Schultz v. State of Wisconsin

Filing 104

ORDER granting in part and staying in part 45 Motion for Summary Judgment; granting 77 Motion to Amend Complaint. Defendant amended motion for summary judgment re Nelse Grundvig due 11/5/10; response due 11/22/10; reply due 12/3/10. Trial date stricken. Signed by Magistrate Judge Stephen L. Crocker on 10/20/10. (krj)

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S c h u l t z v. State of Wisconsin D o c . 104 IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN LINDA SCHULTZ, P l a i n t i f f, v. D E P A R T M E N T OF WORKFORCE DEVELOPMENT, D efend an t. O P IN I O N AND ORDER 0 9 -c v -2 7 4 -slc This is a civil suit for money damages brought by plaintiff Linda Schultz against her f o r m e r employer, the Department of W o r k f o r c e Development. Plaintiff contends that while she w a s employed by the Department, she was paid less than men who were performing work equal t o hers in terms of skill, effort and responsibility, in violation of the Equal Pay Act, 29 U.S.C. § 206(d). Before the court are defendant's motion for summary judgment, see dkt. 45, and p la i n t if f 's motion to amend her amended com p la i n t to add her successor, Nelse Grundvig, as a c o m p a r a t o r , see dkt. 77. Grundvig was hired in early June 2010. I am granting defendant's motion for summary judgment with respect to all of plaintiff's c o m p a r a t o r s except Grundvig. Plaintiff's equal pay claim is untimely with respect to Paul S a e m a n and Terry Ludeman, who left the Department more than 3 years before plaintiff filed h e r complaint. W it h respect to Dennis W in t e r s and Michael Soref, plaintiff has failed to meet h e r burden of showing that the work they performed was equal to hers in terms of skill, effort a n d responsibility. Even if plaintiff could meet this burden, she has failed to adduce evidence s u f f ic ie n t to raise a genuine dispute regarding the Department's affirmative defenses to the wage d is p a rit y . A s for Grundvig, I am granting plaintiff's motion to amend her complaint. Although the S e v e n t h Circuit's decision in W e r n s i n g v. Illinois Dept. of Human Services, 427 F.3d 466 (7 th Cir. 2 0 0 5 ) , contains strong language suggesting that an employer who matches an employee's prior w a g e s (as the Department did with respect to Grundvig) cannot be liable under the Equal Pay A c t for any resulting pay disparity, I am not convinced that prior wages alone is enough in this c a s e , where Grundvig was an outside hire whose initial offer from the Department was below his p r io r wages but still far more than Schultz had been making. Accordingly, allowing amendment w o u ld not be futile. However, to alleviate any prejudice to defendant from allowing amendment a t this late juncture, I am striking the trial date and perm i t t in g defendant to file an amended m o t i o n for summary judgment with respect to Grundvig. A few preliminary remarks about the facts: In many instances, plaintiff responded to facts p r o p o s e d by the Department by reciting at length from her own affidavit, at times going on for p a g e s . I share Judge Crabb's view that such rambling responses are not countenanced by the P r o c e d u r e to be Followed on M o t i o n s for Summary Judgment, as they unduly com p lic a t e the court's task in deciding summary judgment motions. Plaintiff further roils the waters because these r e s p o n s e s , despite their length, often fail to respond directly to the fact proposed by defendant. A c c o r d in g l y , in determining the undisputed facts, I have deemed as undisputed those facts to w h ic h plaintiff failed to respond directly or properly. Against this backdrop, I find the following f a c t s to be undisputed for the purpose of deciding the motion for summary judgment: 2 FACTS I . Plaintiff Linda Schultz P l a in t if f Linda Schultz worked for the Department of W o r k f o r c e Development, an agency o f the State of W is c o n s in , from 1971 until she resigned at the end of 2008. Roberta Gassman h a s been the Secretary of the Department since January 2003. The Department is divided into d iv i s io n s , which are subdivided into bureaus, which in turn are subdivided into sections. For her e n t ir e career, Schultz has worked in the Department's Labor M a n a g e m e n t Information Data D e v e lo p m e n t (LM I ) Section, within the Bureau of W o r k f o r c e Training, within the Division of E m p lo y m e n t and Training. 1 W o r k performed and programs managed by the LM I Section differ f r o m that performed by other sections within the bureau. Throughout her career, Schultz has been a member of W is c o n s in 's classified civil service. U n d e r W is c o n s in civil service law, each position in the classified civil service system is allocated t o the appropriate class on the basis of its duties, authority, responsibilities and other factors r e c o g n i z e d in the job evaluation process. A "classification" is the category to which a job is a s s ig n e d . The schedule and pay range for a specific classification define the minimum and m a x i m u m pay rates for positions in that classification. A "position description" more narrowly d e fin e s the specific set of duties and responsibilities and other characteristics that apply to a p a r t ic u la r position within a given classification. d e s c r i p t i o n s within a classification. In 1971 Schultz began her career in the Department as a Clerical Assistant 2. Schultz c o m p le t e d high school and took some college courses but never obtained a college degree. After There can be many different position The division has had different names during Schultz's tenure as chief of the LM I Section, in c l u d in g the Division of W o r k f o r c e Excellence and the Division of W o r k f o r c e Solutions. 1 3 h o l d i n g various positions over several years with the Department, Schultz was promoted on April 1 5 , 1996 from the classification of Research Analyst 5 to Research Analyst 7 Supervisor. In a c c o r d a n c e with W is c o n s in 's compensation plan for civil service employees, upon promotion her h o u r ly pay increased from $16.359 an hour to $18.083 an hour, a 10.5% increase. On June 1, 1 9 9 7 , Schultz's position was reclassified from Research Analyst 7 Supervisor to Research Analyst 8 Supervisor to reflect a change in duties and responsibilities. Schultz's pay increased from $ 2 0 . 5 7 5 to $21.280 an hour. On November 21, 1999, Schultz's position was changed from "Research Analyst 8 S u p e r v is o r " to the classification of "Research Administrator." This was a change in classification n a m e only with no corresponding salary change. From approximately 1997 until her resignation in December 2008, Schultz held the p o s it io n of Chief of the Labor Market Information section. In that position, Schultz was r e s p o n s ib l e for the organization and direction of the LM I section. Schultz supervised 11 clinical s t a f f and six professional staff, she worked with the United States Department of Labor regarding c e r t a in programs managed by her section, and she reported to the Bureau Director. Apart from o c c a s i o n a l meetings at which other em p lo y e e s were present, Schultz had limited contact with S e c r e t a r y Gassman. Schultz's section managed the Bureau of Labor Standards' federal-state cooperative p r o g r a m s and other data collection activities. The federal-state cooperative programs under S c h u lt z 's supervision were the Quarterly Census of Employment and W a g e s , Local Area U n e m p lo y m e n t Statistics, M a s s Layoff Statistics, Current Employment Statistics and O c c u p a t io n a l Employment Statistics wage programs. Employees under Schultz's supervision 4 a s s e m b l e d a variety of reports, analyses and surveys to meet the expectations of the federal g o v e r n m e n t with respect to these programs and to provide data that was required by the D e p a r t m e n t . M u c h of the work done by Schultz's section was prescriptive and routine. For e x a m p le , one of Schultz's responsibilities was to supervise the quarterly census of employment a g e s , a function defined by the Bureau of Labor Statistics with stringent guidelines on how that s h o u ld be done. Schultz also supervised a nurse wage survey that was limited in duration. In a d d it io n to supervising the data collection activities for the department, Schultz also directed o r ig in a l research, analyzed contracts, produced reports used to monitor agency performance and r e s p o n d e d to data requests from the Secretary, Governor and state legislature. Schultz supervised a unit that provided information to the Projections Unit. The P r o je c t io n s Unit is part of the Office of Economic Advisors, an office located within the Office o f the Secretary and not managed or supervised by Schultz. The Projections Unit took the data p r o v i d e d by Schultz's unit, analyzed it and published projections of the likely numbers of o p e n in g s for a given occupation. I n 1996, Schultz began working part-time as a receptionist at Epic Systems, Inc., a private e m p lo y e r in Dane County, while retaining her job at the Department. Schultz left work at the D e p a r t m e n t at 3:15 p.m. every day in order to get to her job at Epic. Although Schultz's s u p e r v i s o r , Bureau Director Gary Denis, was aware of this, Gassman did not learn of Schultz's s e c o n d job until after Schultz resigned from her position in the Department. Schultz cannot r e c a l l any situations that arose at the Department after she had left for Epic in which her absence p o s e d a problem. 5 E f f e c t iv e M a r c h 12, 2000, the classification specifications for Research Administrator w e r e modified to reflect the results of a broadbanding study conducted by W is c o n s in ' s Office of S t a t e Employment Relations (OSER). OSER implemented "broadbanding," whereby various pay r a n g e s were grouped together. This gave the state more flexibility in establishing pay rates within a position's pay range. For instance, broadbanding gave managers discretion to consider an e m p lo y e e 's training and experience when setting pay rates rather than have the rate dictated by t h e position. S o m e t i m e before December 2008, Schultz asked her supervisor, Bureau Director Gary D e n is , to nominate her for a Discretionary Compensation Award, or DCA. Schultz subm it te d a self-drafted nomination form with her request. DCAs are lum p sum cash payments or base s a la r y increases available for non-represented employees that can be granted for reason of equity, r e t e n t i o n or to compensate an employee for an extraordinary temporary workload. Denis r e s p o n d e d that he could not in good faith pass along her nomination, not only because he felt m u c h of the text was inflammatory and inappropriate, but also because the Governor had d e c l a r e d that there were to be no DCAs that year. After Denis refused to nominate her for a D C A , Schultz resigned from her position, effective December 30, 2008. r e s i g n e d , Shultz was making approximately $66,000 a year.2 At the time she In her brief, Schultz asserts that she made "repeated requests" for equity adjustments in her pay, D k t . 53, p. 17. Apart from the evidence concerning the December 2008 DCA request, the only other a d m i s s i b l e evidence showing that Schultz sought higher pay is the testimony of former HR Director W illia m Kom a r e k , who testified vaguely that he remembered talking to Schultz about her concern over n o t receiving some pay adjustm e n t s or a pay increase. Dkt. 57, exh. 11, at 23. It is unclear when this c o n v e r s a t i o n occurred or whether Schultz had been seeking reclassification or a DCA. In any event, K o m a r e k testified that he told Schultz that she should bring her complaint to her managers and he took n o action on her behalf. Id. at 24. Komarek's testimony does not support an inference Schultz's superiors r e p e a t e d l y "denied her request" for a pay raise. 2 6 O n M a y 10, 2009, she filed this lawsuit, alleging that the Department had violated the E q u a l Pay Act, 29 U.S.C. § 206(d)(1), by paying her less than it paid male Research A d m in is t r a t o r s for work requiring substantially similar skill, effort and responsibilities. On June 1 7 , 2009, she filed an amended complaint providing the names of four males that she contends w e r e paid more for equal work: Dennis W in t e r s , M ic h a e l Soref, Terry Ludeman and Paul S a e m a n . On June 8, 2010, after briefing on summary judgment had ended, she moved to amend h e r complaint to add a fifth comparator, Nelse Grundvig. I I . Dennis W i n t e r s /T e r r y Ludeman I n February 2006, a vacancy occurred in the position of Chief, Office of Economic A d v i s o r s , a Research Administrator classification in the Department. The person holding this p o s it io n is considered to be the chief economist for the State of W is c o n s in . The Office of E c o n o m ic Advisors is not a division within the Department, but rather is an office within the O f f ic e of the Secretary. The Chief of the Office of Economic Advisors reports directly to the D e p a r t m e n t Secretary. Before February 2006, the Chief had been Terry Ludeman. The Department carried out a major national recruitment to fill Ludeman's position. The j o b announcement listed the salary range between $49,076 and $78,629 annually, depending o n qualifications. In deciding on this salary range, the Department looked at what economists in the federal government were paid. In 2005, economists employed by the federal government e a r n e d an average annual salary of $89,441. As a current state employee in a Career Executive p o s it io n , Schultz automatically would have been placed on the list of candidates to be in t e r v ie w e d for this position if she had applied for it. Shultz did not apply. 7 D e n n i s W in t e r s applied and was hired for the job. W in t e r s has a bachelor's of science d e g r e e from the University of W is c o n s in - M a d is o n and a master's of science degree from C o lo r a d o State. He has authored or coauthored numerous publications pertaining to He has held positions with Clayton W is c o n s in ' s economy and workforce development. B r o k e r a g e Company of St. Louis (research analysis), M a s s a c h u s e t t s Executive Office of Energy R e s o u r c e s (senior policy analyst), Data Resources, Incorporated (petroleum analyst), the Institute o f Gas Technology (education programs) and W a r t o n Econometric Forecasting Associates ( c o n s u lt a n t and account vice-president). He also formed consulting firms, Real Economics and N o r t h Star Economics, where he did economic consulting, development and analysis for both the p r i v a t e sector and the government. Secretary Gassman was familiar with W in t e r s and his work and had heard him speak t w i c e at conferences. She also was familiar with his consulting firm, North Star Economics, w h ic h had developed a good reputation for producing major studies on the W is c o n s in economy. W i n t e r s was hired and began work on November 1, 2006. W i n t e r s ' s starting salary was $38.410 per hour, approximately $79,900 annually. This w a s higher than Gassman's original offer but lower than W in t e r s 's request, which had been above t h e range for the position. In setting W in t e r s 's starting salary, Gassman reviewed his resumé and c o n s id e r e d many factors, including his education, employment background, knowledge of e c o n o m i c issues, reputation as a highly regarded and very credible expert on the W i s c o n s i n e c o n o m y , his public profile and experience dealing with the public and the media and his work w it h Northstar. 8 As Chief of the O f f i c e of Econom i c Advisors, W i n t e r s is responsible for providing e c o n o m ic and labor trend information to key staff in the Department, the Governor's Office and o t h e r officials and for representing the Department to the public and other agencies. W in t e r s m a n a g e s a group of high-caliber analysts, most of whom are college educated and some of whom h a v e graduate degrees, who review and analyze the dynamics of wage rates for particular o c c u p a t io n s over time. The scope of information analyzed by W in t e r s 's staff is broad and deep. M u c h of the data analyzed by the Office of Economic Advisors is collected and banked by the L M I section. W in t e r s and his staff take the data provided by LM I , analyze it, interpret it into t h e current state of economic affairs and then explain its findings to non-economists. W in t e r s frequently addresses the public on behalf of the Department, announcing labor m a r k e t and economic information to the public. W in t e r s often communicates directly with S e c r e t a r y Gassman and needs to be available for consultation at a moment's notice, including n i g h t s and weekends. III. M i c h a e l Soref/Paul Saem a n M ic h a e l J. Soref held a position at the Department from M a y 16, 2004 until he left the D e p a r t m e n t June 21, 2008. Soref was Chief of the Research and Statistics Section, which was lo c a t e d within the same division and bureau in which Schultz worked. Like Schultz's position, S o r e f 's position was classified as a "Research Adm in is tr a t o r " position. Before Soref was a p p o in t e d to the position, it had been held by Paul Saeman. Saeman's employment with the D e p a r t m e n t ended on June 8, 2004. 9 S o r e f holds a Ph.D. in sociology from the University of W is c o n s in . He has authored or c o a u t h o r e d numerous publications covering subjects such as maternal and child health, the u n in s u r e d , day care, morbidity and managerial autonomy. Before joining the Department, Soref w a s an employee with the W i s c o n s i n Department of Health and Family Services, where he held a non-supervisory position classified as a Research Analyst 7 position. His appointment as Chief o f the Research and Statistics section was a promotion that entitled him to a base pay increase o f not less than 8% of the pay range minimum, subject to the appointment maximum. Soref was a p p o in t e d at a pay rate of $30.040 an hour, roughly $62,500 annually, which constituted a 1 4 . 4 % increase over his previous pay rate. As chief of the Research and Statistics section, Soref supervised one unit supervisor, 15 e m p lo y e e s in professional classifications, 2 employees in technical classifications and 1 employee i n an administrative support classification. The Research and Statistics section provides a full r a n g e of research and statistical service in the determination of federally mandated and essential s t a t e information requirements. The section is responsible for the design and maintenance of o p t im a lly effective and efficient reporting systems and research studies with emphasis on p r o g r a m issues and evaluation of new program initiatives, installation and operation of data s y s t e m s , analysis interpretations and utilization of data and preparation of reports. T h e primary program with which Soref's section worked was the W is c o n s in W o r k s , or W - 2 program, which is W is c o n s in 's public assistance program for needy families. Soref directed o r ig in a l research and supervised research on the W - 2 program. For example, Soref supervised s t u d i e s on racial differences in sanctions in the program and on a screening tool used to find b a r r ie r s for screening for disabilities among W - 2 participants. In addition, he analyzed contracts f o r the W - 2 program, maintained computer-generated reports that were used for W - 2 contract 10 a g e n c y performance standards, fulfilled ad hoc requests of agencies and produced new or m o d if ie d reports to be used to monitor agency performance. Soref was responsible for p e r f o r m a n c e planning, performance measurement, evaluation, reporting, statistical reporting and p r o g r a m performance policy. Soref supervised program design work products and supervised a m a jo r change in the data reporting subsequent to reauthorization of Temporary Assistance for N e e d y Families, or TANF, the federal program that W - 2 is under. Soref and his staff also m a n a g e d a grant that the Secretary directed to the University's Institute for Research on Poverty, w h ic h entailed writing specifications for the project design and then managing the grant. Another program on which Soref worked was the Child Care Subsidy Program. Both W - 2 a n d the Child Care Subsidy Program were high-profile, "hot button" programs that received in t e n s e public scrutiny and frequently were the subject of requests by legislators, the governor, t h e department secretary and others for data and analyses that had to be developed quickly, then a r t ic u la t e d clearly and understandably. For example, legislators interested in the W - 2 program m a d e detailed requests for both data and analyses about the progress of the program statewide a n d in their districts and Soref was expected to respond quickly to those inquiries. Secretary Gassman directly contacted Soref through email and in person to discuss the W - 2 program. On one occasion, Soref helped her prepare for a legislative hearing at which she s p o k e about the program. The decision to hire Soref was made by W illia m Clingan, the division administrator, and S a n d r a Breitborde, the bureau director. They determined that Soref possessed the skills needed f o r the position, including the ability quickly to gather and produce data, analyze it, then clearly c o m m u n i c a t e the data and analysis to people unfamiliar with the technicalities of the W - 2 11 p r o g r a m . In determining how m u c h to offer Soref, Clingan and Breitborde consulted hum a n r e s o u r c e s personnel and considered Soref's curriculum vitae. Further, due to policies from the g o v e r n o r 's office that m i n i m iz e d the chance of significant future compensation increases for e x e c u t iv e branch employees, Clingan's practice was to maximize the initial offers to personnel w h o m he sought to hire, male or female, in order to obtain and retain qualified employees. C lin g a n applied this practice when he offered Soref a $62,483 salary. S o r e f left the Department effective June 21, 2008, as a result of his position having been r e a llo c a t e d to a different state agency. He currently is employed as a Research Adm in i s t r a t o r for t h e Department of Children and Families, Division of Family and Economic Security, Bureau o f W o r k i n g Families. I V . Nelse Grundvig A . Nelse Grundvig was hired on June 1, 2010 to fill the position formerly held by Schultz. T h e Department offered Grundvig a starting salary of $74,000 per year, or $35.58 per hour, a b o u t $8,000 more a year than Schultz had been making when she resigned. During n e g o t ia t io n s , the Department eventually increased its offer to $78,000 to match the salary G r u n d v i g was earning in North Carolina. 12 O P IN IO N I . Legal Overview T h e Equal Pay Act, a subsection of the Fair Labor Standards Act, provides that an e m p lo y e r shall not discriminate . . . between employees on the basis of sex by paying wages to e m p l o y e e s in such establishment at a rate less than the rate at w h i c h he pays wages to employees of the opposite sex in such e s t a b lis h m e n t for equal work on jobs the performance of which r e q u ir e s equal skill, effort, and responsibility, and which are p e r fo r m e d under similar working conditions, except where such p a y m e n t is made pursuant to (I) a seniority system; (ii) a merit s y s t e m ; (iii) a system which measures earnings by quantity or q u a lit y of production; or (iv) a differential based on any other f a c t o r other than sex . . . . 2 9 U.S.C.A. § 206(d)(1). T o prove a violation of the Equal Pay Act, Schultz first must establish a prima facie case o f unequal pay by showing that: 1) higher wages were paid to a male employee; 2)she and the m a le employee performed equal work requiring equal skill, effort, and responsibility; and 3) the w o r k was perform e d under similar working conditions. Cullen v. Indiana Univ. Board of Trustees, 3 3 8 F.3d 693, 698 (7th Cir. 2003). If Schultz meets this burden, then the burden shifts to the D e p a r t m e n t to show that the pay disparity was justified in one of four ways: 1) a seniority s y s t e m ; 2) a merit system; 3) a system which measures earnings by quantity or quality of p r o d u c t i o n ; or 4) any factor other than sex. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 7 9 3 - 9 4 (7 th Cir. 2007); Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989). S u m m a r y judgment is proper where there is no showing of a genuine issue of material fact in the pleadings, depositions, answers to interrogatories, admissions and affidavits, and where t h e moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "'A genuine 13 is s u e of material fact arises only if sufficient evidence favoring the nonmoving party exists to p e r m it a jury to return a verdict for that party.'" Sides v. City of Champaign, 496 F.3d 820, 826 ( 7 th Cir. 2007) (quoting Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7 th Cir. 2 0 0 5 ) ) . In determining whether a genuine issue of material facts exists, the court must construe a l l facts in favor of the nonmoving party. Squibb v. M e m o r i a l Medical Center, 497 F.3d 775, 780 ( 7 th Cir. 2007). Even so, the nonmoving party must "do more than simply show that there is s o m e metaphysical doubt as to the material facts." M a t s u s h i t a Electric Indus. Co. v. Zenith Radio C o rp ., 475 U.S. 574, 586 (1986). I I . Ludeman and Saem a n U n d e r 29 U.S.C. § 255(a), any action under the Equal Pay Act must be brought within 2 years of the injury alleged, or within 3 years if the defendant's conduct is willful. In Snider v. B e l v i d e r e Township, 216 F.3d 616, 618 (7 th Cir. 2000), the court held that in discrimination cases b a s e d on unequal pay, the statute of limitations starts to run w h e n the [higher-paid] male leaves his employment. This is b e c a u s e the male's departure ends the allegedly discriminatory w a g e differential (assuming there are no other m e n being paid m o r e than the plaintiff for a job requiring equal skill, effort and re s p o n s ib ility ). Applying this rule to the facts before it, the court found that to state a timely EPA claim based o n the greater earnings of her former coworker, (a man named W it e k ) , the plaintiff had to have " f ile d her cause complaining of W it e k 's wage no later than June 30, 1998 (two years after W it e k le ft the Assessor's office)." Id. at 619. Because the court could find nothing in plaintiff's 14 c o m p la in t suggesting that she was bringing an EPA claim based on W it e k 's wages and the twoy e a r period had long passed, it did not consider the evidence of W i t e k ' s wages. Id. R e ly in g on Snider, the Department contends that Schultz cannot point to Ludeman or S a e m a n to prove her claim of wage discrimination because both of them left the Department m o r e than 3 years before plaintiff filed her suit. Schultz does not contest the timeline but r e s p o n d s with three arguments why Snider does not control. None is persuasive. First, Schultz characterizes as dicta Snider's declaration that males whose employment t e r m i n a t e d more than two years (or in the case of willfulness, three years) before the plaintiff f ile d her EPA suit cannot be used as comparators. A plain reading of the case, however, indicates t h a t this is not so. The court's determination that plaintiff could not bring an EPA claim based o n W it e k 's wages flowed from its affirmation of the precedent set in Dasgupta v. University of W i s co n s i n Board of Regents, 121 F.3d 1138 (7 th Cir. 1997), which held that "the continued receipt o f lower paychecks does not revive past allegedly discriminatory conduct." Snider, 216 F.3d at 6 1 8 (citing Dasgupta, 121 F.3d at 1139-40). In other words, the court's conclusion that the p la in t if f could not submit proof of W it e k 's wages because it was outside the relevant time period w a s not merely a peripheral remark or observation, but was necessary to the outcome of the case. S e e United States v. Crawley, 837 F.2d 291, 292-93 (7 th Cir. 1988) (defining dicta). Accordingly, S n i d e r is binding on this court. Second, Schultz seizes on the language quoted in parentheses above and uses it to argue t h a t she should be allowed to use Ludeman and Saeman as comparators because even after they le f t the department, there still were male Research Administrators who made more than she did. A g a i n , however, Schultz misreads Snider. Contrary to her assertion, the court did not "qualify" 15 it s opinion, it merely stated the obvious: wage discrimination does not end with the departure o f one higher-paid male if other higher-paid males remain employed. Plaintiff may be able to p r o c e e d with her wage discrimination claim on the basis of the higher-paid males who were e m p lo y e d within two or three years of when she filed her suit, but the fact that she has some c o m p a r a t o r s who were employed by defendant during the limitations period does not mean she c a n bring in those who were not. F i n a l l y , Schultz points out that according to the EEOC's interpretive regulations, "[i]t is im m a t e r ia l that a member of the higher paid sex ceased to be employed prior to the period c o v e r e d by the statute of limitations for filing a timely suit under the EPA." 29 C.F.R. § 1620.13(b)(5)(1987). Although the court of appeals did not mention this regulation in Snider, t h e court cited with approval the Sixth Circuit's decision in EEOC v. Penton Industrial Publishing C o ., 851 F.2d 835, 838-39 (6th Cir. 1988). In that case, the court determined that 29 C.F.R. § 1620.13(b)(5) is "limited in application to cases where the aggrieved party who initiated the d i s c r i m i n a t i o n charge was either the predecessor or successor of the more highly paid employee." I d . at n.8. In this case, Schultz was not the predecessor or successor of Ludeman or Saeman. I n sum, based on Snider and Penton, I find that plaintiff may not attempt to establish an E P A violation with evidence of Ludeman's and Saeman's wages. III. W i n t e r s and Soref T h e r e is no dispute that W in t e r s and Soref both earned more than Schultz at the D e p a r t m e n t and that they all worked under similar conditions. The parties' dispute with respect 16 t o W i n t e r s and Soref centers on whether they and Schultz perform e d work requiring equal skill, e f f o r t and responsibility. F o r Schultz to satisfy this element of her prima facie burden, she must show that her job a n d those performed by W in t e r s and Soref had a "common core of tasks," which means that a s i g n i f i c a n t portion of the two jobs must be identical. Cullen, 338 F.3d at 698 (internal quotation m a r k s omitted). If a plaintiff establishes this "common core," then the question becomes w h e t h e r any additional tasks make the jobs "substantially different." Id. W h e n assessing job d u t ie s , each of the elements listed in the EPA (skill, effort and responsibilities) must be met i n d i v i d u a l l y to establish a prima facie case. Id.; see also 29 C.F.R. § 1620.14. The parties agree t h a t in making this job comparison, the factfinder must examine the duties actually performed b y each employee, not merely job descriptions, classifications or titles. M e r illa t v. M e ta l Spinners, I n c ., 470 F.3d 685, 695 (7 th Cir. 2006); Fallon, 882 F.2d at 1208. A s Schultz concedes, the separate sections that she, W in t e r s and Soref headed were h e t e r o g e n o u s , with each performing different work and managing different programs. In the face o f this concession, Schultz faces a formidable burden in showing that she was performing work e q u a l in skill, effort and responsibility to that performed by W in t e r s and Soref. The Seventh C ir c u it has made quite clear that equal pay is not to be confused with equal worth: [ W ] h e n jobs are heterogeneous a suit under the Equal Pay Act is i n danger of being transmogrified into a suit seeking comparable p a y - - a theory of liability for sex discrimination under Title VII that h a s been rejected by this and the other courts to consider it . . . ** * The proper domain of the Equal Pay Act consists of standardized j o b s in which a man is paid significantly more than a woman (or a n y t h i n g more, if the jobs are truly identical) and there are no skill d if f e r e n c e s . An example might be two sixth-grade music teachers, 17 h a v in g the same credentials and experience, teaching classes of r o u g h ly the same size in roughly comparable public schools in the s a m e school district. S i m s - F i n g e r s v. City of Indianapolis, 493 F.3d 768, 771 (7 th Cir. 2007). T h e jobs being compared must be not merely comparable, but must be "substantially a lik e ." Equal Employment Opportunity Commission v. Madison Community Unit School Dist. No. 12, 8 1 8 F.2d 577, 582 (7 th Cir. 1987). Thus, in Sims-Fingers, the court found that the plaintiff, a f e m a le manager of a city park in Indianapolis, had failed to make a prima facie case under the E P A where the male park managers to whom she compared herself managed larger parks with m o r e facilities or greater income and patronage than plaintiff's small park. Id. According to Schultz, the only difference between her job and that of her comparators w a s the entities or programs with which they worked, a difference she contends is insubstantial. A s proof, she relies on her own affidavit, in which she avers that she performed all of the same t a s k s that Soref and W in t e r s performed. A careful reading of Schultz's affidavit, however, when c o m p a r e d to the testimony of Soref and W i n t e r s and other evidence concerning their r e s p o n s ib ilit ie s , establishes that Schultz cannot meet her prima facie burden with respect to the e f f o r t and responsibility prongs of the test. 3 Further, Schultz's attempt to downplay the d i f f e r e n c e s in the programs she supervised is unconvincing. Although the Department also argues that Schultz has failed to adduce admissible evidence s h o w in g that she meets the "equal skill" prong of the job comparison, I am satisfied from comparing the r e s p e c t i v e position descriptions that Schultz has met her burden in this regard. In any event, it is u n n e c e s s a r y to dwell on this question because Schultz fails to meet the two other requirements, effort and r e s p o n s i b i l it y . 3 18 a . W in t e r s " R e s p o n s ib i lit y is concerned with the degree of accountability required in the performance o f the job, with emphasis on the importance of the job obligation." 29 C.F.R. § 1620.17(a). " E f f o r t is concerned with the measurement of the physical or mental exertion needed for the p e r f o r m a n c e of a job." 29 U.S.C. § 1620.16(a). Thus, job factors that cause mental fatigue and s t r e s s are part of the effort inquiry. S c h u lt z ' s affidavit shows that as managers of their respective sections, she and W in t e r s p e r f o r m e d a number of similar tasks, including personnel management, participation on c o m m it t e e s and workgroups and keeping abreast of policy initiatives. W in t e r s , however, had a d d it io n a l duties that differed significantly in degree of effort and responsibility. M ost im p o r t a n t ly , W in t e r s served as the State of W is c o n s i n 's "chief economist." Schultz did not. W i n t e r s held a much more visible role in the Department, frequently making public a n n o u n c e m e n t s and speaking to the media regarding labor m a r k e t and other economic in f o r m a t io n and analyses performed by his staff of labor market analysts around the state. A lt h o u g h Schultz avers that, like W in t e r s , she "explained policy to the public and disseminated D e p a r t m e n t information" on an as-needed basis, nothing in the record suggests that this was an o r d in a r y part of her day-to-day activities, as it was for W in t e r s . The mere fact that her r e p la c e m e n t , Grundvig, was scheduled to hold a public address in September does not show that m a k in g public announcements was a regular part of Schultz's ordinary duties when she held the p ost. A d d i t i o n a l l y , although Schultz has averred generally that she and her staff did not merely c o lle c t data but analyzed it as well, there is no evidence that Schultz or her staff engaged in the 19 s a m e level of economic analysis as W in t e r s and his staff. The undisputed evidence establishes t h a t W in t e r s and his staff took the wage data gathered by Schultz's section, analyzed it, in t e r p r e t e d it into the current state of economic affairs and then explained those findings to none c o n o m is t s . Schultz's self-serving and uncorroborated assertion that W in t e r s 's group "did no m o r e or less analysis of data than did LM I " is insufficient to establish a genuine dispute whether s h e and her staff had the same responsibility for the higher-level labor market analyses performed b y W in t e r s and his staff. Further, Schultz's and W in t e r s 's positions differed significantly in the degree to which t h e y interacted with and were accountable to the department secretary. W in t e r s reported d i r e c t l y to Secretary Gassman, communicated with her often and was expected to be available t o confer with her on a moment's notice, including nights and weekends. In contrast, Schultz h a d little direct contact with Gassman and reported to a bureau director. Schultz was able to h a n d l e her job responsibilities with no disruption even though she left the office at 3:15 p.m. e v e r y day to work a second job. There is no genuine dispute that W in t e r s 's job involved greater m e n t a l fatigue and stress than Schultz's. On this record, no reasonable jury could find that S c h u l t z ' s and W i n t e r s ' s jobs were equal either in term s of effort or responsibility. Even assuming, arguendo, that Schultz has established a prima facie case with respect to W in t e r s , the burden would shift to the Department to establish one of four statutory defenses. C u l le n , 338 F.3d at 702. The statutory defenses occur when the rate of pay is determined " p u r s u a n t to (I) a seniority system; (ii) a merit system; (iii) a system which measures earnings b y quantity or quality of production; or (iv) a differential based on any factor other than sex." 20 2 9 U.S.C. § 206(d)(1). The Department relies on the fourth defense, asserting that the d i f f e r e n c e in pay between Schultz and W i n t e r s was based on factors "other than sex." S p e c if ic a l ly , the Department contends that the pay disparity was based on the difference b e t w e e n Schultz's and W i n t e r ' s education and experience and on market forces. W i n t e r s held a master's degree in economics and authored or coauthored numerous publications pertaining t o W is c o n s in 's economy and workforce development. He was known to Secretary Gassman as a reputable expert on the W is c o n s in economy and for his work at North Star Economics, the p r iv a t e consulting firm that he managed. Schultz, had a high school diploma and had spent her e n t ir e career in the LM I section. "Under the EPA, differences in education and experience may b e considered factors other than sex." M e r illa t, 470 F.3d at 697. The clear differences between W in t e r 's and Schultz's experience and education were factors other than sex that justified paying h ig h e r wages to W in t e r s . D e f e n d a n t also contends that W i n t e r ' s salary was determ i n e d by market forces. It is u n d i s p u t e d that when establishing the pay grade for the chief economist position, the D e p a r t m e n t looked at what economists in the federal government were paid, which was $89,441. A n employer may take market forces into account when determining the salary of an employee, p r o v i d e d there is no evidence suggesting that the employer took advantage of any kind of market f o r c e s that would perm i t different pay for a male and female for the same position. M e r illa t, 470 F . 3 d at 697; Cullen, 338 F.3d at 703; Stopka v. Alliance of American Insurers, 141 F.3d 681, 687 (7 th C ir . 1998). Plaintiff has pointed to no evidence suggesting that the defendant was not motivated b y legitimate market forces when it offered a salary to W in t e r s based on prevailing market rates f o r government economists. Because plaintiff has failed to adduce evidence to place the facts 21 s u r r o u n d in g defendants' stated rationales for the difference in pay in dispute, the Department is entitled to summary judgment on its affirmative defense with respect to W in t e r s . b. Soref A lt h o u g h Soref's job was more similar to Schultz's than W in t e r s ' s , nonetheless there are s ig n i f ic a n t differences that preclude Schultz from establishing her prima facie case. Soref had a d d it io n a l responsibility for tasks that Schultz simply did not perform. For example, Soref was r e s p o n s ib le for conducting original research on the W - 2 program and for managing a grant d i r e c t e d to the University's Institute for Research on Poverty. Nonetheless, Schultz avers that s h e , too, directed original research, just not on the W - 2 program, and that she also managed g r a n t s and wrote specifications for projects, just not the same poverty grant that Soref managed. H o w e v e r , Schultz fails to describe specifically or even generally the subjects of the research that s h e conducted or the grants that she managed. Absent specific examples, this court has no basis t o conclude that her alleged research and grant-management duties involved the same level of e f f o r t or responsibility as that perform e d by Soref with respect to the W - 2 program. Soref's job also differed in terms of effort. One of Soref's tasks was to supervise program d e s i g n work products. In conjunction with this, he supervised a major change in the data r e p o r t in g for the W - 2 program subsequent to reauthorization of TANF. Although plaintiff a l le g e s that she also "supervised program design work" as part of the state/federal labor market p r o g r a m s she supervised, she does not allege that any of her programs underwent a "major c h a n g e in data reporting" under her supervision. In fact, many of the reports and statistics p r o d u c e d by Schultz's group were done so pursuant to stringent guidelines established by the 22 B u r e a u of Labor Statistics that varied little over time. In contrast, the data reporting and a n a l y s e s performed by Soref were more dynamic, as TANF was first implemented and then r e a u th o r iz e d . I am satisfied that Soref's task of keeping abreast of the ever-changing reporting r e q u ir e m e n t s for TANF and W - 2 required more mental effort than was required of Schultz with r e s p e c t to her well-established wage programs. In addition, the programs on which Soref worked, W - 2 and the Child Care Subsidy P r o g r a m , were high profile and of keen political interest to legislators and others both within and o u t s id e the government. Soref communicated with Secretary Gassman about W - 2 issues on m o r e than one occasion and once helped her prepare for a legislative hearing on the subject. A lt h o u g h plaintiff makes the conclusory assertion that she also had "`hot button' issues to deal w it h , " such as unemployment and related plant closings and strikes, she does not back up her a s s e r t io n with any specific evidence concerning how and when she had to "deal with" those is s u e s . In particular, she makes no claim that such issues were "frequently the subject of repeated r e q u e s t s by legislators . . . and others for data and analyses that had to be developed quickly and a r t i c u l a t e d clearly and understandably," as was required of Soref's position. The high-profile n a t u r e of the programs with which Soref worked demanded more effort and responsibility. In sum, although the record reveals similarities, there are enough conceded differences b e t w e e n Soref's and Schultz's positions to preclude Schultz from establishing a prima facie case o f wage discrimination. Further, although it is somewhat of a closer question, I am satisfied that defendant has m e t its burden of showing that it is entitled to summary judgment on the justification question. A s the Department points out, Soref was hired from another department where he was working 23 in a lower-classified position. Under W is c o n s in ' s civil service laws, his appointment to the R e s e a r c h and Statistics chief position entitled him to a promotion, along with an increase of at le a s t 8% above what he had been making in his previous job. This policy am o u n t s to a bona-fide, g e n d e r neutral explanation for the first eight percent of Soref's salary increase. S o r e f 's initial salary was 14.4% greater than his prior salary. The remaining 6.4% was a discretionary increase obtained by Clingan, who testified that he had a personal practice of a t t e m p t in g to set the initial salaries of his new hires, male or female, at the highest rate possible. A c c o r d i n g to the Department, this shows that the disparity between Soref's and Schultz's wages w a s not based on sex. Schultz responds that Clingan must not have applied his philosophy to Soref because the s ta r t in g salary he offered, $62,483, was well below the maximum $76,218 allowed by the pay r a n g e . As the Department points out, however, Clingan testified that the salaries he offered were s e t within constraints set by Human Resources personnel. The fact that Soref's salary was below t h e maximum does not refute Clingan's testimony that he attempted to negotiate a salary for S o r e f that was as high as possible given HR constraints, and that he did so with his new hires a c r o s s the board. Absent evidence that Clingan applied this practice only to males, it suffices as a "factor other than sex" that justifies the wage disparity. IV. Grundvig T h is leaves Grundvig, Schultz's successor. Although the Department concedes that a p l a i n t i f f may rely on her successor to establish a violation of the Equal Pay Act, see, e.g., Patkus 24 v . Sangamon-Cass Consortium, 769 F.2d 1251, 1260 (7 th Cir. 1985) (salary paid to successor who p e r f o r m s substantially same work may provide basis for equal pay action), the Department insists t h a t Schultz cannot rely on Grundvig because she did not name him in her complaint or a m e n d e d complaint. Schultz responded by moving to amend her complaint, asserting that she d i d not name Grundvig earlier because he was not hired until June 1, 2010, and that she did not le a r n the details of Grundvig's job duties or compensation until he was deposed on July 29, 2010. T h e Department ripostes that allowing an amendment at this late juncture not only is unfair but fu tile . Assuming without deciding that an Equal Pay Act plaintiff must form a l l y identify all a l le g e d comparators in her complaint, I conclude that Schultz should be allowed to amend her c o m p la i n t to add Grundvig as a com p a r a t o r and that allowing her to do so would not be futile. L e t 's start with the futility argument: the Department contends that even assuming G r u n d v i g is a proper comparator, 4 Schultz's EPA claim fails as a matter of law because G r u n d v ig 's starting pay at the Department equals his prior wages in North Carolina. According t o the Department, an employer's decision to pay an employee the wages he was earning at a p r e v io u s job is a "factor other than sex" that shields the employer from liability under the Equal In a footnote in its reply brief, the Department asserts that "Schultz has failed to present a d m is s ib l e evidence that Grundvig is performing the same duties as Schultz and the record evidence a c t u a l l y points the other way." Dkt. 59, n.4. Schultz averred in her affidavit that, based upon Grundvig's t e s t im o n y at his deposition about his job duties and his position description, Grundvig is performing the s a m e job that Schultz performed when employed by the Department. Dkt. 56, ¶¶133, 134. The D e p a r t m e n t does not deny that Grundvig was hired to replace Schultz and it has not pointed to any a d d it io n a l duties that Grundvig has been asked to perform that were not performed by Schultz. On the r e c o r d as it stands, it appears that Schultz has met her prima facie burden of showing that she and G r u n d v ig performed work requiring substantially equal skill, effort and responsibility. The Department is free, however, to present evidence to the contrary in the event it files an amended summary judgment m o t io n with respect to Grundvig. 4 25 P a y Act. The Department gains strong support for its position from W e r n s in g v. Illinois Dept. of H u m a n Services, 427 F.3d 466 (7 th Cir. 2005), in which the court declares in seemingly absolute t e r m s that "prior wages are a `factor other than sex'" that justifies paying a worker of one sex m o r e than a worker of a different sex for similar work. Id. at 468 (citing Dey v. Colt Const. & D e v e lo p m e n t Co., 28 F.3d 1446, 1462 (7 th Cir. 1994), Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1 9 8 7 ) and Covington v. Southern Illinois University, 816 F.2d 317 (7th Cir. 1987)). After a close lo o k at W e r n s in g and the cases that preceded it, however, it is not entirely clear whether prior w a g e s alone will always justify a wage disparity. In W e r n s in g , 427 F.3d at 467, the plaintiff was earning less than her male counterpart by v ir t u e of the Department's policy of giving lateral entrants a salary at least equal to what they had b e e n earning, plus a raise if possible; the plaintiff's counterpart initially came into the d e p a r t m e n t earning more than the plaintiff did. Similarly, the University in Covington, 816 F.2d a t 321, defended the pay disparity in that case by pointing to its policy of retaining the salary o f employees who change assignments. In this case, by contrast, Grundvig was not a lateral hire, n o r has the Department alleged that it had a "policy" of matching prior salaries when it made a new hire. In addition, as Schultz points out, even the Department's initial offer to Grundvig o f $74,000 was far more than Schultz had been making in the same position. The Department h a s not explained how it arrived at this figure for its initial offer. D e y , 28 F.3d 1446, is the only case among the W e r n s in g progeny that involved an outside h ir e or any discussion of the employer's initial salary offer.5 At the time of her termination, Dey In Riordan, 831 F.2d 690, the m a le employees who earned more than the plaintiff worked in the s a m e state unit as plaintiff, but were federal employees by virtue of a federal-state support agreem e n t . W h e n the plaintiff, a state employee, proposed to reorganize the unit by converting the federal employees 5 26 h a d been making an annual salary of $27,500. Id. at 1461. Her successor was hired at starting p a y of $32,400, after being initially offered $30,000. In defense of the pay disparity, the c o m p a n y cited the male's prior salary and his superior educational background. In upholding t h e trial court's grant of summary judgment to the employer on the plaintiff's EPA claim, the c o u r t explained: I t also is undisputed that Colt initially offered M a l o n e y a p p r o x im a t e l y $30,000, but that he negotiated an annual salary c lo s e r to what he had been earning at Allnet. It is not surprising t h a t Maloney would be unwilling to becom e Colt's controller unless h e was compensated at or near his previous rate. Such evidence m u s t be considered with some caution, of course, as undue reliance o n salary history to explain an existing wage disparity may serve to p e r p e t u a t e differentials that ultimately may be linked to sex. See R io r d a n v. Kempiners, 831 F.2d 690, 699-700 (7th Cir. 1987); C o v in g t o n , 816 F.2d at 322. Yet when we consider Colt's initial o f f e r and the ensuing negotiations in conjunction with M a lo n e y 's s u p e r io r educational background and the fact that Colt hired M a lo n e y almost a full year after Dey's last pay raise, we are c o n v in c e d that M a lo n e y 's higher salary is unrelated to his sex. I d . at 1462. S i g n i f i c a n t l y , the court did not end its analysis with the fact that the wages of Dey's s u c c e s s o r matched his prior wages, but also considered his superior educational background. A n o t h e r factor refuting any suggestion of wage discrimination was the defendant's initial offer, w h ic h was only $2,500 more than the plaintiff had been earning a full year earlier. In this case, h o w e v e r , evidence regarding the Department's initial offer to Grundvig cuts the other way: it w a s approximately $8,000 more than what Schultz had been making, a disparity too great to be to state employees, the federal employees agreed to the plan only if they received wages comparable to t h e i r wages as federal em p l o y e e s , which were higher than the plaintiff's. The court had little trouble f in d in g that the initial disparity in the wages of the plaintiff and the former federal employees was not the r e s u l t of sex discrimination. Id. at 698-99. 27 e x p l a in e d by the mere lapse of time, and in fact, which has not been explained by defendant at a ll. A f t e r reading Dey and the other cases cited in W e r n s in g , I am reluctant to read too e x p a n s iv e ly the court's pronouncement in W e r n s in g that"prior wages are a factor other than sex." A lt h o u g h there is no doubt after W e r n s in g that an employer may take market forces into account in setting the wages of its employees even if it lacks an acceptable business reason for doing so, i t remains debatable whether an employee's salary at his prior job alone will always be sufficient­ n o matter what other circumstances exist-- t o defeat an Equal Pay Act claim by a lesser-paid m e m b e r of the opposite sex who performs the same work. The parties are free to argue this point in their supplemental submissions on summary judgment. E v e n if W e r n s in g means exactly what it says, the Department has not claimed that it a lw a y s sets pay in accordance with an employee's former salary and it has not explained why its in it ia l offer to Grundvig was so much more than Schultz had been making (but less than G r u n d v i g already was making). The state may have evidence relevant to both points, but it has n o t provided it. "[A]n employer cannot use a gender-neutral factor to avoid liability unless the f a c t o r is used and applied in good faith; it was not meant to provide a convenient escape from lia b i lit y . " Fallon, 882 F.2d at 1211. On the limited facts in the record, I am not convinced that i t would be futile to allow Schultz to amend her complaint to add Grundvig as a comparator. Having concluded that it would not be futile to allow Schultz to amend her complaint, I turn to the question of prejudice. The equities cut both ways. On the one hand, Schultz could a n d should have acted more quickly to pin down Grundvig's status as a comparator and she 28 s h o u ld have amended her complaint after she learned of his hire in early June 2010, knowing the s u m m a r y judgment deadline was imminent. On the other hand, she asked for permission to d e p o s e Grundvig on July 14, 2010, about a month later, thereby putting the Department on n o t ic e that she viewed Grundvig as fair game for her EPA claim. As for the Department, staking it s all on the ground that Grundvig was out for procedural or futility reasons was risky; a m o r e c a u t io u s course would have been to supplement its summary judgment submissions with more e v id e n c e about Grundvig's job duties or the reasons why it initially offered him $74,000. N o n e t h e le s s , I cannot say that the risk the Department took was an unreasonable one, given W e r n s in g ' s strong language regarding prior wages, Snider's suggestion that an EPA plaintiff must n a m e her comparators in her complaint and this court's statements in prior orders that the trial d a t e remained firm. A t this juncture, it would be unfair to the Department and a potential waste of judicial r e s o u r c e s to deny the motion for summary judgment with respect to Grundvig. Instead, I will s t a y any ruling with respect to Grundvig and allow the Department to amend its motion. In s p it e of my prior statements and general reluctance to move trial dates, the November 15 trial d a t e will be stricken and then re-set if necessary. 29 ORD ER I T IS ORDERED THAT: 1. P la i n t if f 's m o t io n to amend the amended complaint (dkt. 77) to add Nelse G r u n d v i g as a comparator for purposes of establishing a violation of the Equal Pay Act is G RAN TED . 2. D e f e n d a n t 's motion for summary judgment (dkt. 45) is GRANTED IN PART and S T A Y E D IN PART. The motion is GRANTED with respect to comparators Terry Ludeman, P a u l Saeman, Dennis W in t e r s and M ic h a e l Soref. The motion is STAYED with respect to Nelse G ru n d v ig . 3. D e f e n d a n t is granted leave to file an amended motion for summary judgment with r e s p e c t to Nelse Grundvig. 4. D e f e n d a n t ' s deadline for filing an amended motion for summary judgment is N o v e m b e r 5, 2010. Plaintiff's response is due not later than November 22, 2010. Defendant's r e p l y is due not later than December 3, 2010. All submissions must comport with this court's P r o c e d u r e to be Followed on Motions for Summary Judgment. The parties may rely on and incorporate b y reference all documents already filed in this case. 5. T h e November 15, 2010 trial date is STRICKEN. If a trial is necessary after the c o u r t rules on defendant's amended motion for summary judgment, the court will promptly set a new date in consultation with the parties. E n t e r e d this 20 th day of October, 2010. B Y THE COURT: /s / S T E P H E N L. CROCKER M a g is tr a t e Judge 30

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