Schultz v. Dep't of Workforce Dev.

752 F.Supp.2d 1015

Linda SCHULTZ, Plaintiff,

v.DEPARTMENT OF WORKFORCE DEVELOPMENT, Defendant.

No. 09–cv–274–slc.

United States District Court, W.D. Wisconsin.

Oct. 21, 2010.

Paul Kinne, Gingras, Cates & Luebke, S.C., A. Steven Porter, Attorney at Law, Madison, WI, for Plaintiff.Richard Briles Moriarty, Steven Carl Kilpatrick, Wisconsin Department of Justice, Madison, WI, for Defendant.

OPINION AND ORDER

STEPHEN L. CROCKER, United States Magistrate Judge.

This is a civil suit for money damages brought by plaintiff Linda Schultz against her former employer, the Department of Workforce Development. Plaintiff contends that while she was employed by the Department, she was paid less than men who were performing work equal to hers in terms of skill, effort and responsibility, in violation of the Equal Pay Act, 29 U.S.C. § 206(d). Before the court are defendant's motion for summary judgment, see dkt. 45, and plaintiff's motion to amend her amended complaint to add her successor, Nelse Grundvig, as a comparator, see dkt. 77. Grundvig was hired in early June 2010.

I am granting defendant's motion for summary judgment with respect to all of plaintiff's comparators except Grundvig. Plaintiff's equal pay claim is untimely with respect to Paul Saeman and Terry Ludeman, who left the Department more than 3 years before plaintiff filed her complaint. With respect to Dennis Winters and Michael Soref, plaintiff has failed to meet her burden of showing that the work they performed was equal to hers in terms of skill, effort and responsibility. Even if plaintiff could meet this burden, she has failed to adduce evidence sufficient to raise a genuine dispute regarding the Department's affirmative defenses to the wage disparity.

As for Grundvig, I am granting plaintiff's motion to amend her complaint. Although the Seventh Circuit's decision in Wernsing v. Illinois Dept. of Human Services, 427 F.3d 466 (7th Cir.2005), contains strong language suggesting that an employer who matches an employee's prior wages (as the Department did with respect to Grundvig) cannot be liable under the Equal Pay Act for any resulting pay disparity, I am not convinced that prior wages alone is enough in this case, where Grundvig was an outside hire whose initial offer from the Department was below his prior wages but still far more than Schultz had been making. Accordingly, allowing amendment would not be futile. However, to alleviate any prejudice to defendant from allowing amendment at this late juncture, I am striking the trial date and permitting defendant to file an amended motion for summary judgment with respect to Grundvig.

A few preliminary remarks about the facts: In many instances, plaintiff responded to facts proposed by the Department by reciting at length from her own affidavit, at times going on for pages. I share Judge Crabb's view that such rambling responses are not countenanced by the Procedure to be Followed on Motions for Summary Judgment, as they unduly complicate the court's task in deciding summary judgment motions. Plaintiff further roils the waters because these responses, despite their length, often fail to respond directly to the fact proposed by defendant. Accordingly, in determining the undisputed facts, I have deemed as undisputed those facts to which plaintiff failed to respond directly or properly. Against this backdrop, I find the following facts to be undisputed for the purpose of deciding the motion for summary judgment:

FACTS

I. Plaintiff Linda Schultz

Plaintiff Linda Schultz worked for the Department of Workforce Development, an agency of the State of Wisconsin, from 1971 until she resigned at the end of 2008. Roberta Gassman has been the Secretary of the Department since January 2003. The Department is divided into divisions, which are subdivided into bureaus, which in turn are subdivided into sections. For her entire career, Schultz has worked in the Department's Labor Management Information Data Development (LMI) Section, within the Bureau of Workforce Training, within the Division of Employment and Training.¹ Work performed and programs managed by the LMI Section differ from that performed by other sections within the bureau.

Throughout her career, Schultz has been a member of Wisconsin's classified civil service. Under Wisconsin civil service law, each position in the classified civil service system is allocated to the appropriate class on the basis of its duties, authority, responsibilities and other factors recognized in the job evaluation process. A “classification” is the category to which a job is assigned. The schedule and pay range for a specific classification define the minimum and maximum pay rates for positions in that classification. A “position description” more narrowly defines the specific set of duties and responsibilities and other characteristics that apply to a particular position within a given classification. There can be many different position descriptions within a classification.

In 1971 Schultz began her career in the Department as a Clerical Assistant 2. Schultz completed high school and took some college courses but never obtained a college degree. After holding various positions over several years with the Department, Schultz was promoted on April 15, 1996 from the classification of Research Analyst 5 to Research Analyst 7 Supervisor. In accordance with Wisconsin's compensation plan for civil service employees, upon promotion her hourly pay increased from $16.359 an hour to $18.083 an hour, a 10.5% increase. On June 1, 1997, Schultz's position was reclassified from Research Analyst 7 Supervisor to Research Analyst 8 Supervisor to reflect a change in duties and responsibilities. Schultz's pay increased from $20.575 to $21.280 an hour.

On November 21, 1999, Schultz's position was changed from “Research Analyst 8 Supervisor” to the classification of “Research Administrator.” This was a change in classification name only with no corresponding salary change.

From approximately 1997 until her resignation in December 2008, Schultz held the position of Chief of the Labor Market Information section. In that position, Schultz was responsible for the organization and direction of the LMI section. Schultz supervised 11 clinical staff and six professional staff, she worked with the United States Department of Labor regarding certain programs managed by her section, and she reported to the Bureau Director. Apart from occasional meetings at which other employees were present, Schultz had limited contact with Secretary Gassman.

Schultz's section managed the Bureau of Labor Standards' federal-state cooperative programs and other data collection activities. The federal-state cooperative programs under Schultz's supervision were the Quarterly Census of Employment and Wages, Local Area Unemployment Statistics, Mass Layoff Statistics, Current Employment Statistics and Occupational Employment Statistics wage programs. Employees under Schultz's supervision assembled a variety of reports, analyses and surveys to meet the expectations of the federal government with respect to these programs and to provide data that was required by the Department. Much of the work done by Schultz's section was prescriptive and routine. For example, one of Schultz's responsibilities was to supervise the quarterly census of employment ages, a function defined by the Bureau of Labor Statistics with stringent guidelines on how that should be done. Schultz also supervised a nurse wage survey that was limited in duration. In addition to supervising the data collection activities for the department, Schultz also directed original research, analyzed contracts, produced reports used to monitor agency performance and responded to data requests from the Secretary, Governor and state legislature.

Schultz supervised a unit that provided information to the Projections Unit. The Projections Unit is part of the Office of Economic Advisors, an office located within the Office of the Secretary and not managed or supervised by Schultz. The Projections Unit took the data provided by Schultz's unit, analyzed it and published projections of the likely numbers of openings for a given occupation.

In 1996, Schultz began working part-time as a receptionist at Epic Systems, Inc., a private employer in Dane County, while retaining her job at the Department. Schultz left work at the Department at 3:15 p.m. every day in order to get to her job at Epic. Although Schultz's supervisor, Bureau Director Gary Denis, was aware of this, Gassman did not learn of Schultz's second job until after Schultz resigned from her position in the Department. Schultz cannot recall any situations that arose at the Department after she had left for Epic in which her absence posed a problem.

Effective March 12, 2000, the classification specifications for Research Administrator were modified to reflect the results of a broadbanding study conducted by Wisconsin's Office of State Employment Relations (OSER). OSER implemented “broadbanding,” whereby various pay ranges were grouped together. This gave the state more flexibility in establishing pay rates within a position's pay range. For instance, broadbanding gave managers discretion to consider an employee's training and experience when setting pay rates rather than have the rate dictated by the position.

Sometime before December 2008, Schultz asked her supervisor, Bureau Director Gary Denis, to nominate her for a Discretionary Compensation Award, or DCA. Schultz submitted a self-drafted nomination form with her request. DCAs are lump sum cash payments or base salary increases available for non-represented employees that can be granted for reason of equity, retention or to compensate an employee for an extraordinary temporary workload. Denis responded that he could not in good faith pass along her nomination, not only because he felt much of the text was inflammatory and inappropriate, but also because the...