay for equal work [111-12 ¶ 47]. Mr. Mow did not make
any adjustments to her compensation [105-1 ¶ 22]. Ms. White submitted a complaint for
discrimination pursuant to ECS policy on December 21, 2018 [id. ¶ 23]. She then filed suit on January
31, 2019 [1]. Ms. White served as director of literacy until she resigned in August 2023 [105-5 ¶ 6].
STANDARD
Summary judgment is warranted when “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).
The non-moving party must present the court with evidence on which a reasonable jury could rely to
find in his favor. Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir. 2022). The court must construe
all facts in the light most favorable to the non-moving party, viewing all reasonable inferences in that
party’s favor, Bigger v. Facebook, Inc., 947 F.3d 1043, 1051 (7th Cir. 2020), and avoid “the temptation to
decide which party’s version of the facts is more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th
Cir. 2003); see also Joll v. Valparaiso Cmty. Schs., 953 F.3d 923, 924-25 (7th Cir. 2020).
In performing its review, the court “is not to sift through the evidence, pondering the nuances
and inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir. 1994). Instead, the “court has one task and one task only: to decide, based on the evidence of
record, whether there is any material dispute of fact that requires a trial.” Id. The court must grant a
summary judgment motion when no such genuine factual issue—a triable issue—exists under the law.
Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 731 (7th Cir. 2011).
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DISCUSSION
The EPA prohibits wage discrimination “between employees on the basis of sex” when such
employees perform “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).
“The [EPA] creates a type of strict liability in that no intent to discriminate need be shown.” Patkus v.
Sangamon-Cass Consortium, 769 F.2d 1251, 1260 n.5 (7th Cir. 1985); see also Ledbetter v. Goodyear Tire &
Rubher Co. Inc., 550 U.S. 618, 641 (2007) (no requirement of intentional discrimination under EPA).
A plaintiff alleging an EPA claim bears the initial burden of establishing a prima facie case of
wage discrimination. Warren v. Solo Cup Co., 516 F.3d 627, 629 (7th Cir. 2008). Ms. White must show
that “(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.”
Id. (quoting Stopka v. All. of Am. Insurers, 141 F.3d 681, 685 (7th Cir. 1998)); see also Rongere v. City of
Rockford, 2024 U.S. App. LEXIS 10462, 10 (7th Cir. Apr. 30, 2024).
If she establishes a prima facie case, the burden shifts to the school to offer a gender-neutral
justification for the unequal pay. Warren, 516 F.3d at 630. The EPA permits a defendant to use one of
four potential explanations for the pay disparity: “a seniority system, a merit system, a system which
measures earning by quantity or quality of production, or a differential based on any factor other than
sex.” Patkus, 769 F.2d at 1260 (citing 29 U.S.C. § 206(d)(1)(i)-(iv)). “An employer asserting that the
difference is the result of a ‘factor other than sex’ must present this contention as an affirmative
defense—and the proponent of an affirmative defense has the burdens of both production and
persuasion.” King v. Acosta Sales & Mktg., 678 F.3d 470, 474 (7th Cir. 2012).
ECS does not contest that Ms. White was paid less than Mr. Kovach, Mr. Lederach, and Dr.
Woods, or that she received five fewer vacation days than Mr. Molyneaux, which ECS acknowledges
is a pay differential. ECS initially frames its concern with the other two elements, but the school only
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develops an argument as to the second one—whether Ms. White performed work requiring
substantially similar skill, effort, and responsibilities as each comparator. ECS foregoes developing an
argument that Ms. White never worked under similar conditions as her comparators, all administrators
in the same school district. The court thus confines its analysis to whether Ms. White performed equal
work requiring substantially similar skill, effort, and responsibilities as each comparator.
A. Equal Work.
To determine whether two jobs are equal under the EPA, 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 Trs., 338 F.3d 693, 699 (7th Cir. 2003) (quoting Fallon v. Illinois,
882 F.2d 1206, 1209 (7th Cir. 1989)). If the plaintiff establishes that the two jobs have a “common
core,” the court then inquires “whether any additional tasks make the jobs ‘substantially different.’”
Id. A “slight difference” will be “unpersuasive as a distinction between the jobs.” Fallon, 882 F.2d at
1209. But two jobs may be rendered substantially different if, for example, a comparator spends a
significant amount of time on additional duties that require greater skills or qualifications. See, e.g.,
David v. Bd. of Trs., 846 F.3d 216, 230 (7th Cir. 2017) (significant software development and
implementation duties that required bachelor’s degree rendered job substantially different from
software security analyst position). Simply identifying one or two additional responsibilities without
explaining how they make a comparator’s job substantially different will not warrant summary
judgment. See Melgoza v. Rush Univ. Med. Ctr., 499 F. Supp.3d 552, 567-68 (N.D. Ill. 2020) (denying
summary judgment when the defendant did not “explain how” or “provide[] any evidence” that the
additional tasks actually made comparator’s job substantially different and so the court could make
the determination on the record).
The EPA specifies three elements for consideration: required skill, effort, and responsibility.
29 U.S.C. § 206(d)(1). “It should be kept in mind that ‘equal’ does not mean ‘identical.’ Insubstantial
6
or minor differences in the degree or amount of skill, or effort, or responsibility required for the
performance of jobs will not render the equal pay standard inapplicable.” 29 C.F.R. § 1620.14(a); see
also Corning Glass Works v. Brennan, 417 U.S. 188, 203 n.24 (1974) (“it is now well settled that jobs need
not be identical in every respect before the Equal Pay Act is applicable”).
1. William Kovach.
Ms. White proposes Mr. Kovach as a comparator. Mr. Kovach was a male administrator who
served as ECS’s director of secondary instruction during the 2016-2017 and 2017-2018 school years
[105-2 ¶¶ 35-36]. ECS first points to the difference in titles between Mr. Kovach and Ms. White. But
the jobs compared must be substantially equal “based upon actual job performance and content––not
job titles, classifications or descriptions.” Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 913
(7th Cir. 2002) (quotations omitted).
Ms. White asserts that after becoming the director of literacy at the start of the 2017 school
year, she assumed the responsibilities of the director of elementary instruction position and thus
shared a common core of responsibilities with Mr. Kovach. Former Deputy Superintendent Dr. Dawn
McGrath supervised both Ms. White and Mr. Kovach [111-8 ¶¶ 3, 15]. Dr. McGrath says she
consolidated the duties of the two director positions at the end of the 2016-2017 school year after the
retirement of former director of elementary instruction, Jean Creasbaum [id. ¶ 8]. She says during the
2017-2018 school year Ms. White competently performed this position’s duties, though neither she
nor anyone else received the formal title [id. ¶ 13]. Dr. McGrath adds that Mr. Kovach’s role as director
of secondary instruction paralleled Ms. White’s so closely that, when updating the job description
upon his resignation in 2018, she intentionally mirrored Ms. White’s duties [118-8 ¶¶ 21-22].
ECS contests this without providing evidence to the contrary, arguing instead that Ms. White
is asking the court to assume that she performed the responsibilities of the director of elementary
instruction beginning July 2017 and that the position is equal to the director of secondary instruction.
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At summary judgment, the court must construe facts in the light most favorable to Ms. White as the
non-moving party and view reasonable inferences in her favor. Bigger, 947 F.3d at 1051. Ms. White has
marshaled a factual record that permits a reasonable jury to find in her favor—namely, a triable issue
regarding her assumption of the director of elementary instruction duties and their similarity to the
director of secondary instruction position. A reasonable jury could find that she and Mr. Kovach
shared a common core of responsibilities.
Having determined that a reasonable jury could find a common core of tasks between Ms.
White’s and Mr. Kovach’s positions, the court now asks “whether any additional tasks make the jobs
‘substantially different.’” Cullen, 338 F.3d at 698. ECS argues that Mr. Kovach had additional
responsibilities that rendered his job substantially different from Ms. White’s performance. First,
Superintendent Haworth says he consulted Mr. Kovach on evaluations of secondary building
administrators and did not similarly consult Ms. White about elementary building administrators [1052 ¶¶ 28, 34]. But Dr. McGrath, Mr. Kovach’s direct supervisor, says the evaluation of principals was
“not a part of [Mr. Kovach’s] job description and not his responsibility,” and his performance
evaluations make no mention of this task [111-8 ¶¶ 15-17]. Something merely discretionary or ad hoc
by the superintendent but not a component of expected duties a reasonable jury could disregard on
this record.
ECS maintains that Ms. White’s evidence is nothing more than self-serving, speculative
statements about her beliefs and opinions (and those of former ECS Deputy Superintendent Dr.
Dawn McGrath). Unsubstantiated self-serving statements may be one thing, but independently
corroborated statements are not problematic merely because they permit an inference that favors one
party. For instance, Dr. McGrath’s affidavit is not self-serving or speculative. And even “self-serving
assertions to the contrary by the nonmoving party may be sufficient to create a credibility dispute
[that] is best resolved at trial,” Szymanski v. Rie-Way Lawn Maint. Co., 231 F.3d 360, 365 (7th Cir. 2000),
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and that is the case here. The jury will decide the weight to give each witness’s testimony. The school
has not identified substantial differences in responsibility. “[T]o argue that any difference in
supervisory responsibility renders jobs unequal is manifestly incorrect as a matter of law.” Fallon, 882
F.2d at 1209 (quotations and citation omitted). Even if Mr. Kovach contributed to Dr. Haworth’s
secondary principal evaluations, the record is silent about what measure of additional responsibility,
skill, or effort this required.
ECS next argues that Mr. Kovach had “two significant projects” that went beyond Ms. White’s
job duties: (1) responsibility for integrating career pathways, and (2) alumni and community relations
responsibilities. Dr. McGrath says the integration of career pathways was her primary responsibility
and that Mr. Kovach had to be removed from implementing the project in the secondary curriculum
due to poor performance [111-8 ¶¶ 18-19]. Further, she says Ms. White successfully led the same
program in the elementary curriculum [id.]. That tends to underscore a triable issue rather than obviate
one. Though Ms. White does not dispute that Mr. Kovach performed some alumni responsibilities,
ECS again provides no insight about the extent, frequency, or responsibilities of this work as
compared to his core responsibilities as director of secondary instruction, particularly when they were
seemingly short-lived. See, e.g., Boyd v. City of Chi., 2023 U.S. Dist. LEXIS 90744, 11-12 (N.D. Ill. May
24, 2023) (finding that additional task made job substantially different when it took 30-35 percent of
comparator’s time outside of common core and required different skill set).
On this record, ECS is not entitled to judgment as a matter of law. Ms. White has established
a genuine triable issue whether she and Mr. Kovach shared a common core of responsibilities, but
one received more pay than the other. Only the jury can assess credibility or weigh the evidence, so
the court must deny summary judgment.
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2. Dr. Robert Woods.
Ms. White offers Dr. Woods as another comparator. Dr. Woods was appointed as the director
of elementary instruction in July 2018 [105-1 ¶¶ 4-7]. Though Dr. Woods had extensive experience in
education, his most recent role before this appointment was as director of business operations at ECS
[id. ¶¶ 4-5]. Ms. White contends that Dr. Woods came to her for assistance because he had been “out
of the loop” and “desperately needed [her] assistance to catch up on the current curriculum” [111-12
¶ 23]. She asserts that she was tasked by the new superintendent, Mark Mow, with providing a list of
duties she performed as director of elementary instruction [id. ¶¶ 26-27]. These duties were then split
or shared between Ms. White and Dr. Woods [id. ¶ 27]. Ms. White says she was instructed to “work
through” Dr. Woods to teach him what he needed to know while retaining the majority of the
responsibilities [id.].
ECS argues that, even if this division of shared and retained responsibilities is accurate, Ms.
White effectively concedes she and Dr. Woods were not performing a common core of tasks after his
appointment. But “differences in skill, effort or responsibility which might be sufficient to justify a
finding that two jobs are not equal within the meaning of the EPA . . . do not justify such a finding
where the greater skill, effort, or responsibility is required of the lower paid sex.” 29 C.F.R. § 1620.14.
And, if Dr. Woods in fact took over all director of elementary instruction duties, he simply would
have been Ms. White’s successor. The proper comparison would then be between Dr. Woods’s 20182019 duties and Ms. White’s 2017-2018 duties. “The salary paid to a successor who performs
substantially the same work may provide a basis for an equal pay action.” Patkus, 769 F.2d at 1260.
Drawing all reasonable inferences in Ms. White’s favor, a reasonable jury could find that she shared a
common core of responsibilities with Dr. Woods, either simultaneously or as his predecessor.
ECS next argues that Mr. Mow assigned Dr. Woods the additional responsibility of supervising
and evaluating elementary principals, and this rendered their jobs substantially different. ECS says Mr.
10
Mow considered this “the most important function of that position,” and that as a result Ms. White
did not perform work requiring equal skill, effort, and responsibility. As support, ECS offers two
sentences in Mr. Mow’s declaration, backed by a 2014 job posting that does not seem to mention the
evaluation of elementary principals [105-1 ¶ 7; id. PDF 20 (Ex. 4)].
The record permits a reasonable jury to view the jobs as less than substantially different. In
fairness, Ms. White never disputes that Dr. Woods evaluated elementary principals. Whether this
single task under Mr. Mow was so significant as to render their jobs substantially different, particularly
when it was not listed on the job descriptions or in the evaluations [112 ¶ 55], and when the record
remains barren as to the time, skill, or effort put by Dr. Woods to this important task, remains a triable
issue. That Mr. Mow viewed the task as important is something, but alone unworthy of calling the
positions substantially different as a matter of law. In short, the record still permits a reasonable jury
to find Dr. Woods a proper comparator.
Finally, ECS argues that Dr. Woods is not a proper comparator because he had more years of
experience than Ms. White and a doctorate in personnel management. This misses the mark a bit. The
EPA “looks to the similarity of the actual duties involved, and does not turn on differences in job
descriptions, prior training, or other factors.” Patkus, 769 F.2d at 1260 (district court improperly
granted summary judgment based on the higher educational qualifications of a proposed comparator).
“[T]he comparison at [the prima facie] juncture is between positions, not individuals.” Cullen, 338 F.3d
at 699 (finding that different educational credentials would not preclude prima facie case); see also 29
C.F.R. § 1620.15(a) (“Possession of a skill not needed to meet the requirements of the job cannot be
considered in making a determination regarding equality of skill.”). Accordingly, the court must deny
summary judgment for ECS.
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3. Phil Lederach.
Ms. White identifies Phil Lederach as her third comparator. Mr. Lederach was hired as the
director of secondary instruction to replace Mr. Kovach in 2018 [105-2 ¶ 49]. Mr. Lederach held the
position until he resigned in 2020, at which time the position was eliminated [105-3 ¶¶ 14, 20, 21]. Dr.
McGrath says she created the job description for this position when Mr. Lederach was hired based on
Ms. White’s duties [111-8 ¶¶ 21-22]. As discussed, Ms. White has established genuine triable questions
whether she performed the duties of the director of elementary instruction and the relationship
between that position and the director of secondary instruction. Drawing all reasonable inferences in
her favor, a reasonable jury could find that Ms. White shared a common core of responsibilities with
Mr. Lederach.
Like with Dr. Woods, ECS effectively argues that beginning in 2018, the most important job
for the director of secondary instruction was the supervision and evaluation of secondary principals
and that this additional task made the jobs substantially different. Because Ms. White did not have that
responsibility, so the argument goes, she and Mr. Lederach did not perform equal work. Ms. White
disputes that this additional task was so significant as to render the two positions substantially
different. First, she points out that Mr. Lederach’s 2019 evaluation makes no reference to it, which
draws into some question how important or substantial it really was [111-14]. It was but one of many
responsibilities listed by Mr. Lederach [105-6 ¶ 11]. Mr. Mow called it the most important
responsibility, but again this record offers no proof of its importance in terms of skill or time or efforts
such that a reasonable jury could only find it substantially different.
Last, ECS argues that Mr. Lederach’s role in integrating two high schools into one undermines
Ms. White’s prima facie showing. Mr. Mow’s replacement as superintendent, Dr. Steven Thalheimer,
says Mr. Lederach “played a critical role in the consolidation process” and that it “demanded
significant time, attention, and skill drawing on [Mr.] Lederach’s unique experiences and skills” [105-
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3 ¶ 10]. Perhaps this draws closer to the mark, but it remains altogether general. ECS provides no
precise information about the specific role Mr. Lederach played, his specific responsibilities related to
this project, or his time and skill that were required of him. ECS does not tell the court when this
merger took place or even over what period of time. And Ms. White offers evidence of her additional
demands, within the same core responsibilities, that a reasonable jury could consider in deciding that
Ms. White shared just as much responsibility, if not more at times, than Mr. Lederach. The court
cannot say as a matter of law the two positions were substantially different on this record. A reasonable
jury could find that Ms. White and Mr. Lederach shared a common core of responsibilities. The court
denies summary judgment.
4. Wes Molyneaux.
Ms. White’s final proposed comparator is Wes Molyneaux. Mr. Molyneaux was initially hired
as the coordinator of instructional technology in 2016 and was made director of instructional
technology in December of that year [105-2 ¶¶ 38-42]. Ms. White contends that she and Mr.
Molyneaux performed equal work because as director of literacy she was still overseeing the former
responsibilities of the coordinator of media services and digital resources. ECS argues that Ms. White
has failed to establish that their positions had the requisite common core, and the school is right. Ms.
White provides no information about the nature or responsibilities of that role and how they relate to
Mr. Molyneaux’s position as director of instructional technology. She provides a list of additional
responsibilities she had over Mr. Molyneaux, but the common core of responsibilities between her
and Mr. Molyneaux is still missing. See Cullen, 338 F.3d at 698; see also Jaburek v. Foxx, 813 F.3d 626,
633 (7th Cir. 2016) (plaintiff must provide a description of a common core of tasks, not just titles).
But because the record otherwise permits a jury to find for Ms. White, the court still must deny
summary judgment.
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B. ECS’s Gender-Neutral Justifications.
Because a reasonable jury could find that Ms. White has met her prima facie burden with
comparators such as Mr. Kovach, Mr. Lederach, and Dr. Woods, the burden now shifts to ECS to
prove that the pay differential was based on a gender-neutral factor. As an affirmative defense, the
school bears the burden of production and persuasion. King., 678 F.3d at 474. These affirmative
defenses can include a seniority system, a merit system, a system that measures earning by quantity or
quality of production, or a differential based on any factor other than sex. 29 U.S.C. § 206(d)(1)(i)-(iv).
The justification “need not be a ‘good reason,’” but it must be “bona fide.” Warren v. Solo Cup
Co., 516 F.3d 627, 630 (7th Cir. 2008). This means that “an employer cannot use a gender-neutral
factor to avoid liability unless the factor is used and applied in good faith; it was not meant to provide
a convenient escape from liability.” Fallon, 882 F.2d at 1211. The court considers whether the
proposed factor “has been discriminatorily applied, and in some circumstances, whether it may have
a discriminatory effect.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1462 (7th Cir. 1994). Defendants
must “prove, and not just assert” that the wage difference was actually the result of a “factor other
than sex.” King, 678 F.3d at 474. “An employer’s given explanation for a pay discrepancy must be
supported by evidence that the employer actually relied on that reason.” Lauderdale v. Ill. Dep’t of Hum.
Servs., 876 F.3d 904, 908 (7th Cir. 2017) (finding that emails, memoranda, and other forms established
that defendant actually relied on the factor other than sex in wage setting). “[D]ifference in pay based
on the difference in what employees were previously paid is a legitimate” factor. Id. The factor other
than sex need not be related to the requirements of the particular position. Covington v. S. Ill. Univ., 816
F.2d 317, 322 (7th Cir. 1987).
ECS raises the fourth “catch-all” exception. See Fallon, 882 F.2d at 1211. The school says the
salaries were a result of the comparators’ superior work experience and education. It lists in rote
fashion the qualifications and years of experience of each as justification—notably without making
14
any comparisons to Ms. White’s education or experience. Certainly “differences in education and
experience may be considered factors other than sex,” Merillat v. Metal Spinners, Inc., 470 F.3d 685, 697
(7th Cir. 2006), but ECS provides no evidence that it actually considered these factors when setting
salaries, see King, 678 F.3d at 474. The closest the school gets is Dr. Haworth’s statement that Mr.
Lederach was “selected” due to his experience, but not that his pay was set based on that metric [see
105-2 ¶ 48]. A mechanical recitation of experience and education does not meet the school’s burden.
Second, ECS says Mr. Kovach’s and Mr. Lederach’s higher salaries were a result of their
“additional and weighty responsibilities.” “Additional duties may not be a defense to the payment of
higher wages to one sex where the higher pay is not related to the extra duties.” 29 C.F.R. § 1620.20.
Defendants are precluded from using this defense if the plaintiff “also perform[ed] extra duties
requiring equal skill, effort, and responsibility.” § 1620.20(b). As with experience and education, ECS
provides no evidence that these additional duties were considered (or even contemplated) when setting
pay at the time each was hired. And, as discussed, there remains a genuine dispute about whether Ms.
White performed comparative additional duties.
ECS maintains that Mr. Lederach negotiated a higher salary and left a higher-paying job, so he
was paid more. ECS also argues that Mr. Kovach and Dr. Woods were paid more because they had
previous salaries that ECS was obligated to maintain. These may be factors other than sex justifying a
difference in pay, but the record doesn’t close the door on whether they are bona fide reasons. First,
Ms. White tried to negotiate a salary increase and was rebuffed, both at the time of her appointment
and later in 2018 [105-1 ¶¶ 19-22; 111-12 ¶ 11]. This cannot be appropriately chalked up to the
disturbing idea that women simply cannot negotiate just as well as men—more discriminatory in
outlook than not, so a reasonable jury could say once this comment has been viewed in the light most
favorable to Ms. White.
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Second, the reliance on previous salaries and contracts does not assuage concerns, as the
difference in these previous salaries could also be attributed to a discriminatory system. Nor would it
explain why Mr. Kovach was allowed to repeatedly re-execute his contract in the middle of its period
for significant salary increases [105-2 ¶¶ 30-36]. This was all the while he was receiving poor
performance reviews from his supervisor, Dr. McGrath [118-8 ¶ 16]. When “men and women are
equally good on the job, women should get more rapid raises after employment and the salaries should
tend to converge.” King, 678 F.3d at 475. Ms. White has created a triable issue as to her performance
in comparable roles, yet the pay gap didn’t narrow. Further, ECS admits that while there was a class
system in place to determine salaries, it “would ultimately be Dr. Haworth’s decision as to where an
individual might be placed” [111-7 Tr. 28]. An ad hoc system is particularly troublesome when, on this
record, it seems Dr. Haworth reclassified Ms. White’s position from Class IV to Class III without
explanation, so rather than narrow the gap widened [id. 31-32]. It seems Dr. Haworth had little
difficulty adhering to ECS’s practice not to reduce Dr. Woods’ and Mr. Kovach’s salaries when they
transferred to a position of less responsibility [see 105-2 ¶ 37], so a reasonable jury would have cause
to question why Ms. White was reclassified differently.
In recognition of the concerns “about the equity and the fairness” of this system [111-6 Tr.
46], ECS established an Administrative Salaries Committee to discover and address potential issues
[111-12 ¶ 41]. Ms. White recalls that one of these concerns was that there were discrepancies based
on gender [id.]. The Committee presented findings in November 2018 indicating there may have been
a gender pay gap [id. ¶ 44], though ECS through Mr. Mow disputes this [105-1 ¶ 16]. Mr. Mow hired
a subconsultant to address administrator compensation and disbanded the Committee [id. ¶ 17-18].
The manner in which this occurred also could be utilized by a reasonable jury. School counsel testified
that ECS’s pay practices were “rather willy nilly” and “a bit of a mishmash” even though he viewed it
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all as a “legal mishmash” [111-7 Tr. 66]. A mishmash is not a bona fide reason to explain a gender
wage disparity or reasonably in the eyes of a jury a basis to elude liability.
ECS points to Dr. Haworth’s statement that ECS paid its female athletic director the same as
the male director and made its female deputy superintendent the second highest paid employee in the
district [105-2 ¶ 51]. ECS also points to the subcommittee’s findings that some female administrators
made more than their male counterparts [see 111-17]. These facts may contribute to that “mishmash,”
but whether other women enjoyed greater pay in their station speaks little on this record to whether
Ms. White failed to receive equal pay for equal work. Drawing inferences in the light most favorable
to Ms. White, a reasonable jury could find that there was a gender wage gap issue that would prevent
ECS’s bona fide use of the previous salaries of Mr. Kovach, Dr. Woods, and Mr. Lederach to elude
liability. This issue must go to the jury.1
CONCLUSION
Accordingly, the court DENIES the motion for summary judgment [103]. This case will
proceed to trial.
SO ORDERED.
May 7, 2024
s/ Damon R. Leichty
Judge, United States District Court
ECS also argues that the proper statute of limitations is two years. Though Ms. White does not respond to
this argument, the court need not address it because it is undeveloped. ECS has not argued what aspects of Ms.
White’s claim should be dismissed, if at all, due to the statute of limitations. The court won’t develop arguments
for the parties. See Gross v. Town of Cicero, 619 F.3d 697, 704-05 (7th Cir. 2010).
1
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