Petition for Writ of Certiorari — Lang v. Kohl's Food Stores, Inc.

, supreme Com, OS

() FILED

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= — SECS GE THE ChERS ___

In The

Supreme Court of the United States

.

SHIRLEY A. LANG, et al.,

Petitioners,

KOHL’S FOOD STORES, INC. and

THE GREAT ATLANTIC TEA COMPANY,

Respondents.

«

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

PETITION FOR A WRIT OF CERTIORARI

+

SARAH E. SiIskINbD*

MINER, BARNHILL & GALLAND, P.C.

Suite 803

44 East Mifflin Street

Madison, Wisconsin 53703

(608) 255-5200

*Counsel of Record

aF op

QUESTION PRESENTED FOR REVIEW

Did the court of appeals err in affirming the district

court’s dismissal of petitioners’ Title VII claim on sum-

mary judgment by failing to follow the standards for

review articulated by Reeves v. Sanderson Plumbing Prod-

ucts, Inc., __ U.S. __, 120 S.Ct. 2097, 2109-10 (2000),

when it upheld the district court’s rejection of petitioners’

proof of intent as not persuasive or compelling, while

failing to consider all the evidence supporting peti-

tioners’ position and further failing to disregard respon-

dents’ evidence that “the jury was not required to

believe.” 120 S.Ct. at 2110.

TABLE OF CONTENTS

Page

Question Presented For Review............6000005: i

Table of Combet. «6 cciaxdneiccusssedtansenseeusecss ii

Table of Awthnowdties ..< 3. ciacdcccccaceuuasesenuanees iii

Opinions Below .............cscccsccccccccccccccss 1

Basis For Jurintctheie occa ccc cds pen deeweasueeeees 1

Statutory Provisions Involved. ; .......ccccssesescons 1

Statement Of Tite COS 2. ods ciacncdconcceaseusecse 2

Reasons For Granting The Writ.................45. 10

Conclusion .....0sss0s skeen bee eee eee 13

iii

TABLE OF AUTHORITIES

Page

Cases

Board of Trustees v. Sweeny,

yeh supeieB asp oats LLC ET EE EOTT TOPE T TEED 12

County of Washington v. Gunther,

SRN UY GO voce sncsccvesivececdcdecscec 9, 10

Lords Landing Village Condominium Council of Unit

Owners v. Continental Insurance Company,

MO GO sean sscctncesevecseceocce,.. 13

Reeves v. Sanderson Plumbing Products, Inc.,

— US. __, 120 S.Ct. 2097 (2000)... 2, 7, 10, 11, 12, 13

Thomas v. American Home Products, Inc.,

S19 US. 913 (1996) ............0.00.00000 ee, 12, 13

STATUTES

UN 5 dscns en esetnekeeueeecnskcoeidcc. 3

I MN ED Sanco esas sausecvcccececceee.... 3

26 US.C. § 2101(c) ....... 0. eee cccce cece ee. 1

29 U.S.C. § 206(d) (The Equal Pay Act)....... 2,3, 4,9

42 U.S.C. § 2000e-2(a)(1) (Title VII of the Civil

INN TAs snhwsSedacévavevecengic. cg... passim

RULEs

SEER A a 4

a 4, 10

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is Lang v. Kohl’s Food Stores, Inc. and

The Great Atlantic Tea Company, 217 F.3d 919 (7th Cir.

2000). It is set forth in the Appendix at App. 1-15.

The opinion of the United States District Court for

the Western District of Wisconsin is not reported. It is set

forth in the Appendix at App. 19-79.

¢

BASIS FOR JURISDICTION

The final judgment of the United States Court of

Appeais for the Seventh Circuit affirming the decision of

the District Court for the Western District of Wisconsin

was entered on June 22, 2000. (App. 1-15) The Court’s

order denying rehearing was entered on August 3, 2000.

(App. 80) This petition for writ of certiorari is filed within

ninety days from that date. This Court has jurisdiction

under 28 U.S.C. § 2101(c).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in this case are:

Title VII of the Civil Rights Act of 1964, as amended

by the Civil Rights Act of 1991 (“Title VII”), 42 U.S.C.

§ 2000e-2(a)(1):

It shall be an unlawful employment practice for

an employer . . . to discriminate against any

individual with respect to his compensation-

. . . because of . . . sex,

2

and the Equal Pay Act (“the EPA"), 29 U.S.C. § 206(d):

No employer . . . shall discriminate . . . between

employees on the basis of sex by paying wages

to employees . . . at a rate less than the rate he

pays to employees of the opposite sex . . . for

equal work on jobs the performance of which

require equal skill, effort and responsibility, and

which are performed under similar working

conditions .. .

°

STATEMENT OF THE CASE

This petition seeks a writ of certiorari to the court of

appeals from its affirmance of summary judgment on

petitioners’ Title VII claim. It turns on the court of

appeals’ failure to consider evidence it was required to

consider under Reeves v. Sanderson Plumbing Products, Inc.,

__ US. ___ 120 S.Ct. 2097 (2000), because it supported

petitioners’ pretext case and their proof of discriminatory

animus, and the court's failure to disregard evidence that

Reeves required it to disregard. This Court should either

grant certiorari and reverse Or, in the alternative, vacate

the judgment below and remand for reconsideration in

light of Reeves. See infra at 12-13.

Petitioners are current and former female employees

of respondents, Kohl's Food Stores, Inc. and (its parent)

The Great Atlantic & Pacific Tea Company, Inc., who have

worked in the bakery and deli departments of respon-

dents’ supermarket chain. They claim that they have been

paid less than respondents’ produce department

employees because of their sex.

For more than 40 years, the three departments (bak-

ery, deli and produce) have been segregated by sex. As

far back as the 1950s, the produce staff was predomi-

nantly male (R. 217 | 50) and the deli and bakery staffs

overwhelmingly female.! As of 1998, the pattern

remained: 100% of the bakery managers, 100% of the deli

managers, 97% of the bakery clerks, and 92% of the deli

clerks were female. (App. 48) In the produce department,

93% of the produce managers and 78% of the produce

clerks were male. (Id.)

Bakery and deli employees have also always been

paid less than produce employees. Indeed, respondents’

early collective bargaining agreements established sepa-

rate (and lower) wage scales for the “female” employees

who staffed the bakery and deli than for “male produce”

employees. (R. 305 { 1; R. 217, Exs. 1-4) Ever after these

explicit gender classifications and wage scales were elimi-

nated, the jobs remained segregated by sex, and the wage

gap remained. (Id. at 48-50)

Petitioners brought this action on May 8, 1998 under

both Title VII and the EPA, alleging that respondents’

practice of paying bakery and deli employees less than

produce employees constituted intentional wage discrim-

ination under Title VII and a denial of equal pay under

the EPA. (R. 2) The district court had subject matter

jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C.

§ 1332(e)(1).

' It was “not normal” to see a man behind the deli counter

(R.305 { 4); “[t}here might have been a male here and there” in

bakery. (/d.)

The Title VII claim was certified under Fed. R. Civ. P.

23 on March 17, 1999 on behalf of a class of all women

employed in the bakery and deli departments since

November 21, 1995. (R. 116 & 117) During the course of

the lawsuit, 500 opt-in plaintiffs joined the lawsuit in

pursuit of the EPA claim. (R. 40, 49, 67, 68 and 80)

On May 7, 1999, respondents moved for summary

judgment on both petitioners’ Title VII and their EPA

claims. (R. 176) On July 26, 1999, the court granted the

motion with respect to the Title VII claim but sent the

EPA claim to trial. (App. 79) On August 13, 1999, the jury

found that the bakery, deli and produce jobs were not

substantially equal. (R. 297) Judgment was entered dis-

missing both claims on August 16, 1999. (A. 67-68) Peti-

tioners’ motion for a new trial on the EPA claim and

reconsideration of the Title VII claim was denied on

August 30, 1999. (App. 18) The court of appeals affirmed

the district court on June 22, 2000 (App. 1-15) and denied

rehearing on August 3, 2000. (App. 80)

This petition addresses only the Title VII claim, most

particularly the court’s rejection of petitioner’s conten-

tion that respondents’ asserted justifications for the chal-

lenged wage gap were pretextual.? Respondents’ sole

witness on summary judgment to testify to the reasons

for the wage decisions at issue was its human resources

manager and wage negotiator, Dan Daley. (R. 178) In his

declaration supporting the summary judgment motion,

Daley asserted that respondents’ decision to maintain the

2 Petitioners also challenge the lower courts’ handling of

their “animus” evidence, and specifically the courts’ failure to

consider their evidence of present-day steering. See n. 3, infra.

challenged wage disparity was motivated not by the

employees’ gender, but by differences among the jobs

(i.e., that the produce jobs required greater discretion and

physically harder work and produce departments con-

tributed more to store revenues). (R. 178 {J 199-205)

In response, petitioners offered two categories of evi-

dence of discriminatory intent: evidence of conduct by

respondents reflecting animus against its female

employees, and evidence that respondents’ justifications

for the wage gap at issue were pretext. Petitioners’

“animus” evidence included: (a) the union contracts from

the 1950s and 1960s in which respondents established

separate (and unequal) pay scales for “male produce

employees” and for “female employees” in other jobs (R.

305 ¥ 1, R. 217, Ex. 1-3), (b) evidence that, through the

late 1960s, respondents advertised for bakery and deli

jobs in the female-help-wanted classifieds and produce

jobs in the male-help-wanted columns (R. 305 4] 1-2),

and (c) evidence linking these historical practices to the

present: i.e., evidence of restrictive seniority and bidding

rules that discouraged women from transferring from

bakery and deli into produce (R. 217 | 51-53), and

evidence, based on respondents’ application data from

1996-98, that showed that during the 1990s, respondents

were steering female job applicants to the lower-paid

bakery and deli jobs and away from produce. (Id. | 55, R.

305 { 3)

Petitioners’ pretext evidence consisted primarily of a

series of admissions by Daley himself that suggested that

the justifications for the wage disparity asserted in this

declaration did not actually motivate the wage decisions

at issue. First, Daley admitted that he testified falsely in

his declaration about the market-based origins of the

wage gap, in that his testimony on the subject was based

on rumor and had no basis in fact. (R. 178 { 200; R. 217

{ 56) Second, Daley admitted that his claim in the decla-

ration that petitioners’ unions had not demanded wage

equalization until 1998, offered as a reason that the wages

were never equalized, was also false (R. 178 | 201; R. 217

at {J 57-61), since union demands for equalization had

been made in every negotiation since 1992. (R. 217 at

11 57-61)

Daley made additional admissions that contradicted

his claim that the wage determinations were motivated

by differences between the jobs, not gender. First, he

admitted that he had not “developed” the differences as

the rationale for the wage gap until after he negotiated

wages in 1995 (id. at { 62), and therefore did not have

them in mind when the actual wage decisions were made.

(Id. at {J 62, 64) Next, he admitted that he had never

discussed the differences with the union negotiators, his

superiors, or his bargaining team, that he could not iden-

tify a single company official who was even aware of

them, and that the differences had never been docu-

mented as factors in wage setting. (Id. at 63, 64) Third,

with respect to the particular differences asserted, Daley

admitted that these were not in fact taken into account in

the setting of wages. (Id. at 40, 65-68, R. 215 at 238; R. 198

{ 205 [revenues]; R. 215 at 246 [judgment]; R. 217

{1 26-27; R. 198 | 205 [volume and weight])

Daley’s untruths and inconsistencies, petitioners

asserted, in combination with petitioners’ evidence of

discriminatory animus, supported an inference that

Daley’s testimony about what motivated the wage deci-

sions was not credible, and that the real reason for the

wage gap was gender. See Reeves, 120 S.Ct. at 2108-09. In

granting summary judgment, however, the district court

ignored most of petitioners’ evidence and relied on evi-

dence the jury was not required to believe.

First, the court rejected petitioners’ “animus”

evidence because it did not “compel” a finding of

discriminatory intent. (App. 75-76) Specifically, it rejected

the historical evidence as too remote in time, the evidence

that the departments remained sex-segregated during the

1990s as not “shocking,” and the restrictive seniority and

bidding rules as supporting, but not compelling that find-

ing. (App. 75-76) The court did not mention petitioners’

steering evidence.> (Id.)

3 The court of appeals decision reflects confusion about

whether this evidence was ever presented in the district court.

(App. 4-5) In fact, petitioners asserted their steering evidence

throughout the case. (See CA Petition for Rehearing) Even

though the district court refused to certify a “steering” class (R.

116), ultimately dismissed the individual steering claims of the

named plaintiffs (all long-term employees hired before the

actionable period, who could not themselves claim steering at

hire) (R. 255), and in doing so, erroneously rejected the steering

evidence as not probative (id.), and even though petitioners

chose not to pursue either the class certification ruling or the

ruling on the individual claims on appeal, petitioners still

continued to press the steering evidence as a central element of

their proof of intent. (CA Appellants’ Brief at 7, 30) The district

court simply ignored the steering evidence in analyzing the

class waze claim; and the court of appeals, while recognizing

that proof of steering would have made petitioners’ Title VII

claim “tenable,” see n. 4, infra, premised its affirmance

Second, the court rejected petitioners’ pretext case as

not “persuasive.” (App. 78-79) In doing so, it ignored

much of petitioners’ evidence on the issue. It ignored

petitioners’ evidence that Daley lied about the history of

the wage gap and about the unions’ early demands for

equalization. (App. 76-78) It ignored Daley’s admissions

that the job differences asserted as motivating the wage

disparity were not in fact taken into account when wages

were set (even though these admissions contradicted

Daley’s assertion that they were the motivation for the

wage decisions). (Jd.) Indeed, the court limited its review

to a single aspect of petitioners’ pretext case, evidence

that Daley formulated the asserted justifications “after

the fact” of the 1995 wage negotiations. Concluding that

this evidence was not “persuasive,” the court chose

instead to credit Daley’s testimony that the asserted dif-

ferences were the motivation for the wage gap, as well as

respondents’ attempts to explain their late emergence

after the fact. (App. 77-78; R. 210 at 39)

On appeal, petitioners argued that the district court

had applied the wrong standard of review. Regardless of

the disposition of the jury verdict, they argued, the Title

VII claim turned on whether respondents were paying

bakery and deli employees less because they were

women. The question on summary judgment was not

whether petitioners’ evidence of discriminatory intent

was persuasive to the court or compelling, but whether it

was sufficient as a whole to permit the requisite inference

of the district court on the belief that no such evidence had been

asserted or offered. (App. 4-5) This was entirely contrary to the

record. See CA Petition for Rehearing.

by the jury. (CA Appellants’ Brief at 22-33) Without

addressing the standard for summary judgment review,

however, the court of appeals affirmed.‘ (App. 2-4)

7

4 Addressing the pretext issue first, the court essentially

reported the district court’s conclusion, without its own

analysis of the record, that petitioners had “produced no

persuasive evidence” that respondents’ justification was

pretext. (App. 2-3) Like the district court, the court of appeals

appeared to confuse the question of whether Daley honestly

believed that the asserted differences existed with the real

question ~ whether Daley testified honestly when he asserted

that the differences were his motivation for the wage decisions.

Regarding petitioners’ other evidence of “animus,”

moreover, the court of appeals’ discussion was confused and

misleading. It began by asserting that it was “hard to see” why,

given the jury’s verdict on the EPA claim, petitioners’

contention that summary judgment should have been denied on

the Title VII claim “could matter.” (App. 4) “If (as the jury

determined) the bakery, deli and produce jobs are not

substantially equal,” the court asserted, “then plaintiffs can’t

show sex discrimination.” (Id.) This proposition conflicts

directly with County of Washington v. Gunther, 452 U.S. 161

(1981), in which the Court made clear that a Title VII claim is not

barred by the fact that the jobs compared are not equal under

the EPA. Indeed, the Court pointed out how outlandish any

other result would be:

[A] woman who is discriminatorily underpaid

could obtain no relief - no matter how egregious the

discrimination might be - unless her employer also

employed a man in an equal job in the same

establishment, at a higher rate of pay. Thus, if an

employer hired a woman for a unique position in the

company and then admitted that her salary would

10

REASONS FOR GRANTING THE WRIT

The writ should be granted. Had the court of appeals

followed this Court’s clear instructions in Reeves dictating

what evidence to consider and what to disregard, the

disposition of petitioners’ appeal would almost certainly

have been different. Reeves, decided only ten days before

the court appeals’ decision in this case, was (and remains)

best noticed for its holding that evidence of pretext alone

can be sufficient to support a jury finding of discrimina-

tion. Importantly, however, Reeves also resolved wide-

spread confusion among the lower courts regarding

precisely what evidence a court must consider on sum-

mary judgment under Fed. R. Civ. P. 56, and what evi-

dence it must disregard. 120 S.Ct. at 2109-10. In reviewing

petitioners’ evidence and the district court’s analysis, the

have been higher had she been male, the woman

would be unable to obtain legal redress.

452 U.S. at 178-79.

Next, while appearing to retreat from its first proposition

(that the Title VII claim was barred by the jury’s verdict), the

court fell into a second misstatement of the law - that the only

way a plaintiff could prove intentional discrimination was to

show that the employer discriminated when hiring for the

different jobs. (App. 4) While it is true that evidence that women

are steered to lower paying jobs suggests an intent to pay

women less because of gender, other evidence (such as the

evidence offered by petitioners) can also raise this inference.

Gunther, 452 U.S. at 178-79.

Finally, as noted supra at n. 3, the court of appeals

disregarded petitioners’ evidence of steering under the

erroneous belief that no such evidence had in fact been offered.

11

court of appeals neither cited Reeves nor followed its

directives on these questions.

Specifically, Reeves held that the court must disregard

“evidence favorable to the moving party that the jury is

not required to believe.” 120 S.Ct. at 2110. It can give

credence to evidence supporting the moving party only

when it is uncontradicted or unimpeached, but evidence

supporting the moving party that has been contradicted

or impeached must be disregarded. As Reeves also held,

the court must give credence to all evidence favoring the

nonmoving party. 120 S.Ct. at 2109-10.

On the pretext issue in the present case, in particular,

the court of appeals was required by Reeves to consider,

as “evidence supporting the non-moving party,” Daley’s

admissions that he had misrepresented material facts in

his declaration, as these admissions plainly impeached

Daley’s credibility. Reeves also required the court to con-

sider petitioners’ evidence that the asserted job differ-

ences were not the true motivation for the wage gap — i.e.,

Daley’s admissions reflecting that those differences were

not taken into account in the setting of wages - as these

plainly contradicted Daley’s contrary position. The court

failed to address any of this evidence, however.

The court compounded these errors, moreover, in

summarily adopting the district court’s rejection of what

small portion of petitioners’ evidence it did address, the

evidence that Daley’s explanations for the wage gap were

formulated after-the-fact. It did so because it credited

evidence it was required to disregard under Reeves -

Daley’s testimony about the reasons for the wage gap and

Ne

12

respondents’ explanations for those reasons’ belated for-

mulation. (App. 78; R. 210 at 39) This evidence, having

been both impeached and contradicted, was evidence that

the “jury [was] not required to believe.” 120 S.Ct. at 2110.

If the court had considered all of the evidence sup-

porting petitioners’ case as Reeves required, and disre-

garded evidence that petitioners had impeached, the

outcome of the appeal would almost surely have been

different.> Petitioners accordingly urge the Court to grant

the writ and reverse the court of appeals or, in the alter-

native, vacate and remand for reconsideration in light of

Reeves. Board of Trustees v. Sweeny, 439 U.S. 24, 26 (1978)

Although this latter disposition (grant, vacate and

remand or “GVR”) is best known for its use in cases in

which the controlling Supreme Court opinion issues after

the court of appeals decision on appeal, Thomas v. Ameri-

can Home Products, Inc., 519 U.S. 913 (1996), a GVR is also

appropriate where: ;

recent developments that the Court has reason to

believe the court below did not fully consider,

reveal a reasonable probability that the decision

below rests upon a premise that the lower court

would reject if given the opportunity for further

consideration, and where it appears that such a

5 The same rationale applies to the court’s review of

petitioners’ other “animus” evidence, in that the court ignored

the most important piece of evidence supporting petitioners’

position — evidence that respondents were steering women to

the low paid bakery and deli jobs in the 1990s. That evidence,

which the court of appeals recognized would have defeated

summary judgment (App. 4), should have been considered as

evidence supporting the non-moving party.

13

redetermination may determine the ultimate

outcome of the litigation.

Lords Landing Village Condominium Council of Unit Owners

v. Continental Insurance Company, 520 U.S. 893, 896 (1997)

(emphasis added). Indeed, the Court described the situa-

tion in Lords Landing where the “recent” decision had

issued 11 days before the decision by the court of

appeals, as “virtually identical to” that in Thomas, in

which the controlling decision was issued after. 520 U.S.

at 896.

In the present case, a GVR would be proper for

several reasons. First, Reeves was decided only ten days

before the court of appeals decision below, and the court

of appeals did not cite it and apparently did not consider

it. This occurred perhaps because the applicable holding

in Reeves was less widely publicized than the holding on

the “pretext-plus” issue for which the case was widely

noted when first decided. Second, it is plain that the court

of appeals did not apply the standards for review

announced in Reeves when it perfunctorily affirmed the

decision of the district court (itself issued a year before

Reeves was decided). Third, if Reeves had been followed,

there is a strong likelihood that the result would have

been different.

CONCLUSION

For the foregoing reasons, the writ should be granted

and the decision of the Seventh Circuit Court of Appeals

should be reversed or, in the alternative, summarily

14

vacated and remanded for consideration in light of this

Court’s recent decision in Reeves.

*Counsel of Record

Respectfully submitted,

SARAH E. SiskINpD*

MINER, BARNHILL & GALLAND, P.C.

Suite 803

44 East Mifflin Street

Madison, Wisconsin 53703

(608) 255-5200

App. 1

In the

United States Court of Appeals

for the Seventh Circuit

No. 99-3377

SHIRLEY A. LANG, et all,

Plaintiffs-Appellants,

v.

Kont’s Foop Stores, Inc., et al.,

Defendants-Appellees.

Appeal from the United States Court

for the Western District of Wisconsin.

No. 98-C-351-C - Barbara B. Crabb, Judge.

ArGueD Aprit 7, 2000 — Decipep June 22, 2000

Before Bauer, EAsTERBROOK, and Rovner, Circuit

Judges.

EASTERBROOK, Circuit Judge. Kohl’s Food Stores, a groc-

ery chain in Wisconsin, operates under collective bargain-

ing agreements that establish wage classifications. Jobs in

the bakery and deli departments fall into one classifica-

tion, jobs in the produce department another. Two facts

give rise to this litigation: pay in the produce department

is higher, and workers are not distributed uniformly by

sex. Most bakery and deli workers are women, while

most produce workers are men. Plaintiffs, a class of

women who work in the deli and bakery departments,

App. 2

contend that the difference violates both the Equal Pay

Act, 29 U.S.C. §206(d), and Title VII of the Civil Rights

Act of 1964. Kohl’s replies that plaintiffs are short-

sighted: employees in the produce department are

included within a pay category called “regular clerks,”

most of whom are female. That most regular clerks in the

produce department are men does not undercut the fact

that most regular clerks store-wide are women, Kohl's

insists. The employer adds that women who want to be

regular clerks in or out of the produce department do not

face any discrimination in hiring or transfer. None of the

class representatives applied for transfer to the produce

department or another regular-clerk position; instead

they want higher pay for their existing work. The ratio of

wages between “department clerks” (the jobs plaintiffs

occupy) and “regular clerks,” Kohl's insists, is a subject

for collective bargaining rather than for litigation.

After allowing the parties to conduct extensive dis-

covery, the district court granted summary judgment for

Kohl's on the Title VII claim. The judge exhaustively

analyzed the duties of bakery, deli, and produce workers

and concluded that plaintiffs could not demonstrate that

Kohl’s explanation for placing produce positions in the

“regular clerk” classification was a pretext for sex dis-

crimination. (The class includes supervisors and argues

that bakery and deli managers do the same work as

produce managers. Because the supervisors’ arguments

track those of the clerks, we use “clerks” as a generic

term to simplify exposition.) Kohl’s insisted that produce

workers exercise greater discretion in displaying and cul-

ling produce and that produce jobs also are physically

App. 3

harder than bakery or deli jobs. The district judge con-

cluded: “Plaintiffs have produced no persuasive evidence

suggesting that defendants did not honestly believe this

justification or that it is a cover for discrimination.” Hon-

est belief is not enough under the Equal Pay Act, how-

ever, because that statute (unlike Title VII) does not

require intent to discriminate. Section 206(d)(1) provides:

No employer . . . shall discriminate . . . between

employees on the basis of sex by paying wages

to employees . . . at a rate less than the rate at

which he pays wages to employees of the oppo-

site sex . . . for equal work on jobs the perfor-

mance of which requires equal skill, effort, and

responsibility, and which are performed under

similar working conditions, except where such

payment is made pursuant to (i) a seniority

system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of pro-

duction; or (iv) a differential based on any other

factor other than sex{.]

The district judge concluded that two questions under

this statute could be resolved only by trial: whether the

positions in question are “jobs the performance of which

requires equal skill, effort, and responsibility, and which

are performed under similar working conditions” and, if

so, whether the pay differential nonetheless is “based on

any other factor other than sex”. A trial culminated in a

special verdict that answered the equal-work question in

the negative; the jury then did not address the “factor

other than sex” defense.

A substantial portion of plaintiffs’ appellate brief is

devoted to contending that the district judge should not

have granted summary judgment on the Title VII theory.

App. 4

Yet it is hard to see how this can matter, given the jury’s

verdict on the Equal Pay Act theory. If (as the jury deter-

mined) the bakery, deli, and produce jobs are not sub-

stantially equal, then plaintiffs can’t show sex

discrimination. Title VII does not require equal wages for

comparable work, see American Nurses’ Association v. Illi-

nois, 783 F.2d 716 (7th Cir. 1986), or even for identical

work. Identical jobs with different wages do not violate

Title VII, provided that all employees may freely select

which job to perform. Plaintiffs’ Title VII claim thus is

untenable - no matter the validity of the jury’s special

verdict, which we address below - unless Kohl’s discrim-

inated when hiring for the different classifications.

Plaintiffs make much of evidence that until the late

1960s Kohl’s not only discouraged women from applying

for certain positions but also had sex-segregated wage

classifications. This practice is long gone, and no vestige

of the discrimination survives. Wage schedules were

merged 31 years ago, and, unlike the situation in

ianenss Bazemore v. Friday, 478 U.S. 385 (1986), women hired

during the discriminatory period today receive the same

wages as men hired at the same time. What remains is the

possibility that Kohl’s steered applicants by sex or selec-

tively offered them transfer opportunities. Loyd v. Phillips

Brothers, Inc., 25 F.3d 518, 524-25 (7th Cir. 1994). Neither )

the plaintiffs’ charge of discrimination filed with the |

Equal Employment Opportunity Commission nor their

arguments to the district court contended that Kohl’s

today steers women to bakery and deli jobs, or did so at

any time within the period of limitations. Plaintiffs dis-

avow a steering claim but contend that Kohl’s history is

iain dialed

App. 5

informative on the wage-discrimination claim. The dis-

trict judge did not see how; neither do we.

Claims under the Equal Pay Act differ from compara-

ble-worth arguments because proof that the two jobs are

of the same (or comparable) value to the employer or

society as a whole, or depend on similar effort or educa-

tion, gets the plaintiff nowhere. To succeed under the

Equal Pay Act the plaintiff must establish that the posi-

tions entail substantially equal tasks, performed under

similar conditions. (The Act just says “equal,” but it is

common ground that “equal” does not mean “identical”;

otherwise the employer could defeat an Equal Pay Act

suit by adding an inconsequential and pointless chore to

one of the jobs. Opinions commonly use the formula

“substantially equal” to express the idea that trivial dif-

ferences do not matter. See Fallon v. Illinois, 882 F.2d 1206,

1208 (7th Cir. 1989); Epstein v. Secretary of the Treasury, 739

F.2d 274, 277 (7th Cir. 1984). We follow that convention.)

Kohl’s provided the jury with plenty of evidence that

tasks in the produce department differ substantially from

those performed by bakery and deli workers. Produce

workers do more heavy lifting and must exercise judg-

ment about (for example) which fruit is ripe, which

should be marked down, and how the produce should be

displayed to maximize sales. Bakery and deli workers, by

contrast, stock displays according to more mechanical

specifications and use printed expiration dates rather

than judgment to determine when inventory should be

rotated or removed. Although a rational jury might have

disbelieved this evidence or concluded that the differ-

ences are too slight to matter, and thus returned a verdict

App. 6

in plaintiffs’ favor, a verdict for Kohl’s is invulnerable

unless spoiled by trial error.

Plaintiffs contend that the exclusion of their expert

witness is such an error. Howard Risher, a self-employed

consultant with a Ph.D. in labor relations and economics,

who teaches an undergraduate course on human

resources as an adjunct professor at the University of

Pennsylvania, prepared a report reaching conclusions

favorable to plaintiffs. Stripped of self-congratulatory

dross, this report is three pages long and consists of a list

of clerks’ duties and an unreasoned assertion that all

three departments’ positions are “virtually identical in

terms of their basic function and are substantially equal

in terms of skill, effort, responsibility and working condi-

tions.” The only support for this conclusion, however, is

the list, with entries such as “[p]reparing products for

display” and “[mJaintaining equipment”. Risher did not

analyze what the clerks do to achieve these objectives,

and the district court concluded that a list plus a bald

assertion would not assist the trier of fact. Fed. R. Evid.

702. Risher’s deposition was as skeletal as his report;

asked how employees at Kohl’s carry out their duties,

Risher replied only with variants on “I couldn’t tell you”

and “I have no idea”. Apparently Risher thinks that job

descriptions trump actual tasks, a sorry misunderstand-

ing of the Equal Pay Act. See Soto v. Adams Elevator

Equipment Co., 941 F.2d 543, 548 (7th Cir. 1991); Fallon, 882

F.2d at 1208. The district judge’s decision to prevent

Risher from testifying, far from being an abuse of discre--

tion, see General Electric Co. v. Joiner, 522 U.S. 136 (1997),

was absolutely correct. Many times we have emphasized

that experts’ work is admissible only to the extent it is

App. 7

reasoned, uses the methods of the discipline, and is

founded on data. Talking off the cuff - deploying neither

data nor analysis — is not an acceptable methodology. See,

e.g., McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 657-58

(7th Cir. 1998); Mid-State Fertilizer Co. v. Exchange National

Bank, 877 F.2d 1333, 1339 (7th Cir. 1989).

Risher also prepared a supplemental report, based on

his discussion with eight bakery or deli workers in a

“focus group.” This report did little more than parrot

these women’s belief that bakery and deli duties require

as much skill as produce duties. Relaying the plaintiffs’

likely testimony is not an example of expertise. Huey v.

United Parcel Service, Inc., 165 F.3d 1084, 1086-87 (7th Cir.

1999). The report’s final paragraph, however, says that

Risher “used the Willis job evaluation system to confirm

that the jobs would be evaluated the same in each depart-

ment” and concluded that “the jobs would be evaluated

exactly the same”. Risher does not explain how the

“Willis job evaluation system” works (or cite published

literature providing that background), what data he used

as inputs, or what outputs were obtained. Charts

attached to the report are unintelligible without explana-

tion, and Risher provided none. Readers must take every-

thing on faith, and that alone would be good reason to

exclude Risher’s conclusion. See Kumho Tire Co. v. Car-

_ michael, 526 U.S. 137 (1999). The few references to the

Willis system in the legal literature suggest that it is

designed to identify comparable worth, rather than sub-

stantially equal tasks. See AFSCME v. Washington, 770 F.2d

1401, 1403, 1406, 1408 (9th Cir. 1985) (Kennedy, J.) (hold-

ing, on this ground, that Willis evaluations are unavail-

ing). All plaintiffs do in response is assert that the Willis

App. 8

system is “a recognized job evaluation system” that is

“widely used by businesses” —- which does nothing to fill

in the blanks of Risher’s report,or demonstrate that the

Willis inquiry was relevant to this litigation.

Plaintiffs challenge a second evidentiary decision,

which the parties call the “outlier ruling.” Kohl’s operates

stores throughout Wisconsin. Some are much larger than

others, and size affects not only the number of employees

in each department but also the tasks to be done. Plain-

tiffs sought to compare the busiest bakery and deli jobs

with the lightest produce jobs; Kohl’s naturally would

have preferred the converse. But the judge instructed

both sides to compare the tasks of median jobs rather

than the outliers at the largest and smallest stores. Plain-

tiffs contend that this ruling prevented them from show-

ing that some bakery and deli jobs are substantially equal

(in lifting, responsibility, and so on) to some produce jobs,

indeed are more taxing than some produce jobs. As plain-

tiffs see things, the Equal Pay Act requires a person-by-

person comparison rather than a categorical one.

To the extent plaintiffs rely on the proposition that

employers cannot make up arbitrary categories and insist

that these be the basis of comparison, they get no quarrel

from us (or from the district judge). See Thompson v.

Sawyer, 678 F.2d 257, 274-75 (D.C. Cir. 1982). But Kohl’s

did not make up the “department clerk” and “regular

clerk” categories for this litigation, nor did it unilaterally

decide to use the same wage scale throughout the state;

the classifications and wages are the result of collective

bargaining. Labor agreements frequently apply to all of

an employer’s sites, and these agreements are “factor([s]

other than sex” that explain why the pay is identical at

App. 9

large and small stores even though the tasks differ. If all

plaintiffs have to go on is the difference across stores,

then they have nothing, for this variation in the ratio

between pay and the difficulty of employees’ tasks is so

obviously unrelated to sex that Kohl’s would have been

entitled to summary judgment under §206(d)(1)(iv). To

get anywhere, plaintiffs had to make a categorical com-

parison between “department clerk” positions and “regu-

lar clerk” positions. Class treatment is appropriate only if

there are common issues of fact - that is, only if it is

possible to compare all “department clerk” positions in

bakery and deli departments with all “regular clerk”

positions in produce departments. The district court's

outlier ruling ensured that the premise of class certifica-

tion (granted at plaintiffs’ behest) would not be sub-

verted. It was not an abuse of discretion.

Two challenges to the jury instructions require only

brief mention.

First, the instructions told the jury that it must deter-

mine whether the positions are “substantially the same”

rather than “substantially equal.” Plaintiffs express con-

cern that the jury would treat “same” as equivalent to

“identical,” which these positions concededly were not.

But using the word “equal” could lead to the same (an

equal?) misunderstanding. Modifying either word with

“substantially” overcomes the problem. The phrases

“substantially the same” and “substantially equal” are

substantially identical. The special interrogatory forms

told the jury to determine whether the positions were

“substantially the same,” and the district judge sensibly

tracked that language in the instructions; otherwise the

App. 10

jury could have been confused by a difference between

the instructions and the verdict forms.

Second, plaintiffs contend that the judge erred by

telling the jury that documentary evidence such as posi-

tion descriptions and training manuals - evidence that

plaintiffs contend shows that bakery, deli, and produce

positions have the same tasks -— “could not be consid-

ered.” An instruction saying this would indeed be erro-

neous, for an employer’s manuals and descriptions are

relevant to the question [sic] what the positions actually

entail. But plaintiffs do not identify the supposedly erro-

neous instruction, and we could not find one that tells the

jury not to “consider” paper evidence. What the judge

actually told the jury is that a decision should not be

“based upon job titles or job descriptions” but instead

depends on “actual job duties and performance require-

ments.” That instruction was absolutely correct. Training

manuals and the like were relevant only to the extent

they accurately described the actual job duties.

Last but not least is plaintiffs’ contention that the

district judge erred in informing the jury that the EEOC

had found in Kohl’s favor on plaintiffs’ charge of discrim-

ination under the Equal Pay Act. Before trial the district

judge granted a motion in limine barring Kohl’s from

informing the jury about the EEOC’s decision, but the

judge changed her mind after plaintiffs’ counsel told the

jury that Kohl’s agreed “under pressure of this lawsuit”

to reduce the pay differential among the departments.

Kohl’s replied that the “pressure” came from its unions in

collective bargaining, not from the suit; to add oomph to

this assertion Kohl’s wanted to inform the jury that the

EEOC took a dim view of plaintiffs’ chances. If even the

App. 11

EEOC did not support plaintiffs, Kohl’s sought to argue,

then the “pressure of this lawsuit” could not have made a

difference. This led the district judge to inform the jury

about the EEOC’s conclusion, in this language:

At the time of the 1998 collective bargaining

negotiations Kohl’s had a determination from

the Equal Employment Opportunity Commis-

sion that it had not discriminated against bakery

and deli managers and clerks on the basis of

their pay. At plaintiffs’ request that the deter-

mination by the Equal Employment Oppor-

tunity Commission be reconsidered, the EEOC

rescinded its determination. Before any redeter-

mination had issued, plaintiffs’ attorney decided

to proceed with this lawsuit and therefore no

determination was ever issued thereafter by the

Equal Employment Opportunity Commission.

By asserting that the “pressure of this lawsuit” led to a

change, plaintiffs’ counsel implied that the suit had merit

— and that Kohl’s knew that it had merit. Kohl's was entitled

to counteract this implication, the district judge thought,

by showing that what Kohl’s knew implied that it would

prevail on the merits.

Many decisions by the EEOC are superficial, little

more than precursors to right-to-sue letters. But this one

was more thorough. Here is the Commission’s own

description:

Our equal payment investigation considered

whether or not the actual job duties of the deli

and bakery manager positions and the deli and

bakery clerk positions were substantially equal

with respect to skill, effort, responsibility, and

working conditions as those of the produce

App. 12

manager and produce clerk positions. To that

end, detailed equal pay interviews were con-

ducted with various incumbents of the produce

manager and produce clerk positions. These

interviews reflected that the produce jobs were

dirtier, required more physical lifting of greater

weight, more items with greater frequency than

the deli and bakery jobs. Moreover, the produce

areas are significantly larger than the deli and

bakery areas in terms of physical square foot-

age. There are far more items in produce than in

deli and bakery and produce accounts for a

greater percentage of store sales, i.e., higher

sales volume. Produce employees are frequently

called upon to help out in other areas of the

store stocking the dairy case, retrieving the

carts, et cetera. As a result, our investigation

concluded that the jobs in question did not meet

the required equal pay test and that they are not

substantially equal with respect to effort,

responsibility, skill or working conditions.

It is understandable that plaintiffs wanted to keep this

damning passage from the jury’s eyes, and they suc-

ceeded. The jury never learned the reasoning behind the

EEOC’s decision. Why plaintiffs’ counsel, having secured

a ruling excluding even a mention of the EEOC’s bottom

line, then opened the door is a mystery. Still, plaintiffs

say, the jury should not have been told about the EEOC’s

conclusion because, by the time Kohl’s agreed to reduce

the pay differential to 5 cents per hour, the EEOC had

rescinded its conclusion, so that the report did not coun-

teract the inference for which counsel argued.

After receiving the EEOC’s report (and the accom-

panying right-to-sue letter) in September 1997, plaintiffs

App. 13

asked the EEOC to reconsider. In December 1997 the

EEOC’s District Director withdrew both the conclusion

and the right-to-sue letter pending further review. See 29

‘C.E.R. §1601.19(b). Before the EEOC could do any further

investigation, plaintiffs asked for a new right-to-sue let-

ter, which the EEOC was obliged to issue forthwith. 29

C.F.R. §1601.28. Once it sent the right-to-sue letter, the

EEOC called off its investigation and neither reissued the

original report nor prepared a new one. The upshot was

that, when plaintiffs filed their suit, there was no out-

standing adverse decision by the EEOC. When she told

the jury about the EEOC’s conclusion, the district judge

was under the impression that the negotiations to which

plaintiffs’ counsel referred took place before the District

Director’s order in December 1997. On learning that this

was not so, the judge did not instruct the jurors to disre-

gard the report (a direction that would have been futile in

any event, sort of like telling the jurors that for the

remainder of the trial none of them was allowed to say

the word “rhinoceros” to himself).

Was there a significant chance that the jury would

misunderstand the significance of the EEOC’s decision,

and the purpose for which it had been used - a chance so

large that it requires reversal even under the deferential

standard used to review a district judge’s application of

Fed. R. Evid. 403? We think not. Confusion over timing is

regrettable, but the judge can’t be blamed for the error in

the opening passage of the instruction (“At the time of

the 1998 collective bargaining negotiations Kohl’s had a

determination” . . . ). That language had been drafted by

the parties; the judge used it because the parties agreed

App. 14

on it. Plaintiffs deny that they “stipulated” to the lan-

guage, but no matter; they did not object to it, and that is

that. Fed. R. Civ. P. 51.

Because plaintiffs sought to persuade the jury that

Kohl’s recognized its culpability, Kohl’s was entitled to

rebut this contention using the best available evidence: a

decision by the EEOC that the positions were not sub-

stantially equal. See Paolitto v. John Brown E.&C., Inc., 151

F.3d 60, 65-66 (2d Cir. 1998). Decisions by public bodies

do not vanish into thin air or become un-documents

when parties ask for reconsideration or settle their differ-

ences. See U.S. Bancorp Mortgage Co. v. Bonner Mall Part-

nership, 513 U.S. 18 (1994); In re Memorial Hospital of Iowa

County, Inc., 862 F.2d 1299 (7th Cir. 1988). When negotiat-

ing with the unions, Kohl’s knew the EEOC’s view, which

had been withdrawn as a result of plaintiffs’ strategy but

had not been disclaimed as erroneous. The 1998 negotia-

tions occurred against a background that included the

EEOC’s support of Kohl’s position, and this was relevant

to the strength of the inference that Kohl’s and the unions

acted under the “pressure of this lawsuit” as plaintiffs

asserted.

Doubtless there was a risk that the jury would over-

estimate the significance of the EEOC’s ruling; this is why

such conclusions generally are not admitted (on behalf of

either side) in jury trials. See Lathem v. Department of

Children and Youth Services, 172 F.3d 786, 791 (11th Cir.

1999). Plaintiffs note that the jury asked a question about

the report during deliberations, implying that the EEOC’s

view assumed unusual significance. By opening the door

to disclosure, however, plaintiffs took that risk; they

could not argue as they did and then defang the best

7

App. 15

response. See United States v. McAnderson, 914 F.2d 934,

946 (7th Cir. 1990). Nor can they avoid the consequence of

their opening statement by contending on appeal (as they

do) that “[wJhy Kohl’s narrowed the gap in late 1998 is

entirely peripheral” (emphasis in original). That may be,

but it was plaintiffs who injected this subject into the case

and entitled Kohl’s to supply an answer. Plaintiffs did not

argue to the district judge that the scope of the answer

was too prejudicial and never suggested any possible

response that was less prejudicial. The district judge pro-

tected plaintiffs’ substantial rights by excluding the

EEOC’s actual language and reminding the jury that the

conclusion had been rescinded. In response to the jury’s

question, the judge reread the instruction and added that

the only issue properly under consideration was

“whether the jobs are equal” rather than why Kohl’s and

the union changed the pay scales in 1998. The evidence

and the instructions as a whole ensured that the jury

focused on, and answered, the right questions. Plaintiffs

had a fair trial.

AFFIRMED

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 16

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

SHIRLEY A. LANG, STEPHANIE

A. FLAIG, BETTY J. RANTHUM,

PATRICIA J. SAN FILLIPPO,

KAREN KOWALEWSKY, ROBIN

HALL, CAROLYN McGOWAN,

FLORANCE BINGNER, JUDY

SCHROEDER, JULIE BULLEN,

KATHLEEN A. TICE, CHRISTINE

SCHANNING, ELAINE ORDER

KRAWCZYK, LEAH LUDIN, and

JEANNE RING, individually and 9 7°91

on behalf of all others similarly

situated,

Plaintiffs,

V.

KOHL’S FOOD STORES, INC. and

THE GREAT ATLANTIC &

PACIFIC TEA COMPANY, INC.,

Defendants.

Plaintiffs have moved pursuant to Fed. R. Civ. P. 59

for a new trial on their Equal Pay Act claim and for

reconsideration of the dismissal of their Title VII claim.

Both motions will be denied.

With respect to the motion for reconsideration of the |

dismissal of the Title VII claim, it is unnecessary to add |

anything to the comprehensive discussion of that claim in

the order entered in this case on July 26, 1999. Nothing in

App. 17

plaintiffs present submissions convinces me that it is

necessary to revisit those claims.

With respect to the motion for new trial on the Equal

Pay Act claim, I am not persuaded that the jury’s verdict

was not supported by the weight of the evidence at trial

or that rulings by the court were erroneous and prejudi-

cial to plaintiffs. Because these matters were discussed at

great length during the course of the trial, I see no reason

to expand upon them in a written order. I will say, how-

ever, that I was convinced by the end of the trial that

defendants had succeeded in showing that the pay dis-

parity at issue was justified by the evidence that demon-

strated that produce managers and produce clerks

exercise significantly greater independent judgment in

performing their jobs and that their job duties were con-

siderably more onerous. I was persuaded also that plain-

tiffs were not justified in placing reliance on the written

descriptions of produce, bakery and deli jobs that were

prepared for use by assistant managers in gaining general

familiarity with the tasks in each of these three depart-

ments. It became clear during the trial as it had not

during the preparation of the summary judgment order

that these listings of tasks were not intended to be exact

or complete descriptions of the work done in those

departments but were used only as check lists for persons

headed for management jobs.

In addition, plaintiffs are simply incorrect in arguing

that defendants cannot assert that produce managers’

higher rates of pay are justified by the greater revenues

and profits generated by their departments when pro-

duce employees and managers in low volume produce

departments are paid the same rate as produce employees

App. 18

and managers in high volume produce departments. The

apparent discrepancies are the result of collective bar-

gaining, which requires an employer to pay an entire

group of employees at a single wage rate. Overall, pro-

duce departments generate greater revenue than bakery

and deli departments; therefore, there is a valid reason to

pay all produce managers more.

As to the disclosure of the rescinded Equal Employ-

ment Opportunity Commission determination, that issue

was hashed and rehashed in discussions at trial. I believe

that it was handled in as fair a manner as possible, given

both the potential prejudice to plaintiffs of revealing it

and the potential prejudice to defendants of not revealing

it.

ORDER

IT IS ORDERED that plaintiffs’ motions for a new

trial pursuant to Fed. R. Civ. P. 59 and for reconsideration

of the order dismissing their Title VII claim are DENIED.

With the denial, it is not necessary to reach plaintiffs’

request to set a briefing schedule on the two motions.

Entered this 30th day of August, 1999.

BY THE COURT:

/s/ Barbara B. Crabb

BARBARA B. CRABB

District Judge

App. 19

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

SHIRLEY A. LANG, STEPHANIE

A. FLAIG, BETTY J. RANTHUM,

PATRICIA J. SAN FILLIPPO,

KAREN KOWALEWSKY, ROBIN

HALL, CAROLYN McGOWAN,

FLORANCE BINGNER, JUDY

SCHROEDER, JULIE BULLEN,

KATHLEEN A. TICE, CHRISTINE

SCHANNING, ELAINE OPINION AND

KRAWCZK, LEAH LUDIN, and ORDER No. 1

JEANNE RING, individually and C.2h1.

on behalf of all others similarly we

situated,

Plaintiffs,

v.

KOHL’S FOOD STORES, INC. and

THE GREAT ATLANTIC &

PACIFIC TEA COMPANY, INC.,

Defendants.

This employment discrimination lawsuit consists of

two class-wide wage discrimination claims, one brought

under the Equal Pay Act, 29 U.S.C. § 206(d), the other

brought under Title VII of the Civil Rights Act of 1964, as

amended by the Civil Rights Act of 1991. 42 U.S.C.

§§ 2000e(2), 2000e(3). In addition, class representatives

are pursuing individual claims of discrimination on their

own behalf. Plaintiffs are a class of former and current

female employees of defendant Kohl’s Food Stores, Inc., a

App. 20

wholly owned subsidiary of defendant The Great Atlantic

& Pacific Tea Company. According to plaintiffs, defen-

dants have violated the Equal Pay Act and Title VII by

paying managers and clerks in the predominantly female

bakery and deli departments less than employees who

hold these same positions in the predominantly male

produce departments even though these jobs are substan-

tially equal in skill, effort and responsibility and are

performed under similar conditions.

The case is before the court on defendants’ motion

for summary judgment on plaintiffs’ class claims. This

motion will be granted in part and denied in part. I

conclude that there is a genuine dispute of fact whether

the positions of bakery, deli and produce clerk are sub-

stantially equal in skill, effort and responsibility. A simi-

lar dispute exists regarding the positions of bakery, deli

and produce manager. Because there is also a jury issue

whether the wage disparity between these positions can

be explained by a factor other than gender, defendants

are not entitled to summary judgment on plaintiffs’ Equal

Pay Act claims.

Although plaintiffs’ Title VII wage discrimination

claims manage to cross the prima facie threshold, plain-

tiffs are not able show that there is a genuine dispute that

defendants’ legitimate, nondiscriminatory reasons for the

wage disparity are pretextual. For this reason, defendants

are entitled to summary judgment on these claims.

Plaintiffs have filed motions to strike certain portions

of defendants’ summary judgment materials and to

exclude certain evidence at trial. With one exception, all

of the objections raised in the first motion are also raised

a

ee eo MPS prey eee

App. 21

in plaintiffs’ brief and in their responses to defendants’

Proposed findings of fact. Because I have taken these

objections into consideration, nothing more is required.

The motion to strike will be denied as moot. The one

objection not found in plaintiffs’ summary judgment

materials is directed at an expert report appended to

defendants’ reply brief. Because the court has an affirma-

tive obligation to review the validity of expert testimony,

plaintiffs’ motion to strike is redundant in this regard as

well. A decision on plaintiffs’ motion to exclude evidence

at trial will be stayed because this motion is premature.

The matters raised in this motion may be taken up at the

final pretriat conference along all of the other issues

related to how the trial will be conducted.

On a motion for summary judgment, the moving

party must show that there is no genuine issue of mate-_

rial fact and that it is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986); Oates v. Discovery Zone, 116 F.3d

1161, 1165 (7th Cir. 1997). For the purpose of deciding

defendants’ motion for summary judgment, I find from

the parties’ proposed findings of fact that there is no

genuine dispute with respect to the following material

facts.

UNDISPUTED FACTS

Kohl's Food Stores, Inc. is a Wisconsin corporation

headquartered in Milwaukee, Wisconsin. It is a wholly

owned subsidiary of The Great Atlantic & Pacific Tea

Company, Inc., a New Jersey corporation. In September

1996, defendants owned and operated approximately 47

App. 22

Kohl’s grocery stores in Wisconsin. As a result of recent

closings, this number is now 38. Plaintiffs are a class of

current and former Kohl’s employees who have held

positions as managers or clerks in the bakery or deli

departments. In addition, some plaintiffs manage both

the bakery and deli departments in smaller stores or have

held such positions in the past.

A. Kohl’s Organizational Structure

Kohl’s grocery stores are dispersed throughout four

geographically defined districts. Each store has its own

management hierarchy and is divided into several sepa-

rate departments. These departments are managed by a

“department head” or manager. In seven small-volume

stores, one department head manages both the bakery

and deli departments. Department managers report to

store managers regarding day-to-day operational and

store-related issues. Department managers also take

direction from field merchandisers who are responsible

for merchandising and marketing products in their

respective departments. There are two bakery-deli mer-

chandisers and two produce merchandisers, each of

whom are assigned to specific stores within the four

districts.

B. The Produce Department

Produce departments in defendant’s stores can be

divided into three different sizes: small, medium and

large. Some of the salient characteristics of these depart-

ments are represented in the following table:

App. 23

‘Ajpeuoseas sa8ueyo Sjuaunredap aonpoid ur payors SW93I JO UONDIJas sy]

OI-9 *Sy1I9 Ld 0 10 | *SY19]9 Ii yusuIedap

bE ‘SHPP TT] €107% csprap yg é 10 [| ‘SHIIP Ld 23819d0

I ‘sraBeueypy I ‘siadeueyy I <‘siaseueyy | 03 Pepreu jyeI5

OSE - OOF OSZ 00% | = PexP0Is surazy

000°0S$ - 000'Sz$ 000'ZI$ - 000'8$ 000°9$ ueIp ssaq Yrom/sayes

ol IZ 91 jaquinyy

aie] wnIpay Tews

qusuTIEd|q Jo azIg

App. 24

1. Responsibilities of produce managers

Ordering. A primary responsibility of produce

managers is ordering the produce for sale in their depart-

ments. Managers place orders on the basis of their

department’s merchandising plan; an inventory of prod-

uct already in the store and its remaining shelf life; past

sales and customer purchasing habits; and product avail-

ability, perishability and price. All produce managers

place at least three orders each week. Managers in two of

the larger departments place six orders in a single week.

An order is written three days in advance of delivery. For

stores located in the Milwaukee and North Shore (subur-

ban Milwaukee) districts, nearly all of the product comes

from defendants’ produce warehouse in Milwaukee. Less

than five percent of the product in produce departments

is ordered from outside vendors.

Financial. Like all department heads, produce man-

agers are responsible for making sure that their depart-

ments reach their sales goals and profit targets. The sales

goals for produce departments are higher than those for

bakery and deli departments. Managers of all depart-

ments must control their costs by reducing “shrink,” the

amount of product not sold because of over-ordering,

inadequate rotation or improper handling and storage. In

exercising this control, produce managers must apply

extensive product knowledge and exercise substantial

judgment on a daily basis. Shelf life varies from product

to product depending on numerous factors including

when the product was picked and how it has been stored.

For example, strawberries can remain fresh for several

days. However, if they are delivered wet, they will

develop mold within a single day, rendering them unfit

App. 25

for sale. A produce manager has the authority to reduce

the price of wet strawberries in order to move them out

of the store before they become moldy. Produce managers

must think creatively in order to minimize loss. Often-

times, this means repackaging damaged produce.

Product stocking, inspection and knowl-

edge. Produce managers are responsible for the

arrangement and display of produce in their depart-

ments. The produce must be displayed according to

weekly merchandising plans and generally by family

groupings. Because all produce departments are different

sizes, managers must determine how to set up their dis-

plays in conformity with the general merchandising

plans. Within these guidelines, managers are encouraged

to use creativity in order to attract the attention of cus-

tomers.

Each produce department has at least five fruit

groupings and four vegetable groupings. Many stores

have additional family groupings such as organics and

value-added items, such as pre-packaged chopped let-

tuce. To arrange and display all of these products, man-

agers must be able to identify a variety of different

products, know the grouping in which they belong and

insure that their employees can do the same. For exam-

ple, defendants sell about fifteen different varieties of

apples, many of which look nearly identical in shape and

color. Their job is made easier by the fact that all boxes of

produce arrive with a shipping tag that identifies their

contents and many products are marked individually

with stickers.

App. 26

Managers must know how the various types of pro-

duce must be stored and how the product ripens. In

addition, managers must convey this knowledge to their

clerks when shipments are received. For example,

bananas will stay green if they are kept in cold tempera-

tures but will ripen faster if the ethylene gas in their

storage bags is released. Managers must also know the

origin of each item; how the item tastes (for example,

whether grapes are sweet or sour); how to prepare it (for

example, peeling an avocado, steaming a spaghetti

squash); how long it will stay fresh; and how to select one

at its peak (for example, melons are smelled for sweet-

ness). Again, managers must be able to impart this infor-

mation to customers and insure that their clerks are

prepared to do the same.

Miscellaneous. In small and medium produce

departments, managers regularly perform clerk tasks.

2. Responsibilities of produce clerks

Product stocking, inspection and knowledge. Like

managers, produce clerks must be familiar with many

different types of product stocked in their departments.

For example, clerks must be able to differentiate among

numerous varieties of grapes, know whether they are

grown domestically or imported, whether they are seed-

less and whether they are sweet or sour. Shipping tags

and stickers assist clerks in this process.

Clerks must know how to place product in the dis-

play racks and cases. Among other things, this means

that the best side of a product should be face up; stem or

stem ends should not show; the butt ends of leafy greens

App. 27

should face the same direction; packaged and bagged

items should be placed so that the labels are visible; and

cut melons must be placed in a refrigerated case or nested

in an ice bed.

Every morning, a produce clerk must cull the entire

produce and floral department before any product is

added to the displays. Culling is the process of removing

wilted, bruised or unappealing product from the dis-

plays; it is similar to what shoppers do when selecting

items to purchase. If the produce does not meet freshness,

appearance and quality standards, clerks must use their

judgment to determine which product can be recondi-

tioned and which should be discarded. Only experienced

clerks are permitted to discard unsaleable produce. Cull-

ing is a continuous process. In addition to the morning

session, clerks must cull all produce displays at 10:00

a.m., 2:00 p.m. and 4:00 p.m. As they cull, clerks must

freshen and straighten up displays. Depending on the

size of the department, the day of the week, the time of

day and the number of clerks in the department, culling

may take from 15 minutes to two hours. More culling is

necessary in large departments and on Mondays. On

average, produce clerks spend between 1 and 3 hours

culling produce each day. After the displays are culled in

the morning, clerks must replaced culled product with

fresh product, lay fresh ice beds (in stores where they

exist) and stock crisped product and fresh melons pre-

pared the night before.

Before restocking the produce area, clerks must make

a list of the items needed on the racks, pull the appropri-

ate product from the cooler, load it onto a work cart and

push the cart en the sales floor. Some produce coolers are

App. 28

large enough to accommodate fully loaded carts, reduc-

ing the amount of lifting that clerks must do. When filling

displays, clerks must rotate the product so new stock is

placed on the bottom and at the back of the display rack.

In some large departments, clerks must spend an entire

day filling product on the display racks. After displays

are filled, clerks must break down empty boxes and

crates and either dispose of them or prepare them for

recycling by placing them in a baler.

Product reconditioning. When the produce depart-

ment has been stocked, clerks recondition some of the

culled product. For example, instead of discarding blem-

ished cauliflower, they can cut it up and repackage it as

cauliflower buds. Rather than discarding an entire bag of

grapes because of spoilage, they can replace the bad

grapes with fresh ones and rebag the entire bunch.

Throughout the day, produce clerks crisp and trim

vegetables in the back room. This process involves trim-

ming the butt end of the product, removing wilted or

deteriorated portions, soaking the product for ten min-

utes and placing it in a crisping tote in the cooler for

twenty minutes. On average, clerks spend between one

and two hours each trimming and crisping vegetables.

Clerks must know the crisping procedures for several

different types of produce.

Food preparation. On a daily basis, when the prod-

uct is in season, produce clerks (and some managers)

must prepare strawberries, raspberries, blueberries,

melons and pineapples. There are different procedures

for preparing these fruits. For example, to prepare straw-

berries, clerks must cull the berries as they are removed

App. 29

from the shipping containers. Next, clerks must place the

strawberries back into their original containers or into

new ones, insuring that the top layer of berries points up,

and cover the containers with a plastic or cellophane cap.

If the containers are not placed on display, they are stored

in the cooler uncovered. Clerks use a machine to remove

the cores of pineapples. After use, the machine must be

sanitized, a process that takes about 20 minutes.

Clerks also prepare fruit cups, fruit baskets and vege-

table trays. In large departments, clerks spend up to two

hours preparing fruit cups. Fruit baskets are prepared on

an as ordered basis. Aside from special orders, defen-

dants sell four different types of fruit baskets, each of

which takes about 20 minutes to prepare. To make a fruit

basket, clerks pick and arrange the fruit according to a set

pattern, shrink wrap the basket and add a bow and gift

tag. On average, large departments make about ten bas-

kets each week; small departments make about one bas-

ket a week. These numbers increase substantially during

the holidays. However, fruit baskets often arrive at stores

pre-made, especially during peak holiday season. Several

times a week, clerks rinse, chop and arrange vegetables

on a tray. On occasion, clerks also chop and package

vegetables for sale.

Deliveries. In general, produce deliveries arrive in

the morning. In small and medium stores, managers usu-

ally receive deliveries; in large stores, this task is per-

formed by one or two produce clerks or a manager and a

clerk. Deliveries are packaged in boxes, crates, bags or

bales, all of which are known as “cases.” For the most

part, cases weigh between twenty and sixty pounds but a

cases [sic] of watermelon can weigh up to seventy

App. 30

pounds. The average weight of a case of produce is

between thirty and forty pounds. Some large cases are

broken down into smaller loads during cleaning, stocking

and unloading. Produce cases arrive stacked on three to

ten pallets, depending on the size of the store. These

pallets must be unloaded with a machine known as a

pallet jack. At holiday times, loads can be stacked on as

many as twenty pallets.

The following table illustrates the average amount of

produce delivered every week to a typical large, medium

and small produce department.

Number of

Loads / Weight/ Cases /Load

Week Load (Ibs.)

Large

department 6 7,400 250

Medium

department 4 6,800 190

Small

department 3 6,500 195

When a delivery is received, the load must be trans-

ported into the cooler storage area using a pallet jack or

“U” cart. Next, a manager or clerk must break down the

load. This task involves lifting cases off the pallets and

organizing these cases in the cooler according to product

type and date. New product must be placed behind or

underneath existing product. To do so, existing cases

must be lifted and placed on top or in front of the new

cases. As the load is being broken down, individual cases

must be coded with a delivery date. In addition, the load

must be checked against the invoice to insure that it is

EEE

App. 31

complete and accurate. In the past, if an employee found

a discrepancy between the invoice and the product actu-

ally received or if the product delivered was of poor

quality, the produce buyer would be notified. As of April

1999, defendants discontinued this Practice, except in

cases of substantial discrepancies. In a large department,

the receiving and unloading process takes approximately

one to three hours; for a medium department, it takes one

to two hours; and for a small department, it takes just one

hour. In small departments and many medium depart-

ments, produce managers are responsible for receiving,

unloading and stocking the produce shipments them-

selves. Managers also assist in receiving and stocking

grocery and dairy loads. Some departments employ

clerks whose primary responsibility is to receive and

move produce shipments.

Customer service. Although ali produce depart-

ments are self-service, produce clerks must greet cus-

tomers and satisfy their requests. Nevertheless, produce

clerks spend much less time on customer service than

employees in the bakery and deli departments. To answer

common customer questions, produce clerks must have a

basic knowledge of the produce available in the store,

including the following: the origin of each item of pro-

duce, how it tastes, how to prepare it, how long it will

remain fresh and how to select it.

Inventory. Once every month, a full inventory is

taken of the produce department. The produce manager

or clerk responsible for the inventory must count all

product in the backroom, the cooler and on the sales

floor. Partial cases are included in this count as are esti-

mates of bulk items.

App. 32

Cleaning. Produce clerks are responsible for main-

taining a clean, organized display area and a clean work

area. Sinks, work tables, cutting boards and utensils must

be cleaned and sanitized after use. About one-third of all

display racks, which are divided into twelve-foot sec-

tions, are cleaned each non-inventory week. For cleaning,

the twenty pound rack must be lifted off its base. Both

the rack and the base must be thoroughly scrubbed.

Because a sprinkling system is used to keep produce wet,

clerks must sweep and mop the floor in the sales area

several times a day. Produce clerks spend about one to

one and a half hours each day cleaning the department,

excluding the salad bar.

Miscellaneous. Produce clerks are asked on a regu-

lar basis to retrieve shopping carts from store parking

lots. Also, they are asked frequently to help receive and

stock deliveries received by the grocery and frozen food

departments.

Produce managers and clerks are required to spend

up to three hours a day in the produce cooler, which is

maintained at 38 degrees Fahrenheit. Employees are

required to spend time in the cooler for the purpose of

checking inventory, writing orders, unloading deliveries,

obtaining product in order to stock displays, returning

excess product and storing crisped product or other prod-

ucts that cannot be left on the sales floor overnight.

All produce departments sell floral product. In some

stores, produce clerks are responsible for making sure

that water containers in the floral area are filled with

water and a preservation solution. Every two or three

days, containers must be emptied, cleaned and refilled

eT Tr rr rS a

App. 33

with fresh water. Also every two or three days, clerks

must recut the stems of flowers under warm water and

place them back into their containers. When floral prod-

uct is received as part of a delivery, the plants must be

watered and placed on display. Clerks are required to

wrap flowers for customers according to a set procedure.

In some stores, floral clerks perform these duties in place

of produce clerks.

Nine produce departments feature salad bars. About

once a week, either the produce manager or a trained clerk

orders the salad bar product from an outside vendor. Salad

bar product must be received and checked separately from

warehouse shipments. Usually, salad bars contain three or

four prepared salads, such as macaroni or potato salad.

Each morning, a clerk must stock the salad bar, make the

prepared salads according to set recipes and thaw frozen

soups for placement in heated crocks located on the salad

bar. This process takes about two hours. Throughout the

day, clerks must replenish items on a salad bar, monitor

certain temperatures and review culled product to deter-

mine whether any of it can be used in the bar. The salad

bar must be broken down every evening. This process,

which takes about two hours, involves cleaning and sani-

tizing all bowls, containers, utensils and the bar itself.

Sometimes, salads for the next day will be prepared. In

large departments, a clerk’s main responsibility may be

tending to the salad bar.

C. The Deli Department

Like produce departments, defendants’ deli depart-

ments can be classified as either small, medium or large.

Some of the salient characteristics of these departments

are represented in the following table:

App. 34

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App. 35

1. Responsibilities of deli employees

Many of the responsibilities of deli managers and

clerks overlap. In general, deli clerks perform all tasks in

the deli except for managerial duties such as ordering,

hiring, employee discipline, training, scheduling and

insuring that the department is prepared for government

inspections. Also, deli managers are responsible for

reaching sales goals and profit targets as well as control-

ling costs.

Customer service. Customers must obtain assis-

tance from deli employees in order to purchase anything

from the service cases and hot cases located in this

department. Deli employees must be prepared to answer

questions about products and fill special orders. Deli

managers spend about 50 to 75% of their time responding

to customers and filling orders. Clerks in small and

medium departments, who have primary responsibility

for cleaning and breaking down the department in the

evening, devote between 30 and 50% of their time to

customer service. In large departments, clerks spend

about 50% of their time on customer service. Unlike man-

agers in the produce department, deli managers must

take customer service into account when scheduling

shifts for their employees.

In order to remove or place product in a display case,

a deli employee must Squat, bend and reach for the

appropriate container. Employees must do this up to 40

times each day as well as every time an employee waits

on a customer or cleans the display case.

Ordering and inventory. Deli managers order all of

the product stocked in the deli. Managers place orders on

App. 36

the basis of current inventory, their knowledge and expe-

rience, the department’s merchandising plan and records

of prior orders and sales. When managers inventory their

department each month, they must count each individual

item. Although all deli departments order 75% of their

product from a single outside vendor, a number of other

outside vendors provide a significant amount of goods.

Depending on the store, meat products are received two

or three times a week from defendants’ warehouse. Most

deli managers aiso order from another outside vendor

once a week. Delis that sell cooked chicken obtain this

product from defendants’ frozen foods warehouse once

or twice a week. Some orders are placed over the tele-

phone; others are placed using an ordering guide and a

“Texlon” machine. Plaintiff Lang places nine orders a

week from six different vendors.

Deliveries. Deli employees may spend between one

to several hours a day handling deliveries and stocking

product. Managers are responsible for organizing their

backroom and the deli portions of the freezer. All deli

departments receive deliveries at least two or three times

a week. The following table illustrates the average

amount of product received in these weekly deliveries at

a typical large, medium and small deli department.

Weigitt/Load (Ibs.) Cases/Load

Large department 3,400 300

Medium department 2,400 200

Small department 2,150 165

Cases of goods weigh from 10 pounds (potato salad) to 36

pouiids (chicken). Until recently, cases of ham weighed 72

pounds; these cases are now about 36 pounds. In the

App. 37

department managed by plaintiff Lang, there are times

when employees lift more than one case of ham at a time.

When there is a sale on ham, her department receives

around 30 cases of ham a week. Lang’s department

receives about 25 cases of chicken a week.

In general, deli personnel do not receive their own

deliveries. Deli product is usually received through the

meat department or by the store receiver. On occasion,

deli mangers [sic] receive their own deliveries. Deli

employees do not unload their deliveries from the truck.

Most product is removed from the truck by the vendor or

store personnel using a pallet jack. Deli employees oper-

ate this equipment on rare occasions, if at all. Typically,

product received from defendants’ warehouses is trans-

ported on pallets from the truck-to a cooler, freezer or

holding area until a deli employee is available to retrieve

it. On some occasions, a meat department employee or

other store personnel will transport the order directly to

the deli. Regardless who performs this task, it involves

removing cases from the pallet, loading them onto a cart

and pushing the cart to the deli department. The cart can

be heavy and unwieldy, weighing as much as 500 pounds.

After a delivery has been received and unloaded, a

deli manager or clerk must unpack the load. Because deli

storage areas are smaller than produce storage areas, deli

workers must unload and store many of the products

carried by in their department on a piece-by-piece basis

rather than in cases on a shelf. As new product is put

away, a clerk or manager must date it and place it behind

or underneath existing product. In the past, deli product

from defendants’ central kitchen arrived at stores in

App. 38

steamers, which are large metal cabinets that are some-

times equipped with racks and shelves. Steamers are

heavy and unwieldy. Typically, the driver would unload

the steamer and push it from the receiving area to the deli

cooler. Outside vendors used by the deli usually deliver

their product directly to the deli cooler. Some outside

vendors also stock their own product without the assis-

tance of deli personnel.

Product inspection. Most deli products have shelf

lives of several weeks. However, once these products are

opened, their shelf life becomes quite short and their

appearance, taste and smell must be monitored for spoil-

age. Prepared cold foods like sandwiches, tossed salads

and pizzas must be sold within 24 to 48 hours. Prepared

hot foods must be sold on the day they are prepared.

Ali deli products contain “sell by” dates. A product

must be discarded once its “sell by” date has expired. If a

product develops a poor appearance, taste or smell before

this date, it can be pulled off the shelves prematurely.

Clerks do not have the authority to make these decisions

on their own. Some deli products can be repackaged for

sale before their expiration dates. For example, if a small

amount of potato salad with a May 8 “sell by” does not

fill a bowl in a service case, it may be placed in a plastic

container for sale until May 8. Similarly, the end of a

block of cheese too small to display in the deli case may

be cut up and packaged for sale.

Food preparation. Deli department employees

spend far more time preparing food than produce

employees. All deli employees use slicing machines to

prepare meats and cheeses. Other departments have

App. 39

fryers, rotisseries and broasters. Usually, preparation

takes place during the day or in the evening. All stores

prepare sandwiches, salads and party trays. Most delis

make between seven and ten different types of salads a

day, using recipes provided by defendants. Most stores

also sell a variety of hot foods. Some stores cook chicken

and other meats on a rotisserie. Large volume stores cook

between 48 and 60 chickens a day, whereas small depart-

ments cook about six chickens. Rotisserie chickens are

stored in the freezer and must be placed in the cooler for

two to three days for thawing before they are suitable for

cooking. A deli manager or clerk must preheat the

rotisserie in the morning and begin cooking chickens by

9:00 a.m. The cooking time for chickens is approximately

90 minutes. This is one of the first tasks completed by deli

employees at the start of their morning shifts. Some

stores also cook chicken and other products in a “broas-

ter.” Stores offer a variety of other hot cooked foods

including turkey roast, pork roast, baked ham pizza,

spare ribs and soup. Some stores prepare and package

_ cold entrees that consist of some type of meat and stuff-

ing or potatoes. In the past, some delis have had a small

restaurant area. Such departments would do more food

preparation and cooking than other departments and

often had clerks designated to work solely in these areas.

In large delis, particularly ones that sell hot and cold

pre-made food, a manager may spend four or five hours a

day on food preparation; in small delis this task may take

as little as two or three hours. In delis that offer only

sandwiches and salads, managers and clerks spend

approximately 90 minutes a day on food preparation.

App. 40

Cleaning. All deli departments must comply with

state hygienic standards. Employees receive training in

these standards. Deli managers are the only employees in

defendants’ stores required to obtain state certification in

this area. On a regular basis during the day, deli

employees must clean and sanitize the counters and other

space used for food preparation, wipe down the slicers,

wash dishes and clean the service cases. It is especially

important to clean and sanitize surfaces and equipment

used to prepare chicken products. The majority of clean-

ing done in the deli is performed at night. In some deli

departments, employees mop the floor and remove trash

in addition to cleaning all utensils, equipment and sur-

faces. Some stores assign utility clerks or other non-deli

personnel to mop and remove trash. Deli employees are

responsible for breaking down boxes used in their

_ department and taking such boxes to the baler. Most

clerks and managers do not operate the baler. Every

evening, deli employees must wrap all of the meats and

cheeses, cover the salads and entrees and empty the hot

food case.

D. The Bakery Department

A large bakery department averages between $8,000

and $13,000 in sales a week; a medium-sized department

averages between $5,000 and $8,000; and a small depart-

ment has less than $5,000 in sales a week. Of the 47

bakery departments that existed in September 1996, 10

could be classified as large, 14 as medium and 23 as

small. Currently, there are seven managers who manage

both the bakery and the deli departments in a single

store. These managers are assisted by three part-time

Beenie Nailed

App. 41

. Clerks in each department. Managers are responsible for

reaching sales goals and profit targets as well as control-

ling costs.

Customer service. With few exceptions, all bakery

departments are almost exclusively self-service. In the

three to five departments that are full service, managers

spend about 50 to 75% of their time on customer service;

clerks spend between 25 to 50% of their [sic] on customer

service. Customer service occupies about 20 to 30% of the

time of employees who work in self-service departments.

Ordering and inventory. The bakery manager is

responsible for ordering all products and supplies

stocked in the department. In addition, the manager must

conduct an inventory once a month. Orders are placed

and received seven days a week. Pre-baked goods are

ordered from an outside vendor. Frozen dough comes

from defendants’ warehouse. A small amount of product

is ordered from other outside vendors.

Food preparation. Bakery departments bake a vari-

ety of breads, rolls and pastries on the premises. Some

stores also make fried donuts. These goods are not pre-

pared from scratch by employees in the bakery depart-

ment. Instead, frozen dough is shipped to the stores from -

defendants’ warehouse. Before being placed in the oven,

this dough must be thawed, proofed (if necessary) and

“finished” (e.g., scored, seeded, iced, etc.). In general,

dough is thawed in a refrigerator the night before it is

scheduled to be baked. Depending on the type of prod-

uct, the dough is allowed to rise the next morning and is

finished before or after baking. The amount of goods

prepared in this fashion is 35% for a large department,

App. 42

30% for a medium-sized department, and only 10% for a

small department. The remaining portion of goods

stocked in these departments arrive at the store pre-

baked. Bakery employees must learn how to gauge the

amount of product to bake each day. Accuracy is impor-

tant because unsold product must be discarded after two

days.

Almost all bakery products must be packaged before

they are sold. Pre-baked products such as rolls, cupcakes

and cakes must be packaged. Breads are sliced and pack-

aged. Bakery employees spend a significant portion of

their day packaging product for sale. The department

managed by plaintiff Kowalewsky decorates birthday

cakes and makes strawberry pies.

In a majority of bakery departments, the manager or

the clerk with the highest seniority does most of the

baking.

Product stocking and inspection. Using their own

judgment and following corporate merchandising plans,

bakery employees arrange products in special displays.

In order to carry out this responsibility, employees must

be familiar with all of the products carried by their

department. Also, they must know the conditions under

which products must be stored. For example, meringue

cannot be frozen and anything with cream always must

be refrigerated. |

Although most frozen bakery products can stay fro-

zen for several months, all such products are marked

with dates by which they must be baked. Given the long

shelf life of these products, precision is not a high priority

when they are ordered.

App. 43

All fresh bakery products have a fixed shelf life. For

crusty breads, donuts and self-service bulk rolls, the shelf

life is one day; for packaged rolls, it is two days; and the

shelf life for pies is three days. After their “sell by” dates,

products must be either discarded, reduced in price or

placed on a thrift rack for a day. Even before a product's

shelf life has expired, employees must monitor product

freshness and be able to recognize when a product has

spoiled. Bakery product cannot be reworked or recondi-

tioned past its shelf life. Some products can be

repackaged. For example, if a pie has not sold after two

days, it can be cut up and sold in individual pieces for

one day. Repackaging decisions are made by managers.

Bakery clerks and managers are responsible for pulling

expired product off the sales floor, marking it down and

repackaging it if necessary. They also rotate product so

that the older goods are on top of the fresher ones. On a

weekly basis, employees must change the price of prod-

ucts on the sales floor. As they perform these tasks,

employees must also neaten and restock display racks.

Bakery mangers [sic] and clerks spend approximately 3

90% of their time in the bakery department. On average, a

bakery employee spends approximately one hour in the

freezer and 15 to 20 minutes in the cooler.

Deliveries. Bakery employees do not unload the

frozen bakery product delivered by truck to stores. Typ-

ically, the product arrives at night and is unloaded and

checked in by the receiver or night clerk. This person is

also responsible for separating the frozen product from

the rest of the delivery, placing it on a cart and pushing

the cart into the freezer. The following day, bakery

employees unload the cart. Although some bakery

App. 44

employees use pallet jacks on a regular basis, most use

this equipment rarely, if at all.

Usually, product from outside vendors is delivered

directly to the bakery department or the department's

freezer. In some stores, vendors stock product that they

deliver without any assistance from the bakery manager.

Fresh product, which arrives every morning around 5:00

a.m. on trays loaded into steamers, must be inventoried

immediately. If the count is short, a claim must be made

within 24 hours. Steamers must be pushed from the store

holding area to the bakery department. Often, steamers

are difficult to handle because of their weight and

because their wheels are not in good repair. An empty

tray weighs 3 to 5 pounds; a full tray weighs 9 to 13

pounds. In order to insert or remove a tray, it is some-

times necessary to tug or pull it. Large departments

receive between 10 and 15 steamers every morning;

medium departments receive 5 to 10; and small depart-

ments receive 1 to 5. Depending on [sic] much other work

must be done that day, it can take until noon to empty the

steamers.

Large and medium bakery departments receive two

deliveries of frozen bakery product a week. For a large

department, each load consists of 20 to 30 cases; there are

10 to 20 cases in loads sent to medium departments.

Small departments receive one delivery of about 10 to 20

cases of frozen bakery product a week. On an average

week, a typical large department receives about 78 cases

of frozen bakery product weighing a total of approxi-

mately 1950 pounds; a medium department receives

about 62 cases weighing about 1550 pounds; and a small

PANE OD

App. 45

department receives around 28 cases weighing approxi-

mately 700 pounds. These cases weigh between 15 and 33

pounds. In the department managed by plaintiff

Kowalewsky, these cases are sometimes stored twelve

feet off the ground. In order to reach cases stacked this

high, employees must stand on two stacked milk crates.

Employees in plaintiff Troia’s department are confronted

with similar physical challenges.

Cleaning. Both clerks and managers are responsible

for cleaning the bakery. On a daily basis, employees must

clean all of the equipment, wipe down the counters and

cases, wash utensils, scrape baking trays and mop the

floor. Employees must also break down cardboard boxes

used by the bakery department and place these boxes in

the baling machine. Bakery employees do not operate the

baler. In some stores, utility clerks are responsible for

taking out the trash generated by the bakery department.

E. Collective Bargaining History

Two unions represent a majority of defendants’

employees. The managers and clerks in the bakery and

produce departments are members of United Food and

Commercial Workers Union Local 1444. With a few excep-

tions, the deli managers and clerks are members of

UFCW Local 73A. The collective bargaining agreements

that cover 1956 through 1963 include one wage schedule

for “part-time male, female checker & cashier,” and a

separate, lower wage schedule for “part-time all other

female.” The agreement covering the preceding three

years contains these classifications as well as a “female”

schedule for women employees working more than 24

App. 46

hours a week. The 1966 collective bargaining agreement

sets lower hourly wages for “full-time female checkers &

clerks” than “full-time male clerks.” However, under the

agreement, these wages equalize after three years. This

agreement also contains separate wage classifications for

“full-time bakery clerks” and “part-time bakery clerks &

product scale clerks” that are lower than the other clerk

positions. Finally, the agreement shows that as of Novem-

ber 1969, defendant Kohl’s abandoned explicit gender-

based classifications and reclassified employees into four

categories: department heads; clerks and checkers; full-

and part-time bakery and produce scale clerks; and bag-

ger-carryout clerks. During the period covered by these

agreements, almost all bakery clerk positions were held

by women.

A “letter of understanding” attached to the 1973-1974

collective bargaining agreement contained the following

provision: “The Employer hereby recognizes and agrees

with the Union’s position that the classification of part-

time Produce Scale Clerks is limited to female

employees.” The agreement itself contained a classifica-

tion restriction providing that the duties of part-time

produce scale clerks were “limited to weighing produce,

customer service, and assisting produce clerks in keeping

displays neat and clean.” This position no longer exists

and has not existed as a separate wage classification since

at least 1979.

The 1976 collective bargaining agreement provided

that employees would accrue seniority within specified

department classifications. Before 1976, seniority accrued

on a store-wide basis.

App. 47

Since 1983, the collective bargaining agreements

between defendant Kohl’s and the unions have classified

all clerks into three categories: regular clerks, department

clerks and utility clerks. The department clerk classifica-

tion includes bakery clerks, deli clerks, clerks assigned to

both of the bakery and the deli, floral clerks and general

merchandise clerks. The regular clerk classification

includes produce clerks, cashiers, liquor clerks, salad bar

clerks, seafood clerks and stockers. Utility clerks bag

groceries, retrieve carts, reshelve unpurchased product

and perform a variety of janitorial tasks. Managers of the

bakery, deli and produce departments are classified as

“department heads.” The gender breakdown of these

positions over the past two years is illustrated in the

following table:

App. 48

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App. 49

Defendant Kohl’s collective bargaining agreements

show that since the 1970s, with one brief exception, it has

paid produce managers and clerks more than bakery and

deli managers and clerks. For example, the 1973 collective

bargaining agreement provides that in February of that

year, produce managers earned $5.23 an hour compared

to $4.15 an hour for bakery managers. Produce clerks

with 24 months of service received $2.83 an hour in

February 1973 while the hourly wage for bakery clerks

with the same experience was just $2.43.

In the 1992, 1995 and 1998 collective bargaining nego-

tiations, UFCW Locals 1444 and 73A proposed equalizing

the pay of produce, bakery and deli clerks. In 1998,

UFCW Local 73A proposed equalizing the pay of deli and

produce managers. At each negotiating session, defen-

dants opposed these proposals.

Since October 1992, the hourly wage of produce man-

agers increased by a smaller percentage than the wage for

their counterparts in the bakery and deli departments -

14.9% compared to 16.4% and 15.5%. However, the $1.15

gap between these groups remained. In 1992, produce

managers received a $1.75 an hour increase while bakery

and deli managers received a $1.15 an hour raise. Man-

agers of all three departments received a $.90 an hour

raise in 1995 and a $.95 an hour increase in 1998.

Since October 1992, department clerks have received

greater percentage wage increases than regular clerks.

For example, department clerks at the ninth pay level

received a-14.3% increase compared to a 9.9% raise for

regular clerks. In 1992, the wage for department clerks

went up by $.30 an hour compared to a raise of $.45 an

App. 50

hour for regular clerks. After another raise in 1995, the

gap closed to just $.05 an hour for this pay level.

During the 1995 negotiations, defendants obtained

and relied on collective bargaining agreements from some

of its competitors. Like defendants, Woodman’s Food

Markets and Schulz Sav-O Stores classify their produce

clerks as “regular clerks” and their bakery and deli clerks

as “department clerks.” Also like defendants, these stores

pay regular clerks more than department clerks. Wood-

man’s, Schultz’s, Sentry, Supersaver and Cub Foods pay

their produce managers more than their bakery and deli

managers. Clerks who work for defendants have higher

rates of pay than clerks who work for defendants’ com-

petitors, with the exception of Sentry and Woodman’s.

Even Cub Foods, which has one classification for all of its

clerks, pays its deli and bakery employees less than

defendants do.

Shortly after the bargaining sessions for the 1995

agreement ended, one of the unions asked defendants to

justify the wage disparity between produce employees

and employees in the bakery and deli departments. In

response, defendants’ personnel director, Daniel Daley,

explained that the disparity had to be maintained for

competitive reasons. Neither Daley nor defendants had

ever attributed the disparity to this rationale in prior

bargaining sessions. Daley had not discussed this matter

with any other member of defendants’ bargaining team

during the 1995 negotiations.

App. 51

F. Sales and Profitability

For fiscal years 1994 through 1998, the annual sales of

all produce departments were: a) more than twice the

annual sales of all bakery departments; b) more than

twice the annual sales of all deli departments; and c)

more than all bakery and deli sales combined. For these

same years, the company-wide “D-rate” of the produce

department was greater than the rates for the bakery and

deli departments. (“D-rate” is the percentage comparison

of a department's sales to the total sales of the entire

store. The higher a department's D-rate, the more sales it

contributes to its store and the corporation.) Yield reports

are generated every four weeks. Yield is a measure of a

department's profitability. Since 1992, the company-wide

yield for produce has surpassed the yield for bakery and

deli by a wide margin. At the end of fiscal years 1997 and

1998, 11 deli departments and 9 bakery departments (out

of 47) had negative yields. During these years, no pro-

duce department had a negative yield.

All clerks and managers in the produce, bakery and

deli departments are paid according to the collective bar-

gaining agreement, not according to the size of the

department in which they work. Thus, the manager in

defendants’ largest, most profitable produce department

receives no higher hourly rate than the person who man-

ages defendants’ smallest produce department. Similarly,

grocery department sales usually exceed produce depart-

ment sales but employees of both departments are paid

the same. Finally, under the collective bargaining agree-

ment, seafood clerks earn more than bakery and deli

clerks, even though the seafood department generates

lower revenues than the bakery and deli departments.

App. 52

G. Employment Manuals

1. Trainee guides

Defendants have prepared “trainee guides” for

employees participating in its “comanager development

program.” There are separate guides for the bakery, pro-

duce and deli departments. The purpose of these guides

is to “outline the areas of the Department that a [co-

manager trainee] should concentrate on and master.”

Each guide lists a number of specific ac‘ vities including

“ordering merchandise,” “making price changes,” and

“taking inventory.” These activities describe the duties of

_ employees in the bakery, deli and produce departments

and are broken down into over 90 “specific competen-

cies.” As a bakery manager, plaintiff Kowalewsky per-

forms many but not all of the 96 specific competencies

listed for produce managers. For example, she orders,

receives, prices and marks merchandise on a daily basis

as well as makes price changes weekly. Of the twenty-five

activities contained in the produce trainee guide, all but

four are also listed in the deli and bakery guides: main-

taining product freshness, packaging products, rotating

products and maintaining the salad bar. Despite this dis-

crepancy, deli and bakery employees are responsible for

maintaining product freshness, packaging product and

rotating products.

2. Interviewing and selection guide

In its “Store Interviewing and Selection Guide,”

defendants divide entry level jobs into three “position

profiles”: service department clerks; front-end clerks; and

App. 53

general clerks. According to the guide: “The purpose of a

Position Profile is to help: Ensure that questions asked

during the interview relate directly to the job; Serve as a

review of the skills necessary to perform the available

job; Develop probing questions to match the applicant’s

prior experiences with the available job.” Positions classi-

fied within the service department category include bak-

ery, deli, floral, meat, seafood and produce clerks.

3. “Essential functions” charts

A document created by defendants spells out the

“essential functions” of the “A&P deli and bakery clerk

position;” a similar document addresses “the A&P pro-

duce clerk position.” Each document contains four head-

ings: environment; handling product; technical /

psycholegical requirements; and other requirements.

There are some similarities among the functions listed in

these documents, particularly under the first two catego-

ries.

4. “Ergonomic Job Description” reports

Defendants’ “Ergonomic Job Description” reports

describe the general physical requirements for produce,

bakery and deli jobs. In each document, under the head-

ing “physical demands analysis,” a table indicates that

employees in all three positions are expected to lift

objects weighing between 0 and 50 pounds on an hourly

basis with an average weight of 30 pounds. Whereas

produce clerks must lift 51- to 75-pound objects on a

App. 54

daily basis, bakery and deli clerks are expected to do so

once every week.

H. Hiring

According to store manager Robert Rosemeyer, in

terms of education and experience, the requirements for

bakery, deli and produce clerks are the same. The most

important factor is availability. In addition, managers also

consider whether an applicant has preferenced a particu-

lar department or position.

OPINION

I. EQUAL PAY ACT

The Equal Pay Act prohibits employers from paying

employees of one sex more than employees of the oppo-

site sex “for equal work on jobs . . . which require equal

skill, effort, and responsibility, and which are performed

under similar working conditions. ...” 29 U.S.C.

§ 206(d). From this language, courts have extrapolated a

three-part standard that a plaintiff must satisfy in order

to meet her prima facie burden of proving a violation of

the act: 1) the employer pays higher wages to employees

of the opposite sex; 2) the employees do work that

requires equal skill, effort and responsibility; and 3) the

employees have similar working conditions. See Fallon v.

State of Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989). If the

plaintiff makes this prima facie showing, “the burden of

proof (persuasion) shifts to the defendant to prove that

the wage disparity is attributable to one of the Act’s four

affirmative defenses.” Id. at 1213 (citing Corning Glass

Works v. Brennan, 417 U.S. 188, 195 (1974). These defenses

App. 55

include a system based on seniority merit or production

or “any other factor other than sex.” § 206(d).

A. Wage Disparity

Defendants contend that there are two reasons why

plaintiffs are unable to clear the first hurdle of a prima

facie case. The first goes to the wage classifications set by

the collective bargaining agreements. Under these agree-

ments, produce clerks are classified as regular clerks

whereas bakery and deli clerks are classified as depart-

ment clerks. Defendants assert that because the “regular

clerk” classification includes cashiers, a majority of whom

are female, there is no gender-based wage differential

between wage classifications. Second, defendants argue

that plaintiffs cannot establish a prima facie case of wage

discrimination because there are female produce

employees who are paid the same as their male counter-

parts. These arguments are meritless. Both appear to be

directed at proving that defendants have not had the

subjective intent to discriminate against plaintiffs. The

assertion runs as follows: most department clerks are

women and not all regular clerks are male; a fortiori,

defendants’ wages are not the product of deliberate dis-

crimination. The problem with this rationale is simple;

unlike Title VII, an Equal Pay Act claim does not recuire

proof of discriminatory intent. See Fallon, 882 F.2d at 1213.

To satisfy the first element of a prima facie case under the

Equal Pay Act, a plaintiff need show only that “different

wages are paid to employees of the opposite sex.” Dey v.

Colt Construction & Development Co., 28 F.3d 1446, 1461

(7th Cir. 1994). This requirement is met when an individ-

ual female plaintiff identifies a single male employee who

App. 56

is paid more for equal work. See Equal Employment Oppor-

tunity Commission v. White and Son Enterprises, 881 F.2d

1006, 1009 (11th Cir. 1989). The employer may call the

court’s attention to other employees who perform sub-

stantially equal work and who have been improperly

excluded by the plaintiff. See id. It is not necessary for a

plaintiff to compare her job with every other job in a

particular pay classification, especially when the other

jobs are manifestly unequal in skill, effort and respon-

sibility, as is the case with cashiers and produce clerks.

B. Equal Work

1. Expert reports

Both parties have submitted expert reports address-

ing the threshold issue whether the positions in question

are “equal” within the meaning of the act. For a variety of

reasons, neither report will be considered for the purpose

of considering the pending motions.

Defendants’ report is written by someone named Dr.

David Jones of Aon Consulting. It is neither signed nor

supported by an affidavit. Instead, it is attached to a

brief. Jones’s credentials and qualifications as an expert

are a total mystery. Does he hold a doctorate in social

sciences, economics or podiatry? The court has no way of

knowing. There is yet another problem with this report.

Defendants waited to submit it as an attachment to a

reply brief, depriving plaintiffs of any opportunity to test

its validity.

Plaintiffs’ report fares no better. It was written by

Howard Risher, a private consultant and adjunct pro-

fessor of business at the University of Pennsylvania. Like

App. 57

the Jones report, Risher’s report is not properly authenti-

cated. Plaintiffs submitted it in a collection of bound

exhibits accompanying their proposed findings of facts.

None of the exhibits within this volume is supported by

an affidavit attesting that is a true and correct copy of

what it purports to be. The report is also inadmissible

under the standards applicable to expert witnesses. It is

well settled that affidavits of expert witnesses cannot

contain mere conclusory statements of the expert’s ulti-

mate opinions; the affidavits must reveal “a process of

reasoning beginning with a firm foundation.” See Mid-

State Fertilizer v. Exchange National Bank, 877 F.2d 1333,

1338-39 (7th Cir. 1989). Risher’s report flunks both parts

of this standard. He does not begin with a firm evidenti-

ary foundation. Risher explains that his conclusions are

based on a variety of documentary evidence submitted by

the parties, including the various employment manuals

discussed in subsection ‘G’ of the facts section of this

opinion. He reviewed only five of the numerous deposi-

tions provided by Kohl’s employees. Even worse, Risher

did not observe employees perform the jobs that he has

evaluated and he has not represented that it is accepted

practice to conduct these types of studies without the

benefit of firsthand observation. Particularly in light of

the act’s emphasis on job content over descriptions and

titles, it is questionable what weight, if any, can be given

to such an opinion. The contents of the report do little to

allay this skepticism. To be sure, in the section covering

the clerk positions, there are six enumerated reasons sup-

porting Risher’s conclusions but no process of reasoning

or analysis that even comes close to explaining how he

arrived at these-conclusions. For example, Risher begins

App. 58

by noting that there are ten “basic duties common to all

clerks, regardless of department.” After listing these

duties, all of which appear to come from defendant's

employment manuals, Risher states as a second reason

that “the clerk classification in each department is an

entry-level position” requiring “no prior experience or

job training.” The remaining four reasons are equally

brief and equally unenlightening. Indeed, they are noth-

ing more than observations that have been made by many

lay witnesses associated with this case.

2. Merits

The Equal Employment Opportunity Commission,

the agency charged with administering the Equal Pay

Act, has promulgated regulations providing that the

terms skill, effort and responsibility “constitute separate

tests, each of which must be met in order for the equal

pay standard to apply.” 29 C.F.R. § 1620.14(a). The court

of appeals has cited this regulation with approval. See

Stopka v. Alliance of American Insurers, 141 F.3d 681, 686

(7th Cir. 1998). On other occasions, the court of appeals

has forgone undertaking separate skill, effort and respon-

sibility inquiries in favor of a more open-ended, two-part

test. First, the court asks whether the jobs in question

share “a common core of tasks.” Dey, 28 F.3d at 1461. If

so, the employer must “show that the higher-paid

employee was assigned additional tasks that made his job

‘substantially different.’ ” Id. (quoting Fallon, 882 F.2d at

1209). Regardless which test is applied, courts should be

guided by job content, not titles or descriptions. See Dey,

ee

App. 59

28 F.3d at 1461; Equal Opportunity Employment Commission

v. Sears, Roebuck & Co., 839 F.2d 302, 346 (7th Cir. 1988).

According to defendants, even if bakery, deli and

produce employees all perform tasks that are the same on

some superficial level, the content of these tasks differs

substantially from position to position. Defendants char-

acterize any effort to equate these tasks with another as

an endorsement of a discredited theory of wage discrimi-

nation known as comparable worth. To illustrate how

plaintiffs have resorted to a comparable worth theory,

defendants contend that plaintiffs’ brief “is peppered

with references to comparability.” Defs.’ Rep. Br., Dkt.

#210, at 5. As an example, defendants cite plaintiffs’

assertion that food preparation in the produce depart-

ment is no more complex than food preparation in the

deli department. Defendants’ argument appears to be

based on two related positions. First, the act does not

apply to two jobs if there is any difference in the content

of these jobs, however slight. To use defendants’ example,

two positions that each involved food preparation would

be merely comparable, as opposed to substantially equal,

if an employee in one position baked frozen dough while

an employee occupying the other position chopped vege-

tables for a salad bar. Similarly, even though deli, bakery

and produce employees are all responsible for stocking

product in their respective sales areas, these jobs would

also be outside the act because they involve different

products. Second, any effort to compare jobs that are

dissimilar in some way amounts to a comparable worth

analysis. Defendants are wrong on both counts.

The act does not demand that the work performed by

a plaintiff and her higher-paid male co-workers be

App. 60

identical; “it is sufficient if the duties are ‘substantially

equal.’ ” Fallon, 882 F.2d at 1208 (quoting Epstein v. Secre-

tary, United States Department of the Treasury, 739 F.2d 274,

277 (7th Cir. 1984)). For example, it is well established

that the performance of jobs on different machines or

equipment does not necessarily mean that such jobs are

unequal within the meaning of the act. See 29 C.FR.

§ 1620.14(c); Thompson v. Sawyer, 678 F.2d 257, 273-74

(D.C: Cir. 1982). The regulations extend this proposition

to retail establishments:

the fact that jobs are performed in different

departments or locations within the establish-

ment would not necessarily be sufficient to

demonstrate that unequal work is involved

where the equal pay standard otherwise applies.

This is particularly true in the case of retail

establishments, and unless a showing can be

made by the employer that the sale of one article -

requires such a higher degree of skill or effort

than the sale of another article as to render the

equal pay standard inapplicable, it will be

assumed that the salesmen and saleswomen

concerned are performing equal work.

29 C.ER. § 1620.14(c). By allowing for some comparisons

between different jobs, the act acknowledges that few

jobs are indistinguishable and that it is difficult, if not

impossible, for a court to decide whether two jobs are

“equal” without comparing job characteristics that are

dissimilar in some way, shape or form. When making

these comparisons, courts must “steer a narrow course”

“between ‘very much alike, which is within the scope of

the Act, and ‘comparable,’ which is outside; for it is plain

that Congress did not want to enact comparable worth as

App. 61

part of the Equal Pay Act of 1964.” Equal Employment

Opportunity Commission v. Madison Community Unit School

District, 818 F.2d 577, 582 (7th Cir. 1987).

Comparable worth is “a shorthand expression for the

movement to raise the ratio of wages in traditionally

women’s jobs to wages in traditionally men’s jobs.” Amer-

ican Nurses’ Association v. State of Illinois, 783 F.2d 716, 719

(7th Cir. 1986). It presupposes “that jobs of equivalent

‘worth’ or value to an employer or to society as a whole

should be compensated equally even if the jobs are dis-

similar in content.” Daniel R. Fischel and Edward P.

Lazear, Comparable Worth and Discrimination in Labor Mar-

kets, 83 University of Chicago Law Review 891, 891

(1986). As explained by the Court of Appeals for the

Seventh Circuit, there are two major premises underlying

this theory: 1) “a society politically and culturally domi-

nated by men steered women into certain jobs and kept

the wages in those jobs below what the jobs were worth,

precisely because most of the holders were women;” and

2) “analytical techniques exist for determining the rela-

tive worth of jobs that involve different levels of skill,

effort, risk, responsibility, etc.” American Nurses’ Associa-

tion, 783 F.2d at 719. The second premise assumes that

“the comparability of different jobs can be measured or

evaluated apart from the values assigned in the mar-

ketplace.” Fischel and Lazear, 83 University of Chicago

Law Review at 893. Comparable worth is not a viable

theory of wage discrimination in suits brought under the

Equal Pay Act or Title VII. See Madison Community School

District, 818 F.2d at 582; American Nurses’ Association, 783

F.2d at 720.

App. 62

The food preparation example highlighted by defen-

dants is the type of analysis contemplated by the Equal

Pay Act. Plaintiffs have not attempted to assign an objec-

tive, economic value to the clerk positions; they have

identified a common task performed by employees in all

departments - food preparation — and inquired whether

two of the three operative job characteristics identified in

the act - skill and effort - vary significantly among the

departments. A comparable worth analysis would begin

with the notion that substantial differences do exist and

then ask, notwithstanding these differences, whether the

bakery, deli and produce positions are worth the same to

society or defendants. See Madison Community School Dis-

trict, 818 F.2d at 580 (after defining comparable worth and

noting that theory is not compatible with Equal Pay Act,

court explains by way of example that “[a] female secre-

tary paid less than a male janitor cannot complain under

the [act] that the disparity in their wages is not justified

by ‘objective’ factors such as differences in skill, effort

and responsibility”) (emphasis added).

With the conclusion that job comparison is both

appropriate and necessary, the question becomes what to

compare. During the time period encompassed by this

lawsuit, defendants operated 47 Kohl’s Food Stores in

Wisconsin. The deli, bakery and produce departments in

these stores differ from one another in significant

respects. Depending on the store, each department does a

different volume of business, stocks a different number of

items, receives different quantities of these items,

employs a different number of people and uses its

employees in different ways. As a result, it is difficult to

pin down the job requirements of specific positions

App. 63

because these requirements tend to vary in significant

respects not only from department to department but

even among employees holding the same job title in the

same department.

The way in which produce departments handle deliv-

eries is an apt example of job variations that exist within

the same department as well as the way in which this

phenomenon makes application of the equal work stan- —_

dard so difficult. Defendants argue that produce jobs

require greater effort than bakery and deli jobs because

most produce departments receive more product packed

in heavier cases each week than most bakery and deli

departments. However, each produce department

appears to have a different system for receiving, unload-

ing, stocking and managing its inventory. In some depart-

ments, managers have sole responsibility for handling

deliveries; in other departments, this task is performed

by both clerks and managers; still other departments

have clerks who are assigned on a full-time basis to

receiving deliveries. It is unclear whether employees

occupy these positions on a permanent or a rotating

basis. There is also no indication how much heavy lifting

must be done by employees who are not in these rota-

tions, such as those assigned exclusively to the salad bar.

Under this view of the facts, some produce employees

exert significantly more effort than bakery and -deli

employees.

Variations among departments from different stores,

as opposed to departments within the same store or

department, complicate the process of determining

whether plaintiffs can satisfy the equal work standard.

Both parties make arguments that are based on the

®

App. 64

assumption that the 47 Kohl’s Food Stores operated by

defendants during the time covered by this lawsuit

should be treated as a single store. Despite this outward

similarity, the comparisons drawn by the parties differ

from one another profoundly. These comparisons surface

in the context of manager responsibility, among other

areas. Defendants assert that the produce manager posi-

tion requires greater responsibility than the positions of

bakery and deli manager because the combined sales

volume and profitability of all produce departments far

outstrip these totals for bakery and deli departments.

siccording to defendants, “The Court need not look any

further than the financial responsibility factor to dispose

of the claims of the bakery and deli managers.” Dkt. #210

at 6. In response, plaintiffs maintain that defendants can-

not prevail on this argument unless they are able to

“show that the duties of a produce manager in a store

with produce revenues of $3,000 a week are materially

different than the duties of [a] bakery and produce man-

ager in a department that generates revenues of $10,000 a

week.” Pls.’ Br. in Opp., Dkt. # 195, at 16. In a footnote,

defendants acknowledge the factual proposition behind

plaintiffs’ point but insist that the proper basis of com-

parison is the entire 47-store enterprise, not individual

departments: “Certainly there is considerable variation

from store to store, and it is even possible that a deli

department in a large store could have sales that exceed a

produce department in a small store. However, since

company-wide wage rates are collectively bargained with

unions, only the company-wide figures are relevant.”

Defs.’ Br. in Supp., dkt. #177, at 9.

App. 65

The parties develop similar comparisons based on

the way in which the size of a department can influence

the amount of skill, effort and responsibility required to

perform a job. In each case, these comparisons are pat-

terned after the parties’ arguments on manager réspon-

sibility. Defendants rely on average and aggregate values,

a strategy that exploits the fact that in every store pro-

duce departments are larger, generate more profit and

sales, move more product and have more e/sployees than

the bakery and deli departments in the same store. For

their part, plaintiffs operate at both ends of the spectrum.

The legal principle underlying plaintiffs’ arguments is as

follows: the equal work standard is satisfied so long as

the job of one deli or bakery employee at one of defen-

dants’ stores is equal to or more difficult than the job of

one produce employee in another store. In a variation on

this arzument, plaintiffs argue that if there is correlation

between a factor such as effort and the amount of product

received or sold by a given department on an average

week, :he standard is satisfied so long as a bakery or deli

departnent from one of the larger stores outranks one

produce department from one of the smaller stores in this

area.

The appropriate standard for structuring these multi-

facetec comparisons should be consistent with the equal

work standard itself, which dictates that two jobs are

equal if they share a “common core.” This precludes the

type o: arguments favored by plaintiffs that rely on out-

liers (ie., comparing the deli employee responsible for

handling the largest volume of product with the produce

emploree responsible for handling the least). In Thompson

v. Sawrer, 678 F.2d 257, 273-74 (D.C. Cir. 1982), the Court

App. 66

of Appeals for the District of Columbia rejected an

attempt by an employer to draw similar comparisons.

Thompson involved an Equal Pay Act claim brought a

group of predominantly female “bindery workers” who

contended that their employer, the Government Printing

Office, paid them less than predominantly male “book-

binders” even though both positions required substan-

tially the same skill, effort and responsibility. The court

concluded that, as a general matter, two positions can be

equal within the meaning of the act even though

employees who hold these positions work on different

machines. As always, the court noted, the controlling

factors are skill, effort and responsibility. See id. at 274.

The employer argued that the jobs in question were

unequal because some of the male bookbinders operated

machines that required handling 100-pound bolts of

cloth. The court rejected this argument, stating:

To prove a violation under the Equal Pay Act,

plaintiffs need only show their jobs were equal

to the jobs of some bookbinders, but treated

unequally. Plaintiffs need not show that their

jobs were substantially similar to all, or even

most bookbinder jobs. . . . [I]t is irrelevant that

GPO classifies the bookbinder jobs that resem-

ble plaintiffs’ together with other jobs that do

not.

Id. at 275 (citations omitted). By definition, bakery, deli

and produce jobs that lie on the outmost fringes of the

skill, effort and responsibility spectra do not represent

the core of these jobs. A fair comparison must be based

on a representative sample of the employees who hold

clerk and manager positions in the various deli, bakery

and produce departments operated by defendants.

App. 67

With these principles in mind, I conclude that there is

a genuine issue of fact whether bakery, deli and produce

clerks share a common core of tasks. The job descriptions

provided in defendants’ training manuals and selection

guides are by no means dispositive of this issue although

they are of some probative value, particularly given that

they were written by defendants. See Marshall v. Building

Maintenance Corp., 587 F.2d 567, 570-71 (2d Cir. 1978);

Brennan v..Owensboro-Daviess County Hospital, 523 F.2d

1013, 1017 (6th Cir. 1975). These documents reveal that

with few exceptions the duties that must be performed by

clerks in all three departments fall under the same broad

categories. For example, all bakery, deli and produce

clerks are expected to clean their work areas, inspect

existing product, stock fresh product, remove and recon-

dition unsaleable product, answer customer questions

and prepare food. To be sure, differences in the content of

these tasks raise questions whether they are substantially

equal. However, these questions are better suited to reso-

lution by a jury. Viewing the undisputed facts in a light

most favorable to plaintiffs, I cannot say definitively

whether, for example, the preparation of rotisserie

chickens or dinner rolls is substantially equal to the prep-

aration of vegetable trays or fruit baskets. Like many

other distinctions drawn by defendants, the problem with

this one is that it does not appear to be anchored firmly in

one of the three factors that justify a wage disparity

under the equal work standard: skill, effort and respon-

sibility. If anything, it resembles the type of “overly nice

distinction[ ] in job content” that courts should refrain

from drawing lest employers “evade the Act at will.”

Brennan v. Prince William Hospital Corp., 503 F.2d 282, 285

App. 68

(4th Cir. 1974). To cite another example, defendants assert

that produce clerks are more highly skilled than either

deli or bakery clerks because of the specialized knowl-

edge required for identifying produce items, recognizing

whether they are fresh and knowing how they should be

stored. See, e.g., dkt. # 177 at 24 (whereas some produce

departments stock as many as 15 different kinds of apples

and 8 varieties of grapes, bakery and delis stock fewer

items, most of which are readily identifiable or are pre-

packaged with identification labels) and at 25 (whereas

produce clerks must know, for example, that apples must

be stored in the cooler, tomatoes cannot be stored in the

cooler and California white potatoes must not be exposed

to too much light, bakery and deli clerks need know only

whether product “should be stored in the cooler or

freezer, or placed on the shelf for sale.”) Although there

is some logic to this argument, I question whether it

amounts to anything more than the simple observation

that different departments carry different items.

I have similar misgivings about the way in which

defendants distinguish the job content of manager. For

example, it is true that because of the perishable nature of

their product, produce managers may use more ‘skill

when minimizing shrink and in placing orders. However,

bakeries and delis also sell perishable foods that place

many of the same demands on the employees who man-

age these departments. These individuals must remove

product that has become stale, sour or moldy, developed

a foul smell or taken on some other unappealing charac-

teristic. It is possible that the “sell by” dates on many

bakery and deli products make these tasks significantly

less onerous or less skilled compared to produce. But as

App. 69

plaintiffs have observed, once a deli product has been

opened, it must be monitored just as closely as a crate of

strawberries, if not more so. Even though bakery and deli

products cannot be sold under any circumstances after

their “sell by” date, managers are expected to recondition

product when necessary before this date has been

reached.

Whether the produce, deli and bakery positions

require substantially the same effort is a closer question.

As already discussed, it is unclear how evenly the

responsibility for lifting and moving cases of product is

distributed among produce employees. From the undis-

puted facts established by the parties, it appears likely

that a small number of produce employees bear the brunt

of the heavy lifting in their department. If so, these

employees are not a representative sample of all produce

employees.

Whether the manager jobs are substantially equal in

responsibility represents yet another close question.

Defendants are correct that a correlation has been recog-

nized between revenue production and managerial

responsibility. See Sprague v. Thorn Americas, Inc., 129 F.3d

1355, 1364 (10th Cir. 1997) (substantial difference of reve-

nue between plaintiffs department and departments man-

aged by male employees reflected difference “in the level

of experience required to adequately manage operations

and the level of complexity in performing required func-

tions”); Stanley v. University of Southern California, 13 F.3d

1313, 1322 (9th Cir. 1994) (“The responsibility to produce

a large amount of revenue is evidence of a substantial

difference in responsibility.”) Even though there is no

dispute that produce departments generate between two

App. 70

to two and a half times the revenue produced by bakery

and deli departments, it is difficult to say how much

weight should be attributed to revenue production alone.

In the cases relied on by defendants, the courts consid-

ered a number of factors in reaching their conclusions

that the jobs in question were unequal. See Sprague, 129

F.3d at 1364 (noting, among other reasons, different level

of experience between plaintiff and male co-workers);

Stanley, 13 F.3d at 1321-22 (compared to coach of women’s

basketball team, coach of men’s team had specialized

training and professional experience in marketing, had

more years of coaching experience, had worked for uni-

versity longer and was published author). Perhaps more

important, the disparity in revenue production at issue in

these cases was much more dramatic. See Sprague, 129

F.3d at 1364 (“Sprague worked in a department which

produced less than one-tenth of the revenues of the

departments managed by the male assistant managers”);

Stanley, 13 F.3d at 1365 (men’s team generated 90 times

the revenue of women’s team).

In addition to showing at this stage that there is a

genuine dispute whether the bakery, deli and produce

positions share a common core of tasks, plaintiffs must

also establish that produce clerks and managers are not

assigned additional work that makes their job substan-

tially different. See Dey, 28 F.3d at 1461. According to

defendants, plaintiffs cannot make this showing because

bakery and deli employees devote most of their time to

customer service whereas produce positions are oriented

just as strongly toward other tasks like stocking, order-

ing, culling and reconditioning product. The operative

distinction is not whether an employee devotes more of

App. 71

his work day to a given task than a female co-worker; by

itself, this proves nothing. Instead, defendants must

show: 1) produce clerk jobs involve tasks not performed

by bakery and deli clerks; 2) the extra tasks require

greater skill, effort or responsibility; and 3) produce

clerks devote a significant amount of time to these extra

tasks. See Equal Employment Opportunity Commission v.

Kenosha Unified School District No. 1, 620 F.2d 1220, 1225

(7th Cir. 1980). With respect to the manager positions,

defendants’ argument goes no further than emphasizing

the different amount of time that bakery, deli and pro-

duce managers spend performing the same tasks.

The notion that produce clerks spend a significant

amount of time performing tasks that are not assigned to

bakery and deli clerks is more intriguing but ultimately

unpersuasive. There is no dispute that all clerks devote

some of their time to stocking product and to customer

service. Culling is a slightly different matter, however.

Like produce departments, bakeries and delis sell perish-

able foods that must be monitored for freshness.

Although bakery and deli clerks have some role in this

process, they do not have the authority to discard, recon-

dition or reduce the price of product no longer fit to

remain on the shelves. By contrast, produce clerks dis-

card unsaleable product as a part of the daily culling

process. Relying on this distinction, defendants argue

that produce clerks have greater responsibility because

their ability to make these decision’s accurately and with-

out the assistance of “sell by” dates has an impact on

their department’s “shrink” and profitability. As an

abstract matter, I agree that this is the type of extra duty .

that could tip the scales for defendants. See 29 C.FR.

App. 72 -

§ 1620.17(b)(2) (male sales clerk with authority to deter-

mine whether to accept personal check from customer

“may have a considerable, additional degree of respon-

sibility [than female clerk who does not possess similar

authority] which may materially affect the business oper-

ations of the employer.”) Nevertheless, I am reluctant to

ascribe much significance to this responsibility without

some indication of how much product is disposed of in

this fashion. From the facts, it appears that only managers

are allowed to make decisions with potentially large

financial repercussions, such as marking down or throw-

/ ing away a large quantity of goods at once. Perhaps

individual culling decisions made by produce clerks have

the same effect collectively. This remains to be proven.

C. Working Conditions

Along with showing that jobs are equal in skill, effort

and responsibility, a plaintiff must show that jobs are

performed under similar working conditions in order to

satisfy the third and final component of a prima facie case

under the Equal Pay Act. The regulations emphasize that

the standard is flexible and will be met ordinarily if jobs

are equal in skill, effort and responsibility. See 29 C.F.R.

§§ 1620.18(a) and (b). The question is whether the differ-

ences in conditions “are the kind customarily taken into

consideration in setting wage levels.” Id. Two factors that

play into this analysis are workplace surroundings and

hazards. See id. Focusing on surroundings, defendants

maintain that produce, bakery and deli clerks are not

performing under similar working conditions because

produce clerks and managers are required to spend a

App. 73

significant amount of time each day in the cooler — some-

times as much as three hours, depending on the store and

the day. By comparison, deli and bakery clerks log no

more than an hour each day in their department's cooler.

When the facts are viewed in a light most favorable to

plaintiffs, two additional hours in a refrigerated environ-

ment over the course of an eight-hour shift might repre-

sent the kind of sustained intensity that would justify a

wage differential, but I cannot say that it would as a

matter of law. See id. (“ ‘surroundings’ measures the ele-

ments, such as toxic chemicals or fumes, regularly

encountered by a worker, their intensity and their fre-

quency.”)

D. Factors “Other than Sex”

Defendants contend that they are entitled to sum-

mary judgment even if there is a genuine dispute whether

plaintiffs have made out a prima facie case of wage

discrimination because the disparity in pay is based on a

factor other than sex. Specifically, defendants argue that

the disparity can be explained by: 1) the higher revenue

and profitability of produce departments; 2) the greater

skill, effort and responsibility associated with the pro-

duce clerk positions; and 3) the collective bargaining

agreements. As already explained, defendants bear the

burden of persuasion with respect to these affirmative

defenses. See Fallon, 882 F.2d at 1213.

I have already found that there is a genuine dispute

with respect to the first reason. Similarly, in an opinion

and order on notification of the Equal Pay Act class, I

observed that the regulations prohibit an employer from

—

App. 74

arguing that unequal wages are the product of a collec-

tive bargaining agreement and declined to follow two

district court opinions that rejected this rule. See dkt. #29

at 4. Defendants have cited no new authority. Finally,

because there is a genuine dispute of fact whether pro-

duce, deli and bakery jobs are substantially equal, defen-

dants’ third affirmative defense must be rejected.

Il. TITLE VII

Liability under the Equal Pay Act does not lead auto-

matically to liability under Title VII. See Fallon, 882 F.2d at

1218. Unlike a wage discrimination claim brought under

the Equal Pay Act, Title VII requires proof of discrimina-

tory intent. See id., 882 F.2d at 1213. This intent “must

encompass an actual desire to pay women less then men

because they are women.” Loyd v. Philips Bros., Inc., 25

F.3d 518, 525 (7th Cir. 1994). In addition, the burden of

proof never shifts from the plaintiff to the defendant in a

Title VII action, whereas in an Equal Pay Act case, “the

risk of nonpersuasion rests with the employer on the

ultimate issue of liability.” Fallon, 882 F.2d at 1213. As in

all Title VII cases, discriminatory intent can be estab-

lished by direct evidence or by use of the McDonnell

Douglas burden shifting analysis. Cf. Loyd, 25 F.3d at 525

n.6 (burden shifting approach not well suited to wage

discrimination claims involving dissimilar jobs).

Defendants are correct that plaintiffs have produced

no direct evidence of discriminatory intent. In an employ-

ment discrimination case, there are two hallmarks of

direct evidence: 1) the evidence must prove a fact without

reliance on inference or presumption; and 2) it must

App. 75

relate to the specific employment decision in question.

See Cowan v. Glenbrook Security Services, Inc., 123 F.3d 438

(7th Cir. 1997). Nothing characterized by plaintiffs as

direct evidence comes close to satisfying this standard.

For example, the gender-based wage classification

scheme from the old collective bargaining agreements

may have been direct evidence of discrimination when

these agreements were in force three and four decades

ago but the current system cannot be so characterized. To

conclude otherwise would require drawing an inference

that the non-gender specific titles in place today are a

subterfuge for defendants’ desire to pay women less and

that this desire does not extend to female employees in

the higher-paid produce and cashier categories.

The gender breakdown of the various departments

does not amount to direct evidence. Contrary to plain-

tiffs’ assertion, defendants’ workforce is not “shockingly

segregated.” Dkt. #195 at 28. In 1998, approximately 20%

of part-time and full-time produce clerks were women.

Even if positions and departments were divided com-

pletely along gender lines, such evidence is at most “pro-

bative” of wage discrimination; it does not “compel a

finding that this sex-segregation was motivated by wage

(as opposed to social, physical, sexual or other, though

not laudable, non-wage related) considerations.” Loyd, 25

F.3d at 525. This logic applies with equal force to the

other examples of direct evidence identified by plaintiffs:

the adoption of departmental seniority and the provision

in the 1983 collective bargaining agreement allowing util-

ity clerks, most of whom were male, to bid first for

regular clerk positions. By themselves, these facts would

support a finding of wage discrimination but they do not

App. 76

compel such a finding because they do not rule out other

explanations that have no relation to gender.

With no direct evidence of wage discrimination,

plaintiffs must satisfy the indirect, burden-shifting

method of proof established by the Supreme Court in

McDonnell Douglas v. Green, 411 U.S. 792 (1973). In the

context of a Title VII wage discrimination claim, a prima

facie case consists of meeting the Equal Pay Act’s equal

work standard. See Sears, 839 F.2d at 344. Because there is

a genuine dispute whether the clerk and manager posi-

tions are substantially equal in skill, effort and respon-

sibility, defendants must articulate a legitimate, non-

discriminatory reason for the pay disparity if they are to

prevail on their motion for summary judgment with

respect to the Title VII claims.

The three reasons offered by defendant are nearly

identical to the affirmative defenses raised in response to

plaintiffs’ Equal Pay Act claim: 1) produce departments

contribute more to defendarits’ revenue and profit than

bakery and deli departments; 2) produce jobs require

greater physical effort, more responsibility and move-

ment of more product than the bakery and deli depart-

ments; and 3) market forces have not required defendants

to close the gap between produce wages and deli and

bakery wages. See Defs. Prop. Findings of Fact in Supp. of

Mot. for Summ. J. on Pls.’ Class Claims, Dkt. #178, at

{ 205. Plaintiffs contend that these reasons are a mere

pretext for wage discrimination.

Plaintiffs try to make this showing by focusing pri-

marily on when defendants’ personnel director, Daniel

App. 77

Daley, articulated these reasons and to whom. In particu-

lar, plaintiffs emphasize that Daley never mentioned the

three reasons until shortly after negotiations for the 1995

collective bargaining agreement had ended and that -

defendants had never invoked this rationale to justify the

disparity during the negotiation of prior agreements.

Moreover, Daley never discussed any of these reasons

with other members of defendants’ bargaining team and,

when pressed by the union on the issue, he referred only

to the prohibitive cost of equalizing wages and the prac-

tice of Kohl’s competitors. Daley did not offer the other

two justifications until sometime after the commencement

of this lawsuit. In addition to attacking Daley’s cred-

ibility, plaintiffs challenge whether produce jobs are equal

to deli and bakery jobs, question whether any correlation

exists between department revenue and wages and point

out that at least one of defendants’ competitors pays its

bakery, deli and produce clerks the same wage.

I agree with defendants that plaintiffs’ arguments do

not establish that defendants’ legitimate, nondiscrimina-

tory reasons are pretextual. Pretext is a “phony reason”

offered by the employer for engaging in discriminatory

conduct, see Mills v. First Federal Savings & Loan Ass’n, 83

F.3d 833, 845 (7th Cir. 1996), that may be proven either

directly or indirectly “by presenting evidence that the

employer’s proffered reason is unworthy of credence,

thus raising the inference that the real reason is discrimi-

natory.” Essex v. United Parcel Service, Inc., 111 F.3d 1304,

1310 (7th Cir. 1997). The question is always whether the

employer honestly believed its proffered reason. See Kral-

man v. Illinois Dept. of Veterans’ Affairs, 23 F.3d 150, 156

(7th Cir.-1994); Johnson v. University of Wisconsin-Eau

App. 78

Claire, 70 F.3d at 480 (employee’s subjective belief that

justification for adverse action was pretext does not cre-

ate genuine issue of fact). According to defendants, Daley

did not provide a more complete explanation of the rea-

sons supporting the wage disparity in 1995 because he

was neither asked to do so nor pressed for additional

information after his initial response. Indeed, absent

some other compelling motivation, such as a lawsuit,

Daley had no reason to volunteer more detail. There is

nothing inherently suspicious about his silence on the

matter. The late emergence of the other two reasons relied

on by defendants could legitimately be characterized as

suspicious if they contradicted the original rationale

offered by Daley. However, all three reasons are consis-

tent with one another as well as with the general notion

that defendants have resisted equalizing clerk wages

because they believed that bakery and deli jobs are differ-

ent from produce jobs. Plaintiffs try to convince the court

otherwise by arguing that the clerk positions are in fact

equal in skill, effort and responsibility. As attempts to

show that defendants’ position is based on bad policy,

these arguments are not helpful. See Essex, 111 F.3d at

1310 (proof that challenged decision is based on mistake,

bad policy or even plain stupidity “goes nowhere as

evidence that the proffered explanation is pretextual.”).

Plaintiffs have produced no persuasive evidence suggest-

ing that defendants did not honestly believe this justifica-

tion or that it is a cover for discrimination.

App. 79

ORDER

IT IS ORDERED that:

1. The motion for summary judgment of defendants

Kohl's Food Stores, Inc. and The Great Atlantic & Pacific

Tea Company, Inc. is GRANTED with respect to plaintiffs’

Title VII wage discrimination claims;

2. Defendants’ motion is DENIED with respect to

plaintiffs’ Equal Pay Act claims;

3. Plaintiffs’ motion to strike is DENIED as moot;

and

4. A decision on plaintiffs’ motion to exclude cer-

tain evidence at trial is STAYED.

Entered this 26th day of July, 1999.

BY THE COURT:

/s/ Barbara B. Crabb

BARBARA B. CRABB

District Judge

App. 80

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

August 3, 2000

Before

Hon. Wiuiam J. Bauer, Circuit Judge

Hon. Frank H. Eastersroox, Circuit Judge

Hon. ILANA DiamMonpd Rovner, Circuit Judge

SHIRLEY A. LANG, et al.,

Plaintiffs-Appellants,

No. 99-3377 __v.

Appeal from the

United States District

Court for the

Western District of

KOHL’S FOOD STORES, Wisconsin.

m, of a, No. 98-C-351-C

Defendants-Appellees. Barbara B. Crabb,

Judge.

Nm ee ee ee ee ee ee eee”

Order

Plaintiffs-appellants filed a petition for rehearing on

July 6, 2000. All of the judges on the panel have voted to

deny rehearing. The petition for rehearing is therefore

DENIED.