On January 13, 2016, the 7th Circuit affirmed summary judgment in favor a defendant employer on claims of gender and national origin discrimination as well as retaliation brought by a plaintiff employee under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Equal Pay Act (“EPA”). Jaburek v. Foxx, No. 15-2165 (7th Cir., 1/13/2016). The plaintiff, a woman of Mexican descent who worked for the Federal Aviation Administration (“FAA”) at its Des Plaines, Illinois office, alleged that the FAA discriminated against her on account of her gender and national origin by paying her less than male or white employees who did the same work. She also alleged that the FAA retaliated against her for complaining about the discrimination.

The plaintiff argued that because she was performing the duties of a Program Analyst, she should have been compensated at a higher pay grade than that of an Administrative Support Assistant, to which she was assigned. Because she could only be compensated at a higher pay grade if she was promoted to the position of Program Analyst, the 7th Circuit analyzed her claim as a Title VII failure to promote claim. Title VII prohibits employers from discriminating against employees based on race, color, religion, sex, or national origin. To establish a failure to promote claim, a plaintiff must show that: (1) she was a member of a protected class; (2) she was qualified for the position sought; (3) she was rejected for the position; and (4) the employer promoted someone outside of her protected group who was not better qualified for the position. A failure to promote claim requires that the plaintiff apply for the position sought; otherwise, she cannot demonstrate that the employer rejected her for the position. Since the plaintiff never applied for the position of Program Analyst, her failure to promote claim failed.

The plaintiff’s Equal Pay Act claim against the FAA also never got off the ground. The EPA prohibits employers from paying different rates to men and women for the same work at the same establishment. To establish her unequal pay claim under the EPA, the plaintiff was required to prove that: (1) higher wages were paid to a male employee, (2) for equal work requiring substantially similar skill, effort and responsibility, and (3) the work was performed under similar working conditions. “Establishment” under the EPA means the same geographic office, or at least the same city or metropolitan area. In addition, to determine if the work performed by the plaintiff was equal to the work performed by male employees, one must evaluate whether the jobs had a common core of tasks, which is to say that a significant portion of the jobs was identical. Without evidence to asses the comparability of the work between employees of the opposite sex, such as the duties of the male employees and other characteristics like where and when they worked or their backgrounds, an unequal pay claim under the EPA cannot proceed to trial. Since the plaintiff failed to identify any male Program Analyst in the geographic area where she worked, or provide a description of any common core of tasks or other detail of male employees’ duties, hours, backgrounds or qualifications, her unequal pay claim failed as a matter of law. The lack of evidence that male employees were paid higher wages for equal work under similar conditions was fatal to her claim.

The plaintiff’s retaliation claim was also thrown out of court for lack of necessary evidence. Title VII makes it unlawful for an employer to retaliate against an employee who has opposed an unlawful employment practice or who has made a charge, testified, assisted, or participated in a Title VII discrimination investigation, proceeding or hearing. The plaintiff must prove that the employer took an adverse employment action against her in retaliation for complaining about unlawful discrimination or engaging in other protected activity. Adverse employment actions are defined broadly for purposes of federal law retaliation claims and include, in addition to job terminations, demotions, or pay cuts, diminution in job duties that cause an employee’s skills to atrophy and reduce her future career prospects. Thus, removing the plaintiff from more challenging duties and relegating her to lesser duties in an administrative role could constitute adverse job action. However, she did not produce any evidence that she complained about unlawful discrimination before she was subjected to these adverse employment actions. Her only complaint of or opposition to discriminatory employment practices occurred after the adverse job actions had already been implemented; therefore, her protected activity could not have instigated any retaliation. This timing put an end to the plaintiff’s Title VII retaliation claim.