Howard, Laurie K. v. Lear Corp EEDS

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2044

LAURIE KAY HOWARD,

Plaintiff-Appellant,

v.

LEAR CORPORATION EEDS AND INTERIORS,

formerly known as United Technologies

Automotive, Incorporated,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 1:99-CV-104--William C. Lee, Chief Judge.

Argued November 2, 2000--Decided December 12, 2000

Before MANION, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Laurie Kay Howard worked

as a secretary and then a human resources

coordinator for United Technologies Automotive

("UTA") in its Fort Wayne, Indiana, plant until

it closed in 1997./1 She contends that UTA

violated the Equal Pay Act and Title VII of the

Civil Rights Act of 1964 by failing to promote

her to the position of human resources manager.

Arguing that the small Fort Wayne plant did not

have nor need a manager of human resources, UTA

filed for summary judgment. The district court

granted UTA’s motion on both counts, finding that

Howard failed to establish that her work

responsibilities were substantially similar to

the work performed by human resources managers at

other UTA plants and that she failed to allege a

prima facie Title VII case of sex discrimination.

Howard appeals the ruling on both claims.

The Fort Wayne plant was one of UTA’s smaller

facilities, employing only 53 workers in 1996.

The plant was not unionized. It was primarily a

nonproduction research and development center

employing only salaried workers. Another UTA

facility was located 30 miles away in Huntington,

Indiana. Because of its size and proximity to the

Huntington plant, the Fort Wayne facility did not

have separate human resources, plant, quality, or

materials managers. Jim Price served as the human

resources manager for both the Huntington and

Fort Wayne plants.

Howard began working in the Fort Wayne facility

in December 1992 as a secretary with an annual

salary of $19,776. The bulk of her

responsibilities included purchasing, petty cash

disbursements, and clerical responsibilities for

employee health and safety issues. By 1993 her

responsibilities had increased. At the time, the

head of the Fort Wayne plant, Gene Daley,

referred to her as the "lead person" for

environmental health and safety issues. She was

briefed on OSHA matters and was listed as the

"Health & Safety Professional" in a company phone

directory. Of the 53 workers in the plant, Howard

provided administrative support for roughly 40

employees. The remaining employees reported

employment concerns to UTA’s headquarters in

Dearborn, Michigan.

In March 1994 Price recommended that Howard be

promoted to human resources coordinator. The

promotion went into effect in July 1994,

increasing her salary to $22,728. In 1995 Roger

Holtzinger replaced Daley as the head of the

plant./2 In August 1996 Holtzinger wrote to UTA

officials recommending Howard for a promotion to

human resource manager./3 UTA decided not to

promote Howard, noting that Mr. Price served as

the HR manager for both the Huntington and Fort

Wayne plants. UTA never created a separate

managerial position at Fort Wayne, nor did it

seek applicants for such a position. In March

1997 UTA permanently shut down the Fort Wayne

facility.

We review a grant of summary judgment de novo,

construing the evidence in the light most

favorable to the nonmoving party. Wollenburg v.

Comtech Mfg., 201 F.3d 973, 975 (7th Cir. 2000).

Summary judgment is appropriate when there is no

genuine issue as to any material fact and the

moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c).

The Equal Pay Act, an amendment to the Fair

Labor Standards Act, forbids paying workers of

one sex less than workers of the opposite sex for

equal work that requires equal skill, effort, and

responsibility, unless the pay differential is

justified by factors other than sex, such as

seniority, merit, experience, or education. See

Wollenburg, 201 F.3d at 975. To survive summary

judgment Howard must establish a prima facie case

of sex-based wage discrimination by showing: "(1)

that different wages are paid to employees of the

opposite sex; (2) that the employees do equal

work which requires equal skill, effort, and

responsibility; and (3) that the employees have

similar working conditions." Bragg v. Navistar

Int’l Transp. Corp., 164 F.3d 373, 378 (7th Cir.

1998). Once the prima facie case is established,

the burden of persuasion shifts to the employer

to prove that the disparity is justified by one

of four affirmative defenses: (1) a merit system;

(2) a seniority system; (3) a system which

measures earnings by quantity or quality of

production; and (4) a differential based on any

factor other than sex. 29 U.S.C. sec. 206(d)(1);

see also Varner v. Illinois State Univ., 226 F.3d

927, 932 (7th Cir. 2000).

UTA contends that Howard failed to satisfy the

second element by proving that her male

counterparts, employed as HR managers at larger

plants, performed equal work. To establish the

equal work element, Howard must show that her job

and the male employee’s job involved a "common

core of tasks" or that "a significant portion of

the two jobs is identical." Fallon v. State of

Illinois, 882 F.2d 1206, 1209 (7th Cir. 1989)

(citations omitted). "If a plaintiff establishes

this ’common core,’ the question then becomes

whether any additional tasks make the jobs

’substantially different.’" Id. "Whether two jobs

require equal skill, effort, and responsibility,

and are performed under similar working

conditions is a factual determination." Id. at

1208 (citations omitted). We will overturn such

a finding only if it is clearly erroneous.

In making her case, Howard contends that

although she lacked the title of HR manager, she

performed all the functions of the position.

Moreover, she argues that Holtzinger, who was in

charge of the Fort Wayne plant, recognized that

she was the de facto HR manager in his letter

recommending her for promotion.

Even assuming that Howard performed the same

"common core of tasks" as HR managers in other

plants, her male counterparts were responsible

for additional duties, requiring greater skill

and effort./4 Howard compared her job to the

positions held by male HR managers at UTA’s

Traverse City, Michigan, and Peru, Indiana,

production plants. In 1996 these plants employed

127 and 268 workers, respectively. These were

production facilities which employed both

salaried and hourly workers, and the Peru

facility was unionized. The HR managers in these

two plants were required to shoulder greater

responsibilities. They had more employees to

train, union grievances to resolve, hourly wages

to track, and a greater number of personnel

records to monitor and maintain. In contrast,

Howard was responsible for only 40 salaried

workers in a nonunion, nonproduction plant. The

additional skill, effort, and headache involved

in managing three to six times the number of

workers in a more complex employment environment

rendered the HR positions in the Traverse City

and Peru plants substantially different from the

job Howard performed in Fort Wayne. See Krenik v.

County of Le Sueur, 47 F.3d 953, 961 (8th Cir.

1995) (position of maintenance worker and

maintenance engineer unequal where engineer

carried additional responsibility of supervising

assistant and serving as department head); see

also Stanley v. University of S. Cal., 13 F.3d

1313, 1322-23 (9th Cir. 1994) (pay differential

between coaches of men’s and women’s basketball

teams justified where men’s coach responsible for

more substantial public relations and promotional

duties given that men’s team generated 90 times

greater revenue). Thus, Howard has failed to

establish that she received less pay for equal

work.

Howard also fails to establish a claim of sex

discrimination. To establish a prima facie case

of failure to promote, Howard must show that (1)

she is a member of a protected class; (2) she

applied for, and was qualified for an open

position; (3) she was rejected; and (4) the

employer filled the position with a person not in

her protected class, or the position remained

open. Mills v. Health Care Serv. Corp., 171 F.3d

450, 454 (7th Cir. 1999). Even were we to assume

that Howard was qualified to be an HR manager,

she fails to establish the second and fourth

prongs. She fails to establish that a promotional

opportunity was available and that the promotion

she sought was given to a male applicant or,

alternatively, left unassigned. Because of its

size and proximity to the Huntington plant, the

Fort Wayne plant never had its own HR manager,

none was sought by the company, nor was such a

position created after Howard was denied the

promotion. Overall, the Fort Wayne plant was low

on managers. The facility did not have a separate

plant manager, quality manager, or materials

manager. Looking at other UTA plants, the absence

of a HR manager at Fort Wayne does not stand out

as mysterious or suspicious. UTA’s three smallest

domestic plants, including Fort Wayne, did not

have separate HR managers. Moreover, in 1996 no

facility with fewer than 68 workers had created

a managerial position for handling human resource

issues.

The absence of any evidence of pretext is an

alternative basis for dismissing Howard’s claim.

Even assuming Howard were able to make a prima

facie showing of sex discrimination, her claim

fails because she presents no evidence that UTA’s

proffered reason for denying her promotion--that

it did not need a separate HR manager in a small

plant located near another facility--was

pretextual. Ghosh v. Indiana Dep’t of Envtl.

Mgmt., 192 F.3d 1087, 1091 (7th Cir. 1999)

(without considering prima facie case, court may

dismiss for failure to establish that employer’s

nondiscriminatory justification was pretextual).

In fact, Howard presents no evidence suggesting

that the real reason UTA refused to create a

managerial position at Fort Wayne was related to

her gender. See Turgeon v. Premark Int’l, Inc.,

87 F.3d 218, 221 (7th Cir. 1996) ("plaintiff must

show that gender played a part in an employment

decision"). Nor does she offer any circumstantial

evidence of gender bias, suggesting that UTA was

reluctant to promote women. Both the Traverse

City and Peru plants currently employ female HR

managers, and UTA employs 14 female HR managers

nationwide.

For the reasons set forth above, we affirm the

decision of the district court.

/1 Lear Corporation acquired UTA on May 4, 1999.

Thus, Lear Corporation is now the proper appellee

in this suit. However, since the parties have

continued to refer to the appellee as UTA, for

the sake of clarity we will follow their lead.

/2 Holtzinger’s title was manufacturing/engineering

manager, a position with fewer benefits than the

plant manager designation.

/3 Holtzinger’s letter read:

As discussed with you, concerning

Laurie Howard’s performance and abilities to

perform the responsibilities of the Human

Resources Manager here at Fort Wayne, I am

submitting her KJR evaluation and request for

promotion.

My belief is she had full-time

responsibilities as Human Resources Manager and

EH&S (environmental health and safety)

Coordinator, and deserves this consideration for

her hard work.

/4 This point is vigorously opposed by UTA, which

argues that Howard’s responsibilities were

limited to that of a HR coordinator.

Specifically, UTA contends that Howard was not

authorized to hire, supervise, evaluate, or fire

employees. Allegedly she only had managerial

control over temporary secretaries. However, we

need not resolve this factual dispute. Viewing

the matter in the light most favorable to the

nonmoving party, and assuming that Howard

performed the duties that would have been

assigned to a HR manager at Fort Wayne, we still

find that she fails to make a showing of equal

work.