Wanda Birch v. Cuyahoga County Probate Court John J. Donnelly, Presiding Judge

JULIA SMITH GIBBONS, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority that Birch cannot recover on her claim of sex-based wage discrimination under either Title VII or the Equal Pay Act. I also agree that Birch cannot establish a claim of retaliation under § 1983, Title VII, or the Ohio Civil Rights Act. However, because I cannot agree with the majority’s conclusion that Birch can establish a sex-based discrimination claim under the Ohio Civil Rights Act, Oh. Rev.Code Ann. §§ 4112.02, 4112.99,1 respectfully dissent.

I.

The majority concludes that Birch raises a genuine issue of material fact on her sex- *170 based wage discrimination claim under the Ohio Civil Rights Act, notwithstanding the fact that she has been unable to satisfy the “equal work” standard, as required for claims brought under the Equal Pay Act. To meet this standard, an employee must prove that “an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’ ” Corning Glass Works v. Brennan, 417 U.S. 188, 195 , 94 S.Ct. 2223 , 41 L.Ed.2d 1 (1974); Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir.1981). Though the majority concedes that Birch’s failure to meet the “equal work” standard bars Birch’s recovery under Ohio’s Minimum Fair Wage Standard Act, Oh. Rev.Code Ann. § 4111.17(A), because Ohio courts rely on interpretations of the Equal Pay Act in construing their own law, Stone v. Greater Cleveland Reg’l Transit Auth, 92 Ohio App.3d 373 , 635 N.E.2d 1281, 1285 (1993), the majority finds that Birch may be able to succeed on her wage discrimination claim under § 4112.02 without satisfying the “equal work” standard. The majority reaches this conclusion by relying on the Supreme Court’s reasoning in County of Washington v. Gunther, 452 U.S. 161 , 101 S.Ct. 2242 , 68 L.Ed.2d 751 (1981), in which the court held that a plaintiff bringing suit under Title VII for sex-based wage discrimination may not be required to meet the “equal work” standard set forth under the Equal Pay Act.

I cannot agree with the majority’s conclusion. Gunther was intended to be a very narrow exception to the “equal work” standard in Title VII sex-based wage discrimination claims. Indeed, the Supreme Court explicitly declined to “decide ... the precise contours of lawsuits challenging sex discrimination in compensation under Title VII.” Id. at 181 , 101 S.Ct. 2242 . The opinion, instead of finding the “equal work” standard of the Equal Pay Act wholly inapplicable to Title VII cases, as the majority would hold, carves out exceptions from the “equal work” requirement in a few isolated situations, such as instances where an individual holds a unique job and the employer has expressly admitted that the individual would be paid more but for the individual’s sex and situations involving “transparently sex-biased system[s] for wage determination.” Id. at 179 , 101 S.Ct. 2242 .

Federal courts hearing cases involving sex-based wage discrimination claims have read Gunther narrowly, rather than expansively, as the majority does today. See Clark v. Johnson & Higgins, 1999 WL 357804 , at *3 (6th Cir. May 28, 1999) (finding the Gunther rationale inapplicable in a case where the employer made no admission that the employee would have been paid more had she been male and where no “transparently sex-biased system for wage determination” existed, and holding that a claims of wage discrimination under Title VII and the Equal Pay Act are subject to standards which are substantially similar such that the outcome of both claims should be identical); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1133 (5th Cir.1983) (stating that Gunther’s rationale is limited to cases of “transparently sex-biased systemfs] for wage determination” and cases involving direct evidence that the employer paid the employee less because of his or her sex); EEOC v. Sears, Roebuck & Co., 628 F.Supp. 1264, 1333 (N.D.Ill.1986) (noting that the Gunther analysis is only appropriate in instances of intentional discrimination that is direct, or violations that are blatant, and noting that federal courts have refused to apply Gunther analysis where the claim involves a subjective assessment of different positions with different duties).

*171 Birch’s claim does not fit within the narrow confines of the Gunther exception, as Birch fails to present direct evidence of the type addressed in Gunther , that is, there is no admission on the part of any defendant that she would have been paid more for the same work if she were a man. Nor has she identified to the court a “transparently sex-biased system for wage determination”; the divergence in quality of work and level of responsibility between the magistrates in the higher-paid positions in the Front Office Department and the lower-paid positions in the Release of Assets Department makes it impossible to attribute the pay differential to gender. Therefore, because Birch’s claim does not fall within the circumscribed bounds of Gunther , I would find that the “equal work” standard of the Equal Pay Act, rather than the more general Title VII analysis, governs Birch’s § 4112.02 claim.

The majority chooses not only to read the Gunther case as broadly exempting sex-based wage discrimination claims from satisfying the “equal work” standard, but extends that exemption to Ohio state law. 1 Such an expansion of Gunther is unjustified by case law interpreting § 4112.02 of the Ohio Civil Rights Act. Recent cases have required a plaintiff claiming sex-based wage discrimination, brought under either § 4112.02 or § 4111.17, to satisfy the “equal work” standard set forth in the Equal Pay Act. See, e.g., Brune v. Basf Corp., No. 99-3194, 2000 WL 1597908 , at *2 (6th Cir. Oct.17, 2000) (“[T]he EPA analysis applies to [the] claim of wage discrimination under Ohio Rev.Code § 4112.02(A).”); Clark, No. 97-4233, 1999 WL 357804 , at *3 (finding that the only difference betwéen a claim under the Equal Pay Act and § 4112.02 of Ohio law was the statute of limitations); Follas v. Bagley, No. 3:99CV7746, 2000 WL 251658 , at *2-3 (N.D.Ohio Feb.10, 2000) (“Analysis for claims of wage discrimination-or unequal pay for equal work-is essentially the same whether claimed under ... Title VII, the Equal Pay Act, or [§ 4112.02],” and discussing the “equal work” requirement); Kroh v. Cont’l Gen. Tire, Inc., No. 19412, 1999 WL 1215167 , at *2 (Ohio App. Dec. 15, 1999) (“[C]laims alleging unequal pay, pursuant to either R.C. 4111.17 or R.C. 4112.02, are subject to the analysis employed under the Federal Equal Pay Act”); Gliner v. Saint-Gobain/Norton Indus. Ceramics Corp., No. 74055, 1999 WL 380434 , at *35 (Ohio App. June 10, 1999) (“It has been determined that claims brought pursuant to [§ ] 4112, et seq. and [§ ] 4111.17 are subject to the same standards as are applied to claims brought under its Federal Equal Pay Act counterpart.”) (citations omitted), rev’d on other groimds, 89 Ohio St.3d 414 , 732 N.E.2d 389 (2000). Though the majority finds that Birch’s § 4111.17 claim fails due to Birch’s inability to satisfy the “equal work” standard, the majority chooses to nullify this requirement with respect to § 4112.02. Such a departure, from past interpretations of the Ohio law should not, in my opinion, originate in federal court. See Combs v. Int’l Ins. Co., 354 F.3d 568, 577 (6th Cir.2004) (noting that federal courts should be cautious when making determinations of state law); Shah v. Upjohn Co., Nos. 95-2337, 96-1079, = 1997 WL 90305 , at *4 (6th Cir. Feb.28, 1997) (“[A] federal court should manifest great caution in blazing new *172 state-law trails.”) (internal citation, quotation marks, and alterations omitted).

Thus, I would hold that Birch’s claim under § 4112.02, like her claim under § 4111.17, must fail, due to Birch’s inability to satisfy the “equal work” standard. The majority opinion satisfactorily discusses the reasons that Birch cannot satisfy this standard; it only errs in failing to apply this standard to § 4112.02 as well as § 4111.17.

II.

Even assuming arguendo that the “equal work” standard does not apply to Birch’s claim, so that Title VII analysis, rather than Equal Pay Act analysis, governs Birch’s wage discrimination claim under § 4112.02, 2 Birch nonetheless fails to present evidence creating a genuine issue of fact on her claim of sex-based wage discrimination. Under Title VII analysis, a plaintiff can establish a discrimination claim through either direct or circumstantial evidence. 3 Birch fails to raise a genuine issue of material fact employing either kind of evidence.

In order to establish a case of sex discrimination under Title VII analysis, a plaintiff must prove discriminatory intent. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 664 N.E.2d 1272, 1277 (1996). The plaintiff may satisfy this burden by producing either direct or circumstantial evidence of sex discrimination. See McGowan v. Cuyahoga Metro. Hous. Auth., No. 84041, 2004 WL 1752867 , at *1 (Ohio App. Aug. 5, 2004). In a direct evidence case, the plaintiff must present “direct testimony that the employer acted with a discriminatory motive.” Vincenti v. Hilliard-Lyons, Inc., No. 91-5374, 1991 WL 256708, at *2 (6th Cir. Dec.5, 1991) (citing Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir.1985)). While it is necessary to produce evidence which supports a finding of discriminatory intent, such proof alone is insufficient. Mauzy, 664 N.E.2d at 1280 . Rather, “[t]he critical inquiry ... is whether gender was a factor in the employment decision at the moment it was made.” Price Waterhouse v. Hopkins, 490 U.S. 228, 241 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989). As such, the plaintiff attempting to establish a claim of sex discrimination using direct evidence must also point to an action or omission made with respect to the plaintiffs employment and connect the action to the discriminatory intent. See id. at 262 , 109 S.Ct. 1775 (O’Connor, J., concurring) (noting that Title VII was not intended to be a “thought control bill,” and that it is necessary to have the requisite discriminatory intent coupled with an adverse employment action in order to establish a prima facie case). Thus, the plaintiff bears the burden of not only showing that the employer had discriminatory thoughts, but also that the adverse employment action that she complains of *173 was a product of that discriminatory thought. Mauzy, 664 N.E.2d at 1280 .

Birch produces three statements made by Donnelly during the context of a discussion about the existing salary discrepancies between men and women at the office as direct evidence of discrimination: (1) Donnelly’s assertion that he “did not have to hire women,” as there was no law which mandated that he do so; (2) Donnelly’s statement that the female magistrates were not obligated to work at the court if they did not want to; and (3) Donnelly’s statement that he would not know how to make the salaries fair, as he relied on men to do the important work of the court. Certainly, these statements display troubling discriminatory animus toward the female magistrates on Donnelly’s part. However, as noted above, evidence of discriminatory thought or intent alone is not enough. Birch is required, additionally, to present evidence permitting an inference that the adverse employment action she complains of-namely, the pay differential between her salary and the salaries of her male co-workers-was taken because of Donnelly’s discriminatory thoughts toward her because of her sex. Thus, while Don-nelly’s statements provide direct evidence of generalized discriminatory animus, they do not provide direct evidence to support Birch’s specific claim.

Birch cannot meet this burden, and thus her claim of direct discrimination fails. It is true, as the majority notes, that the statements listed above were made in the context of a discussion between Donnelly and four female magistrates, including Birch, regarding the women’s salary concerns. However, the record reveals no evidence permitting a finding of a connection between Donnelly’s discriminatory views and the setting of Birch’s salary. Therefore, while the statements can be used as circumstantial evidence of discrimination against Birch, they fail to permit an inference of discrimination based on direct evidence. See Anderson v. Twitchell-A Tyco Int'l Ltd., 76 F.Supp.2d 1279, 1285 (M.D.Ala.1999).

In the absence of direct evidence of sex discrimination, the plaintiff may also establish her claim by producing circumstantial evidence of discrimination. Title’ VII requires that a plaintiff meet the familiar McDonnell Douglas test when establishing a claim of discrimination using circumstantial evidence. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (Title VII sex discrimination case applying the four-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817 , 36 L,Ed.2d 668 (1973)). To satisfy the four-part test for a prima facie case of discrimination, the plaintiff must show that: (1) she was a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position; and (4) a similarly situated person outside the protected class received more favorable treatment. Id. Birch is clearly a member of a protected class, and has identified an adverse employment action in the form of the difference between her salary and that of her male co-workers. However, Birch is unable to identify a male co-worker who is similarly situated. Therefore, Birch is unable to meet her prima facie burden.

Birch is required, ■ to meet her prima facie burden, to identify a non-protected employee who was similarly situated, or directly comparable, in all material respects. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998); McGowan, 2004 WL 1752867 , at *2. The most’ important factors to be considered may vary from case to case, but in order to meet this burden, Birch was required to identify someone who has dealt with the same supervisor, has been subject to the same standards, and has engaged in the same conduct without differentiating *174 or mitigating circumstances which would justify a distinction between either the workers’ conduct or the supervisor’s treatment of the workers. See Jones v. Swagelok Co., No. 83849, 2004 WL 1631162 , at *4 (Ohio App. July 22, 2004). Birch has attempted to satisfy this standard by pointing to the male workers in the Front Office Department who are more highly compensated. However, these male employees perform substantially different, more demanding functions and possess greater responsibility. Therefore, I cannot agree that these employees are similarly situated. In fact, the reasons laid out in the majority opinion for finding that Birch failed to satisfy the “equal work” standard also provide support for the notion that Birch is not similarly situated to the male Front Office Magistrates with whom Birch compares herself. See Conti v. Univ. Enter., Inc., 50 Fed. Appx. 690, 699 (6th Cir.2002) (finding that the relevant factors to consider in determining whether a Title VII plaintiff has satisfied her burden of identifying a similarly situated employee in a wage discrimination case include those factors considered in determining whether an employee has satisfied the “equal work” standard under the Equal Pay Act). As a result, Birch fails to present evidence to establish a prima facie claim of sex discrimination based on circumstantial evidence, as she cannot satisfy all four elements of the McDonnell Douglas test.

The majority correctly notes that there may conceivably be situations in which a plaintiff cannot establish a prima facie case under conventional McDonnell Douglas analysis, yet may still withstand summary judgment in a circumstantial evidence case. This, however, is not such a case. Here, the plaintiff has made no effort whatever to compare herself to any other individual employee. Her evidence of Donnelly’s statements permits only an inference that Donnelly harbored discriminatory attitudes about women employees in general, not an inference that the setting of Birch’s salary was motivated by sex-based discrimination. A claim of sex-based discrimination cannot succeed based on such diffuse evidence of discriminatory animus, where the record contains no evidence connecting the discriminatory attitude to any employment decision involving the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000) (holding that the trait protected under Title VII “must have actually played a role in the employer’s decisionmaking process and had a determinative influence on the outcome.”) (internal quotation marks and citation omitted).

For the all of the reasons stated above, I cannot conclude that Birch has raised a genuine issue of material fact on her sex-based wage discrimination claim under the Ohio Civil Rights Act and therefore would find that the district court properly granted summary judgment in favor of the defendants.

. It is notable that neither the parties nor the district court distinguished between Birch's federal- and state-based wage discrimination claims. Both the parties' briefs as well as the district court opinion assumed that the claims were substantially identical, such that if the ■ federal discrimination claims failed, so too did the state discrimination claims. It was not until this court's majority opinion that a distinction was drawn between the fates of the federal and state discrimination claims.

. See Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 66 Ohio St.2d 192 , 421 N.E.2d 128, 131 (1981) ("[W]e have determined that federal case law interpreting Title VII of the Civil Rights Act of 1964 is generally applicable to cases involving alleged violations of R..C. Chapter 4112.”) (internal citations omitted).

. The majority opinion inaccurately describes the dissent as requiring a plaintiff in a Title VII case to present direct evidence of intentional discrimination. Such a characterization misses the point. As noted previously, one exception to the "equal work” analysis for wage-based claims permitted by Gunther is the situation in which there is an admission of discriminatory intent in setting pay, an admission which constitutes direct evidence. But if the majority is correct in its conclusion that Gunther permits conventional Title VII rather than "equal work” analysis in a broad range of cases, then traditional Title VII analysis, permitting either direct or circumstantial evidence, applies.