BAIR v. INDIANA DEPARTMENT OF REVENUE

SARAH BARKER, District Judge

This case comes before the Court on Defendants Indiana Department of Revenue ("IDOR") and State Personnel Department's ("Personnel," collectively "Defendants") Motion for Summary Judgment. Plaintiffs Roger Bair ("Mr. Bair"), Ronald DiMichele ("Mr. DiMichele"), and Charles Sparks ("Mr. Sparks," collectively with Mr. Bair and Mr. DiMichele "Plaintiffs") filed an Equal Pay Act claim against Defendants alleging that Defendants discriminated against them on the basis of sex by paying female employees a greater salary for work equal to that of the male Plaintiffs. Defendants filed this summary judgment motion contending that the work was not equal, and asserting in the alternative an affirmative defense to liability that the pay differential was based on a factor other than sex. For the reasons explained below, we GRANT Defendants' Motion for Summary Judgment.

In January 1995, Defendant IDOR employed: (1) Mr. Bair as a Criminal Investigator 3 with a biweekly salary of $890.24; (2) Mr. DiMichele as a Criminal Investigator 3 with a biweekly salary of $890.24; (3) Mr. Sparks as a Field Investigator 3 with a biweekly salary of $653.12; (4) Denise Rodgers Klinkose ("Ms. Klinkose") as a Field Investigator 3 with a biweekly salary of $653.12; and (5) Janice Witham ("Ms. Witham") as a Field Investigator 3 with a biweekly salary of $653.12. Stmt. of Undisputed Material Facts ¶¶ 1-5.

During 1994 and 1995, IDOR sought to reclassify the Field Investigator 3 positions to Field Auditor 3 positions in order to eliminate the pay differential between the field investigator positions and the criminal investigator positions. Id. ¶ 9. Before this reclassification took place, however, IDOR promoted Mr. Sparks from the position of Field Investigator 3 to that of Criminal Investigator 3, effective March 26, 1995. Id. ¶ 6. Mr. Sparks' biweekly salary increased from $653.12 to $890.00. Id. ¶ 7. Ms. Klinkose also applied for this promotion, but was denied in favor of Mr. Sparks. Id. ¶ 8.

On April 23, 1995, the reclassification of the Field Investigator 3 position to the new Field Auditor 3 position took place. Id. ¶ 10. As a result of the reclassification, the salary and status of the new Field Auditor 3 position matched that of the Criminal Investigator 3 position. Id. ¶ 11. On May 8, 1995, IDOR employed Shelly Greene Reath ("Ms. Reath") to fill the remaining Field Auditor 3 position at a biweekly salary of $890.00. Id. ¶ 13. Criminal Investigator 3s and Field Auditor 3s both investigate potential criminal violations of the tax code by responding to complaints, preparing case reports, and determining whether a particular case is worthy of criminal prosecution. (Jerrell Dep. pp. 33-34). Plaintiffs, as well as Ms. Klinkose, Ms. Witham, and Ms. Reath, were all certified police officers. Sparks Dep. p. 24. The Criminal Investigator 3s, including Plaintiffs, were primarily responsible for investigations of motor fuel tax, sales tax, and withholding tax violations. The Field Auditor 3s, including Ms. Klinkose, Ms. Witham, and Ms. Reath, were primarily in charge of charity gaming investigations. Stmt. of Undisputed Material Facts ¶ 31. With a nod to the work of the Field Auditor 3s, Mr. Sparks and Mr. DiMichele referred to Ms. Klinkose, Ms. Witham, and Ms. Reath as "bingo girls." See Sparks Dep. p. 28; DiMichele Dep. p. 13. Although each job classification had a primary area of concentration, there were no exclusive assignments. Sparks Dep. pp. 28-29; see also Jerrell pp. 32-33.

All of the employees, Criminal Investigator 3s and Field Auditor 3s alike, had a cubicle in the same room, reported to the same supervisor, spent approximately 20 percent of their time in the office and the other 80 percent of their time in the field conducting investigations, and were equipped with the same credentials and investigative aids (a State car equipped with a radio and confidential license plate). Bair Dep. p. 11; Sparks Dep. pp. 21-25. The geographical area covered by the charity gaming investigators, Ms. Klinkose, Ms. Witham, and Ms. Reath, however, was much larger than the territory covered by most investigators. Latscha Dep. pp. 45-46.

Also in 1995, the Indiana Legislature passed Public Law No. 340, which created the Professional and Technical Equity Fund ("PTEF") and required Defendant Personnel to conduct a salary survey of professional, technical and law enforcement classifications to determine which positions were especially difficult to recruit and retain. Stmt. of Undisputed Material Facts ¶ 14. In cooperation with the unions representing state employees, Personnel then awarded the selected positions pay raises. Id. ¶ 15. Pay increases due to PTEF derived solely from job classification; length of service, individual qualifications, or type of duties performed were immaterial.Id. ¶¶ 18-19.

The selection of job classifications to be granted pay increases pursuant to PTEF occurred in November 1995, over six months after the IDOR Field Investigator 3 positions were reclassified to Field Auditor 3 positions. Id. ¶¶ 20-21. Jennifer Vigran ("Ms. Vigran"), Director of the State Personnel Department, declared that the Field Auditor 3 positions were included in PTEF because of the background and experience necessary for such positions, and that the private sector generally paid a more competitive salary for such background and experience. Id. ¶ 22. Of the twelve IDOR Field Auditor employees who received pay raises pursuant to PTEF, eight were male and four, including Ms. Klinkose, Ms. Witham, and Ms. Reath, were female. Id. ¶ 25.

The PTEF retention adjustments/pay increases became effective January 1, 1996. Id. ¶ 16. At this time, all Field Auditor 3 employees received a retention adjustment of 12.1876 percent of their annual salary. Id. ¶ 23. Personnel, in settlement with the unions representing state employees, set this percentage so that all employees occupying positions affected by PTEF would receive an equal percentage salary increase. Latscha Decl. ¶ 21. Under Personnel's promotion policy, which was adopted in 1994 and still in effect in 1999, this pay increase percentage was permanent; it could not be removed from the employee's salary when he or she was promoted, laterally transferred, or demoted to a new position. Stmt. of Undisputed Material Facts ¶ 28.

In 1999, all IDOR employees whose duties involved investigating criminal activity, including Field Auditor 3 and Criminal Investigator 3 positions, were promoted to Audit Examiner 2 positions. All of these reclassified employees were given a nine percent pay increase, the maximum pay increase permitted for such a promotion, without a special request, pursuant to state personnel policy. Id. ¶ 27. This nine percent raise was in addition to the PTEF salary increases.

Neither Ms. Reath nor Ms. Klinkose is currently employed by IDOR as an Audit Examiner 2. On March 5, 2002, Ms. Reath resigned her employment to take an investigative position with the Federal Bureau of Investigation. Id. ¶ 32. On October 12, 2003, Ms. Klinkose was promoted to the position of Program Director 1.Id. ¶ 34.

Plaintiffs filed a Complaint in this court on December 14, 2001, alleging that Defendants paid Plaintiffs less than certain female employees for the same work, in violation of the Equal Pay Act, 29 U.S.C. § 206(d). Defendants moved for summary judgment on January 20, 2004, arguing that the salaries paid to Plaintiffs differ from those paid to other employees, some of whom are female, not because of gender, but because of state legislative action taken based on previous employment classifications. We turn now to a discussion of the summary judgment motion before us.

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).

On a motion for summary judgment, the burden rests with the moving party, Defendants in this case, to demonstrate "that there is an absence of evidence to support the nonmoving party's case."Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her."Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.

Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.

The Equal Pay Act, 29 U.S.C. § 206(d)(1), prohibits an employer from discriminating "between employees on the basis of sex by paying wages to employees [of one sex] . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Section 206(d)(1) also provides an affirmative defense to liability under the Act where an employer makes such unequal payment "pursuant to: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." Finally, § 206(d)(1) cautions that "an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee."

Plaintiffs may establish a prima facie case of sex-based wage discrimination by showing that: (1) different wages are paid to employees of the opposite sex; (2) the employees do equal work which requires equal skill, effort and responsibility; and (3) the employees have similar working conditions. Bragg v. Navistar Intern. Transp. Corp., 164 F.3d 373, 378 (7^th Cir. 1998) (citing Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1461 (7th Cir. 1994)). If Plaintiffs establish a prima facie case, then Defendants may assert one of the four affirmative defenses contained in the statute, namely, that the pay differential is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any factor other than sex. Defendants concede that Ms. Klinkose, Ms. Witham, and Ms. Reath earned a greater salary than Plaintiffs. However, in moving for summary judgment on Plaintiffs' Equal Pay Act Claim, Defendants contend that Plaintiffs have failed to establish that the employees do equal work, and in the alternative, that they have shown that the reason for the disparity between Plaintiffs' salaries and the salaries of certain of IDOR's female employees is not gender, but state legislative action and bureaucratic circumstance.

To determine whether two jobs are equal, we must inquire "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. Indiana University Bd. of Trustees, 338 F.3d 693, 698 (7th Cir. 2003) (citing Fallon v. State of Ill., 882 F.2d 1206, 1209 (7th Cir. 1989)). Once the plaintiff establishes a common core, the court must then ask whether any additional tasks make the jobs "substantially different" from one another. Id. These additional tasks or differences in responsibility must be substantial; to argue that any difference in job responsibilities would render jobs unequal is incorrect. Fallon, 882 F.2d at 1209.

The Equal Pay Act specifies three separate elements for consideration by the court in comparing job duties: skill, effort and responsibility. Cullen, 338 F.3d at 698-99; see 29 U.S.C. § 206(d)(1). Each of these elements must be met individually to establish a prima facie case. Id.; see 29 C.F.R. § 1620.14. "Skill includes consideration of such factors as experience, training, education, and ability." 29 C.F.R. § 1620.15(a).

Defendants do not dispute that the skills and effort necessary for the performance of the two jobs at issue, Field Auditor 3 and Criminal Investigator 3, are very similar or the same. Rather, they argue that Plaintiffs' have not established that their responsibilities were the same as the female employees'. Defendants contend that Plaintiffs' primary responsibilities were motor fuel tax, sales tax, and withholding tax investigations whereas Ms. Klinkose, Ms. Witham, and Ms. Reath handled investigations of charity gaming operations. Defendants cite to Mr. Sparks and Mr. DiMichele's reference to Ms. Klinkose, Ms. Witham, and Ms. Reath as "bingo girls" as evidence of this differentiation. (See Sparks Dep. p. 28; DiMichele Dep. p. 13).

Plaintiffs, however, offer the testimony of Charles Jerrell ("Jerrell"), IDOR's former Director of Criminal Investigations, to show that the two jobs do, in fact, share a common core of tasks. In his deposition, Mr. Jerrell stated that Plaintiffs as well as Ms. Klinkose, Ms. Witham, and Ms. Reath all performed the same basic job function. All of the employees investigated potential criminal violations of the tax code by responding to complaints, preparing case reports, and determining whether a particular case is worthy of criminal prosecution. (Jerrell Dep. pp. 33-34). Although each employee had a primary area of concentration, there were no exclusive assignments. (Sparks Dep. pp. 28-29; see also Jerrell pp. 32-33).

With regard to the third element of the prima facie case, whether Plaintiffs' working conditions were similar to those of Ms. Klinkose, Ms. Witham, and Ms. Reath, we look to whether the males and females worked in like surroundings and were subjected to the same hazards. Corning Glass Works v. Brennan, 417 U.S. 188, 201-02 (1974). Plaintiffs offer evidence that all of the employees had a cubicle in the same room, reported to the same supervisor, spent approximately 20 percent of their time in the office and the other 80 percent of their time in the field conducting investigations, and were equipped with the same credentials and investigative aids (a State car equipped with a radio and confidential license plate). (Bair Dep. p. 11; Sparks Dep. pp. 21-25). However, the geographical area covered by the charity gaming investigators, Ms. Klinkose, Ms. Witham, and Ms. Reath, was much larger than the territory covered by most investigators. (Latscha Dep. pp. 45-46).

Given the facts as adduced by the parties, we find that Plaintiffs have offered evidence to establish each element of a prima facie case of sex-based wage discrimination. Accordingly, we must conclude that a genuine issue of material fact exists as to whether Plaintiffs and the featured female employees perform equal work.

Pursuant to the Equal Pay Act, once Plaintiffs establish their prima facie case, Defendants may assert an affirmative defense, on which they have the burden of proof. Lindale v. Tokheim Corp., 145 F.3d 953, 957 (7^th Cir. 1998). Here, Defendants argue that the pay differential between the former Criminal Investigator 3s and the Field Auditor 3s is based on a factor other than sex, specifically, gender-neutral bureaucratic circumstance. Defendants have shown that approximately one month after Mr. Sparks was promoted from the position of Field Investigator 3 to that of Criminal Investigator 3, on April 23, 1995, all of the Field Investigator 3 positions were reclassified as Field Auditor 3 positions, which garnered a level of status and pay equal to that of Criminal Investigator 3, the position held by all Plaintiffs. At this point, the male Plaintiffs, and Ms. Klinkose and Ms. Witham all earned equal salaries. (Ms. Reath was not hired as a Field Auditor 3 until May 9, 1995, just after the reclassification took place.)

Six months later, however, Personnel, in cooperation with the unions representing State employees, selected the Field Auditor 3 positions, but not the Criminal Investigator 3 positions, to qualify for a retention adjustment/pay increase under PTEF. Of the twelve IDOR Field Auditor employees who received pay raises pursuant to PTEF, eight were male and four, including Ms. Klinkose, Ms. Witham, and Ms. Reath, were female. Plaintiffs, who were Criminal Investigator 3s and not Field Auditor 3s, did not receive a similar retention adjustment. As required by the union settlement, all employees receiving a PTEF retention adjustment had to receive an equal percentage salary increase. And, once received, this retention adjustment was permanent; under the Personnel promotion policy, the PTEF retention adjustment could not be removed upon the promotion, demotion or lateral transfer of the employee.

Finally, in 1999, all IDOR employees whose duties involved investigating criminal activity, including both the Field Auditor 3 and Criminal Investigator 3 positions, were promoted to Audit Examiner 2 positions. All of these reclassified employees, Plaintiffs as well as the featured female employees, were given a nine percent pay increase, the maximum pay increase permitted for such a promotion without a special request pursuant to state personnel policy.

Plaintiffs contend that the focus of their lawsuit is neither PTEF nor the wage disparity that existed prior to 1999. Rather, Plaintiffs argue that their claim centers on why that wage disparity was not remedied in 1999 when Plaintiffs complained to their supervisors that their female counterparts were being paid a higher salary for equal work. Pl.'s Br. in Opp. to Defs.' Mot. for Summ. J. p. 11. By focusing on why the pay differential was not remedied in 1999 instead of on how the pay differential originated in 1995, Plaintiffs tacitly admit that the cause of the wage disparity was PTEF, a gender neutral act of the state legislature. Because Plaintiffs cannot dispute the fact that the reason for the unequal pay was a factor other than sex, summary judgment in favor of Defendants on Plaintiffs' Equal Pay Act claim is appropriate.

The evidence as presented by Defendants conclusively establishes that the original wage disparity existed because of PTEF, a gender-neutral intervening factor. (Of the twelve IDOR Field Auditor employees who received pay raises pursuant to PTEF, eight were male and four, including Ms. Klinkose, Ms. Witham, and Ms. Reath, were female.) We understand Plaintiffs' claimed unfairness whereby under PTEF the Field Auditor 3s received a retention adjustment/pay increase that the Criminal Investigator 3s did not receive, even though the two jobs arguably required the same skills, effort and responsibility. The pay differential, however, was the result of bureaucratic line-drawing, not sex-based wage discrimination. The fact that, at the time PTEF was implemented, the Field Auditor 3s happened to be female and the Criminal Investigator 3s, including Plaintiffs, happened to be male appears to have been purely circumstantial.

Therefore, because the record conclusively shows that the reason for the original pay disparity was a factor other than sex, the Defendants have successfully asserted an affirmative defense to liability under the Equal Pay Act, and thus, have no duty to remedy any pay disparity. Accordingly, we GRANT Defendants' Motion for Summary Judgment.

For the reasons explained above, we find that while Plaintiffs have stated a prima facie case of sex-based wage discrimination, Defendants have successfully asserted an affirmative defense to liability under the Equal Pay Act by conclusively demonstrating that the pay differential at issue was based on a factor other than sex. Therefore, we GRANT Defendants' Motion for Summary Judgment.