United States District Court, N.D. Indiana, Hammond Division
OPINION and ORDER
T. MOODY UNITED STATES DISTRICT COURT
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.
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).
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
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.
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
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.)
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.)
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
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
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.)
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.) ...