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McNamee v. Family Focus, Inc.

United States District Court, N.D. Indiana, Hammond Division

July 31, 2017

COREY McNAMEE, Plaintiff,
FAMILY FOCUS, INC., Defendant.

          OPINION and ORDER


         Corey McNamee ("plaintiff"), a pro se plaintiff, brings suit against his former employer, Family Focus, Inc. ("Family Focus" or "defendant"). Plaintiff alleges defendant paid him less than female caseworkers in violation of the Equal Pay Act (the "EPA"), 29 U.S.C. § 206 et seq. (DE # 1.) Defendant has moved for summary judgment. (DE # 62.) For the reasons stated below, the motion will be granted.


         Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).

         A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in his or her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

         Plaintiff did not file a response to the motion for summary judgment, despite being given proper notice of the motion. (See DE # 61.) Pursuant to Northern District of Indiana Local Rule 7-1 (d)(4), a party's failure to file a response within the time prescribed may subject the motion to summary ruling. Nevertheless, "[s]trict enforcement of [local rules] does not mean that a party's failure to submit a timely filing automatically results in summary judgment for the opposing party." Wienco, Inc. v. Katahn Assoc, Inc., 965 F.2d 565, 568 (7th Cir. 1992). Rather, that failure "causes all factual assertions alleged by the opposing party to be deemed admitted." Id. Accordingly, defendant's "statement of material facts" (DE # 63 at 2-14) is deemed admitted and undisputed. The court still must "make the further finding that given the undisputed facts, summary judgment is proper as a matter of law." Wienco, Inc., 965 F.2d at 568.


         Plaintiff began working for Family Focus on September 1, 2008, as a caseworker, and held that position until February 14, 2014, when he was terminated. (DE # 62-2 ¶ 7.) A caseworker's starting wage was calculated using a base hourly wage rate (which could be changed by Family Focus each year) with the addition of one percent per year of direct experience the individual possessed at the time of the hire. (Id. ¶¶ 13-14.) Plaintiff's starting wage was $13.92 per hour. (Id. ¶ 8.) That number consisted of Family Focus's caseworker base rate from 2008 ($13.26) plus an additional 5% (or $.66) which was awarded due to plaintiff's five years of prior experience. (Id.)

         Each caseworker's hourly pay was then adjusted over time based on a series of yearly wage increases. Family Focus awarded performance-based wage increases in 2009, 2011, and 2012. (Id. ¶ 16.) These increases correlated to each individual employee's yearly performance evaluation score, which ranged on a scale of one to five, with five being the highest. (Id. ¶¶ 15-17.) Specifically, Family Focus increased hourly wage rates based on the following scale: in 2009, score of "three" (2% increase), score of "four" (2.5% increase), score of "five" (3% increase); in 2011, score of "three" (2% increase), score of "four" (3% increase), score of "five" (3% increase); in 2012, score of "three" (1% increase), score of "four" (2% increase), score of "five" (3% increase). (Id. ¶ 19-23.) No increases were given for scores of one or two. (Id.) Family Focus asserts it applied this policy to all caseworkers, regardless of gender. (Id.) There were no wage increases in 2010, and in 2013 all employees received a 3% wage increase. (Id. ¶ 16.)

         In 2009, plaintiff received a score of three and a 2% increase, in 2011 he received a score of four and a 3% increase, in 2012 he received a score of three and a 1% increase, and in 2013 he received the across-the-board 3% increase. (Id. ¶ 8.) Thus, at the time of his termination, plaintiff earned $15.22 per hour. (Id.)

         At various times, multiple female caseworkers had a higher per-hour-wage than plaintiff. (See Id. at 17-18.) This included Kim, Kara, and Demteress, who, like plaintiff, started as caseworkers in 2008 and received higher wages than plaintiff for the entire span of his employment at Family Focus.[1]

         However, not all female caseworkers were paid more than plaintiff. For instance, in February 2014, plaintiff was paid more than six female caseworkers: Nicole C. ($13.82), Crystal ($13.79), Sonya ($14.84), Renee ($15.19), Yarikza ($15.16), and Lisa ($15.16). (Id. ¶ 40.) Additionally, plaintiff stated in his deposition that male caseworkers were also paid more than him. (DE # 62-1 at 18 ("[A]ll caseworkers were getting paid more than me, males and females. It wasn't just females.").)

         Based on those facts, plaintiff filed suit in this court on July 24, 2014, alleging violations of the EPA and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq (the "ADA"). (DE #1.) His pro se complaint also hinted at discrimination on the basis of race, which if true, would violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. (See id.) On September 24, 2014, defendant moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE # 9.) The court granted the motion in part and dismissed plaintiff's ADA and Title VII claims, leaving only the EPA claim in tact. (DE # 17.)

         On August 11, 2016, defendant filed a second motion to dismiss (DE # 50) pursuant to Federal Rules of Civil Procedure 37(d) and 41(b) for plaintiff's failure to prosecute the action and failure to comply with the Magistrate Judge's order dated October 5, 2015 (DE # 26). Specifically, defendant argued that plaintiff had failed to provide responses to discovery requests and had failed to appear for his scheduled deposition. (DE # 50 at 3.) The court denied the motion to dismiss and granted plaintiff a final extension to respond to the outstanding discovery requests. (DE # 54.) ...

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