In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3504
BETTY WARREN,
Plaintiff-Appellant,
v.
SOLO CUP COMPANY,
a foreign corporation,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 2270—Michael P. McCuskey, Chief Judge.
____________
ARGUED FEBRUARY 12, 2007—DECIDED FEBRUARY 20, 2008
____________
Before KANNE, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Betty Warren alleges her em-
ployer, Solo Cup Company, compensated her male
coworker at a higher hourly rate based on his gender
in violation of the Equal Pay Act and Title VII. The dis-
trict court granted summary judgment in favor of the
employer. Warren appealed and we affirm.
I. Background
In 1999 Betty Warren began working at Solo Cup
Company (“Solo”), a manufacturer of disposable cups and
2 No. 06-3504
plates, as a “packer,” earning $6.04 per hour. In 2000
Warren switched positions and became a “tool crib atten-
dant,” earning $6.31 per hour. She received three raises
over the next two years and eventually reached an hourly
wage of $7.52. When Warren began working in the tool
crib, Solo tracked its parts using manual inventories
recorded on a written card system. Eventually Solo
computerized its tool crib, using a software system to
track and inventory parts. This modernization made it
important for tool crib attendants to possess computer
skills.
In December 2002 Solo contemplated hiring a tool crib
attendant to cover the third shift so the tool crib would
be continually staffed. Having recently decided to lay off
all of its full- and part-time security guards, Solo decided
to offer the new tool crib position to Don Lorenz, one of
its security guards. As a security guard, Lorenz started
at $6.50 per hour and worked his way up to $7.43. Solo
offered him a raise with the new position, to $7.75 per
hour. Tony Peyton, the head of Solo’s human resources
department, testified that Lorenz’s raise was based on his
“computer skills and his potential”; Lorenz holds a bache-
lor’s degree in anthropology and two master’s degrees
in education and urban planning, respectively.
Warren, who has a high school diploma, was upset when
she learned Lorenz was earning more money than she
was for similar work in the tool crib. She went to her
supervisor to discuss the discrepancy, and her super-
visor explained there was a company book that dictated
the starting wage for tool crib attendants. When Warren
protested that she “knew more than Lorenz,” Warren was
fired. At the time Solo’s explanation for her firing was
that she was “generating too many orders,” which appar-
No. 06-3504 3
ently is not a good thing for a tool crib attendant.1 In the
context of this litigation, deposition testimony revealed
that Warren was resistant to working with computers,
and Warren herself admitted to being “kind of mediocre”
with computers.2
Warren filed a three-count complaint in federal district
court, alleging she was paid unequal wages due to her
gender in violation of both Title VII, 42 U.S.C. § 2000e-2,
and the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), and
that her termination violated the Family Medical Leave
Act (“FMLA”), 29 U.S.C. § 601. Warren later abandoned
her FMLA claim. Solo moved for summary judgment
and prevailed, and Warren appealed.3
II. Analysis
We review the district court’s grant of summary judg-
ment de novo, “construing all facts, and drawing all rea-
sonable inferences from those facts” in favor of Warren.
1
Solo belatedly offered a business-related explanation for the
termination—that one tool crib position was being elimi-
nated—but because we construe all facts in the light most
favorable to Warren, we disregard it.
2
One of Warren’s supervisors, Nancy Driggers, testified that
Warren “just didn’t want to work on a computer” and “just really
didn’t want to deal with the computer.” Driggers said Warren
“would rather do almost any of the other jobs other than work
the computer.” Driggers also indicated Warren “did not have
an easy time working on the computer.”
3
In response to Solo’s motion for summary judgment, Warren
attempted to pursue a new claim: that her termination violated
Title VII. The district court correctly concluded that Warren
had waived this claim by failing to raise it in her complaint.
Accordingly, Warren’s termination is not at issue in this
appeal; we address only her unequal pay claims.
4 No. 06-3504
Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir.
2002). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c). “[T]o avoid summary judgment,
the nonmovant bears the burden of setting forth ‘specific
facts showing that there is a genuine issue for trial.’ ”
Vanasco v. Nat’l-Louis Univ., 137 F.3d 962, 965 (7th Cir.
2005) (quoting FED. R. CIV. P. 56(e)).
A. EPA Claim
Warren first argues that Solo violated the EPA because
her hourly rate as a crib attendant was less than Lorenz’s.
The EPA prohibits employers from paying employees
different wages based on gender. 29 U.S.C. § 206(d);
Varner v. Ill. State Univ., 226 F.3d 927, 932 (7th Cir.
2000). “To establish a prima facie case of wage discrim-
ination under the EPA, [Warren] must show,” by a prepon-
derance of the evidence, that: “(1) higher wages were
paid to a male employee, (2) for equal work requiring
substantially similar skill, effort and responsibilities, and
(3) the work was performed under similar working condi-
tions.” Stopka v. Alliance of Am. Insurers, 141 F.3d 681,
685 (7th Cir. 1998). No proof of discriminatory intent
is required. Id.; see also Varner, 226 F.3d at 932.
We assume, arguendo, that Warren established a prima
facie case, so the burden shifts to Solo “to establish one of
four statutory defenses.” Merillat v. Metal Spinners, Inc.,
470 F.3d 685, 697 (7th Cir. 2006); Fallon v. Illinois, 882
F.2d 1206, 1211 (7th Cir. 1989) (citing Corning Glass
Works v. Brennan, 417 U.S. 188, 196 (1974)). The statutory
defenses kick in if the difference in pay is attributed to
“(i) a seniority system; (ii) a merit system; (iii) a system
No. 06-3504 5
which measures earnings by quantity or quality of produc-
tion; or (iv) a differential based on any other factor other
than sex.” 29 U.S.C. § 206(d). The fourth exception is a
“broad, ‘catch-all’ exception and embraces an almost
limitless number of factors, so long as they do not involve
sex.” Fallon, 882 F.2d at 1211.
So “[i]n effect, the provisions of the Equal Pay Act
establish a rebuttable presumption of sex discrimination
such that once an employee has demonstrated that an
employer pays members of one sex more than members
of the opposite sex, the burden shifts to the employer to
offer a gender neutral justification for that wage dif-
ferential.” Varner, 226 F.3d at 932. The justification need
not be a “good reason,” but merely a gender-neutral one.
Wernsing v. Dep’t of Human Servs., 427 F.3d 466, 468 (7th
Cir. 2005). The justification “must also be bona fide. In
other words, an employer cannot use a gender-neutral
factor to avoid liability unless the factor is used and
applied in good faith; it was not meant to provide a
convenient escape from liability.” Fallon, 882 F.2d at 1211.
Solo has carried its burden. The company established
a bona fide, gender-neutral rationale for the discrepancy
in pay: Lorenz is more skilled in using computers than
Warren and has a bachelor’s and two master’s degrees.
“Under the EPA, differences in education and experience
may be considered factors other than sex.” Merillat,
470 F.3d at 697 (citing Cullen v. Ind. Univ. Bd. of Trs., 338
F.3d 693, 702 (7th Cir. 2003)). Warren has a high school
diploma and admitted her computer skills were deficient.
Although Lorenz’s bachelor’s and master’s degrees do not
include a specific emphasis on computers, the evidence
is undisputed that he knew more about computers
than Warren. Moreover, the record establishes that at
times Warren went out of her way to avoid using a com-
puter at work because it was unfamiliar to her. Solo’s
6 No. 06-3504
motion for summary judgment on Warren’s EPA claim was
properly granted.
B. Title VII Claim
Warren next argues Solo paid her a lower hourly rate
than Lorenz in violation of Title VII. She proceeds under
the indirect method set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), so the initial burden is
on Warren to establish a prima facie case of discrimina-
tion. This requires Warren to show that (1) she is a
member of a protected class; (2) she was performing her
job to Solo’s expectations; (3) she suffered an adverse
employment action; and (4) she was treated less favorably
than similarly situated employees outside of the pro-
tected class. Id.
Warren failed to establish a prima facie case because
she is not similarly situated to Lorenz.4 An employee is
4
In her appellate briefs, Warren contends the district court
ignored evidence regarding another Solo female employee,
Sandra Weir. Weir worked as a security guard, like Lorenz, and
was laid off at the same time Lorenz was offered the tool crib
attendant position. Warren focuses on the fact that Weir had
taken computer classes yet was not considered for the tool crib
position that went to Lorenz. Warren poses this question: “If the
reason for starting Lorenz at a wage rate higher than the
Plaintiff was because of his superior computer skills and not
because of his sex, why did . . . [Solo] not even consider the
credentials of Weir, despite her repeated inquiries about the
job?” We do not understand the import of this inquiry; Weir’s
alleged computer experience has nothing to do with the dis-
crepancy in Warren’s and Lorenz’s hourly wage. Warren does not
allege that Solo discriminated against women by not hiring
them for tool crib positions. Warren’s termination is not at issue
in this appeal; only Warren’s claims for unequal pay under
(continued...)
No. 06-3504 7
similarly situated if the employee is “comparable to the
plaintiff in all material respects.” Crawford v. Ind. Harbor
Belt R.R. Co., 461 F.3d 844, 846-47 (7th Cir. 2006). “In
evaluating whether two employees are directly compara-
ble, the court must look at all relevant factors, includ-
ing whether the employees ‘(i) held the same job descrip-
tion, (ii) were subject to the same standards, (iii) were
subordinate to the same supervisor, and (iv) had compara-
ble experience, education, and other qualifications—
provided the employer considered these latter factors in
making the personnel decision.’ ” Bio v. Fed. Express Corp.,
424 F.3d 593, 597 (7th Cir. 2005) (quoting Ajayi v.
Aramark Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir.
2003)).
The fourth factor is the focus of this case: Warren and
Lorenz have very different educational backgrounds,
experiences, and qualifications. Warren has a high school
diploma; Lorenz has a bachelor’s and two master’s de-
grees. Moreover, Lorenz’s computer skills are superior
to Warren’s. Warren maintains Lorenz’s advanced degrees
and computer skills are irrelevant because the tool crib
job description requires neither. But the tool crib job
description is not conclusive on this question. Employers
are permitted to compensate employees differently
based on skills that are not specifically required in a
given job description so long as the employer considers
those skills when making the compensation decision.
See Bio, 424 F.3d at 597.
Lorenz and Warren are not materially comparable in
education, experience, and computer aptitude, and Solo
4
(...continued)
the EPA and Title VII are properly before the court. We do not
see how Solo’s failure to consider Weir for the tool crib position
has any relevance to the pay discrepancy between Lorenz and
Warren.
8 No. 06-3504
considered these differences when deciding to pay Lorenz
a higher hourly rate. Accordingly, Solo’s motion for sum-
mary judgment on Warren’s Title VII discriminatory pay
claim was properly granted.
The judgment of the district court is AFFIRMED.
ROVNER, Circuit Judge, dissenting in part.1 In defense
of its decision to pay Lorenz more than Warren for doing
the same work, Solo has focused almost entirely on one
factor that distinguishes the two employees: Lorenz’s
computer skills. In the course of acquiring his bachelor’s
degree and two master’s degrees, Lorenz had been trained
in how to use computers and was comfortable doing so.
Warren, by contrast, had no training related to computers
and described her proficiency in that regard as “kind
of mediocre.” R. 11-3, Warren Dep. at 51. Because the
crib attendant position involved the use of a computer,
Lorenz’s greater facility with computer work amounts to
a facially legitimate, non-discriminatory reason to pay
him more than Warren. If the record before us were
limited to the comparative skills of Lorenz and Warren,
that would be enough to sustain the entry of summary
judgment against Warren on her disparate pay claims.
However, Solo’s action (or rather, its inaction) vis-à-vis
another computer-savvy employee, Sandra Weir, calls
1
I join the court’s opinion in one respect: I agree that Warren
did not timely assert, and therefore waived, a claim under Title
VII for discriminatory discharge. Ante at 3 n.3.
No. 06-3504 9
into question the veracity of its rationale for paying
Lorenz more than Warren. Solo has articulated the
same reason for hiring Lorenz into the crib attendant
position as it has for deciding to pay him more: his com-
puter expertise. But, as it turns out, Lorenz was not
the only individual interested in the position who had
such expertise. Sandra Weir was a security guard at Solo
who, like Lorenz, lost that job when the company decided
to outsource its security. Weir, like Lorenz, had computer
training and experience: she had taken a college course
in computers several years earlier, and she had held
two prior jobs in which she used computers to track parts
inventories, which is exactly what the crib attendant
position involved. Moreover, in the months proceeding
the decision to outsource the security positions, Weir
had told Holzhauer, the individual responsible for the
tool crib, and Peyton, the manager of Human Resources,
that she was interested in a crib attendant position. This
was in contrast to Lorenz, who had never approached
anyone in the company about that position. Weir had
also told Holzhauer and Peyton about her experience
with computers, so they were on notice of that experience.
Yet, despite Weir’s expressed interest in position, the
company never interviewed her for or contacted her
about the position; the company did not even follow up
with Weir about the extent of her computer-related
training and experience. The job was offered only to
Lorenz. Indeed, after Weir learned that she was losing
her job to outsourcing, she again spoke with Peyton
about a position in the tool crib, and he told her there
was no opening. If, as Solo has represented, the com-
pany’s prime focus in selecting someone for the position
was on computer expertise, then its disregard of Weir as
a candidate is, to say the least, curious.
My colleagues profess to be mystified as to the import of
Weir and her credentials, ante at 6-7 n.4, but to me the
10 No. 06-3504
relevance is obvious. I understand, of course, that Weir
is not a party to this suit and that Solo is not being sued
for its decision to place Lorenz in the crib attendant
position. Yet, even if the facts concerning the company’s
decision to pass over Weir in favor of Lorenz for the crib
attendant position are viewed as “other acts” evidence, see
Fed. R. Evid. 404(b), it is well-settled that such evidence
may be relevant and admissible to establish an em-
ployer’s discriminatory intent or to show pretext. Manuel
v. City of Chicago, 335 F.3d 592, 596 (7th Cir. 2003) (citing
Vance v. S. Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 n.5
(11th Cir. 1989)); Molnar v. Booth, 229 F.3d 593, 603-04
(7th Cir. 2000); see also Vance v. Union Planters Corp., 209
F.3d 438, 445 n. 8 (5th Cir. 2000) (coll. cases). To my mind,
however, this is not “other acts” evidence at all, but
rather evidence that directly bears on the veracity of
the company’s stated reason for paying Lorenz more to
work in the tool crib than it paid Warren. The company’s
stated rationale for putting him in that position and its
justification for paying him more for that work are one
and the same: his computer literacy. This makes the
process by which Solo selected Lorenz for the job perti-
nent. If, as Solo represents, its foremost concern in
filling the new position in the tool crib was computer
literacy, one would think that it would not have
brushed aside Weir as a candidate for that position.
Both Weir and Lorenz had computer expertise, both were
security guards who lost their positions to outsourcing, and
Weir, in contrast to Lorenz, had affirmatively expressed
her interest in the crib attendant position. There may have
been distinctions between the two that made Lorenz the
more attractive candidate, but if so they are not evident
from the record before us. The relevant point is that the
company offered the job to Lorenz without
even approaching Weir and without any inquiry into
their relative expertise. Faced with that evidence, a
No. 06-3504 11
reasonable factfinder could think that the company’s
proffered reason for putting Lorenz into the tool crib
position, and for paying Lorenz more than Warren for
that job, was pretextual.
Solo has hinted at a second reason for compensating
Lorenz at a higher rate than Warren—his higher level
of education. Why Lorenz’s multiple degrees are relevant
to a position in the tool crib is not apparent to me. The
areas in which Lorenz had obtained his degrees had
nothing to do with the responsibilities of the position. The
fact is, Lorenz’s three degrees rendered him vastly over-
qualified for a position that required only a high school
degree or the equivalent. But for our purposes, the more
relevant point is that Solo has not established that
Lorenz’s overall level of education was an independent
reason for its decision to pay him more than Warren.
Lorenz’s computer expertise has always been the central
and dispositive factor Solo has relied on. See R. 32, Defen-
dant’s Amended Reply in Support of its Motion for Sum-
mary Judgment at 13 ¶ 33 Response (describing “computer
skills and computer work” as “the critical inquiry” re-
garding the pay disparity between Lorenz and Warren); id.
at 33 (“The focal point is the computer component to the
tool crib position in December 2002.”); see also R. 11-4,
Peyton Dep. at 74 (“[Lorenz’s] computer skills led us to
believe that he was the best candidate.”); R. 11-6,
Holzhauer Dep. at 39 (“the person I was looking for
needed to be very computer-literate to be able to handle
the work that was required”). His substantial post-second-
ary education simply explained how Lorenz came to
possess that expertise. See R. 11, Defendant’s Memoran-
dum in Support of its Motion for Summary Judgment
at 13 (“During his educational training, Lorenz stated he
took computer courses that Solo believed made him
uniquely qualified for a tool crib attendant position
following implementation of the computer component of
12 No. 06-3504
the MP2 Inventory Control Program.”). Solo has, it is true,
made vague allusions to Lorenz’s “background” and “poten-
tial” as reasons for paying him more than Warren. R. 11-4,
Peyton Dep. at 44. Perhaps Solo believed that Lorenz’s
multiple degrees made him an attractive prospect
for future promotion to more responsible positions within
the company. If so, however, the company has not ade-
quately developed this as a second and independent rea-
son for deciding to pay him more than Warren.
The evidence Warren has proffered as to Weir suffices
to establish a question of fact as to the veracity of Solo’s
rationale for paying Lorenz more than Warren for doing
the same work and as to whether Warren was similarly
situated to Lorenz in material respects. For that reason,
I would reverse the grant of summary judgment as to
Warren’s disparate claims under the Equal Pay Act and
Title VII.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-20-08