Merillat, Janet M. v. Metal Spinners

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-4053

JANET M. MERILLAT,

Plaintiff-Appellant,

v.

METAL SPINNERS, INCORPORATED,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 04 C 193—William C. Lee, Judge.

____________

ARGUED MAY 8, 2006—DECIDED DECEMBER 6, 2006

____________

Before BAUER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Janet M. Merillat brought this

action against her former employer, Metal Spinners, Inc.,

(“Metal Spinners”). She alleged age discrimination in

violation of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq.; sex discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq.; and a violation of the Equal Pay Act

(“EPA”), 29 U.S.C. § 206(d). Metal Spinners filed a mo-

tion for summary judgment; the district court granted

that motion. For the reasons set forth in the following

opinion, we affirm the judgment of the district court.

2 No. 05-4053

I

BACKGROUND

A. Facts

Metal Spinners provides a variety of metal-forming

services, including metal spinning. Olin Wiland has been

its chief executive officer since 1997.

Ms. Merillat began her employment with Metal Spinners

in September 1983. At all times relevant to this litigation,

she worked in the materials department, which consisted

of Ms. Merillat and Amy Stevenson, who initially was

supervised by Ms. Merillat. Until December of 2002,

Ms. Merillat’s title was Purchase Manager; she then became

the Senior Buyer. As the Senior Buyer, her duties included

creating various reports, purchasing, entering orders,

shipping, meeting with management, scheduling trucks,

supervising department employees, negotiating with

suppliers, evaluating suppliers and creating a plan for

reducing the costs of tools. Ms. Merillat tracked sup-

pliers, shipments and inventory by using three different

computer programs: Vantage, Al-Net and Excel. Conse-

quently, Ms. Merillat sometimes had to enter the same

data into more than one computer program. Ms. Merillat

admitted that some of her computer tasks were redundant,

but maintains that Metal Spinners failed to give her the

computer upgrades and training that would have enabled

her to create all necessary reports on only one program.

In August of 2002, Metal Spinners created a new posi-

tion, “Vice President of Procurement and Materials

Management,” and Wiland began a search for an individ-

ual to fill this position. The duties of this position in-

cluded managing the materials department employees

(Ms. Merillat and Stevenson), as well as establishing

No. 05-4053 3

strategies to reduce inventory costs and increase profit-

ability. The successful candidate would be expected to

implement a new computer system. In November, Wiland

offered the position to Craig Wehr. Wehr was 38 years old

when he was hired; his starting salary was $62,500. At

that time, Ms. Merillat earned $49,800. Ms. Merillat helped

to train Wehr after he was hired.

Ms. Merillat had kept a cartoon posted on her bulletin

board that lampooned the difference between salaries

for men and women. The cartoon, which reasonably

could be described as somewhat crude, had been dis-

played on her board for over fifteen years. On the day

that Wiland told Ms. Merillat that Wehr had been hired,

he asked her to take the cartoon down.

In late 2002 and the first half of 2003, Metal Spinners

experienced significant financial difficulties and decided

to eliminate some positions to decrease costs—a reduc-

tion in force (“RIF”). Ms. Merillat and another individual,

Patrick O’Beirne, were terminated on June 3, 2003. Two

other individuals were terminated on June 4, 2003. One of

those individuals, John Johnson, retired. The other, Jim

Cranfull, had his position eliminated, but he was al-

lowed to return to a former position on the production

floor.

On the date of her termination, Ms. Merillat was 49

years old; Wehr was 38 years old. Some of Ms. Merillat’s

former duties, such as creating various reports, are

now performed by the Vantage computer system, follow-

ing a technical upgrade by Metal Spinners; other of Ms.

Merillat’s tasks have been absorbed into the positions

occupied by Wehr and Stevenson.

4 No. 05-4053

B. District Court Proceedings

In addressing the merits of Metal Spinners’ summary

judgment motion, the district court first observed that

Ms. Merillat had offered no direct evidence of either sex or

age discrimination. The court then proceeded to assess

both of these claims under the burden-shifting frame-

work set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). The district court determined that Ms.

Merillat could not establish two elements of the McDonnell

Douglas prima facie test: that she was performing her job

to her employer’s reasonable expectations and that simi-

larly situated employees outside of the protected classes

were treated more favorably than she.

With regard to her work performance, the court noted

that Wiland’s deposition testimony was that Ms. Merillat

had failed to meet his expectations because: (1) she was

unable “to entertain strategic concepts and manage new

projects”; (2) she was “unable to adequately supervise

subordinates”; (3) she “did not get along well with her co-

workers”; and (4) she was “unwilling to implement a

corporate-wide computer system.” R.50 at 7 (citing

Wiland Dep., R.35 at 16-17). The district court also deter-

mined that Metal Spinners’ evaluations of Ms. Merillat

from 2000-2002 confirmed Wiland’s deposition testimony.

Although the evaluations contained numerical ratings

that indicated that Ms. Merillat was performing satis-

factorily during those years, the court credited Metal

Spinners’ contention that the comments on those reviews

“indicate that Merillat was performing marginally at best.”

Id. at 9.

The district court further explained that:

If Merillat had simply been fired from her job in the

absence of a RIF, then she might have been able to

No. 05-4053 5

argue that she was performing satisfactorily enough to

not warrant being fired. But in this case she was not

terminated for cause, but terminated due to reduction

in force. This court agrees with Metal Spinners that

what constitutes “satisfactory” work shifts a bit in a

reduction in force case. Thus, while the record shows

that Merillat was performing in the mid-range in

some respects, the reviews also show that Merillat had

some problems that concerned Metal Spinners

enough that they were included in her evaluations.

Thus, in this regard, the record supports Metal Spin-

ners[’] view that Merillat was a non-satisfactory

performer.

Id.

Next, the district court examined the fourth prong of the

traditional RIF McDonnell Douglas inquiry regarding the

treatment of similarly situated employees not within the

protected classes. Earlier in the opinion, the district court

had noted that this circuit’s precedent recognizes varia-

tions on the McDonnell Douglas analysis for a traditional

RIF, where positions and duties are eliminated, and for

what this court has called a “mini-RIF,” where a dis-

charged employee’s duties are absorbed by other exist-

ing staff. See Bellaver v. Quanex Corp., 200 F.3d 485, 493-95

(7th Cir. 2000); Paluck v. Gooding Rubber Co., 221 F.3d 1003,

1011-12 & n.5 (7th Cir. 2000). Specifically, the district

court noted that under the modified McDonnell Douglas

test appropriate in a “mini-RIF” situation, the fourth

prong of the plaintiff’s prima facie case is satisfied when

the plaintiff demonstrates that her duties were absorbed

by persons not in the protected class. When actually

applying the McDonnell Douglas test, however, the district

court looked to whether Ms. Merillat presented anyone

6 No. 05-4053

similarly situated to her, an inquiry, which, as we have

noted, is suited to the McDonnell Douglas test in a tradi-

tional RIF situation. See Bellaver, 200 F.3d at 494. Apply-

ing this test, the district court stated that Ms. Merillat

failed to show that similarly situated, younger employees

or similarly situated men were treated more favorably.

Id. at 9. Although Ms. Merillat claimed that she and Wehr

were similarly situated, the district court determined that

they were not, based on its findings that Wehr was her

supervisor and had more education and broader work

experience than Ms. Merillat.

The district court also held that, even if Ms. Merillat had

established a prima facie case, Metal Spinners had a

legitimate, non-discriminatory reason for terminating

her: The company was experiencing an economic down-

turn. The court noted that many of Ms. Merillat’s tasks now

could be done by the new Vantage computer system,

making her a plausible candidate for termination to cut

costs. Additionally, the court stated that her poor job

performance was a separate legally sufficient reason for

her discharge.

Finally, the district court turned to Ms. Merillat’s EPA

claim in which she alleged that she was paid less than

Wehr because of her gender. Relying upon Cullen v. Indiana

University Board of Trustees, 338 F.3d 693, 698 (7th Cir. 2003),

the district court stated that, in order to establish a

prima facie case of an EPA violation, Ms. Merillat

needed to show that her job and Wehr’s job required

comparable skill, effort and responsibility. The court then

held the jobs did not require comparable “skills” because

Wehr’s job required him to “supervise the department

and implement new strategies to improve supplier rela-

tionships,” while Ms. Merillat’s did not. Id. at 19. The court

No. 05-4053 7

also held that the jobs did not require equal “effort,”

because Wehr’s added responsibilities “created more

stress.” Id. Finally, the court stated that the jobs did not

require equal “responsibility,” because Wehr had super-

visory responsibility of the entire department, includ-

ing Ms. Merillat. Id. Therefore, the district court held

that Ms. Merillat could not establish a prima facie case of

wage discrimination.

The district court further held that, if Ms. Merillat had

established a prima facie case, the burden would shift to

Metal Spinners to prove one of the statutory defenses,

including that the unequal pay arose from a seniority

system, a merit system, or any factor other than gender.

Id. at 19-20. The court found that Wehr had more experi-

ence and education than Ms. Merillat, and that this distinc-

tion, along with market forces, provided a reason other

than sex that justified paying Wehr a higher salary. The

court characterized Ms. Merillat’s response to Metal

Spinners’ proffered non-discriminatory reasons for the pay

differential as “fatally weak,” finding that she merely

had relied on her own testimony that she and Wehr

“performed a common core of tasks.” Id. at 21. The court,

therefore, found that Ms. Merillat’s EPA claim “fails as a

matter of law.” Id. at 22.

II

DISCUSSION

We review a district court’s grant of summary judg-

ment de novo, construing all facts and reasonable infer-

ences in the light most favorable to Ms. Merillat, the non-

moving party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th

Cir. 2006).

8 No. 05-4053

A. Age and Sex Discrimination

1. Prima Facie Case

Ms. Merillat submits that, employing the McDonnell

Douglas framework, she has established a prima facie

case of age and sex discrimination. See McDonnell Douglas,

411 U.S. 792. Although McDonnell Douglas itself outlined

a particular four-part showing that a plaintiff must make

to establish her prima facie case, we long have recog-

nized that the test is not inflexible and is appropriately

adapted where necessary to “reflect more fairly and

accurately the underlying reality of the workplace.”

Bellaver, 200 F.3d at 494. In a mini-RIF context, a situa-

tion in which the dismissed worker’s duties have been

absorbed by another employee rather than eliminated,

we employ one such modified version of the McDonnell

Douglas framework. Johal v. Little Lady Foods, Inc., 434 F.3d

943, 946 (7th Cir. 2006); Paluck, 221 F.3d at 1011 n.5. This

approach requires that Ms. Merillat demonstrate that:

(1) she is a member of a protected class; (2) she was meet-

ing her employer’s legitimate performance expectations;

(3) she suffered an adverse employment action; and (4)

her duties were absorbed by employees not in the pro-

tected classes.1 Johal, 434 F.3d at 946; Michas v. Health Cost

1

The parties in this case presented arguments relating to the

viability of any comparison group presented by Ms. Merillat to

demonstrate that similarly situated individuals outside the

protected class were treated more favorably than she. This

showing would be part of a plaintiff’s prima facie showing under

a traditional RIF test. See Bellaver v. Quanex Corp., 200 F.3d 485,

494 (7th Cir. 2000). In this case, however, since Ms. Merillat’s

(continued...)

No. 05-4053 9

Controls of Illinois, 209 F.3d 687, 693 (7th Cir. 2000).

Metal Spinners does not dispute that Ms. Merillat is in

a protected class with respect to both her age and her

sex. Both parties also agree that Ms. Merillat suffered

an adverse employment action when she was terminated.

We therefore shall focus on the two contested prongs:

whether Ms. Merillat was meeting her employer’s legiti-

mate expectations and whether her duties were absorbed

by individuals not within her protected classes.

(...continued)

duties were absorbed rather than eliminated, it is more properly

evaluated under the mini-RIF test. See Paluck v. Gooding Rubber

Co., 221 F.3d 1003, 1011 n.5 (7th Cir. 2000) (stating that the key

inquiry in determining whether to apply the RIF or the mini-RIF

prima facie test is not the number of individuals terminated, but

whether the duties of those individuals were absorbed by

existing staff or eliminated altogether).

Although Paluck, a mini-RIF case, uses the “similarly situated”

and “treated more favorably” language, our case law clarifies

that this showing is satisfied in the mini-RIF context when a

plaintiff demonstrates that the duties of the terminated worker

have been absorbed by retained workers outside of the protected

class. See Bellaver, 200 F.3d at 495 (“The plaintiff in a [mini-RIF]

case does not need to make a showing that ‘similarly situated’

employees were treated better because the inference of discrimi-

nation arises from the fact that they were constructively ‘re-

placed’ by workers outside of the protected class.”); Michas v.

Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir.

2000) (same). The retention of an employee outside the pro-

tected class to perform the plaintiff’s duties is nothing more

than a demonstration of more favorable treatment, particularly

tailored to the factual circumstances of a mini-RIF case.

10 No. 05-4053

a. meeting legitimate expectations

Ms. Merillat contends that she was meeting her em-

ployer’s expectations. She invites our attention to her

yearly reviews for 2001 and 2002 in which Wiland’s overall

rating of her performance was “Satisfactory/Good.” R.44,

Ex.E-F. She also points to a letter that she received in

January of 2003 that notes that she had been awarded a

raise in her salary and that this adjustment in salary

“recognize[d her] performance during the past year.” R.44,

Ex.L.

Metal Spinners relies on the same reviews. It submits

that the written comments on those reviews indicate that

Ms. Merillat was not meeting her employer’s expecta-

tions. More specifically, Wiland testified in his deposition

that Ms. Merillat did not meet his expectations for the

following areas: ability to entertain strategic concepts

and manage new projects, willingness to accept new chal-

lenges, ability to get along with others and willingness to

implement a computer system. R.35 at 9-10.

The evaluations, while providing some negative com-

ments, seem to be largely positive. In her 2001 evalua-

tion, Ms. Merillat received an “excellent” rating in ten

categories and “satisfactory/good” ratings in seventeen

categories, with no categories rating below “satisfac-

tory/good.”2 See R.36 at 14-15. Some comments included

on the evaluations are positive, such as “Jan has made

2

Some examples of the various categories on the evaluation

form include: “Does the team member possess and apply the

skill level necessary for the job?”; “Does the team member have

a good attitude?”; and “Does the team member offer sugges-

tions as to how to improve productivity?” R.36 at 14-15.

No. 05-4053 11

tremendous progress with areas previously noted for

improvement,” id. at 15, and, in the area of work habits,

“[s]he is performing at a level commensurate with her

position and she needs to continue developing per-

sonally as an effective manager,” id. Some comments,

however, are more negative, such as Ms. Merillat “may

need to consider delegating additional tasks,” id., and

she “needs to explore alternatives to her current methods

and practices so cost improvements can be realized,” id.

at 14.

Similarly, in her 2002 evaluation, she received one

“outstanding” rating, ten “excellent” ratings and sixteen

“satisfactory/good” ratings, with no category rated lower

than “satisfactory/good.” Id. at 18-19. Again, there are

some positive comments, such as Ms. Merillat “demon-

strates continued improvement” in teamwork, id. at 18,

and she “did an outstanding job of reducing raw mate-

rials inventories in 2002,” id. There are also negative

comments, such as she “has too many redundant/duplica-

tive business practices that must be challenged,” id., and

she must work on “developing rapport with coworkers

and with improving her overall morale and demeanor,” id.

at 19.

Mr. Wiland stated in his deposition that he had at-

tempted to make the written evaluations as fair as possible.

He first admitted in his deposition testimony that he did

not indicate “specifically” on these evaluations that Ms.

Merillat was failing in her expectations, R.35 at 20, but later

stated that “printed words [on the evaluation forms] in

conjunction with [the conversation he had with Ms.

Merillat while going over the forms with her] indicate

that she was not fulfilling the expectations that we had

for her at that position,” id. at 23.

12 No. 05-4053

For her part, Ms. Merillat admitted to “getting ugly” with

co-workers when they “didn’t do something right,” in

2001, but also stated that later she “changed.” R.33 at 13-15.

She contends that her job performance was largely posi-

tive and that the reason for some of her failings was that

she did not get the necessary computer upgrades and

training to utilize the Vantage system and eliminate some

of her redundant practices.

We must conclude that, based on this record, material

issues of fact certainly remain with respect to whether

Ms. Merillat was meeting her employer’s expectations.

Her employment evaluations are, at best, inconclusive.

Additionally, she did receive a raise that stated it was

based, in part, on her performance. Therefore, summary

judgment for Metal Spinners on this prong would be

inappropriate.

b. duties absorbed by individuals outside the

protected classes

There is agreement that a good deal of Ms. Merillat’s

responsibilities were assumed by Wehr, who is neither

female nor within the protected age group. We therefore

must conclude that Ms. Merillat has met this prong of the

modified McDonnell Douglas test.

2. Pretext

If the plaintiff does establish a prima facie case, the

burden shifts to the defendant to articulate a legitimate,

non-discriminatory reason for the termination. See Johal,

434 F.3d at 946. If the defendant does articulate such

No. 05-4053 13

reasons, the burden shifts back to the plaintiff to prove

the proffered reasons were pretextual. See id.

In the present case, where there is a genuine issue of

material fact with respect to whether Ms. Merillat was

meeting expectations, Metal Spinners can prevail on its

motion for summary judgment only if it can show that

there remains a non-pretextual and non-discriminatory

reason for her discharge. Metal Spinners offers several non-

discriminatory reasons for terminating Ms. Merillat as

part of its RIF: Many of her duties could be eliminated by

the implementation of the Vantage computer system;

she had a history of difficulty working with co-workers

and suppliers; she had less desirable education and

experience than Wehr and Wehr was more willing and

better able to implement new strategies.

Ms. Merillat admits that many of her tasks are now

performed by the Vantage computer system and there-

fore, at least one of the reasons given by Metal Spinners

for her termination is not pretextual.3 She nevertheless

contends that Wehr has done a poor job because he has had

inventory sitting idle for longer periods than she did

when she was doing the metals purchasing. Ms. Merillat

submits that Wehr’s comparatively weaker performance

demonstrates that Wiland was biased against her when

he decided to terminate Ms. Merillat but to leave Wehr in

his position. However, much of Ms. Merillat’s explanation

3

Ms. Merillat does argue that, while she was employed, she had

requested that the Vantage system be upgraded to help elimi-

nate her redundant work practices. See Appellant’s Br. at 33.

However, this does not negate the fact that the computer can

now produce the reports that Ms. Merillat formerly produced,

which is a fact that she admits. See id.

14 No. 05-4053

for Wehr’s poor performance refers to his performance

after her termination. Metal Spinners may have made a

mistake in terminating Ms. Merillat rather than Wehr

during the RIF. However, such information, even if

proven to be true, would not be relevant to our present

inquiry. Our only task is to determine whether Metal

Spinners “honestly believed in the nondiscriminatory

reasons it offered, even if the reasons are foolish or trivial

or even baseless.” Jackson v. E.J. Brach Corp., 176 F.3d 971,

984 (7th Cir. 1999); see also Balderston v. Fairbanks Morse

Engine, 328 F.3d 309, 323 (7th Cir. 2003) (“[A] plaintiff must

do more than demonstrate that the employer made a

mistake . . . .”). Even if Metal Spinners’ decision was, in

retrospect, a mistake, that conclusion, made with the

benefit of hindsight, does not mean that Metal Spinners

honestly did not believe that retaining Wehr and terminat-

ing Ms. Merillat was the appropriate decision at the time

it was made. See Johal, 434 F.3d at 946 (stating that,

when examining a claim of pretext, “it is not our role to

question the wisdom of a company’s decisions on how

to run its business”); McKnight v. Kimberly Clark Corp., 149

F.3d 1125, 1129 (10th Cir. 1998) (“An articulated motivat-

ing reason is not converted into pretext merely because,

with the benefit of hindsight, it turned out to be poor

business judgment.”).

Ms. Merillat further submits that the district court

created a new standard when it stated that “what consti-

tutes ‘satisfactory’ work shifts a bit in a reduction in force

case.” Appellant’s Br. at 25 (quoting R.50 at 9). However,

when read in context, it is clear that the district court

was only stating what we have already recognized: that,

even if an employee would not have been fired under

normal circumstances, “[i]n a reduction in force, some-

No. 05-4053 15

one has to go. It is usually the least qualified or least

productive employee.” Fairchild v. Forma Scientific, Inc., 147

F.3d 567, 573 (7th Cir. 1998). Even though, as noted above,

Ms. Merillat’s performance may have been satisfactory,

it does not mean that her termination as part of a RIF

was discriminatory. See Balderston, 328 F.3d at 324 (hold-

ing that the plaintiff did not demonstrate pretext when

there was no evidence to show that the employer “did not

honestly believe [it] was dismissing a poorer perform-

ing, less suitable” employee in a RIF).4

Relatedly, Ms. Merillat points out that, when Wiland

told her that she was terminated, he told her it was due

4

The record certainly contains evidence that supports Wiland’s

judgment in this respect. Ms. Merillat had only one year of post-

high school education (a legal secretary degree) while Wehr had

a bachelor’s degree in business administration. Additionally,

Ms. Merillat had no experience in the metal industry prior to

working at Metal Spinners, while Wehr had previously over-

seen two other metal purchasing departments, had experience

with new computer systems for metals purchasing and had

significant contacts in the metal industry. See Patterson v. Avery

Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (finding that

employees with different qualifications and experiences were

not similarly situated); Doan v. Seagate Tech., Inc., 82 F.3d 974,

979 (10th Cir. 1996) (holding that employee without relevant

degree is not similarly situated to those with relevant degrees).

Ms. Merillat attempts to counter these differences in education

and experience by claiming that Wehr actually performed

poorly at his job and had to be taught various skills by Ms.

Merillat. However, such inadequacies by Wehr do not negate

the fact that he has a different educational background and

had different experiences from Ms. Merillat; therefore, he

might well have been regarded as offering more potential to

the company.

16 No. 05-4053

to “the poor performance of the company and economic

softening in the marketplace.” Wiland Dep., R.44, Ex.D-2

at 27. He admitted in his deposition testimony that he

accurately represented to her the reasons for her termina-

tion.5 Id. This statement is consistent with a termination

under a RIF. Even if Ms. Merillat’s performance was

sufficiently acceptable to justify retaining her in better

times, that consideration does not establish that Metal

Spinners’ reasons for terminating her in a RIF situation

were pretextual. See Fairchild, 147 F.3d at 573. In a RIF, it

is not pretextual to terminate an individual perceived to

be a weak performer in an organization even if that indi-

vidual’s performance could also be characterized as

satisfactory or adequate.

Next, Ms. Merillat contends that Wiland preferred to

work with members of his social group and therefore

chose a younger male colleague over Ms. Merillat. In

support of this contention, Ms. Merillat points to the

several occasions on which Wiland had lunch, drinks or

dinner with Wehr, while he had never done any of the

same with Ms. Merillat. However, in this context, socializ-

ing with someone who is not a member of a protected

class does not demonstrate bias against those who are in

a protected class. The fact that Wiland and Wehr had a

more amiable social relationship is not enough to demon-

strate that Wiland’s reasons for terminating Ms. Merillat

were pretextual and that he was actually motivated by

age and/or sex discrimination. See, e.g., Pope v. ESA Servs.,

5

In fact, Ms. Merillat maintains that Wiland told her that

her termination was not because of her job performance, and

Wiland admitted in his deposition that it was “possible” that he

told her that. R.44, Ex.D-2 at 23.

No. 05-4053 17

Inc., 406 F.3d 1001, 1007-08 (8th Cir. 2005) (stating that

the fact that a decision-maker went to lunch with white

managers does not mean that his decision not to promote

a minority employee was pretextual).

Finally, Ms. Merillat points to Wiland’s request that

she remove the cartoon lampooning the differences be-

tween male and female salaries that she had hanging on

her bulletin board. Ms. Merillat argues that this incident

is relevant to show bias toward women in the workplace.

We have said, however, that isolated comments that are

no more than “stray remarks” in the workplace are insuf-

ficient to establish that a particular decision was motivated

by discriminatory animus. See Cullen v. Olin Corp., 195 F.3d

317, 323 (7th Cir. 1999). We have cautioned that this gen-

eral rule may give way where particular remarks in

fact support an inference that unlawful bias motivated

the decision-maker, such as when those remarks are

made by the decision-maker or one having input in a

decision, and are made “(1) around the time of, and (2)

in reference to, the adverse employment action com-

plained of.” Hunt v. City of Markham, Illinois, 219 F.3d 649,

652-53 (7th Cir. 2000). Wiland’s statement regarding the

cartoon fits neither of those categories, nor does it other-

wise demonstrate a bias on Wiland’s part sufficient to

support an inference of discriminatory animus. It is,

therefore, clearly insufficient to sustain a determination

that the reasons for the discharge stated by Wiland and

supported by evidence were pretextual in nature.

Accordingly, we must conclude that although Ms.

Merillat has demonstrated disputed material facts suffi-

cient to prevent summary judgment for failure to meet her

prima facie burden, Metal Spinners has proffered legiti-

mate, non-discriminatory reasons to support her termina-

18 No. 05-4053

tion; in response, Ms. Merillat has not produced evidence

sufficient to create a triable issue of fact with respect to her

burden of demonstrating that those reasons are pretextual.

Accordingly, we affirm the district court’s grant of sum-

mary judgment in favor of Metal Spinners on Ms. Merillat’s

age and sex discrimination claims.

B. Equal Pay Act

1. Prima Facie Case

In order to establish a prima facie case under the EPA,

Ms. Merillat must show: “(1) higher wages were paid to

a male employee, (2) for equal work requiring substan-

tially similar skill, effort and responsibilities, and (3)

the work was performed under similar working condi-

tions.” Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d at 698

(quoting Stopka v. Alliance of American Insurers, 141 F.3d 681,

685 (7th Cir. 1998)). The parties do not dispute the first

prong. Wehr’s salary was $62,500; Ms. Merillat’s salary

was $49,800. R.29 at 1. With respect to the third prong,

Ms. Merillat and Wehr worked together in the same office,

and Metal Spinners does not argue that their work was

not performed under similar working conditions. There-

fore, only the second prong is at issue: whether Ms.

Merillat and Wehr’s positions required “substantially

similar skill, effort and responsibilities.”

In order to determine whether or not the two jobs are

equal, we look to whether the jobs have a “common core

of tasks, i.e., whether a significant portion of the two jobs

is identical.” Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d at

698 (internal quotation marks omitted). Once a plaintiff

establishes a “common core” of tasks, we ask whether any

additional tasks make the jobs “substantially different.” Id.

No. 05-4053 19

When assessing job duties, each of the elements listed in

the EPA (skill, effort and responsibilities) must be met

individually to establish a prima facie case. Id.; see also

29 C.F.R. § 1620.14. We look to the actual job duties per-

formed by each employee, not to his or her job description

or title. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461

(7th Cir. 1994).

Ms. Merillat asserts that she and Wehr had many of the

same tasks, including: negotiating with suppliers, buying

materials, and allocating materials for production. How-

ever, Metal Spinners submits that there are two areas

in which Ms. Merillat and Wehr’s job duties differed.

These two differences, it asserts, make their respective

jobs “substantially different” for purposes of the Equal Pay

Act: (1) Wehr’s responsibility for “strategic planning”;

(2) Wehr’s supervision of Ms. Merillat. We shall discuss

each of these factors in turn.

Metal Spinners contends that part of Wehr’s job duties

included strategic planning, which it states required him to

“implement new strategies to improve supplier relation-

ships.” Appellee’s Br. at 43. Wehr also testified that his

job duties included “establishing strong relationships

with . . . suppliers.” R.44, Ex.C-1 at 14. Ms. Merillat testi-

fied that, during the six months that she remained at

Metal Spinners after the arrival of Wehr, she participated

in this function because she “sat in on almost every meet-

ing that [Wehr] had with the suppliers.” R.44, Ex.H at 8. In

his deposition, Wiland stated that, before Wehr was hired,

Ms. Merillat was responsible for “obtaining cost effective

purchasing and costing for our metals,” and that she “was

responsible for investigating alternative methods and

practices that would improve the profitability of the

company, specifically pertaining to [her responsibility in]

20 No. 05-4053

supplier relationships.” R.35 at 8. Ms. Merillat testified

that, after Wehr was hired, she continued to work to reduce

the number of suppliers, as Wiland had requested. See

R.33 at 5. She also stated that she continued to “negotiate

with suppliers” after Wehr was hired. R.44, Ex.H at 20.

We believe that it is clear on the record as a whole that,

with respect to strategic planning, Ms. Merillat’s day-to-

day duties with regard to suppliers did not change ap-

preciably; she never assumed corporate-wide responsi-

bility for the planning responsibilities placed on Wehr’s

shoulders upon his accepting the vice-presidential position

at Metal Spinners. Thus, at the time his compensation

was set, it was understood that he would handle sig-

nificant responsibilities that had not been Ms. Merillat’s.

That Ms. Merillat did not see Wehr make significant

contributions toward the achievement of those goals does

not establish that the company’s expectations with re-

spect to Wehr’s performance had changed.

Next, we turn to Wehr’s supervisory duties. All parties

agree that Wehr’s job duties included functioning as

Ms. Merillat’s supervisor. See Wiland Dep., R.44, Ex.D-1

at 9; Merillat Dep., R.44, Ex.H at 7. Ms. Merillat also

admitted, in her deposition, that Wehr had supervisory

duties over the materials department employees. R.44,

Ex.H at 2. She explained that Wehr, not she, had the

authority to hire and fire employees, and that Stevenson

would contact Wehr when she was calling in sick. Id.

Stevenson, in her deposition, agreed that Wehr had be-

come her direct supervisor when he was hired. R.37 at 4.

Wehr therefore had supervisory duties that Ms. Merillat

did not exercise. Of course, as we have noted, not all

differences in supervisory duty render two positions

unequal for purposes of the EPA. See Fallon v. State of

No. 05-4053 21

Illinois, 882 F.2d 1206, 1209-10 (7th Cir. 1989). Indeed, there

are some indications that Wehr’s supervisory duties were,

in actuality, minimal. Ms. Merillat submits that, although

Wehr was supposed to function as her supervisor, in

reality, she worked independently, and he did not super-

vise her. See Merillat Dep., R.44, Ex.H at 7 (stating, in

response to a question regarding Wehr’s supervisory

duties with respect to her: “I pretty much work on my

own. If he had questions, he would come and ask me. I

was always there on time. I didn’t call in sick.”).

Ms. Merillat’s 2002 evaluation lends some support to

her contention that she continued to have a degree of

supervisory authority over Stevenson. The evaluation

states that, in 2003, Ms. Merillat must pursue “manage-

ment” and “leadership” skills so that she may “effectively

manage others on her staff.” R.36, Ex.7 at 1. This state-

ment seems to indicate that she was charged at least

with supervising some of the duties of Stevenson, the

only other materials department employee. Nevertheless,

it is clear that, although neither had great supervisory

authority over other personnel, Wehr did have more

authority than Ms. Merillat.

We conclude that the record, fairly read in its totality,

leads to the conclusion that Wehr and Ms. Merillat did

not have equal levels of responsibility. “Responsibility

is concerned with the degree of accountability required

in the performance of the job, with emphasis on the

importance of the job obligation.” 29 C.F.R. § 1620.17(a).

Ms. Merillat has therefore failed to establish a prima

facie case under the Equal Pay Act.

22 No. 05-4053

2. Affirmative Defense

Assuming, arguendo, that Ms. Merillat has established

a prima facie case, the burden would shift to Metal Spin-

ners to establish one of four statutory defenses. Cullen v.

Indiana Univ. Bd. of Trs., 338 F.3d at 702. The statutory

defenses occur when the rate of pay is determined “pursu-

ant to (i) a seniority system; (ii) a merit system; (iii) a

system which measures earnings by quantity or quality of

production; or (iv) a differential based on any factor

other than sex.” 29 U.S.C. § 206(d)(1). Metal Spinners

submits that the fourth defense is applicable because the

difference in pay between Wehr and Ms. Merillat was

based on factors “other than sex.” More specifically,

Metal Spinners contends that the difference in pay was

based, at least in part, on the difference between Wehr’s

and Ms. Merillat’s educational background and industry-

related experiences. Wehr held a bachelor’s degree in

business administration; Ms. Merillat had only a one-year

legal secretary degree. Wehr had previous experience in

the metal industry, had previously overseen two other

purchasing departments and had experience implement-

ing computer systems in metals purchasing. Ms. Merillat

had not worked in the metals industry prior to her tenure

at Metal Spinners. The record reveals, therefore, that

there are real differences between the two employees’

experience and education. Under the EPA, differences in

education and experience may be considered factors other

than sex. See Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d at

702; Dey, 28 F.3d at 1462; Stanley v. Univ. of Southern

California, 13 F.3d 1313, 1322 (9th Cir. 1994) (“Employers

may reward professional experience and education with-

out violating the EPA.”).

Metal Spinners also submits that Wehr’s salary was

determined by market forces. Mr. Wiland noted that,

No. 05-4053 23

when he decided to create the position of Vice President

of Procurement and Materials Management, he enlisted

the help of a search firm and was informed that the market

rate for such a position was $65,000-$75,000. Mr. Wiland

also consulted trade journals to determine the appropriate

market rate for such a position. We have held that an

employer may take into account market forces when

determining the salary of an employee. See Cullen v. Indiana

Univ. Bd. of Trs., 338 F.3d at 703; Stopka v. Alliance of

American Insurers, 141 F.3d 681, 687 (7th Cir. 1998) (accept-

ing a difference in pay as based on a factor other than

gender when motivated by “legitimate market forces”).6

Metal Spinners has put forth evidence that the differ-

ence in pay was based on a factor other than sex; specifi-

cally, the difference was based on Wehr’s education, his

experience and the market forces at the time of his hire.

Ms. Merillat has not put forth evidence to place the facts

6

We recognize that we must be cautious when analyzing an

employer’s claim that “market forces” justify a higher salary, as

companies may use such a theory “to justify lower wages for

female employees simply because the market might bear such

wages.” Taylor v. White, 321 F.3d 710, 718 (8th Cir. 2003); see also

Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974) (finding

a violation of the EPA when a company “took advantage” of a

“job market in which [the employer] could pay women less than

men for the same work”); Siler-Khodr v. Univ. of Texas Health Sci.,

261 F.3d 542, 549 (5th Cir. 2001) (finding an employer’s market

forces argument “not tenable” when it “simply perpetuates the

discrimination that Congress wanted to alleviate when it

enacted the EPA”). The record does not support the inference

that Metal Spinners took advantage of any kind of market

forces that would permit different pay for a male and a female

for the same position.

24 No. 05-4053

surrounding these stated rationales in dispute. Therefore,

summary judgment also was appropriate based on Metal

Spinners’ affirmative defense of the pay differential be-

ing based on a “factor other than sex.” See 29 U.S.C.

§ 206(d)(1)(iv).

Conclusion

For the forgoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-6-06