# Wiler v. Kent State University

> District Court, N.D. Ohio · October 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10371429

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** October 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10371429

## How later opinions describe it (automated extraction)

- describing how a Title VII wage discrimination claim ordinarily requires that a plaintiff show that her employer paid different wages to employees of opposite sexes for substantially equal work

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KATHLEEN WILER, ) Case No. 5:20-cv-00490
)
Plaintiff, ) Judge J. Philip Calabrese
)
v. )
)
KENT STATE UNIVERSITY, )
)
Defendant. )
)

OPINION AND ORDER
This case arises from Plaintiff Kathleen Wiler’s employment as the head coach
of Defendant Kent State University’s women’s field hockey team. She alleges that
Kent State violated the Equal Pay Act and Title VII by paying her less than her male
counterparts. Defendant moves for summary judgment on both claims and regarding
some of Plaintiff’s requested relief. (ECF No. 53.) For the following reasons, the
Court GRANTS IN PART and DENIES IN PART Defendant’s motion.
STATEMENT OF FACTS
At this stage of the proceedings, the record establishes the following facts,
which the Court construes in the light most favorable to Plaintiff as the non-movant.
A. Coach Kathleen Wiler
Kathleen Wiler coached Kent State University’s Division I women’s field
hockey team from March 2006 to February 2019. (ECF No. 56, PageID #1926.) As
head coach, she had several responsibilities. Among other things, Coach Wiler
supervised two assistant coaches, oversaw a roster of around twenty-five to twenty-
six players, and managed the team’s budget—which often exceeded $800,000. (Id.,
PageID #1928–30.) She did all this while leading her team through a twenty-game
athletic season lasting nearly three months. (Id., PageID #1930; ECF No. 52,

PageID #1133.) During that competitive season, her team competed in the Mid-
American Conference, also known as the MAC, against seven other schools. (ECF
No. 52, PageID #1141.) During her time at the head of the program, Kent State
dominated the MAC, winning eight regular season titles, five conference tournament
titles, and making five NCAA post-season appearances. (ECF No. 56, PageID #1926;
see also ECF No. 35-1, ¶ 17, PageID #367.)

B. Coach Wiler’s 2016 Contract
In June 2016, Coach Wiler signed a three-year contract with Kent State. (ECF
No. 52-7, PageID #1175.) That contract provided three main components of
compensation.
First, she received a base salary of $76,500.00. (Id., PageID #1177.) That
salary reflected a raise of over $5,000 from her previous year’s base salary of
$70,709.89. (ECF No. 52-5, PageID #1171.) In subsequent years, her raise increased.

Coach Wiler’s 2018 salary was $79,590.96, and her 2019 salary was $81,182.42. (ECF
No. 52-9, PageID #1187; ECF No. 52-10, PageID #1188.) These two amounts placed
her salary above the average MAC field hockey coach, who received $76,937.00 and
$78,376.00 during those years. (ECF No. 52, PageID #1118–19.)
Second, her contract specified twelve performance bonuses. (ECF No. 52-7,
PageID #1177.) For example, she could earn a $3,000 bonus if her team was the MAC
Overall Regular Season Champion or if it was the MAC Tournament Champion. (Id.)
Her team’s performance objectively determined whether Coach Wiler received these
bonuses. (ECF No. 50, PageID #779–81.)
Finally, Coach Wiler—like all of Kent State’s head coaches—could receive

supplemental income by hosting sports camps. (ECF No. 52-7, PageID #1179; ECF
No. 50, PageID #888–90.) The amount a coach earned from these camps depended
on several factors, including how many camps she decided to hold, how many students
attended the camp, and the University’s overhead. (ECF No. 50, PageID #888–95.)
Further, coaches could even allocate some of their camp income to their assistant
coaches, which Coach Wiler did. (Id., PageID #890.)

C. Other Coaches’ Contracts
Three other head coaches—Roberto Marinaro (women’s soccer), Eric Oakley
(softball), and Jim Andrassy (wrestling)—also signed contracts with Kent State in
the summer of 2016. None of these programs generated net revenue (ECF No. 56,
PageID #1928), and each fell outside Kent State’s priority list (see ECF No. 54,
PageID #1885–86). Indeed, the only sports that Kent State prioritized from 2015 to
2019 were football, men’s basketball, women’s basketball, volleyball, men’s golf,

women’s golf, and baseball. (Id.) As coaches of non-priority sports, each of these other
head coaches, like Coach Wiler, had similar essential duties, expectations, and
relative importance in Kent State’s athletic program. (Id., PageID #1885.)
Initially, Plaintiff identified three additional coaches as potential comparators:
the women’s volleyball coach, the former women’s golf coach, and the women’s
gymnastics coach. (ECF No. 51, PageID #1106.) On summary judgment, however,
Plaintiff focused her argument only on similarities to Coach Marinaro, Coach Oakley,
and Coach Andrassy. (ECF No. 57, PageID #2380.) Therefore, the Court limits the
factual discussion and legal analysis to these coaches.
C.1. Coach Roberto Marinaro (Women’s Soccer)

Marinaro signed his contract first in 2016. Under his contract, Marinaro
received a base salary of $76,200.00. (ECF No. 50-38; PageID #1042.) This figure
represented a raise from his 2015 salary of $73,728.68. (ECF No. 52-58,
PageID #1792.) By 2018, his salary increased to $79,278.48 (ECF No. 52-63,
PageID #1823), and by 2019 it was $80,864.05. (ECF No. 52-65, PageID #1832.)
Coach Marinaro’s contract also included thirteen performance bonuses. (ECF
No. 50-38, PageID #1042.) Nine were the same as Coach Wiler’s. (Compare ECF

No. 52-7, PageID #1177, with ECF No. 52-60, PageID #1803.) Two paid a higher
bonus (MAC East Champion and MAC Final Four Tournament), and two lower (MAC
Overall Regular Season Champion and MAC Tournament Champion). (Id.)
C.2. Coach Eric Oakley (Softball)
Next, Eric Oakley signed his contract in June 2016. (ECF No. 50-33,
PageID #1026.) Like coaches Wiler and Marinaro, he too negotiated a base salary
and performance bonuses. (Id., PageID #1028.) Under his 2016 contract, Coach

Oakley had a base salary of $72,000.00. (Id.) In 2018 and 2019, this amount
increased to $73,440.00 and $74,908.80, respectively. (ECF No. 50-34, PageID #1037;
ECF No. 50-35, PageID #1038.) Moreover, he had the opportunity to receive as many
as twelve performance bonuses. (ECF No. 50-33, PageID #1028.) Nine were the same
as Coach Wiler’s. (Compare ECF No. 52-7, PageID #1177, with ECF No. 52-51,
PageID #1749.) Only one was higher: the bonus for winning the MAC East. (ECF
No. 50-33, PageID #1028.)
C.3. Coach Jim Andrassy (Wrestling)

The last coach to sign a 2016 contract was Jim Andrassy. (See ECF No. 50-21,
PageID #994.) He had served as the wrestling team’s assistant or head coach since
1994. (ECF No. 52, PageID #1131.) In 2016 he would be the head wrestling coach.
(ECF No. 50-21, PageID #994.)
The position came with several duties relevant here. First, he had to oversee
two assistant coaches and a team of approximately thirty-one to thirty-three athletes.
(ECF No. 56, PageID #1928–29.) His team had a five-and-a-half-month competitive

season with roughly twenty-five matches. (ECF No. 52, PageID #1133; ECF No. 56,
PageID #1930.) Second, he had budgeting duties. In 2018, he managed a budget of
$641,859.74. (Id.)
Coach Andrassy’s 2016 contract provided him with a base salary of $81,100.00.
(ECF No. 50-21, PageID #996.) That number climbed to $82,722.00 and $83,936.83
in 2018 and 2019, respectively. (ECF No. 52-39, PageID #1695; ECF No. 52-41,

PageID #1702.) Meanwhile, the average base salary of a MAC wrestling coach was
$82,224.00 in 2018 and $88,125.00 in 2019. (ECF No. 52, PageID #1132–33.)
Additionally, his contract provided sixteen performance bonuses. (ECF No. 50-21,
PageID #996.) Several, including MAC Coach of the Year and Highest Team GPA in
the MAC, were higher than Coach Wiler’s. (Compare id., with ECF No. 52-7, PageID
#1177.)
D. Kent State’s Salary Considerations
Although these contracts have varying terms, Defendant maintains that Kent
State’s athletic director, Joel Nielsen, set the coaches’ base salaries using two

common denominators. The first is market data. According to Defendant, Nielsen
ascertained a coach’s market rate using Win AD—a subscription database that
details the salaries of thousands of coaches at NCAA Division I and Division II
schools. (ECF No. 52, PageID #1116–17.) Armed with this data, Nielson determined
the average salary for each sport and adjusted his offers to put Kent State’s head
coaches in the top half, if not the top three or four, for the particular sport of each.
(Id., PageID #1114–17.) Second is seniority. Nielsen also considered coaches’ tenure

with Kent State. (Id., PageID #1115; ECF No. 54, PageID #1887.)
E. Coach Wiler’s Request to Renegotiate
In early 2016, Coach Wiler attempted to renegotiate her contract, which was
set to expire in June 2016. (ECF No. 50, PageID #764–65.) At that point in time, the
field hockey team had won its third consecutive regular-season MAC championship,
won the MAC tournament for the third time in a row, and appeared in the NCAA
tournament. (ECF No. 56, PageID #1926.) Also at that time, Coach Wiler was the

only female coach at Kent State and had the lowest base salary. (Id.) During
negotiations, she raised concerns about these issues. (Id., PageID #1926–27.)
Coach Wiler submitted a written proposal to increase her base salary to
$80,000 per year. (Id., PageID #1927; ECF No. 50, PageID #817–18.) Nielson told
Coach Wiler that he wanted to make sure she remained among the top three highest
paid field hockey coaches in the MAC. (ECF No. 50, PageID #763.) Plaintiff claims
that, after she raised the issue of equal pay with Nielsen, he broke off negotiations
(Id., PageID #807), leaving Coach Wiler with a take-it-or leave it contract extension
(ECF No. 56, PageID #1927). Ultimately, Coach Wiler took the deal and signed the

2016 contract described above, which expired on February 28, 2019. (ECF No. 52-7,
PageID #1175.)
When Nielsen and Kent State failed to address her concerns about equal pay,
Coach Wiler retained counsel in early 2017 to renegotiate her contract. (ECF No. 56,
PageID #1930.) When that did not happen, she filed a discrimination charge with
the Ohio Civil Rights Commission and the Equal Employment Opportunity

Commission in September 2017. (Id.; ECF No. 50, PageID #907–09.) Kent State did
not take remedial action; therefore, Coach Wiler resigned, effective February 28,
2019. (ECF No. 56, PageID #1931.) When she resigned, Coach Wiler had been one
of the top three highest-paid field hockey coaches in the MAC during the three-year
term of the 2016 contract. (ECF No. 52, PageID #1123.)
STATEMENT OF THE CASE
Following her resignation, Plaintiff filed suit, on March 3, 2020, asserting

causes of action for (1) wage discrimination and constructive discharge/retaliation in
violation of Title VII, (2) violation of the Equal Pay Act, and (3) violation of Title IX.
(ECF No. 35-1, ¶¶ 101–30, PageID #383–87.) Included in Count IV of Plaintiff’s
complaint is a request for post-resignation back pay and front pay. (ECF No. 35-1, ¶
131, PageID #388.)
Defendant moved to dismiss. (ECF No. 13.) Construing that motion as a
motion for judgment on the pleadings, the Court granted Defendant’s motion in part.
(ECF No. 38.) As a result, only claims for wage discrimination under the Equal Pay
Act (Count II) and Title VII (Count I) remain. Defendant now moves for summary
judgment. (ECF No. 53.)

ANALYSIS
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is 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.” Fed. R.
Civ. P. 56(a). On a motion for summary judgment, the Court must view evidence in
the light most favorable to the non-moving party. Kirilenko-Ison v. Board of Educ. of
Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020) (citing Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
After discovery, summary judgment is appropriate if the non-moving party
fails to establish “an element essential to that party’s case and upon which that party
will bear the burden of proof at trial.” Tokmenko v. MetroHealth Sys., 488 F. Supp.
3d 571, 576 (N.D. Ohio 2020) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
“The party seeking summary judgment has the initial burden of informing the court

of the basis for its motion” and identifying the portions of the record “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. (citing Celotex Corp.,
477 U.S. at 322). Then, the nonmoving party must “set forth specific facts showing
there is a genuine issue for trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986)). “When the moving party has carried its burden under Rule 56(c),
its opponent must do more than show there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586.
If a genuine dispute exists, meaning “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party,” summary judgment is not
appropriate. Id. However, if “the evidence is merely colorable or is not significantly

probative,” summary judgment for the movant is proper. Id. The “mere existence of
some factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007)
(quoting Anderson, 477 U.S. at 247–48). In determining whether a genuine dispute
about material facts exists, it is not the Court’s duty to search the record; instead, the
parties must bring those facts to the Court’s attention. See Betkerur v. Aultman Hosp.

Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996). Ultimately, the Court must determine
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251.
I. Wage Discrimination
Plaintiff brings wage discrimination claims under the Equal Pay Act and Title
VII of the Civil Rights Act of 1964. (ECF No. 35-1, ¶¶ 101–19, PageID #383–85.) Put

simply, she alleges that Defendant violated these statutes by paying her less than
her male counterparts because of her sex. (Id.)
Historically, courts analyzed claims for wage discrimination under the Equal
Pay Act and Title VII using the same analytical framework. Odomes v. Nucare, Inc.,
653 F.2d 246, 250 (6th Cir. 1981). Now, the analytical frameworks possess some
variation. See Briggs v. University of Cincinnati, 11 F.4th 498, 509 n.2 (6th Cir. 2021).
Most notably, the Sixth Circuit recognizes that the “burdens of production and
persuasion are allocated differently in the two types of claims” after a plaintiff
establishes her prima facie case. Id.; Rogers v. Bridges Rehab. Servs. LLC, No. 1:18-
CV-728, 2019 WL 5731016, at *5 (N.D. Ohio Nov. 5, 2019). Cognizant of these

differing standards, the Court addresses each claim separately, beginning with
Plaintiff’s Equal Pay Act claim.
I.A. Equal Pay Act
The Equal Pay Act prohibits employers from discriminating “between
employees on the basis of sex by paying wages to employees . . . at a rate less than
the rate at which [it] pays wages to employees of the opposite sex . . . for equal work”
on jobs that require “equal skill, effort, and responsibility, and which are performed

under similar working conditions.” 29 U.S.C. § 206(d). For her part, Plaintiff alleges
that coaches Eric Oakley, Roberto Marinaro, and Jim Andrassy were all paid more
than her for equal work. (ECF No. 57, PageID #2378–79 & #2389.) Defendant moves
for summary judgment arguing that (1) this claim extends back only to March 3,
2018; (2) Plaintiff cannot state a prima facie case; and (3) even if Plaintiff states a
prima facie case, Defendant relied on factors “other than sex.” The Court addresses

each argument in turn.
I.A.1. Limitations Period
In addition to disputing the merits of this claim, the parties disagree over the
time period at issue. They dispute both the date from which the Court should count
back and how many years back the limitations period extends.
I.A.1.a. Starting Point
Defendant argues that the Court should apply the limitations period from the
date when Plaintiff filed her complaint in federal court. (ECF No. 53-1,

PageID #1875.) Plaintiff contends that the Court should use the date on which she
filed her complaint with the EEOC. (ECF No. 57, PageID #2392.) Because the Equal
Pay Act does not require exhaustion of administrative remedies, Washington v.
Gunther, 452 U.S. 161, 175 n.14 (1981), Plaintiff was free to commence suit alleging
a violation of the Act even while her other claims were before the EEOC. For this
reason, the federal courts generally apply the limitations period from the date of filing

a complaint in court, not with the EEOC. See Gandy v. Sullivan Cnty., Tenn., 24 F.3d
861, 865 (6th Cir. 1994) (running limitations period from commencement of the action
in federal court); Jones v. Trane US, Inc., No. 3:19-0453, 2020 WL 5088211, at *9
(M.D. Tenn. Aug. 28, 2020); Gehrt v. University of Ill. at Urbana-Champaign Co-Op.
Extension Serv., 974 F. Supp. 1178, 1189 (C.D. Ill. 1997) (collecting cases). Therefore,
the Court will apply the applicable limitations period from March 3, 2020, the date
on which Plaintiff commenced suit in federal court. (ECF No. 1.)

I.A.1.b. Willful Violation
The Equal Pay Act has a two-year limitations period, except in the case of a
willful violation, which has a three-year limitations period. 29 U.S.C. § 255(a).
Plaintiff contends that Kent State’s violation was willful, triggering application of the
three-year statute of limitations. (ECF No. 57, PageID #2392.) A violation is willful
where a defendant “either knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the statute.” Jones, 2020 WL 5088211, at *10
(citing McLaughlin v. Richard Shoe Co., 486 U.S. 128, 133 (U.S. 1988)). Under that
standard, a plaintiff must provide “more than proof of merely a violation” of the Equal

Pay Act. Id.
Plaintiff argues that she meets this standard. She points to the 2016 contract
negotiations in which Coach Wiler raised the issue of unequal pay with Nielson. (ECF
No. 50, PageID #807.) Factually, construing the record in favor of Plaintiff, as the
Court must on a motion for summary judgment, a jury could find a willful violation
based on this record. However, the question is whether these facts make out a claim

for willfulness as a matter of law. Plaintiff relies on Brooks v. Tire Discounters, Inc.,
No. 3:16-cv-02269, 2018 WL 1243444, at *8 (M.D. Tenn. March 8, 2018), which ties
willfulness to “evidence . . . that the employer . . . was placed on notice that its conduct
might violate the statute . . . by prior complaints or lawsuits brought by employees.”
According to Plaintiff, that is what occurred here. (See ECF No. 57, PageID #2392.)
Brooks describes five examples from other cases illustrating when an employer
is placed on notice such that a violation is willful. See Brooks, 2018 WL 1243444, at

*8 (collecting cases). These examples all involve defendants that (1) had been
investigated for past violations, (2) previously agreed to pay unpaid wages, and
(3) provided assurances of future compliance. See id. But these are all easy cases.
Here, the record presents a circumstance where the defendant’s knowledge arises
from prior notice from the same employee—not its own prior undertakings or
commitments, an EEOC or other investigation, or a complaint from another
employee. As a matter of law, the facts on which Plaintiff relies to establish a willful
violation (if a jury credits them) create a situation where every violation is willful so
long as the plaintiff complained about her own treatment before an adverse action

prompting a lawsuit. That position improperly converts every violation to a willful
one and finds no support in the law. Therefore, the Court applies a two-year statute
of limitations that extends back two years from the date on which Plaintiff filed her
complaint—March 3, 2020. (ECF No. 1.) To the extent Plaintiff seeks damages or
bases her claim on facts occurring before that date, her claim is time-barred.
I.A.2. Prima Facie Case
To establish a prima facie case of wage discrimination under the Equal Pay

Act, a plaintiff must show that her employer pays employees of the opposite sex at a
higher rate for equal work on jobs that require equal skill, effort, and responsibility
and that are performed under similar working conditions. Corning Glass Works v.
Brennan, 417 U.S. 188, 195 (1974); EEOC v. Romeo Cmty. Schs., 976 F.2d 985, 987
(6th Cir. 1992).
Plaintiff argues that coaches Eric Oakley, Roberto Marinaro, and Jim

Andrassy were all paid at a higher rate for equal work. (ECF No. 57,
PageID #2378–79 & #2389.) In fact, she argues that in 2018, the last full year she
worked at Kent State, Coach Wiler was the lowest paid of these coaches based on the
pay stubs of each:
2018
Compensation
Oakley $93,943.12
Marinaro $99,063.04
Andrassy $106,891.60
Wiler $87,377.30

(Id., PageID #2379; see also ECF No. 56, PageID #1928; ECF No. 56-3, PageID #1982–
2005; ECF No. 56-4, PageID #2078–2101; ECF No. 56-5, PageID #2154–77; ECF
No. 56-6, PageID #2250–73.) Defendant objects to use of the pay stubs as evidence
because Plaintiff has not properly authenticated them. (ECF No. 58, PageID #2399
n.2.) But Defendant does not dispute the authenticity of the pay stubs and, by raising
the issue only in a footnote, forfeits the argument. See Calvert v. Wilson, 288 F.3d

823, 837 (6th Cir. 2002) (Cole, J., concurring) (collecting authorities).
Defendant disagrees with Plaintiff’s calculations and argument for two
reasons. First, Defendant argues that Coach Oakley and Coach Marinaro were not
paid at a higher rate (an argument that does not depend on the pay stubs). (ECF No.
53-1, PageID #1861 & #1867.) Second, Defendant argues that Coach Andrassy did
not perform equal work. (Id., PageID #1861–62.)

I.A.2.a. Higher Rate (Coach Oakley and Coach Marinaro)
To argue that Kent State paid Eric Oakley, Roberto Marinaro, and Jim
Andrassy more than her, Plaintiff argues based on the coaches’ higher total
compensation. (ECF No. 57, PageID #2379.) As she defines it, total compensation
includes the sum of a coach’s base pay, performance bonuses, and camp income. (See
id.; ECF No. 50-6, PageID #951–53.) Defendant counters by pointing to the lower
base salaries that Kent State paid to Coach Oakley and Coach Marinaro in 2018 and
2019.

“The [Equal Pay Act] and Sixth Circuit have made it clear that when
comparing the compensation of male and female employees, the focus must be on
their respective rates of pay, rather than their total compensation.” Jones v. St. Jude
Med. S.C., Inc., 823 F. Supp. 2d 699, 755 (S.D. Ohio 2011), aff’d, 504 F. App’x 473 (6th
Cir. 2012) (citing 29 U.S.C. § 206(d)(1), and Bence v. Detroit Health Corp., 712 F.2d
1024 (6th Cir.1983)) (emphasis added). Stated differently, courts must measure the

amount of pay “against a common denominator.” Bence, 712 F.2d at 1027. For
example, a case involving commissioned salespeople turns on the employees’
commission rates, not the total commissions paid. Jones, 823 F. Supp. 2d at 755. To
identify the relevant common denominator, courts must perform a “practical inquiry
which looks to the nature of the services for which an employer in fact compensates
an employee.” Bence, 712 F.2d at 1027.
Based on the record before the Court, the coaches’ base salaries and

performance bonus rates supply the relevant common denominator. In reviewing the
employment contracts of Coach Wiler and the comparators, these components of
compensation are the only rates of pay that Kent State negotiated or set. (See, e.g.,
ECF No. 50, PageID #892–95; ECF No. 52-6, PageID #1172.)
Beyond base salaries and performance bonuses, coaches derived the largest
remaining share of their total compensation from camp income. (ECF No. 52-7,
PageID #1179; ECF No. 50, PageID #888–90.) But a coach had no obligation to run
a camp, and the compensation earned from camps varied depending on a number of
factors that Kent State did not dictate or necessarily control. (ECF No. 50, PageID

#892–95.) Indeed, the record reflects that Coach Wiler “provided most of her income
earned from field hockey camps” to her assistant coaches. (Id., PageID #890.)
Further, the coaches’ contracts leave the camps’ “final supplemental compensation
amounts” to the head coach’s discretion. (See, e.g., ECF No. 50-6, PageID #953.)
Where an employee exercises a significant degree of discretion or control over earning
a portion of her income, that portion cannot comprise part of the common

denominator for the base rate of pay. A contrary conclusion risks incentivizing
strategic behavior for artificial or leverage purposes. Because Kent State did not set
this amount, as a practical matter, it does not form part of the services for which the
University compensated its coaches.
Using base salary and performance bonuses as the relevant common
denominator to determinate rates of pay as part of Plaintiff’s prima facie case, the
following table summarizes the information from the record for Coach Wiler and each

of the comparators she identifies for the years within the applicable limitations
period:
Wiler Oakley Marinaro Andrassy
Base Salary ($)
2018 79,590.60 73,440.00 79,278.48 82,722.00
2019 81,182.42 74,908.80 80,864.05 83,962.83
Performance Bonus Rates
($)
MAC Regular Season Champ 3,000 2,500 2,500 2,500
MAC Tournament Champion 3,000 2,500 2,500 2,500
MAC Coach of the Year 1,000 1,000 1,000 2,000
NCAA Play-in Game Win 1,000 0 0 0
NCAA Tournament (per win) 2,000 2,000 2,000 0
NCAA Div-I Nat’l Champion 10,000 10,000 10,000 10,000
Overall Team GPA of 3.0– 1,000; 1,500 1,000; 1,500 1,000; 1,500 1,000;
3.499; 3.5 and over 1,500
Highest Team GPA in MAC 500 500 500 1,000
COSIDA Academic All- 500 each 500 each 500 each 0
Americans
Regional Coach of the Year 2,000 2,000 2,000 0
National Coach of the Year 5,000 5,000 5,000 3,000
Top 20 RPI at the end of the 2,000 2,000 2,000 0
season
MAC East Champion 0 1,000 1,000 0
MAC Final Four Tournament 0 0 1,500 0
Best Team out of the core 0 0 0 1,000
MAC Teams
Individual MAC Champion 0 0 0 500 each
Individual NCAA Champion 0 0 0 2,000 each
Qualifiers to NCAA 0 0 0 1,000 each
Championship
NWCA Academic All 0 0 0 500 each
American
Individual NCAA All- 0 0 0 1,000 each
American
Finish in Top 10 at NCAA 0 0 0 3,000;
Championship Team; 5,000
Finish Top 5 (not both)
Advance to National Duals 0 0 0 1,000
Advance to finals of National 0 0 0 2,500
Duals
Total 2018 Bonus 2,000 2,000 7,000 8,500
Compensation Paid ($)
Total 2018 Compensation 81,590.60 75,440.00 81,278.48 91,222.00
($)

(ECF No. 50-21, PageID #996 (Andrassy bonus rates); ECF No. 50-34, PageID #1037
(Oakley 2018 salary); ECF No. 50-35, PageID #1038 (Oakley 2019 salary); ECF
No. 50-57, PageID #1099 (2018 bonus compensation paid); ECF No. 52-7,
PageID #1177 (Wiler bonus rates); ECF No. 52-9, PageID #1187 (Wiler 2018 salary);
ECF No. 52-10, PageID #1188 (Wiler 2019 salary); ECF No. 52-39, PageID #1695
(Andrassy 2018 salary); ECF No. 52-41, PageID #1702 (Andrassy 2019 salary); ECF
No. 52-51, PageID #1749 (Oakley bonus rates); ECF No. 52-60, PageID #1803
(Marinaro bonus rates); ECF No. 52-63, PageID #1823 (Marinaro 2018 salary); ECF
No. 52-65, PageID #1832 (Marinaro 2019 salary).)

I.A.2.a.i. Coach Eric Oakley
Defendant argues that it did not pay its softball coach, Eric Oakley, at a higher
rate than Coach Wiler. (ECF No. 53-1, PageID #1861.) The base salary and
performance bonus rates do not show that Kent State paid Coach Oakley at a higher
rate. First, Coach Oakley’s base salary for 2018 and 2019 ($73,440.00 and
$74,908.80) was lower than Coach Wiler’s ($79,590.60 and $81,182.42). (Compare

ECF No. 50-34, PageID #1037, and ECF No. 50-35, PageID #1038, with ECF No. 52-
9, PageID #1187, and ECF No. 52-10, PageID #1188.) Second, Coach Oakley’s
performance bonus rates substantially equal those offered to Coach Wiler—nine of
his twelve performance bonus rates were the same. (Compare ECF No. 52-7, PageID
#1177, with ECF No. 52-51, PageID #1749.) In fact, Coach Oakley’s rate was lower
on two of the three items where the rates were not equal. (Id.) Therefore, no

reasonable jury could find that Kent State paid Coach Oakley at a higher rate, and
Coach Oakley is not an appropriate comparator.
Nor does the bonus offered to Coach Oakley for winning the MAC East change
this conclusion. The record reflects that the MAC is not separated into regions for
field hockey. According to Nielsen, “only five MAC schools and (two MAC affiliates)
had field hockey teams.” (See ECF No. 52, PageID #1141.) Accordingly, Kent State
could not have offered Coach Wiler such a comparable bonus. For these reasons,
Coach Oakley is not a comparator for evaluation of Plaintiff’s prima facie case.

I.A.2.a.ii. Coach Roberto Marinaro
Defendant also argues that it did not pay women’s soccer coach Roberto
Marinaro at a higher rate than Coach Wiler. (ECF No. 53-1, PageID #1861.)
The Court’s analysis for Coach Marinaro is largely the same as Coach Oakley’s.
He too had a lower base salary ($79,278.48 and $80,864.05) than Coach Wiler
($79,590.60 and $81,182.42) in 2018 and 2019. (Compare ECF No. 52-63,
PageID #1823, and ECF No. 52-65, PageID #1832, with ECF No. 52-9, PageID #1187,

and ECF No. 52-10, PageID #1188.) Moreover, nine of his thirteen performance
bonus rates were the same as Coach Wiler’s. (Compare ECF No. 52-7, PageID #1177,
with ECF No. 52-60, PageID #1803.)
Of the four performance bonus rates that were not the same for Coach Wiler
and Coach Marinaro, only two favored Coach Marinaro. (Id.) First, like Coach
Oakley, Coach Marinaro had the potential for a bonus for winning the MAC East.

(ECF No. 52-60, PageID #1803.) Again, the unavailability of regions for field hockey
explains this difference. Second, in Coach Marinaro’s 2016 contract, Kent State
offered a performance bonus of $1,500 if his team advanced to the MAC Final Four
Tournament. (Id.) Coach Wiler’s contract contained no such bonus. (ECF No. 52-7,
PageID #1177.) On the other hand, two performance bonuses favor Coach Wiler:
MAC Overall Regular Season Champion and MAC Tournament Champion.
(Compare id., PageID #1177, with ECF No. 52-60, PageID #1803.) If anything, Coach
Wiler had a greater likelihood of achieving at least one of her targets, and these
differences on the margins do not, in the Court’s view, permit a reasonable jury to
conclude that Coach Marinaro received a higher rate of pay for his performance

bonuses.
Because Plaintiff cannot show that Kent State paid Coach Marinaro at a
higher rate for base salary or performance bonuses, he is not an appropriate
comparator.
I.A.2.a.iii. Coach Jim Andrassy
Defendant does not dispute that it paid men’s wrestling coach Jim Andrassy

at a higher rate than Coach Wiler. (See ECF No. 53-1, PageID #1866; ECF No. 58,
PageID #2402.) Indeed, the record demonstrates as much. First, he received a higher
base salary: in 2018 and 2019, Coach Andrassy made $82,722.00 and $83,962.83,
respectively, while Coach Wiler made $79,890.60 and $81,182.41. (Compare ECF
No. 52-39, PageID #1695, and ECF No. 52-41, PageID #1702, with ECF No. 52-9,
PageID #1187, and ECF No. 52-10, PageID #1188.) Second, several of his

performance bonus rates were higher. Coach Andrassy stood to receive $2,000 if he
won MAC Coach of the Year and $1,000 if his team had the highest GPA in the MAC.
(ECF No. 50-21, PageID #996.) For the same accomplishments, Coach Wiler could
receive only $1,000 and $500. (ECF No. 52-7, PageID #1177.) Further evidence of
Coach Andrassy receiving higher performance bonus rates lies in the sheer number
of his potential bonuses. In total, Coach Andrassy’s contract contains sixteen
performance bonuses, totaling more than those potentially available to Coach Wiler,
whose contract contains only twelve. (ECF No. 50-21, PageID #996; ECF No. 52-7,
PageID #1177.) Accordingly, a reasonable jury could find that Kent State paid Coach
Andrassy at a higher rate, meeting this aspect of Plaintiff’s prima facie case.

I.A.2.b. Equal Work (Coach Andrassy)
Under the Equal Pay Act, a plaintiff must show that her comparators
performed “equal work on jobs . . . requir[ing] equal skill, effort, and responsibility,
and which are performed under similar working conditions.” Corning Glass Works,
417 U.S. at 195. “Precise equivalence is not required. Rather, there need be ‘only
substantial equality of skill, effort, responsibility, and working conditions.’” Conti v.

Universal Enters., Inc., 50 F. App’x 690, 696 (6th Cir. 2002) (quoting Odomes, 653
F.2d at 250).
In determining whether coaching positions are substantially equal, courts
consider several factors. Weaver v. Ohio State Univ., 71 F. Supp. 2d 789, 800 (S.D.
Ohio 1998), aff’d, 194 F.3d 1315 (6th Cir. 1999). Some focus on numbers. For
example, the Court may compare team size, number of assistant coaches, spectator

attendance and community interest, and the amount of revenue the sport generates.
Id. Other factors involve less quantitative measures, such as recruiting
responsibilities, the degree of responsibility in public and media relations and
promotional activities, and the relative importance of the sport in the athletic
program. Id.
The parties dispute whether Plaintiff has demonstrated that her comparators
performed “equal work.” (ECF No. 53-1, PageID #1861–62; ECF No. 57,
PageID #2380–85.) Because the record establishes that Coach Andrassy is the only
proposed comparator Kent State paid at a higher rate, the Court limits this analysis
to him.

I.A.2.b.i. The Numbers
The record demonstrates substantial equality in numbers between the
positions of Coach Wiler and Coach Andrassy. With respect to team size, in 2017 and
2018, Coach Wiler’s field hockey team carried a roster of twenty-five to twenty-six
players, and Coach Andrassy’s wrestling team rostered thirty-one to thirty-three
players. (ECF No. 56, PageID #1929.) While not precisely equal, the roster difference

is sufficiently close such that a reasonable jury may find them substantially equal.
Regarding assistant coaches, Coach Wiler and Coach Andrassy each supervised two
assistant coaches. (Id., PageID #1928.) Finally, neither sport generated net revenue.
(Id.)
I.A.2.b.ii. Other Considerations
Similarly, the record permits a rational jury to find substantial equality

regarding the coaches’ duties, responsibilities, and relative importance. For example,
at his deposition, Nielsen explained Kent State’s differentiation between priority and
non-priority sports. (See ECF No. 54, PageID #1885–86.) Priority sports are
designated externally—by the MAC—and internally—by the school. (Id.) From 2015
to 2019, the priority sports at Kent State were football, men’s basketball, women’s
basketball, volleyball, men’s golf, women’s golf, and baseball. (Id.) Field hockey and

men’s wrestling did not make the list. According to Nielsen, coaches of non-priority
sports possessed similar essential job duties and expectations. (Id.,
PageID #1885–86.) Based on his testimony and this record, a jury could find that the
two sports shared the same relative importance in the program.

I.A.2.b.iii. Defendant’s Arguments
Defendant advances two arguments that coaches Wiler and Andrassy did not
perform equal work.
First, Defendant briefly argues in reply, that Coach Wiler could not have
performed equal work because there is no evidence that she was qualified to coach
her comparator’s sports. (ECF No. 58, PageID #2402–03.) But the Court will not

entertain an argument made for the first time in reply. ECIMOS, LLC v. Nortek
Glob. HVAC, LLC, 736 F. App’x 577, 584 (6th Cir. 2018). On the merits, however,
this argument relies on out-of-circuit precedent for which the Court can find no
analogous controlling authority. Under the governing framework for analyzing equal
work, the law requires only substantial equality, not precise equivalence.
Second, Defendant suggests that Coach Andrassy had more responsibilities,

pointing to two differences between field hockey and men’s wrestling at Kent State.
The sports have different seasons: “the field hockey regular season typically lasts
less than three full months . . . [while] the wrestling season extends some five-and-a-
half to six months.” (ECF No. 53-1, PageID #1866.) But Plaintiff responds that the
sports have a similar number of competitions—twenty-five matches for wrestling and
twenty field hockey games. (ECF No. 56, PageID #1930.) Also, wrestling had
operating revenues three to four times higher than field hockey (id.), but Plaintiff
maintains that field hockey’s larger budget ($857,113.56 versus $641,859.74 in 2018)
required more budgeting duties and responsibility (id., PageID #1929–30).
As a matter of law, neither of the differences to which Defendant points entitles

it to entry of judgment in its favor. Based on these (or other) facts, a reasonable jury
might well determine that these sports and the positions of Coach Wiler and Coach
Andrassy are not substantially similar. Or it might find they are. That decision rests
with the jury as the finder of fact.
* * *
For these reasons, the Court concludes that the record presents genuine

disputes of material fact regarding whether Coach Wiler and Coach Andrassy
performed substantially equal work. Because a reasonable jury may find that Coach
Andrassy was paid at a higher rate for equal work, Plaintiff establishes a prima facie
case of pay discrimination under the Equal Pay Act.
I.A.3. Factors Other Than Sex
After a plaintiff establishes a prima facie case under the Equal Pay Act, the
burden shifts to the defendant. Corning Glass Works, 417 U.S. at 196. “[The

defendant’s] burden is a ‘heavy one.’” Bence, 712 F.2d at 1029. It must prove, by a
preponderance of the evidence, that one of the four affirmative defenses set forth
under the Equal Pay Act justifies the rate differential: (1) a seniority system; (2) a
merit system; (3) a system which measures earnings by quantity or quality; or (4) any
factor other than sex. 29 U.S.C. § 206(d)(1); Briggs, 11 F.4th at 508. To succeed on a
motion for summary judgment, the defendant must establish its defense “so clearly
that no rational jury could have found to the contrary.” Foco v. Freudenberg-NOK
Gen. P’ship, 549 F. App’x 340, 344 (6th Cir. 2013) (cleaned up).
Here, Defendant relies on two factors “other than sex.” First, Defendant argues

that Nielsen relied on market data when providing Coach Andrassy a higher base
salary than Coach Wiler. (ECF No. 53-1, PageID #1876.) Defendant’s market data
came from Win AD—a subscription database that reviews the salaries paid to head
coaches of each sport within the MAC. (ECF No. 52, PageID #1117–19.) Using Win
AD’s data, Nielsen offered each coach a base salary above the sport’s average. (Id.,
PageID #1119.) For 2018 and 2019, the average base salary of MAC field hockey

coaches was $76,937.00 and $78,376.00, respectively. (Id., PageID #1118–19.)
Meanwhile, the average base salary of MAC wrestling coaches was $82,224.00 and
$88,125.00. (Id., PageID #1132–33.) Second, according to Defendant, Nielsen
considered Coach Andrassy’s greater seniority when setting his higher base salary.
(ECF No. 53-1, PageID #1869–70; ECF No. 58, PageID #2406.) Coach Andrassy
worked at Kent State twelve years longer than Coach Wiler. (ECF No. 58,
PageID #2407; compare ECF No. 52, PageID #1131, with ECF No. 56, PageID #1926.)

Plaintiff does not dispute that Nielsen referenced Win AD. Indeed, Coach Wiler noted
during her deposition that Nielsen “had a metric” and that “he would have his
assistant pull up . . . Win AD.” (ECF No. 50, PageID #784–85.) Similarly, Plaintiff
does not dispute that Defendant considered Coach Andrassy’s seniority.
Under the Equal Pay Act, these facts provide defenses. 29 U.S.C. § 206(d)(1).
Courts within the Sixth Circuit and elsewhere recognize that that these factors may
sufficiently explain wage rate differentials. See, e.g., Corning, 417 U.S. at 204;
Weaver, 71 F. Supp. 2d at 802; Stanley v. University of S. Cal., 13 F.3d 1313, 1322
(9th Cir. 1994). For these reasons, Defendant posits that it has carried its burden of

proving a defense by a preponderance of the evidence, entitling it to a judgment as a
matter of law. (ECF No. 53-1, PageID #1876.)
This argument falters in the face of the heavy burden Defendant bears in the
current procedural posture. On the record presented, a reasonable jury might well
find in favor of Defendant. However, a finder of fact could also determine otherwise.
The record would allow the jury to find that Kent State has failed to account for Coach

Andrassy’s higher bonus rates or his greater number of bonus opportunities for
reasons other than sex. In short, this record would permit a jury to find that those
differences stem from unlawful sex discrimination.
Also, Defendant relies on Coach Wiler’s testimony, in which she could not
“testify that her (or any other coach’s) incentive payments . . . [were] the product of
sex-based compensation practices.” (Id., PageID #1877.) Factually, Defendant faults
Coach Wiler for not having proof of unlawful discrimination, which is the subject of

this suit. Legally, reliance on Coach Wiler’s testimony attempts to shift the burden
that Defendant bears once Plaintiff established her prima facie case.
* * *
Accordingly, the Court determines that Defendant has not carried its burden
of establishing a defense to Plaintiff’s claim under the Equal Pay Act. For all the
foregoing reasons, the Court DENIES Defendant’s motion for summary judgment on
Count II.
I.B. Title VII

Title VII prohibits employers from “discriminat[ing] against any individual
with respect to [her] compensation . . . because of such individual’s . . . sex.”
42 U.S.C. § 2000e-2(a)(1). To demonstrate impermissible wage discrimination under
Title VII, a plaintiff may put forward direct evidence or rely instead on circumstantial
evidence. Here, Plaintiff opts for the latter. “Title VII claims based on circumstantial
evidence of discrimination are analyzed under the familiar three-step framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Briggs, 11

F.4th at 508. Step one requires that the plaintiff establish a prima facie case of
discrimination. Under step two, the burden shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the pay difference. Finally, step three
requires that the plaintiff demonstrate that the defendant’s justification is a mere
pretext for unlawful discrimination.
Plaintiff claims that Defendant discriminatorily paid her less than her male

counterparts. (ECF No. 35-1, ¶¶ 101–09, PageID #383–84.) Defendant moves for
summary judgment, arguing that (1) Plaintiff cannot state a prima facie case under
Title VII; (2) even if she can, Defendant has “legitimate, non-discriminatory reasons”
for the pay difference; and (3) Plaintiff cannot show that such reasons are merely
pretextual.
I.B.1. Limitations Period
Under the statute, a plaintiff may obtain relief (back pay) for unlawful wage
discrimination for the two years preceding the filing of a timely discrimination

charge. 42 U.S.C. § 2000e-5(e)(3)(B); Gilmore v. Macy’s Retail Holdings, No. CIV. 06-
3020 (JBS), 2009 WL 305045, at *3 (D.N.J. Feb. 4, 2009). Plaintiff filed her first
charge of discrimination with the Ohio Civil Rights Commission and the EEOC by
September 5, 2017. (ECF No. 50, PageID #907–09.) Accordingly, Plaintiff’s Title VII
claim relates to the period from September 5, 2015, to February 28, 2019—the date
of her resignation.
I.B.2. Prima Facie Case
To establish a prima facie case of discrimination, a plaintiff must demonstrate

that she (1) belongs to a protected class; (2) suffered an adverse employment action;
(3) was qualified for the job; and (4) was treated differently than similarly situated
employees from a nonprotected class. McDonnell Douglas, 411 U.S. at 802; Talley v.
Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir. 1995).
Defendant contests only element four, arguing that Plaintiff’s proposed
comparators were not treated differently and are not similarly situated. (ECF

No. 53-1, PageID #1861–68; ECF No. 58, PageID #2399–2403.) Essentially,
Defendant makes substantially similar arguments to those advanced against
Plaintiff’s prima facie claim under the Equal Pay Act. See Conti, 50 F. App’x at 698
(describing how a Title VII wage discrimination claim ordinarily requires that a
plaintiff show that her employer paid different wages to employees of opposite sexes
for substantially equal work); Rogers, 2019 WL 5731016, at *5 (explaining that the
difference between claims under Title VII and the Equal Pay Act emerges only after
the plaintiff’s prima facie case). For the reasons already explained, Plaintiff has
established a prima facie case as to Coach Andrassy.

Additionally, Plaintiff satisfies her prima facie Title VII case as to Coach
Marinaro. For a portion of 2015 and 2016, he received a higher base salary
($73,728.68) than Coach Wiler ($70,709.89). (Compare ECF No. 52-5, PageID #1171,
with ECF No. 52-58, PageID #1792.) Defendant contends that Coach Marinaro is not
similarly situated to Coach Wiler because eleven other colleges and universities in
the MAC have women’s soccer teams, while only four others have field hockey

programs. (ECF No. 53-1, PageID #1867.) Also, Defendant argues that women’s
soccer generates three times as much revenue as field hockey. (Id., PageID #1868.)
These arguments are unavailing. The number of MAC teams might make achieving
certain bonus targets marginally more difficult for Coach Marinaro, but Defendant
has not made an argument that it materially changes the duties of either coach. As
for the greater revenue women’s soccer generates, that factor favors Defendant but
does not alone make Coach Marinaro an inadequate comparator. In any event, the

Court cannot say as a matter of law that Coach Marinaro is not similarly situated to
Coach Wiler based on the differences to which Defendant points, though a jury might
find for Plaintiff or Defendant on that question.
I.B.3. Legitimate, Non-Discriminatory Reason
Once a plaintiff establishes a prima facie case, “[t]he burden then shifts to the
defendant to articulate a legitimate, non-discriminatory reason for its actions.”
Briggs, 11 F.4th at 508. This standard is lower than that required by the
Equal Pay Act. See id. at 513. It requires only that a defendant provide some
“admissible evidence that ‘if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment action.’” Id. at 508

(quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006)).
With respect to Coach Marinaro, Defendant points to Nielson’s use of Win AD
to set Coach Wiler’s salary and Coach Marinaro’s twenty years of employment and
prior professional soccer coaching experience. (See ECF No. 53-1, PageID #1868–71.)
As for Coach Andrassy, Defendant again cites market data and seniority to support
disparities in base salary between Coach Wiler and Coach Andrassy. (See id.; ECF

No. 58, PageID #2406–07.) These justifications satisfy Defendant’s burden to respond
to Plaintiff’s prima facie case.
I.B.4. Pretext
When the burden shifts back to Plaintiff to show pretext, she must show by a
preponderance of the evidence that the non-discriminatory reasons Defendant
advances are merely a pretext for sex discrimination. Gunn v. Senior Servs. of N. Ky.,
632 F. App’x 839, 843 (6th Cir. 2015). “[I]n evaluating pretext and the plaintiff’s

ultimate burden, the court should consider all probative evidence in the light most
favorable to the plaintiff.” Jackson v. VHS Receiving Hosp., Inc., 814 F.3d 769, 779
(6th Cir. 2016) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)). “A plaintiff meets her burden to show pretext by producing sufficient
evidence from which the jury may reasonably reject the employer’s explanation.”
Myers v. U.S. Cellular Corp., 257 F. App’x 947, 954 (6th Cir. 2007) (cleaned up). In
other words, “the plaintiff must introduce admissible evidence to show that the
proffered reason was not the true reason and that discriminatory animus was the
true motivation driving the employer’s decision.” Id. (cleaned up). A plaintiff can
show pretext by demonstrating that an employer’s proffered reasons (1) have no basis

in fact, (2) did not actually motivate the employer’s actions, or (3) are insufficient to
motivate the employer’s actions. Miles v. South Cent. Hum. Res. Agency, Inc., 946
F.3d 883, 888 (6th Cir. 2020). In this case, Plaintiff relies on variations of options two
and three.
First, Plaintiff argues that market rate and seniority did not actually motivate
Kent State’s unequal compensation decisions and practices. (ECF No. 57,

PageID #2385–86.) Plaintiff points to the factors, such as season length and
operating revenue, on which, in her view, Kent State admits it relied when paying
male coaches than her. (Id.) Plaintiff characterizes these factors as subjective, but
they provide objective bases for measuring pay. Further, Plaintiff misreads
Defendant’s argument. Defendant advanced these considerations only to rebut
Plaintiff’s prima facie case that the other coaches to whom she pointed were not, in
fact, similarly situated to Coach Wiler. (See ECF No. 53-1, PageID #1863–68.)

Second, Plaintiff argues that Defendant’s use of market data without more
fails to provide a defense as a matter of law. (ECF No. 57, PageID #2386.) For this
argument, Plaintiff relies on Lewis v. Smith, 255 F. Supp. 2d 1054, 1063 (D. Ariz.
2003), and maintains that it requires that Kent State assess the value of each coach’s
particular skills relative to the market. (ECF No. 57, PageID #2386.) Aside from the
fact that another district court from outside this Circuit provides the foundation for
this argument, the employer in Lewis derived a market rate from the prior salaries
of the relevant persons at issue. Lewis, 255 F. Supp. 2d at 1062–63. In other words,
that baseline failed to take into account the employees’ individual skills in the context

of the market. It also made the legal analysis circular. In contrast, Kent State
determines the market rate by reference to the average salaries of head coaches of
each sport in the MAC, regardless of sex. (ECF No. 52, PageID #1114–17.)
Logically, Plaintiff also argues that market rate and seniority are insufficient
explanations for the differences in pay between Coach Wiler and coaches Marinaro
and Andrassy. In particular, Plaintiff objects to her base salary, which was only

slightly above the MAC average for field hockey coaches, given her demonstrated
record of success. (ECF No. 57, PageID #2381–84 & #2387.) The record shows that
Coach Wiler’s base salary in 2016 was $589.89 above the MAC average, while Coach
Marinaro, whose team had won only one regular season and tournament
championship, received $8,830.58 over the average. (ECF No. 52-67, PageID #1842;
ECF No. 56-1, PageID #1932.) Further, Plaintiff argues that the coaches’ seniority
varied slightly—not enough to warrant a salary difference. (See ECF No. 57,

PageID #2381 & #2384.) She runs seniority from the date when a person was named
head coach. (See id.) By that metric, Marinaro served seventeen years, Andrassy
served fifteen years, and Coach Wiler twelve years. (ECF No. 49, PageID #675; ECF
No. 50, PageID #849; ECF No. 56-1, PageID #1932.) Defendant counts seniority from
when the coaches joined the University’s coaching staff, regardless of position. (ECF
No. 58, PageID #2407.) That baseline adds four years of seniority to Marinaro and
nine to Andrassy. (See ECF No. 52, PageID #1131 & #1138.)
Reviewing the record in the light most favorable to Plaintiff in the current

procedural posture, as the Court must both on summary judgment and in evaluating
pretext, the record is not so one sided that a reasonable finder of fact could come to
but one decision that favors Defendant. A jury might find that market rate, seniority,
and potentially other permissible factors explain the salary differences. But it might
find that these considerations are a pretext for unlawful discrimination based on sex,
and the record would permit it to do so. Therefore, the Court determines that

Plaintiff’s Title VII claim presents genuine disputes of material fact for trial and
DENIES Defendant’s motion for summary judgment on Count I.
II. Post-Resignation Back Pay and Front Pay
In Count IV of her complaint, Plaintiff requests an award of post-resignation
back pay and front pay on her claims under the Equal Pay Act and Title VII. (ECF
No. 35-1, ¶ 131, PageID #388.) Defendant argues that it is entitled to a judgment as
a matter of law denying that request. (ECF No. 53-1, PageID #1877.)

“[A] Title VII plaintiff must establish either actual termination or constructive
discharge to be eligible for an award of lost pay damages, whether front pay or back
pay.” EEOC v. Freemen, 626 F. Supp. 2d 811, 816 (M.D. Tenn. 2009) (citing Lulaj v.
Wackenhut Corp., 512 F.3d 760, 767 (6th Cir. 2008)). Plaintiff resigned from her
position. Initially, Plaintiff maintained that her resignation amounted to a
constructive discharge, the Court dismissed that claim. (ECF No. 35-1, ¶ 34, PageID
#369; ECF No. 38, PageID #449.) Therefore, the record reflects only that Coach Wiler
voluntarily resigned. (ECF No. 56, PageID #1931.) Accordingly, there is no dispute
that Coach Wiler cannot establish actual termination or constructive discharge. As
a matter of law, she may not recover post-resignation back pay or front pay.
Additionally, Plaintiff offers no response to Defendant’s motion for summary
judgment on this issue. Therefore, the Court GRANTS Defendant’s motion for
summary judgment on Count IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN
PART Defendant’s motion for summary judgment. (ECF No. 53.) Specifically, the
Court GRANTS the motion as it relates to post-resignation back pay and front pay
(Count IV) and DENIES the motion as it relates to Plaintiff's wage discrimination
claims under the Equal Pay Act (Count IJ) and Title VII (Count J).
SO ORDERED.
Dated: October 28, 2022

J.Philip Calabrese
United States District Judge
Northern District of Ohio

34

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10371429. Public record. Not legal advice.