King v. ACOSTA SALES AND MARKETING, INC.

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-3617

S USAN A. K ING,
Plaintiff-Appellant,
v.

A COSTA S ALES AND M ARKETING, INC., et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 456—Robert W. Gettleman, Judge.

A RGUED F EBRUARY 13, 2012—D ECIDED M ARCH 13, 2012

Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Acosta Sales and Marketing
is a food broker, which represents producers that
seek to sell to supermarkets and other bulk purchasers.
In 2001 Acosta’s midwest operation hired Susan King
as one of its business managers—a term that Acosta
uses for people who represent a group of producers.
(McCormick & Co., which sells spices and spiced foods,
2 No. 11-3617

was one of King’s major clients.) After quitting in 2007,
King charged Acosta with two kinds of sex discrimina-
tion: that Acosta maintained a hostile work environment
in which conditions for women were inferior to those
for men, and that Acosta paid women less than men for
the same work. Both kinds of discrimination violate
Title VII of the Civil Rights Act of 1964, and discrimina-
tion in pay also violates the Equal Pay Act, 29 U.S.C.
§206(d). King advanced some other claims in the district
court but does not pursue them on appeal. King also
sued four of Acosta’s corporate affiliates; the only one
that matters is her employer. See Bright v. Hill’s Pet Nutri-
tion, Inc., 510 F.3d 766, 771 (7th Cir. 2007). We disregard
the rest.
The district court granted summary judgment to
Acosta on King’s claims under federal law. 2011 U.S. Dist.
L EXIS 13958 (N.D. Ill. Feb. 10, 2011). Although the
order did not mention her claim under state law, and the
decision therefore was not final, King immediately ap-
pealed. Last fall we dismissed that appeal for lack of
jurisdiction. No. 11-1876 (7th Cir. Oct. 21, 2011). The
parties returned to the district court, which wrapped
up the suit. King has abandoned the state-law claim,
so when she filed a new appeal we allowed the parties
to proceed on their original briefs. It is at last ready
for appellate decision.
King contends that the work environment at Acosta
was hostile to her throughout her employment. The
district judge broke that contention into two, asking
first whether working conditions were actionable during
the 300 days before King filed her charge with the EEOC
No. 11-3617 3

(the judge gave a negative answer) and then whether
acts that preceded the 300-day window could be
attributed to the employer. That approach misapplied
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
(2002), which holds that an employee may rest a hostile-
working-environment claim on acts any time during
her employment. Morgan concludes that, when an as-
sertedly unlawful employment practice occurs as a
pattern over time rather than in one discrete act, it does
not matter when the individual deeds contributing to
the pattern occurred, if the pattern continued into the
300 days before the charge’s filing.
The district court’s error does not require a remand,
however, because King’s evidence does not establish
a pattern of hostility that continued into the 300 days
before her charge. Most of the obnoxious acts were com-
mitted by Thomas Connelly, another of Acosta’s busi-
ness managers, between 2001 and 2004. Connelly distrib-
uted pornographic materials at work and in Febru-
ary 2002 showed King a picture of himself wearing only
a trench coat, tight swimming trunks, and a dildo.
Three months later Connelly gave King a pornographic
video tape and a nine-inch dildo. In September 2004 he
called her a “cunt” during a business meeting. King
promptly complained to her supervisor. Connelly was
disciplined and instructed to clean up his act; he did not
harass King again before quitting in 2005, approximately
two years before King filed her charge with the EEOC.
King’s working environment was markedly better
after September 2004. There were still events that King
4 No. 11-3617

found unwelcome. One supervisor made a pass at her;
another called her “Suzie Big Hair” and referred to one
of King’s co-workers as a “tramp” and another as “Pass-
Around Patti.” When a representative of one of Acosta’s
clients made a crude sexual remark, King’s super-
visor let the incident pass. All of this may have been
unpleasant, but none of it was severe, and a few incidents
at the rate of one every four to six months (which is
what King’s evidence shows) cannot be called pervasive.
“The prohibition of harassment on the basis of sex . . .
forbids only behavior so objectively offensive as to alter
the ‘conditions’ of the victim’s employment. ‘Conduct
that is not severe or pervasive enough to create an objec-
tively hostile or abusive work environment—an environ-
ment that a reasonable person would find hostile or
abusive—is beyond Title VII’s purview.’ [Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993), citing Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).] We
have always regarded that requirement as crucial, and
as sufficient to ensure that courts and juries do not
mistake ordinary socializing in the workplace . . . for dis-
criminatory ‘conditions of employment.’ ” Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
Once Connelly desisted, King’s working environment
was not marked by severe or pervasive hostility toward
women. (We need not decide whether Connelly’s
behavior, which long predated the period of limitations,
would satisfy the Supreme Court’s hostile-working-
conditions doctrine.)
Pay is a different matter. Even a dollar’s difference
based on sex violates both Title VII and the Equal Pay
 No. 11-3617 5

Act—and King established much larger differences. Some
men in the same job classification, doing the same
work under the same conditions, received more than
twice her pay. Here’s a table, with women’s names
in italics:

Business Manager Starting Year Starting Salary 2007 or Final Salary

Thomas Connelly 1998 $91,000.08 $122,004.00

Thomas Robaczewski 2000 $95,000.00 $101,921.00

Tim Wilson 2004 $85,000.01 $99,500.11

Helmut Fritz 2001 $94,999.99 $97,635.55

Edgar Perez 2006 $93,000.00 $93,000.00

Mario Saracco 1998 $69,448.56 $81,502.73

Steven Blanchard 2002 $77,182.51 $79,881.10
Dennis Muhr 1998 $72,799.92 $79,598.69

Matthew Marron 1998 $63,000.00 $72,375.05

Rosanne Maschek 2001 $38,666.64 $60,399.62

Brett Lanford 2007 $60,000.00 $60,000.00

Christopher Pfister 2005 $40,000.01 $60,000.00

John Czarnik 2007 $55,000.00 $55,000.00

Pearl Martinez 2005 $40,000.01 $52,299.77

Susan King 2001 $40,000.01 $46,850.23

Elizabeth Wood 2005 $45,000.00 $46,350.00

Michelle Carroll 2007 $42,500.64 $42,500.64

Carrie Mengel 2007 $40,000.42 $40,000.42

Mary Anne Sapp 2001 $64,000.01 $37,752.00
Nancy Rogers 2001 $38,092.01 $26,624.00
6 No. 11-3617

The difference between men and women is striking. All
of the men were paid more than all but one of the
women—and that one woman achieved her $60,000
salary only after six years on the job, while men ex-
ceeded the $60,000 line faster.
“Business manager” was a sales job, and the pay of
many salespersons is strongly influenced by customers’
purchases. But Acosta does not contend that the dif-
ference in business managers’ pay can be accounted for
by the volume of sales; indeed, it concedes that King
was one of its most successful sales executives, on a par
with Connelly, who was paid almost three times as
much. But if sales don’t explain the disparity revealed
by the table, what does?
Acosta contends that education and experience ac-
count for the men’s salaries. All have college degrees;
King does not. (The record does not show whether
other women do.) Education and experience often
increase the pay that employers offer, and Acosta had
to match or exceed what other firms would pay in order
to hire a capable staff. Neither Title VII nor the Equal
Pay Act requires employers to ignore the compensation
that workers could receive in other jobs, which in the
language of the Equal Pay Act is a “factor other than
sex” (29 U.S.C. §206(d)(1)). See American Nurses’ Association
v. Illinois, 783 F.2d 716 (7th Cir. 1986).
The district court made a legal error at this step of
the analysis. The court thought it enough for Acosta to
articulate education and experience as potentially ex-
planatory variables, without proving that they actually
No. 11-3617 7

account for the difference; the court wrote that King
must show that Acosta’s explanation is a pretext for
discrimination. That’s part of the burden-shifting
approach under Title VII, see Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 142–43 (2000), but
is not the way the Equal Pay Act is written.
An employee’s only burden under the Equal Pay Act
is to show a difference in pay for “equal work on jobs
the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar
working conditions” (§206(d)(1)). An employer asserting
that the difference is the result of a “factor other than
sex” must present this contention as an affirmative
defense—and the proponent of an affirmative defense
has the burdens of both production and persuasion. So
the Supreme Court said, about §206(d)(1) in particular,
in Corning Glass Works v. Brennan, 417 U.S. 188, 204 (1974).
See also, e.g., Warren v. Solo Cup Co., 516 F.3d 627, 630
(7th Cir. 2008). A concurring opinion in Coleman v.
Donahoe, 667 F.3d 835 (7th Cir. 2012), observed that
the burden-shifting approach may cause more confu-
sion than can be justified by its benefits. Today’s
case illustrates one form that confusion can take.
King’s claim under the Equal Pay Act must be
returned to the district court for a trial at which Acosta
will need to prove, and not just assert, that education
and experience account for these differences. The Title VII
claim also must be tried, because King has marshalled
evidence that would permit a trier of fact to conclude
that Acosta’s explanations are smokescreens.
8 No. 11-3617

Let us suppose that education and experience (which
imply greater pay at other firms, with which Acosta is
competing for talent) explain some or even all of the
difference in the starting salaries reflected in the table.
There is no reason why they should explain increases in
pay while a person is employed by Acosta. Changes in
salary at most firms depend on how well a person per-
forms at work. Education and experience may predict on-
the-job performance, but the prediction affects the
starting wage, just as scores on the LSAT predict grades
in law school and thus affect the probability of admis-
sion. Once a person has been admitted to a given
law school, however, it is performance on exams, or in
writing papers, not the LSAT, that determines grades;
and grades plus extracurricular activities, not the LSAT
score, affect who is hired by which law firms; after
that, performance on the job, not the LSAT or grades in
law school, determines who makes partner and how
much each lawyer is paid. Similarly, if men arrive at
Acosta with higher salaries because of education, but
men and women are equally good on the job, women
should get more rapid raises after employment and
the salaries should tend to converge. Law firms may
pay extra to people with better credentials, which they
can tout to clients, and perhaps Acosta also did this,
but this is compatible with salary convergence during
employment.
Look at the difference between the starting salary
column in the table and the 2007 or final salary column.
Men receive substantially greater increases in pay.
Salaries did not converge after business managers
No. 11-3617 9

began work; they diverged. King worked at Acosta for
six years, and her salary rose by less than $7,000; Tim
Wilson’s salary, by contrast, rose more than $14,000 in
three years. Christopher Pfister was hired at $40,000, the
same as King’s starting wage; but within two years
Pfister was at $60,000, while in six years King never
topped $50,000. These numbers can’t be explained by
education and experience at the time of hire, which
should matter less as years pass on the job. Differences
in the rate of change might be explained by different on-
the-job performance, but as we’ve already mentioned
King was one of Acosta’s top producers yet was not
rewarded accordingly.
Gary Moe, Acosta’s general manager for the midwest
region, set the business managers’ salaries. He testified
by deposition that King’s sales were “comparable” to that
of men who were paid twice as much. When asked
how he set salaries, Moe testified that the process was
“subjective”; he could not, or would not, elaborate on the
reasons why he set any particular business manager’s
salary where he did.
Acosta’s national management set pay scales that
were supposed to constrain the discretion of the regional
general managers. In 2007 the pay scale for business
managers ran from $51,600 to $88,400 a year, with a
target median of $73,700. King and all but one of the
other women were paid less than the low end of the
scale, and all were paid less than the target median. Five
men were paid more than the top end of the scale, and
seven received more than the target median. Moe had
10 No. 11-3617

no explanation for how men’s salaries had become so
far out of line, or why women were not paid even the
minimum. King has an explanation—sex discrimina-
tion—and a reasonable juror could conclude that King
is right.
At oral argument, Acosta’s lawyer suggested that
Moe may have set salaries haphazardly or irrationally.
Random decision is a factor other than sex. If Moe had
acted randomly, however, then the entries for men and
women in the table should be jumbled together. The
actual distribution is not random. It is difficult to see
how every man could be paid more than all but one
woman, and why men received greater raises, if Moe
were pulling numbers out of a jar.
The judgment is affirmed with respect to working
conditions and reversed with respect to salaries, and
the case is remanded for trial.

3-13-12