Ortiz and McDonnell Douglas Reconciled: Comparator Pay Proof Is Essential in Title VII Pay-Disparity Claims

Introduction

In Frankie Nelson v. County of Cook (No. 24-2123), the Seventh Circuit affirmed summary judgment against a former Cook County employee who alleged sex-based pay discrimination under Title VII. The dispute arises from Nelson’s tenure at Provident Hospital within the Cook County Health and Hospital System. Nelson, who served in various union positions and was recognized as Acting Assistant Director of Environmental Services from 2002 to 2005 (a role she split with Henry White), claimed that she was paid less than similarly situated male colleagues during that period.

The district court granted summary judgment for the County, concluding that Nelson failed to present sufficient evidence to support an inference of discriminatory pay. On appeal, Nelson narrowed her challenge to the Title VII ruling, raising two core issues:

Whether the district court erred by analyzing the case only under the McDonnell Douglas burden-shifting framework rather than also applying the holistic, “totality of the evidence” approach set out in Ortiz v. Werner Enterprises.
Whether Henry White—who shared Acting Assistant Director responsibilities with Nelson—was a valid comparator for purposes of proving a sex-based pay disparity, and, tangentially, whether two former Directors (Jerry Brown and Nate Gordon) could serve as comparators.

Summary of the Judgment

The Seventh Circuit affirmed. It held that:

The district court correctly recognized and applied both the McDonnell Douglas framework and the Ortiz “totality of the evidence” perspective. Using McDonnell Douglas was appropriate because Nelson’s theory hinged on comparator evidence.
Nelson’s comparator theory failed on an independent, dispositive ground: she did not submit evidence (such as pay records) of Henry White’s compensation to substantiate a pay disparity. That evidentiary gap alone defeated her claim as to White, and her failure to challenge that ground on appeal amounted to waiver.
Even setting the evidentiary failure aside, White was not a valid comparator given materially different job functions within the shared acting role and significant differences in qualifications and education.
Brown and Gordon, both Directors and Nelson’s supervisors, were not comparators for a Title VII pay-disparity claim premised on “comparable work,” particularly where Nelson did not bring or develop a promotion-based claim.

Detailed Analysis

Precedents Cited and Their Role

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The classic burden-shifting framework permits a plaintiff to create an inference of discrimination by showing that similarly situated employees outside the protected class were treated more favorably. The Seventh Circuit emphasized that when a plaintiff’s theory relies on comparator evidence, McDonnell Douglas remains an appropriate analytical tool to assess whether the comparator inference is supportable at summary judgment.
Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016): Ortiz instructs courts to consider the totality of the evidence and avoid superimposing rigid frameworks that obscure the ultimate question—whether a reasonable factfinder could conclude that a protected characteristic caused the adverse action. The panel underscored that Ortiz does not displace McDonnell Douglas; rather, both strands coexist. Here, because Nelson proceeded on a comparator theory, the district court properly engaged the McDonnell Douglas inquiry while also acknowledging Ortiz’s overarching directive.
Lewis v. Wilkie, 909 F.3d 858 (7th Cir. 2018): Lewis bridges Ortiz and McDonnell Douglas, explaining that McDonnell Douglas is “just a formal way” of analyzing certain circumstantial evidence—namely, that similarly situated employees were treated more favorably. The district court quoted this point, and the Seventh Circuit endorsed that understanding.
Coleman v. Donahue, 667 F.3d 835 (7th Cir. 2012) and Barricks v. Eli Lilly & Co., 481 F.3d 556 (7th Cir. 2007): These cases set the standard for “similarly situated” comparators in Title VII cases: the plaintiff must show enough common factors to permit a meaningful comparison that can reveal discriminatory intent. Applying these principles, the panel concluded that supervisors in higher-level roles (here, Directors) are not valid comparators for a pay-disparity claim predicated on “comparable work.”
Trask v. Rodriguez, 854 F.3d 941 (7th Cir. 2017): Stands for the waiver principle on appeal—failure to challenge one of the district court’s independent grounds for summary judgment waives any claim of error. Nelson did not grapple with the district court’s threshold holding that she presented no evidence of White’s pay; that omission was fatal.
Johnson v. Soo Line R.R. Co., 2022 WL 540758 (N.D. Ill. Feb. 23, 2022): Cited by the district court (and noted by the Seventh Circuit) to restate Ortiz’s “ultimate question” formulation. While not controlling circuit authority, it reflected the district court’s correct orientation to the proper analytic lens.

The Court’s Legal Reasoning

The Seventh Circuit’s reasoning proceeds in three principal steps.

Framework reconciliation: The court confirmed that the district court properly recognized both McDonnell Douglas and Ortiz. Ortiz’s “totality of the evidence” test remains the ultimate inquiry, but when a plaintiff’s case turns on showing better treatment of similarly situated employees, McDonnell Douglas supplies a structured way to evaluate whether those comparators support an inference of discriminatory intent.
Evidentiary deficiency as an independent ground: The district court found—and the panel emphasized—that Nelson submitted no pay stubs or other compensation records for Henry White. Without proof of the comparator’s compensation, a pay-disparity claim premised on comparator evidence cannot reach a jury. On appeal, Nelson did not challenge that ground. Under Trask, that unchallenged, independent basis for summary judgment is dispositive.
Comparator mismatch (even assuming evidence existed): The panel further explained that White was not a valid comparator because, despite sharing “Acting Assistant Director” responsibilities with Nelson, they performed distinct functions (Nelson handled operations; White handled administrative functions) and possessed notably different qualifications (White held associate’s, bachelor’s, and master’s degrees; Nelson lacked a college degree). Those differences undermined the “similarly situated” showing. As to Brown and Gordon, both were Directors—Nelson’s supervisors, holding different positions and reporting lines—so they were not comparable for a pay-disparity analysis. Moreover, Nelson did not plead or pursue a promotion-based claim, nor did she assert she applied for the Director role.

Evidentiary Lessons and Burdens at Summary Judgment

Proof of disparity: Plaintiffs must present concrete proof of a comparator’s compensation (pay stubs, payroll records, HR data). Assertions without documentation will not create a triable issue on pay disparity.
Meaningful comparability: Plaintiffs must show comparable job duties, responsibilities, qualifications, and reporting structures. Divergence in core functions or in education/experience can defeat comparability.
Role titles are not dispositive: Sharing a title (or a temporary/acting designation) does not automatically establish similarity if the job’s substance differs in material ways.
Scope of claim matters: A pay-disparity claim cannot be backfilled to become a failure-to-promote claim on appeal. If the theory is promotion-based, it must be pleaded, developed, and supported with facts (including evidence of application to the position).
Appellate preservation: Parties must challenge each independent ground supporting summary judgment; failure to do so waives the issue.

Impact and Significance

This decision carries several practical and doctrinal implications for Title VII pay-disparity litigation in the Seventh Circuit:

Framework clarity post-Ortiz: The court fortifies a now-settled proposition—Ortiz did not retire McDonnell Douglas. District courts may, and often should, use McDonnell Douglas where a plaintiff’s case relies on comparator evidence, while still viewing the record through Ortiz’s holistic lens.
Elevated evidentiary rigor for pay claims: Plaintiffs must marshal actual compensation data for alleged comparators. Without it, even a plausible inference collapses at summary judgment. This elevates the importance of early discovery strategies aimed at securing comparators’ pay records.
Comparator curation: Plaintiffs should carefully select comparators. Including supervisors or higher-level managers (with different responsibilities and credentials) risks undercutting the theory. This case underscores that education and duty differences matter, even within a shared acting role.
Litigation strategy and appellate practice: The waiver holding is a cautionary tale—on appeal, address every independent ground for summary judgment. Failing to attack the cleanest, most concrete basis (e.g., “no pay proof”) can end the case without reaching broader legal questions.
Unionized settings: Where pay rates are governed by union scales for specific classifications, Title VII plaintiffs need to show that alleged comparators were in materially similar classifications or that deviations from scale occurred in a way that suggests discriminatory intent. Generalized allegations of unfairness will not suffice.

Complex Concepts Simplified

McDonnell Douglas framework: A structured, burden-shifting method. The plaintiff first makes a prima facie case (including showing that similarly situated employees outside the protected class were paid more). The employer then articulates a legitimate, non-discriminatory reason. The plaintiff must then show that reason is pretextual.
Ortiz “totality of the evidence” approach: Rather than rigid categories of evidence (direct vs. indirect), courts ask whether all the evidence, taken together, would allow a reasonable jury to find that sex (or another protected trait) caused the challenged action.
“Similarly situated” comparators: Individuals who are alike in material respects—similar duties, responsibilities, qualifications, and reporting structures—so that differences in treatment can reasonably suggest discriminatory intent rather than job-related differences.
Waiver on appeal: If the district court provides multiple independent reasons for its ruling, an appellant must challenge each one. Ignoring any independent ground typically waives that issue, leading to affirmance without reaching the merits of the unchallenged point.
Pay-disparity vs. promotion claims: A pay-disparity claim focuses on equal (or comparable) work for unequal pay. A promotion claim focuses on being denied advancement. They implicate different proof structures and must be distinctly pleaded and supported.

What the Case Does Not Decide

The Equal Pay Act claim was not pursued on appeal; the Seventh Circuit’s opinion does not address EPA standards or defenses.
The decision does not set a new categorical rule about acting assignments; it addresses the specific evidence (and lack thereof) and the particularized differences in duties and credentials in this case.
The court did not reach broader issues that might arise if a plaintiff had robust pay data for a comparator performing virtually identical work.

Conclusion

Nelson v. County of Cook is an instructive reaffirmation rather than a doctrinal pivot. The Seventh Circuit harmonizes Ortiz and McDonnell Douglas by confirming that courts may employ the latter when plaintiffs rely on comparator evidence, all while keeping Ortiz’s ultimate causation question in view. The decision also delivers concrete litigation lessons: without admissible proof of a comparator’s compensation, a Title VII pay-disparity claim premised on comparators cannot survive summary judgment; material differences in duties and qualifications will defeat comparability; and appellants must directly confront every independent ground supporting a lower court’s ruling.

In short, the case sets a practical precedent for plaintiffs and counsel: assemble and present hard pay data for truly comparable co-workers, tailor the theory to the claim actually asserted, and preserve all issues for appeal. For employers and courts, the opinion provides a clear, administrable pathway for evaluating comparator-based pay claims at the summary judgment stage.

Key Takeaways

Ortiz does not displace McDonnell Douglas; both frameworks coexist and are properly applied in comparator-based Title VII cases.
Proof of the comparator’s pay is indispensable—absence of pay evidence is independently fatal.
Comparators must be materially similar in duties, responsibilities, and qualifications; supervisors or higher-level managers are generally not apt comparators for pay-disparity claims.
Claims must match the theory: pay-disparity is distinct from failure-to-promote; courts will not recast one as the other.
Appellate waiver can end the case—address every independent basis for the judgment.