Owens v. American Water Resources, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

STACY OWENS,

Plaintiff,

v. Case No. 3:21-cv-01365

AMERICAN WATER RESOURCES, LLC,

a foreign corporation d/b/a AMERICAN

WATER RESOURCES, INC.,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Each party in this employment discrimination case has moved for summary

judgment. The Court considers the following facts when considering the motions.1

Stacy Owens began working for American Water in 1986 as an hourly employee.

(Doc. 19, p. 2; Doc. 58, p. 1; Doc. 65-1, p. 18). Starting around 2001, Owens was a supervisor

for American Water. (Doc. 65-1, p. 28). After earning years of corporate management

experience in providing and managing water services (Doc. 64, p. 3), Owens retired from

American Water in 2015. (Doc. 69-2, pp. 10-11).

American Water owned American Water Resources, LLC (“AWR”). (Doc. 69-1, p. 3).

AWR provides and services water and sewer line protection warranties and is focused on

providing home warranty programs to customers. (Doc. 65-1, p. 42-43; Doc. 64, pp. 3, 7).

1 The Court notes that Owens did not respond to or dispute AWR’s presentation of the undisputed facts in her

response to AWR’s Memorandum in Support of the Motion for Summary Judgment (Doc. 64). Thus, where

AWR’s presentation of the facts is supported by the record, the Court has deemed these facts undisputed.

Further, where Owens presents facts in her argument, but does not provide a citation to the record for them,

these facts will not be considered as applicable to the Court’s analysis.

AWR recruited Owens in 2016 to serve as Director of Call Center Operations in Alton, Illinois.

(Doc. 4).

In 2018, AWR acquired Pivotal Home Solutions, LLC (“PHS”). (Doc. 65-1, pp. 26-27).

PHS based its call center, legal, marketing, and IT within its Naperville location. (Doc. 65-2,

p. 10). After acquiring PHS, AWR initiated the merger of PHS and AWR with a discovery

phase, during which time Owens served on a committee assessing what PHS did and how

they did it. (Doc. 64, p. 3; Doc. 65-1, pp. 118-123). Owens disagreed with how AWR handled

the discovery phase and challenged certain aspects during committee meetings. (Doc. 65-1,

pp. 118-123).

In July 2019, Kathleen O’Hara (“O’Hara”) was hired as the Vice President of

Operations at AWR. (Doc. 65-2, p. 15). O’Hara’s objective was to bring “[AWR] and [PHS]

into one, the operational piece into one organization.” (Id. at p. 23). Owens and the

departments she supervised started reporting to O’Hara. (Doc. 65-1, pp. 140 - 42). While

evaluating how to consolidate, O’Hara met with both Owens and her subordinates. (Doc. 65-

2, p. 45). To streamline communication, O’Hara also started communicating directly with

Owens’ subordinates, assigning tasks and new organizational designs, based upon the

assumption that they would keep Owens informed. (Id. at 50-51). O’Hara utilized this direct

communication approach with the subordinates of Tom Benavidez, a Call Center Director in

Naperville, as well. (Id. at 58-59). O’Hara also communicated with the Alton Workforce

Manager, John Rauber, directly, assigning him tasks in addition to the ones assigned by

Owens. (Doc. 65-6, p. 98). This continued to be O’Hara’s practice after Benavidez became

Rauber’s superior. (Id. at 104). After about two months of observation, O’Hara began to

design the “ONE HOS” or merged operations organization. (Doc. 65-2, pp. 47-48). Owens

was assigned to the team designing the new consolidation center. (Doc. 65-1, p. 156).

Even shortly after O’Hara started working at AWR, Owens felt her style was

unprofessional. (Id. at 138). Owens also felt that her authority was not respected. (Id. at

pp.184-187). Because of ongoing difficulties between O’Hara and Owens, Human Resources

Business Partner, Monica Poindexter, facilitated an off-site meeting between the two in

March 2020. Doc. 65-5, pp. 14, 133-34). While Poindexter and O’Hara viewed the meeting as

productive and helpful, Owens was left feeling as though the meeting was retaliatory.

(Doc. 65-1, p. 270; Doc. 65-2, p. 112; Doc. 65-5, p. 151).

Starting in 2019, Owens raised a variety of race and gender-based discrimination

complaints in relation to inclusiveness and pay equity. (Doc. 1, p. 4). These included a request

for a pay equity check in 2019 (Doc. 65-1, pp. 208-09), a meeting with O’Hara in September

2019 where Owens expressed concerns that she was not being appropriately included in

critical decision making, a meeting with President Palm and the HR director in October 2019

(Id. at pp. 203-07), an informal written complaint in October 2019 (Doc. 65-9), email

communications with HR requesting responses and resolutions for her grievances, and a

formal Ethics Complaint in February 2020 (Doc. 65-10). (Doc. 1). Notable results of these

complaints include a pay equity check that revealed Owens was compensated at a rate 7%

higher than her peers (Doc. 65-8) and an investigation stemming from her February 2020

complaint that failed to turn up evidence of any wrongdoing. (Doc. 65-1, p. 264; Doc. 1).

In July 2020, Owens applied for the new Contact Center Director position that resulted

from the merger. (Doc. 1) This position was a consolidation of the positions at Alton and

Naperville. (Doc. 65-1, pp. 310-11). Other positions also were posted at this time. (Id. at

pp. 300-01). Owens was interviewed for the position by a panel chosen by O’Hara and

consisting of O’Hara, Poindexter, Steve Lauer, and Matt Lindner. (Doc. 65-5, pp. 186, 194).

It is undisputed that the goal was to ask all candidates the same questions. (Doc. 65-2, p. 126).

Following the interviews, candidate Benavidez was chosen for the position because of his

ability to demonstrate concrete steps and strategies that he would implement at the call

center, as well as his experience managing a selling-focused call center. (Doc. 65-3). On

August 28, 2020, Owens learned that she had not been selected for the Call Center Director

position. (Doc. 1). She was encouraged to apply for other opportunities. (Doc. 65-1, p. 316).

It is undisputed that Owens did not apply for any other roles. (Id. at 317, Doc. 65-2, p. 136).

Owens remained in her position with AWR until October 16, 2020. (Doc. 1).

On March 2, 2021, Owens filed a Charge of Discrimination with the Illinois

Department of Human Rights (IDHR) and the Equal Employment Opportunity Commission

(EEOC) alleging American Water discriminated against her on the basis of race and sex and

then retaliated against her (Doc. 65-12). Owens received a Notice of Right to Sue from the

EEOC on August 2, 2021. (Doc. 1, p. 2).

On October 29, 2021, Owens timely filed this action within 90 days of receipt of the

Notice of Right to Sue (Id.). Owens is proceeding on the following claims:

Count I: Race and Gender Discrimination in violation of Title VII;

Count II: Race and Gender Discrimination in violation of the Illinois

Human Rights Act (“IHRA”);

Count III: Race Discrimination under Section 1981 of the Civil Rights Act

of 1866;

Count IV: Retaliation in violation of Title VII;

Count V: Retaliation in violation of the IHRA;

Count VI: Retaliation under Section 1981 of the Civil Rights Act of 1866;

and

Count VII: Violation of the Equal Pay Act.2

LEGAL STANDARD

Summary judgment is only appropriate if the movant “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED. R. CIV. P.

56(a)). Once the moving party sets forth the basis for summary judgment, the burden then

shifts to the nonmoving party who must go beyond mere allegations and offer specific facts

showing that there is a genuine issue of fact for trial. FED. R. CIV. P. 56(e); see Celotex Corp. v.

Catrett, 477 U.S. 317, 232-24 (1986). The nonmoving party must offer more than “[c]onclusory

allegations, unsupported by specific facts,” to establish a genuine issue of material fact. Payne

v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888

(1990)).

In determining whether a genuine issue of fact exists, the Court must view the

evidence and draw all reasonable inferences in favor of the party opposing the motion.

Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). However, “[i]nferences that rely upon speculation or conjecture

are insufficient.” Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014). “Where the record taken

as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

‘genuine issue for trial.” Id. (citation omitted).

2 This Court has subject matter jurisdiction over Owens’ Title VII, Section 1981 of the Civil Rights Act of 1866,

and Equal Pay Act claims pursuant to 28 U.S.C. § 1331. The remaining state law claims are before this Court by

way of supplemental jurisdiction under 28 U.S.C. § 1367.

DISCUSSION

I. Owens’ Supplemental Declaration (Doc. 86).

Owens relies heavily on her Declaration in response to AWR’s Motion for Summary

Judgment. AWR first argues “Owens’ Declaration fails to establish that she has the requisite

personal knowledge or is competent to testify to certain assertions.” (Doc. 90, p. 2). “Second,

Owens repeatedly offers inadmissible legal conclusions, argument and speculation.” (Id. at

p. 3). Finally, “Owens tries to improperly contradict her deposition testimony.” (Id.).

The Court agrees. Owens cannot “thwart the purposes of Rule 56 by creating ‘sham’

issues of fact with affidavits that contradict [her] prior depositions.” Bank of Illinois v. Allied

Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996). For these reasons, Owens’

Declaration must be excluded for purposes of this summary judgment motion.3

II. Time Barred Allegations & Hostile Work Environment Claim

AWR argues that “[m]any of the alleged adverse actions Owens attaches to her claims

are time barred because they occurred prior to May 6, 2020, more than 300 days prior to when

she filed her Charge of Discrimination on March 2, 2021.” (Doc. 64, p. 18). Specifically, AWR

asserts that the following actions should not be considered:

- Her HR support was allegedly removed in July 2019. (See ECF No. 1, ¶18).

- She was required to attend a March 4, 2020, meeting with her manager and

HR. (Ex. 1, pp. 270:11-272:20).

- Her work was being micromanaged and she was excluded from work

communications per Owens’ February 2020 ethics complaint. (See ECF No.

1, ¶21; Ex. 1, pp. 244:19-251:12; 252; 20-259:24; Ex. 9; Ex. 10).

3 The Seventh Circuit has “urge[d] district courts to carefully consider Rule 37(c), including the alternate

sanctions available, when imposing exclusionary sanctions that are outcome determinative.” Musser v. Gentiva

Health Servs., 356 F.3d 751, 760 (7th Cir. 2004). Even if the Court considered the statements within Owens’

declaration, those statements would not change the result.

(Id.).

Owens responds that her claims are not time-barred under the continuing violation

doctrine because she alleges a hostile work environment claim. (Doc. 85, p. 2). In fact, Owens

relies heavily on an alleged hostile work environment claim to establish discriminatory and

retaliatory adverse actions throughout her response. (Id.). However, Owens never pled a

hostile work environment claim. “To state a Title VII hostile work environment claim, a

plaintiff must allege (1) she was subject to unwelcome harassment; (2) the harassment was

based on her [race] or [gender] (or another reason forbidden by Title VII); (3) the harassment

was severe or pervasive so as to alter the conditions of employment and create a hostile or

abusive working environment; and (4) there is basis for employer liability.” Huri v. Off. of the

Chief Judge of the Cir. Ct. of Cook Cnty., 804 F.3d 826, 833–34 (7th Cir. 2015) (citing Cooper–Schut

v. Visteon Auto. Sys., 361 F.3d 421, 426 (7th Cir. 2004)). Owens’ allegations of harassment by

AWR employees fail to include facts from which the inference that the harassment was based

on Owens’ gender or race can be drawn. Nor does the complaint state that she believed her

treatment was linked to her gender or race. Rather, Owens pleads the following:

17. Beginning in February 2019, plaintiff raised the deplorable lack of

inclusiveness, unfair and unequal treatment, and racial and gender pay equity

with AWR upper management, Human Resources and Corporate Compliance.

These included:

a. In February 2019, a pay equity check was discussed face-to-face with

then HR Director Deb Quigley and VP of Operations Doug Brand.

Neither provided a response.

b. A face-to-face meeting in Naperville on September 24, 2019 with

O’Hara, expressed concerns that she had not been included in

critical decisions as befitted the director and the adverse effects this

had on Alton operations, customers and employees.

c. A face-to-face meeting with President Eric Palm and then Human

Resource Director, Marshelle Hightower, on October 1, 2019.

d. An informal written complaint dated October 6, 2019; and

e. Email communication with the Director of Human Resources

seeking a response and resolution. AWR did nothing to address her

concerns.

18. By July 2019, plaintiff was already experiencing retaliation from raising

these complaints, including by the removal of her local Human Resources

support.

19. In February 2020, plaintiff filed a formal Ethics Complaint about AWR’s

lack of racial inclusiveness. O’Hara was a focus of plaintiff’s complaint.

. . .

21. Following the filing of her Complaint, plaintiff was retaliated against in

numerous ways that adversely impacted her ability to perform her job,

including that she was further excluded from communications that directly

impacted her job, important staff were moved to Naperville, leaders under

plaintiff began getting direction directly from O’Hara, and O’Hara began

micro-managing plaintiff’s emails and other communications.

. . .

28. Plaintiff was subjected to a work environment that was pervasively hostile

to African-Americans, especially African-American women.

(Doc. 1).

Even if Owens pleaded a hostile work environment claim, she has failed to provide

the evidence necessary to establish the claim’s elements. To determine whether the

harassment was “sufficiently severe or pervasive to be actionable, [the Seventh Circuit]

look[s] at the totality of the circumstances, including: (1) the frequency of the discriminatory

conduct; (2) how offensive a reasonable person would deem it to be; (3) whether it is

physically threatening or humiliating conduct as opposed to verbal abuse; (4) whether it

unreasonably interferes with an employee’s work performance; and (5) whether it was

directed at the victim.” Nichols v. Michigan City Plant Plan. Dep’t, 755 F.3d 594, 601 (7th Cir.

2014) (citing Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 868 (7th Cir. 2013)). There is no

evidence that the alleged harassment was physically threatening or humiliating.

Additionally, there is no evidence that the alleged harassment interfered with Owens’ work

performance. See Doc. 65-1, pp. 46-47 (“You could not challenge me on my performance. You

saw the reviews. You can’t challenge me on my professionalism.”).

Accordingly, Owens’ claims of discrimination and retaliation based on AWR’s alleged

hostile work environment must be dismissed. And any alleged adverse actions that occurred

before May 6, 2020, are time-barred where used to support Owens’ claims under Title VII

and the IHRA.4 See Riley v. Elkhart Community Schools, 829 F.3d 886, 890 (7th Cir. 2016) (stating

that the statute of limitations for claims brought under Title VII is 300 days).

III. Counts I, II, & III – Race and Gender Discrimination in violation of Title VII,

IHRA, and Section 19815

To establish a prima facie case of employment discrimination, Owens must

demonstrate that she (1) is a member of a protected class, (2) was meeting her employer’s

legitimate expectations, (3) suffered an adverse employment action; and (4) that similarly

situated employees, who were not members of the protected class, were treated more

favorably. Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1006 (7th Cir. 2002).

4 The statute of limitations for claims brought under Section 1981 is four years. Riley, 829 F.3d at 891. Thus, in so

far as any of the alleged adverse actions relate to Owens’ claims of racial discrimination and retaliation under

Section 1981, they are only time-barred if they occurred prior to October 29, 2017.

5 The Title VII, Section 1981, and IHRA claims need not be analyzed separately because Title VII, Section 1981

and IHRA claims are all analyzed under the same evidentiary rubrics. See Hoosier v. Greenwood Hosp. Mgt. LLC,

32 F. Supp. 3d 966, 975 (N.D. Ill. 2014) (citing Humphries v. CBOCS West, Inc., 474 F.3d 387, 401 (7th Cir. 2007);

Zaderaka v. Illinois Human Rights Comm’n, 131 Ill.2d 172 (Ill. 1989)). Thus, failure to establish a prima facie case of

discrimination under Title VII for an employment action “necessarily forecloses Section 1981 and IHRA claims

arising from the same conduct.” Id.

A. Discriminatory Compensation

Owens alleges that she experienced race and gender-based discrimination when AWR

compensated her at a lower rate than that of her comparable white, male peers. (Doc. 1, pp. 6-

8). While discriminatory pay would qualify as an adverse action, Owens has still not brought

a prima facie discrimination claim based on discriminatory compensation. AWR argues that

Owens has not compared her salary to individuals who are similarly situated to her.

“A similarly situated employee is one who is ‘directly comparable to [the plaintiff] in all

material respects.’ In evaluating whether two employees are directly comparable, the Court

must look at all relevant factors, including whether the employees ‘(i) held the same job

description, (ii) were subject to the same standards, (iii) were subordinate to the same

supervisor, and (iv) had comparable experience, education, and other qualifications—

provided the employer considered these latter factors in making the personnel decision.’”

Bio v. Federal Express Corp., 424 F.3d 593, 597 (7th Cir. 2005) (internal citations omitted).

Owens presents Matthew Lindner, Michael Champion, Preston Pallas, and Adam

Boelke as male employees of AWR who were allegedly compensated at a higher rate for the

same work. (Doc. 85, pp. 3-5). According to Owens’ own testimony, however, each of the men

Owens compared her salary to had different roles and longer tenures within the company.

Lindner was the “Director of Marketing” and had worked at AWR for longer than Owens.

(Doc. 64, p. 11) His job responsibilities involved running direct marketing and digital

campaigns as well as company brand projects and managing employees in Camden, New

Jersey, and Naperville, Illinois. (Id.) Similarly, Michael Champion was the Director of

Business Development and then the Director of Client Success. (Id.) He had also worked at

AWR for longer than Owens. (Id.) He worked on special projects and supported leaders with

business development projects. He was not, however, a part of operations reorganization like

Owens. (Id. at 12). Preston Pallas was the Senior Director of Call Center Operations. (Id.)

Owens herself admitted that he supervised the regulated6 side of the Alton and Pensacola

Call Centers, which, as Owens herself testified, experience higher call volumes. Owens’

predecessor, Adam Boelke, had the title of both Vice President of Operations and Call Center

Director. (Id.) His tenure with AWR was also longer than that of Owens. (Id.) Furthermore,

the fact that AWR employs a pay scale determined by a variety of factors, including one’s

position, tenure within AWR, and performance is not disputed, nor is the fact that bonus

awards are determined within a range associated with the employee’s salary grade. (Id. at

13).

Owens argues that she performed the same job as these men and received a lower

salary. She relies upon the fact that “at times” they reported to the same supervisor and that

when looking at her time working for American Water entities generally, she had more

experience. But Owens’ own testimony establishes that these men all held a position that

Owens did not, despite being at the same or a lower pay grade classification. Most of them

also had worked at AWR for longer than Owens had at the time salaries were being

compared. Thus, weighing all the relevant factors, the Court finds that they were not

similarly situated, and a claim of discriminatory pay fails.

B. Discriminatory Failure to Investigate

The Court notes that each incident Owens uses to support her failure to investigate

argument cannot be considered for purposes of the Title VII and IHRA claims because they

6 Regulated call centers focus on water services rather than home warranties.

are time-barred. Further, in so far as they can be considered in relation to Owens’ claim under

Section 1981, Owens still does not have a viable claim for discriminatory failure to investigate.

As discussed above, to establish a prima facie discrimination claim, Owens must show that a

similarly situated employee was treated more favorably. Owens does not point to any

evidence showing that a white or male co-worker filed a complaint that was investigated

differently by AWR.

Further, even if she had presented such evidence, failure to investigate does not

qualify as an adverse action in this case. “[A]n adverse employment action is one that affects

the compensation, terms, conditions, or privileges of employment, such as hiring, firing,

discharge, denial of promotion, reassignment to a position with significantly different job

responsibilities, or an action that causes a substantial change in benefits.” Gibbs v. Gen. Motors

Corp., 104 F. App’x 580, 583 (7th Cir. 2004) (internal quotation and citation omitted). Owens

provides no evidence that anything about her employment was changed as a result of AWR’s

alleged failure to investigate. If anything, Owens’ argument establishes that she is upset

because nothing did change. Therefore, she has not established a materially adverse action

based on a failure to investigate. See Kuhn v. United Airlines, 63 F. Supp. 3d 796, 802-04 (N.D.

Ill. 2014) (holding that an alleged failure to investigate is not an adverse material action

because nothing about the employee’s situation was changed by the failure to investigate).

C. Discriminatory Failure to Hire and Discharge

Once a plaintiff has successfully alleged a prima facie discrimination claim, the burden

shifts to the defendant. Wade v. Lerner New York, Inc., 243 F.3d 319, 322 (7th Cir. 2001). Once

the burden shifts, AWR must provide evidence of a “legitimate and non-discriminatory

reason” for the adverse action. Id. (internal citations omitted). If AWR provides a legitimate

and non-discriminatory rationale, the claim must be dismissed unless Owens can prove that

the argued reason was merely pretext to hide discrimination. Id. To prove that the reason was

pretextual, Owens must establish by a preponderance of the evidence that the non-

discriminatory reasoning was a lie. Jackson v. E.J. Brach Corp., 176 F.3d 971, 983-84 (7th Cir.

1999). This can be done with both direct and indirect evidence. Id.

Owens alleges that AWR’s failure to hire her for the Director of Contact Center

Operations—and its additional failure to find a different job for her after the merger—was

unlawfully discriminatory. AWR argues that both the discriminatory failure to hire and

discriminatory discharge claims should be dismissed because AWR has successfully

provided evidence that these decisions were made because of lawful, non-discriminatory

reasons.

Simply put, the Court finds that AWR has successfully provided evidence of a non-

discriminatory reason behind AWR’s decision to not hire Owens for the Contact Center

Director position and Owens’ eventual discharge from AWR. AWR has provided ample

rationale to support its decision to hire Benavidez rather than Owens for the Contact Center

Director position. The record clearly reflects that AWR was actively working to merge its two

call centers. AWR also identifies Benavidez’s specific interview answers, his ability to lead,

and his extensive experience managing a call center that was more sales-oriented than the

one Owens had been managing as specific reasons Benavidez was hired for the position.

(Doc. 84, p. 18). Further, Owens was not hired for an alternative position because she did not

apply for anything other than the Contact Center Director position. (Doc. 65-1, p. 317).

In an effort to try and prove that these non-discriminatory reasons were mere pretext,

Owens points to a variety of facts to establish that AWR’s reasoning is false. To support her

argument,7 Owens states that her job included a wider range of job responsibilities, that she

was told to look for a job, that interviews didn’t have to take place to fill the role, and the fact

that O’Hara was late to the interview. The Court finds that none of these arguments proves

the non-discriminatory rationale provided by AWR was pretextual. Owens also focuses on

the dispute surrounding whether she said, “I don’t know,” as an answer to a question. But

this dispute alone does not prove that the rationale provided was pretext. Even if Owens did

not say, “I don’t know,” it would have no bearing on whether AWR was being truthful when

it stated that Benavidez was selected because he was a better fit for the position.

Similarly, even if there were no additional positions available for Owens to apply for,

she provides no evidence that she was discharged for any reason other than the fact her

current position was being eliminated because of the merger and she was not the candidate

chosen for the Contact Center Director position. Despite Owens’ arguments to the contrary,

AWR was not required to create or find a position for her, even if it was able to do so for

others. Thus, because no reasonable fact finder could determine that Owens has provided

evidence establishing that AWR’s non-discriminatory rationale was pretext, any

discrimination claim arising from an alleged failure to hire or discharge must be dismissed.

IV. Counts IV, V, VI – Retaliation under Title VII, IHRA, and Section 19818

The elements necessary for a retaliation claim are similar to those already discussed

in relation to Owens’ discrimination claims. “To prove retaliation under Title VII, a plaintiff

must show: (1) she engaged in statutorily protected expression; (2) she suffered an adverse

action by her employer; and (3) there is a causal link between her protected expression and

7 The Court reiterates that any arguments relying upon evidence found in Owens’ Declaration (Doc. 86) will not

be considered.

8 See fn. 3.

the adverse action.” Scaife v. United States Dep’t of Veterans Affs., 49 F.4th 1109, 1118 (7th Cir.

2022) (citing McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 483 (7th Cir. 1996)). Just as in a

discrimination claim, if Owens successfully alleges a prima facie retaliation claim, the burden

shifts, allowing AWF an opportunity to prove that any adverse action was the result of a non-

discriminatory reason. See Johnson v. West, 218 F.3d 725, 732 (7th Cir. 2000).

It is undisputed that Owens engaged in protected behavior when she made

complaints about race and gender-based discrimination. AWR argues, however, that Owens

has failed to establish both an adverse action and a causal connection. Owens argues that she

has established the following adverse actions: (1) a hostile work environment, (2) failure to

hire, (3) discharge from her current position, and (4) a refusal to pay out her APP bonus.

As already discussed above, the Court finds that Owens’ alleged hostile work

environment claim must be dismissed. The factual support is time-barred under Title VII,

and any claim under Section 1981 has not been properly made before this Court.

As for the alleged refusal to pay Owens’ APP bonus, even the evidence provided by

Owens herself does not indicate that she was guaranteed a payment of the APP bonus. The

severance agreement specifically indicates that the APP bonus was not a part of the severance

agreement. (Doc 85-5, p. 1). And, while the retention agreement said she maintained the right

to receive the APP bonus, that only applied if she was still an active employee on March 15,

2021. (Id. at 3). Because Owens did not lose something she was entitled to have as a part of

her employment, the bonus payment cannot constitute an adverse action. See Hunt v. City of

Markham, Ill., 219 F.3d 649, 654 (7th Cir. 2000) (explaining that withholding a bonus is not an

adverse action because they are sporadic, irregular, unpredictable, and discretionary).

Further, even if withholding the bonus was an adverse action, the record provides evidence

that it was withheld for a non-discriminatory reason that Owens has not proven to be

pretextual. The retention agreement specifically states that an employee must be actively

employed on March 15, 2021, to receive the bonus, and it is undisputed that Owens was not

employed by AWR at that time. (Doc. 85-4, p. 9). Thus, because withholding the bonus was

not an adverse action, and because the record indicates that a non-discriminatory reason

exists, no reasonable fact finder could conclude that the bonus was withheld in retaliation.

Finally, any retaliation claim that relies upon AWR’s failure to hire Owens must be

dismissed because even if Owens has stated a prima facie retaliatory failure to hire claim,

AWR has sufficiently established a legitimate, non-discriminatory rationale behind its

decision not to hire Owens for the Contact Center Director position or any other position. As

discussed above, AWR did not choose Owens because the other candidate for the Contact

Center Director position was more qualified and better suited to the position based on the

factors AWR was evaluating. Owens argues that she had experience and skills that were

transferable to the position, but this does not mean she was entitled to the position. Further,

Owens’ personal belief that she was the best candidate does not translate into evidence that

AWR’s non-retaliatory reason for hiring the other candidate was pretextual. Owens also

argues that there were no other positions for which she could apply. Even assuming this is

true, it is still undisputed that Owens did not submit any other applications. This is a non-

retaliatory rationale for her discharge. Thus, because AWR has a non-retaliatory rationale for

Owens’ discharge, and because no fact finder could find that Owens has proven this rationale

to be pretextual by a preponderance of the evidence, any retaliation claim related to AWR’s

failure to hire Owens must be dismissed.

V. Count VII – Violation of the Equal Pay Act

Owens filed a Motion for Partial Summary Judgment as to Count VII, arguing that

there is no dispute as to the material facts that establish a violation of the Equal Pay Act.

(Doc. 52). AWR then filed a counter motion for Summary Judgment as to Count VII, arguing

that Owens failed to establish an Equal Pay Act Violation. (Doc. 63).

To state a prima facie claim of discrimination under the Equal Pay Act, Owens must

show that “(1) higher wages were paid to a male employee, (2) for equal work requiring

substantial similar skill, effort, and responsibilities, and (3) that the work was performed

under similar working conditions.” Jaburek v. Foxx, 813 F.3d 626, 632 (7th Cir. 2016) (quoting

Warren v. Solo Cup Co., 515 F.3d 627, 629 (7th Cir. 2008)). To determine if the work that Owens

did was equal to that performed by Boelke, the court must look at the “common core of tasks”

Jaburek, 813 F.3d at 632 (quoting Cullen v. Ind. Univ. Bd. of Trustees, 338 F.3d 693, 698 (7th Cir.

2010)). This inquiry requires an examination of what the assigned duties were, when the

respective parties started work, where they worked, and their backgrounds. Id. (citation

omitted). If Owens successfully establishes all three, the Equal Pay Act provides AWR with

four affirmative defenses. If AWR can show that the alleged pay differential is due to “(i) a

seniority system; (ii) a merit system; (iii) a system measuring earnings by quantity or quality

of production; or (iv) a differential based on any other factor other than sex,” there has not

been a violation of the Equal Pay Act. 29 U.S.C. § 206(d)(1).

Owens alleges that her predecessor, Adam Boelke, received higher wages for the

performance of the same job, in the same location, under the same title.9 (Doc. 53, p. 4). She

9 “Under the Equal Pay Act, a claim for sex-based wage discrimination must be brought within two years of the

alleged violation, or withing three years if willfulness is alleged.” Mirza v. Dep’t of Treasury, 875 F. Supp. 513, 522

(N.D. Ill. 1995) (citing 29 U.S.C. § 255(a). Owens filed her complaint, alleging a willful violation of the Equal Pay

points to the base salaries she and Boelke earned throughout their time working for AWR to

support this claim. (Id. at p. 3) AWR argues that Owens is comparing only the base salary

amounts, rather than the total compensation earned by each individual. (Doc. 68, pp. 5-7).

AWR also argues that even if Boelke was paid more than Owens, Owens cannot successfully

bring an Equal Pay Act claim because the common core of tasks and working conditions were

not sufficiently similar (Id. at pp. 7-10). The Court need not perform that analysis, however,

because Owens’ claim fails to establish that Boelke was paid higher wages.

Owens argues that she was making a lower base salary for the entire four years she

held the Director of Call Center Operations position than Boelke was in 2016. (Doc. 53, p. 3).

In her motion for summary judgment, Owens focuses on comparing her base salary in 2020,

after four years of work in the Director position, to Boelke’s base salary in 2016, after eight

years of work in the Director position. (Id.) But under the Equal Pay Act, one must compare

total compensation amounts, rather than base salaries. See 29 C.F.R. § 1620.10 (stating that

“wages”. . . includes all forms of compensation . . . whether called wages, salary, profit

sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel

accommodations, use of company car, gasoline allowance, or some other name.”). Boelke’s

total compensation after his last full year with the company was $213,216.62 (Doc. 72, p. 2)

and, by Owens’ own admission, her total compensation during her last full year with the

company was $220,272.43, even though she had only been in the position for four years.

(Doc. 60-1, p. 5). Further, in 2020, Owens reported total wages of $265,252.47 (Doc. 73), and a

Act, on October 29, 2021. (Doc. 1). AWR argues that the two-year limitation should apply because there is

insufficient evidence of willfulness, but the complaint does allege a willful violation. (Docs. 68, p. 7; 1, pp. 10-11).

Thus, the Court can only consider the actions Owens alleges violated the Equal Pay Act occurring after October

29, 2018.

pay equity check revealed that Owens’ total compensation was approximately 7% higher

than the average Director of Operations working for American Water. (Doc. 69-5, p. 3) Thus,

a review of the reported total compensation for Owens and Boelke does not establish that

Boelke received higher compensation as required under the Equal Pay Act.

Additionally, even if Owens had successfully established that she was receiving less

compensation than Boelke, her own testimony provides support for the fact that she received

a different base salary due to factors other than sex. The Equal Pay Act provides four

affirmative defenses including a catch-all defense for a pay scale based on a “factor other than

sex.” 29 U.S.C. § 206(d)(1). The qualifying types of factors for this defense are limitless so long

as they are bona fide. Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989).

As discussed above, AWR argues that they utilize a seniority/merit-based

compensation system. (Doc. 68, p. 12, Doc. 69-1). The record indicates that AWR assigns jobs

to a salary grade that provides a salary range, with an employee’s specific salary being

determined by an analysis of multiple factors such as tenure specifically with AWR and

performance reviews. (Doc. 69-1, p. 5). A system of this type combines two of the affirmative

defenses specifically identified by the Equal Pay Act—a merit-based system and a seniority-

based system. Owens argues that AWR cannot plausibly assert this affirmative defense

because even within this system she should receive a higher salary because she had worked

for American Water entities longer than Boelke. (Doc. 53, pp. 4-5). But AWR does not indicate

that its system focuses on general experience. It argues that salary determinations are based

on experience specifically with AWR. (Doc. 68, p. 12) According to Owens’ own testimony,

she did not start working with AWR until December 2016. (Doc. 69-2, p. 49-51.)10 Thus, she

never reached the same level of experience with AWR that Boelke had when he was

terminated in 2016. Further, Owens also testifies that Boelke had a higher-level title, Vice

President of Operations, and had worked with AWR specifically for seven or eight years.

(Doc. 69-2, pp. 335, 340). These two facts alone—that Boelke had a second, higher title and

that he had work experience with AWR specifically that was greater than Owens’—provide

legitimate factors other than sex that would justify a difference in base salary.

Finally, Owens does not dispute the existence of a graded pay scale that relies on merit

and seniority. In fact, because she did not dispute this in her response to AWR’s Motion for

Summary Judgment (Doc. 85), the existence of such a system is considered undisputed.

Owens only argues that she had a longer career in this general field and for American Water

entities but, as is also undisputed, tenure with AWR is a primary consideration when

determining salary. (Doc. 64 at p. 12). It is also undisputed that Boelke had a longer tenure

within AWR.

Because Owens has failed to establish a prima facie violation of the Equal Pay Act and

because AWR has successfully asserted an affirmative defense under the Equal Pay Act,

AWR is entitled to summary judgment on this count.

10 Owens argues that she has 30 years of experience with American Water entities, but this experience was not

specifically with AWR—an American Water entity that focuses specifically on the home warranty experience.

Owens’ own testimony establishes that AWR was a new company formed through American Water’s acquisition

of a home warranty company. (Doc. 69-2, pp. 42, 101-104). Owens’ prior experience with American Water entities

focused on the water utility business. (Id. at pp. 24-36). Thus, her previous experience, while in the same field,

was not identical to that of her new position, in a new subsidiary, focused on a different aspect of the business.

CONCLUSION

For these reasons, the Court DENIES Owens’ Motion for Partial Summary Judgment

(Doc. 52) and GRANTS AWR’s Motion for Summary Judgment (Doc. 63). The Clerk of Court

is DIRECTED to enter judgment accordingly and close this case.

IT IS SO ORDERED.

DATED: September 29, 2023

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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