Roberta Jaburek v. Anthony Foxx

In the

United States Court of Appeals
For the Seventh Circuit
No. 15-2165

ROBERTA M. JABUREK,
Plaintiff-Appellant,

v.

ANTHONY R. FOXX,
Defendant-Appellee.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 2150 — Andrea R. Wood, Judge.

ARGUED DECEMBER 8, 2015 — DECIDED JANUARY 13, 2016

Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Roberta Jaburek,
appeals the district court’s grant of summary judgment in
favor of defendant-appellee, Anthony Foxx, United States
Secretary of Transportation. Appellant alleges that her em-
ployer, the Federal Aviation Administration, a division of the
Department of Transportation, discriminated against her
because of her national origin and sex. Specifically, she alleges
that the FAA paid her less than other employees who did the
2 No. 15-2165

same work that she did but did not share her protected class
status, and that the FAA retaliated against her for complaining
about such discrimination. She brings three causes of action:
failure to promote in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.; violation of the Equal Pay
Act, 29 U.S.C. § 206(d); and a Title VII retaliation claim.
Because Appellant failed to produce the necessary evidence to
establish prima facie claims for any of her causes of action, the
district court granted summary judgment for Foxx on all
counts. We affirm.
I. BACKGROUND
Appellant is a woman of Mexican descent who began
working for the FAA at its Des Plaines, Illinois, office in 1987.
She began as a secretary, at the pay grade of GS-5. She was
promoted to Administrative Support Assistant in 1994, and her
pay grade was raised to GS-6. In December 1995, she was
briefly promoted to the position of Program Analyst, and her
pay grade was raised to GS-7. In April 1996, she was reas-
signed to her former Administrative Support Assistant
position and returned to her GS-6 pay grade.
In 2008, Julia Hale became manager of the FAA’s Engineer-
ing Support Group and was Appellant’s supervisor. Hale was
stationed in Fort Worth, Texas, and had an on-site administra-
tive assistant. Not needing a remote administrative assistant,
Hale assigned Appellant to support Joseph Neil Johnson, an
Engineering Technical Officer (“ETO”) in the Des Plaines
office. Besides Appellant, Johnson also worked with two
Program Analysts, Maria Miller and JoAnne Forys. Miller’s
No. 15-2165 3

pay grade was GS-12 and Forys’s was GS-11, while Appellant’s
remained at GS-6.
Eventually, Miller changed positions and Forys retired.
Appellant performed both of their tasks as Program Analyst
for an extended period of time. According to Johnson, Appel-
lant “did a very fine job” at this work. When Johnson retired in
January 2010, Appellant sent an email to Hale regarding items
that required a signature from an ETO. In the email, Appellant
noted that she had signed such items for Johnson in the past.
She then asked if she “should continue signing these docu-
ments now that [Johnson] is no longer our ETO[.]” Hale replied
with approval: “While I know that you are extending yourself
to the max in [Johnson’s] absence, your offer is great. Please
take care of signing with my approval.” Neither Appellant’s
nor Hale’s emails referred to Appellant’s pay grade or actual
compensation.
In May 2010, Hale left her position, and Walter Wilson
became acting manager of the Engineering Support Group. On
May 13, 2010, Wilson’s administrative assistant sent an email
to a group of employees asking them to describe their roles
and responsibilities. Appellant was part of this group and
responded with a detailed description of her role. In her
response, she specifically stated, “My role encompasses acting
in the capacity of the FAA Program Analyst.” She did not
describe her pay grade or actual compensation.
On September 12, 2010, Lourdes Lay replaced Wilson as
acting manager of the Engineering Support Group and Appel-
lant’s supervisor. On September 13, 2010, Appellant sent Lay
an email “per [Lay’s] request,” which included as an attach-
4 No. 15-2165

ment the same description of her role that she had sent to
Wilson earlier in the year. As before, this description did not
include Appellant’s pay grade or actual compensation.
On January 17, 2011, Lay sent a letter to Appellant detailing
her “assigned duties as a Secretary,” not as a Program Analyst.
The following day, January 18, 2011, Lay directed another
employee to disable Appellant’s access to PRISM, a govern-
ment database used to process procurement requests. Lay
noted that it was not Appellant’s duty to process such requests;
this duty belonged to another individual working at the
Des Plaines office.
Three days later, on January 21, 2011, Appellant contacted
an agency Equal Employment Opportunity (“EEO”) counselor.
On May 14, 2011, she filed an EEO complaint with the Depart-
ment of Transportation. The complaint alleged that Lay’s
January 17–18, 2011, actions constituted discrimination based
on sex and national original as well as retaliation against
Appellant. On February 12, 2013, the agency made a final
agency decision, finding no discrimination or retaliation.
Notably, Appellant claims that the FAA should have and
did not conduct a “desk audit” of her after she sent the
descriptions of her duties to Wilson and Lay. (A desk audit is
when supervisory authorities assess an employee’s duties and
pay.) Appellant claims that she requested a desk audit, but, in
her words, the agency “didn’t get back to me.” She further
states, “I asked them [for a desk audit]. I kept waiting.”
However, she has not provided a date of the request, and
produced no documentary evidence of the request outside of
her own deposition testimony. Hale, Wilson, and Lay filed
No. 15-2165 5

affidavits that, to their knowledge, Appellant never requested
a desk audit.
On March 20, 2013, Appellant filed the present suit against
Foxx. On March 30, 2015, the district court granted summary
judgment to Foxx on all three of Appellant’s claims. The court
noted that summary judgment was appropriate because
Appellant had not presented sufficient evidence to establish a
prima facie case for any claim.
Appellant filed a notice of appeal of the grant of summary
judgment on May 30, 2015, sixty-one days after the court
entered judgment for Foxx. Because the statutory period for
filing an appeal is sixty days after final judgment, we issued an
order for Appellant to show good cause for not dismissing
Appellant’s appeal for want of jurisdiction. We also advised
Appellant to move for an extension to file her notice of appeal
with the district court. Appellant complied by moving for an
extension with the district court on June 6, 2015.
To demonstrate good cause, Appellant’s counsel filed an
affidavit saying that he had been diagnosed with a severe case
of gout approximately one week before the appeal was due. He
claimed that he was out of the office and under the influence
of pain medication on May 29, 2015, when the appeal was due.
Citing Appellant’s counsel health issues, the minimal delay,
and the lack of apparent prejudice to Foxx, the district court
found good cause, and granted Appellant’s motion for an
extension. Foxx moved to reconsider this decision, arguing that
Appellant’s true reason for missing the deadline was a miscal-
culation of the due date for the notice of appeal. However, the
district court rejected this argument and denied Foxx’s motion.
6 No. 15-2165

II. DISCUSSION
Appellant argues that she performed the duties of a
Program Analyst from the time Hale assigned her to work for
Johnson in 2008 until Lay reassigned her in January 2011. But
she believes that Foxx and the Department of Transportation
did not adequately compensate her for the extra work. Instead,
her pay grade remained at GS-6. She translates this grievance
into three potential avenues of recovery: a Title VII national
origin discrimination claim for failure to promote; an EPA sex
discrimination claim; and a Title VII claim for retaliatory
discharge. However, Appellant has not produced evidence
connecting any failure to compensate her adequately to any
animus towards her based on her national origin or sex. She
has also not produced evidence of retaliation.
A. Foxx’s Motion to Reconsider Properly Denied
First, the district court did not err in granting Appellant’s
motion for an extension of time in filing her appeal and in
denying Foxx’s motion to reconsider the grant of an extension.
The standard of review for a motion to reconsider is abuse of
discretion, and this court “will not upset the district court’s
ruling absent a showing that no reasonable person could
agree” with its decision. United Central Bank v. KMWC 845,
LLC, 800 F.3d 307, 309 (7th Cir. 2015) (quotation marks and
citation omitted).
Here, we find no reason to disturb the district court’s order
granting Appellant an extension of time and denying Foxx’s
motion to reconsider. Appellant filed her motion for an
extension within the period allowed by the Federal Rules
of Appellate Procedure. See Fed. R. App. P. 4(a)(1)(B)(iii);
No. 15-2165 7

4(a)(5)(A)(i). She also demonstrated sufficient good cause for
the delay, owing to her counsel’s diagnosis with gout at
the time when the appeal was due. See Fed. R. App. P.
4(a)(5)(A)(ii); Robinson v. Sweeny, 794 F.3d 782, 784 (7th Cir.
2015) (party moving for extension of time to file notice of
appeal must show “excusable neglect or good cause”). Having
deemed the motion timely and having found good cause
for Appellant’s delay, the district court granted Appellant’s
motion and denied Foxx’s motion. We find no abuse in doing
so.
B. Summary Judgment For Foxx Properly Granted
The merits of the case, by contrast, favor Foxx. Appellant
has not produced evidence necessary to sustain any of the
three claims against Foxx, and has thus failed to connect her
generalized grievance to any race or sex discrimination that
triggers a cause of action in federal court. As a result, her case
cannot proceed to trial, and the district court was correct in
granting summary judgment in favor of Foxx.
We review the grant of summary judgment de novo,
construing the facts in the light most favorable to the non-
moving party—here, Appellant. Rahn v. Bd. of Trustees of N. Ill.
Univ., 803 F.3d 285, 287 (7th Cir. 2015) (citation omitted).
Summary judgment is appropriate when there is no dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a); Lalowski v. City of
Des Plaines, 789 F.3d 784, 787 (7th Cir. 2015). At this stage,
Appellant must have produced evidence that indicates a
genuine issue of material fact. See Armato v. Grounds, 766 F.3d
713, 719 (7th Cir. 2014) (quotation and citation omitted); see also
8 No. 15-2165

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R.
Civ. P. 56(e) in holding that non-moving party must “designate
‘specific facts showing that there is a genuine issue for trial’”).
In this case, Appellant has failed to provide sufficient
evidence on any of her three claims, and the court correctly
ruled in favor of Foxx as a matter of law.
1. Title VII Discrimination Failure to Promote
Appellant argues that Foxx and the FAA failed to pay her
appropriately, and that this failure was based on her gender
and national origin. She argues that because she was perform-
ing the duties of a Program Analyst, she should have been
compensated at a higher pay grade than the grade to which she
was assigned as an Administrative Support Assistant. Because
Appellant could only be compensated at a higher pay grade if
she was promoted to the position of Program Analyst, we
properly analyze her claim under Title VII’s failure to promote
framework. She has failed to state such a claim.
Title VII forbids employers from discriminating against its
employees based on “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a). A plaintiff establishes a Title
VII claim under either the direct method or indirect, burden-
shifting method. See, e.g., Sklyarsky v. Means-Knaus Partners,
L.P., 777 F.3d 892, 896 (7th Cir. 2015). Here, Appellant seeks to
establish her claim through the indirect method. To do so, she
must first produce evidence of a prima facie case of discrimina-
tion under the familiar McDonnell Douglas test. Cung Hnin v.
TOA (USA), LLC, 751 F.3d 499, 504 (7th Cir. 2014) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973)).
To demonstrate a prima facie case for failure to promote under
No. 15-2165 9

Title VII, she must produce evidence showing 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 the protected
group who was not better qualified for the position that she
sought. Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 439 (7th Cir.
2014).
In this case, Appellant has not demonstrated multiple
elements of a prima facie case for Title VII failure to promote.
Primarily, she has not shown that the FAA rejected her from
the position of Program Analyst because she never applied for
the position. See Johnson v. Gen. Bd. of Pension & Health Benefits
of United Methodist Church, 733 F.3d 722, 728 (7th Cir. 2013)
(holding that failure to promote claim requires that plaintiff
“appl[y] for … the position sought” and granting summary
judgment on Title VII failure to promote claim where plaintiff
did not apply for higher position (quotation marks and
citations omitted)). She instead provides her emails and letters
to Wilson and Lay describing her duties as that of a Program
Analyst. But this is not evidence of an application for the
position.
Nor is her vague testimony about her request for a desk
audit enough to show that she applied for a promotion. She
did not specify when she made this request, nor did she give
any detail about what she said and whether her request was a
step toward a request for a promotion. She merely noted that
the auditors “didn’t get back” to her. By contrast, Foxx pro-
duced the affidavits of Hale, Wilson, and Lay, all of whom
swore that Appellant never complained about her lack of
compensation, never requested a desk audit from them, and
10 No. 15-2165

never applied for the position. Even viewing the evidence in
the light most favorable to Appellant, there is no evidence that
she actually applied for the position of Program Analyst.
Having not applied for the position, she could not have been
rejected for the position. See Garofalo, 754 F.3d at 439.
Additionally, the record lacks evidence that the FAA
promoted anyone else to the position of Program Analyst.
Appellant only points to Forys and Miller, who are white
women, as persons outside her protected group who held the
position of Program Analyst. However, the record demon-
strates that Forys and Miller had their positions before Appel-
lant could have even applied for the position; thus, they could
not have been promoted instead of her.
Appellant’s fundamental claim is that the FAA should have
known that she was performing the duties of a Program
Analyst and should have compensated her accordingly. This
may be grounds for a desk audit, but it is not sufficient to
support a Title VII discrimination claim. Thus, the district court
was correct in granting summary judgment in favor of Foxx.
2. Equal Pay Act
Similarly, Appellant has failed to produce necessary
evidence to survive summary judgment for her Equal Pay Act
claim. The Equal Pay Act forbids employers from paying
different rates to men and women for the same work at the
same “establishment.” 29 U.S.C. § 206(d)(1). To state a claim for
such discrimination under the Act, a plaintiff must show: “(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
No. 15-2165 11

conditions.” Warren v. Solo Cup Co., 516 F.3d 627, 629 (7th Cir.
2008) (quoting Stopka v. Alliance of Am. Insurers, 141 F.3d 681,
685 (7th Cir. 1998)). Equal Pay Act regulation has limited the
“establishment” language in the statute to mean the same
geographical office, or at least the same city or metropolitan
area. See 29 C.F.R. § 1620.9(a) (stating that “each physically
separate place of business is ordinarily considered a separate
establishment”).
Additionally, to determine if the work that Appellant did
was equal to the work that a male employee did, “the crucial
inquiry is whether the jobs to be compared have a common
core of tasks[;] i.e., whether a significant portion of the two jobs
is identical.” Cullen v. Ind. Univ. Bd. of Trustees, 338 F.3d 693,
698 (7th Cir. 2003) (quotation marks and citation omitted).
Without evidence of characteristics like “what [the male
employees’] duties were, when they started work, where they
worked, and what their backgrounds were,” a jury cannot
determine the comparability of work between the employees
of the opposite sex. See Goodman v. Nat’l Sec. Agency, Inc., 621
F.3d 651, 657 (7th Cir. 2010). Thus, without such evidence, an
Equal Pay Act discrimination claim cannot survive summary
judgment.
Appellant’s claim suffers this fate. She has only identified
three male Program Analysts in the FAA: Joe Dahl in Anchor-
age; “James Desaree” (whom the agency directory actually
identifies as Desaree James, which is presumably a female
name) in Seattle; and Del Swichuk, whose office is not identi-
fied. The directory only lists Dahl and James Desaree/Desaree
James; it does not list Swichuk. Notably, none of these male
employees worked in the Chicago or Fort Worth offices, and
12 No. 15-2165

Appellant has not identified any male Program Analysts in
either office areas. Additionally, Appellant has only provided
the comparators’ names and titles. She has not provided a
description of any “common core of tasks” or any further
description of the male employees’ duties, hours, background,
or qualifications. Absent such necessary evidence, a jury
cannot determine if Foxx and the FAA were paying these men
higher wages for doing equal work under similar conditions.
Therefore, Appellant cannot sustain a cause of action for
violation of the Equal Pay Act as a matter of law, and the
district court properly granted summary judgment in favor of
Foxx.
3. Title VII Retaliation
Finally, Appellant has failed to produce necessary evidence
to survive summary judgment for her Title VII retaliation
claim. She claims that Lay officially returned her to the duties
of Secretary and removed her access to PRISM after learning of
her complaints of inadequate compensation. While Lay did
take these steps, Appellant has produced no evidence that they
were in retaliation for any complaint or opposition by Appel-
lant.
In addition to forbidding discrimination based on “race,
color, religion, sex, or national origin,” Title VII also “forbids
actions that ‘discriminate against’ an employee (or job appli-
cant) who has ‘opposed’ a practice that Title VII forbids or has
‘made a charge, testified, assisted, or participated in’ a Title VII
[discrimination] ‘investigation, proceeding, or hearing.’”
Burlington N. and Santa F. Ry. Co. v. White, 548 U.S. 53, 59 (2006)
(quoting 42 U.S.C. § 2000e–3(a)). A plaintiff must thus produce
No. 15-2165 13

evidence of an adverse employment action that was instigated
by her “complaining about prohibited discrimination.” Chaib
v. Indiana, 744 F.3d 974, 986 (7th Cir. 2014).
In this case, Lay’s decision, as the district court notes, “to
remove [Appellant] from more challenging duties and confine
her more strictly to an administrative role” could constitute
adverse employment action. We define adverse employment
action “quite broadly,” to include relegating the employee to
lesser duties. Atanus v. Perry, 520 F.3d 662, 677–78 (7th Cir.
2008) (quotation marks and citations omitted). See also Alexan-
der v. Casino Queen, Inc., 739 F.3d 972, 980 (7th Cir. 2014)
(“[a]dverse employment actions generally fall into three
categories … [including] transfers or changes in job duties that
cause an employee’s skills to atrophy and reduce future career
prospects” (quotation and citation omitted)). Thus, Lay’s
actions could fall under this umbrella, at least at the summary
judgment phase.
But Appellant has not produced evidence that she com-
plained about prohibited discrimination before Lay took these
actions. A retaliation claimant must produce evidence that she
gave “a cognizable expression of opposition” to discriminatory
practices. O’Leary v. Accretive Health, Inc., 657 F.3d 625, 634 (7th
Cir. 2011). On January 17, 2011, Lay sent a letter to Appellant
detailing her duties as a Secretary, not as a Program Analyst.
On January 18, 2011, Lay took steps to limit Appellant’s access
to the PRISM database. Therefore, Appellant must produce
evidence of some cognizable expression of opposition to
discriminatory practice before January 17–18, 2011.
14 No. 15-2165

She has not done so. She has only produced the January
2010 communication with Hale in which Appellant described
signing documents on behalf of Johnson and asking if she
should continue to do the same. She has also produced her
description of her job duties as that of a Program Analyst
which she sent to both Wilson in May 2010 and Lay in Septem-
ber 2010. Finally, she has stated (though she presents no
corroborating document) that she requested a desk audit from
the FAA to determine whether her compensation correlated to
her work. She argues that the FAA should have conducted a
desk audit in response to her 2010 communications with Hale
and Wilson, and her 2011 communication with Lay. However,
none of these documents or statements contain oppositional
language or complaints or refer to any discrimination towards
Appellant. Indeed, as noted above, Foxx has produced the
affidavits of Hale, Wilson, and Lay, all of whom swear that
Appellant never even requested a desk audit, let alone com-
plained of any discrimination.
The only complaint of or opposition to discriminatory
practices which Appellant has produced was the January 21,
2011, contact with an EEO officer, and her May 14, 2011, EEO
complaint. But these actions occurred after Lay limited Appel-
lant’s duties and PRISM access, and could not have instigated
any retaliation. Thus, timing dooms Appellant’s Title VII
retaliation claim, and summary judgment in favor of Foxx was
appropriate.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court.