dissenting:
I respectfully dissent.
All litigants—even state agencies—are entitled to a fair trial. When the trier of fact in a close case (such as this one) applies the wrong burden of proof, the party victimized by this error has not received a fair trial.
The majority asserts that "[bjecause of the all-encompassing fourth factor of the Coming Glass Works reasons for an employer’s actions, little difference exists between the factors an employer has to prove under the Pay Act approach or 'articulate’ under the title VII approach.” 291 Ill. App. 3d at 193-94. However, no matter how the majority attempts to show similarities between factors, the "bottom line” difference between the burden of proof the Commission erroneously applied and the burden of proof it should have applied remains stark: the erroneous burden of proof the Commission used placed the ultimate burden upon the Board to show it had not improperly discriminated; the correct burden would have left the burden of proof on the complainant, Dart, to show that the Board had improperly discriminated.
The majority also writes that complainant Dart should prevail "even if the Commission’s order indicates uncertainty as to the allocation of burden of proof or even if the Commission recited the wrong burden of proof.” 291 Ill. App. 3d at 194. But why should that be? Given (1) the closeness of this case, (2) the Commission’s improper downplaying of the significance of Kloever’s B.S. degree (well described by the majority opinion), and (3) the ALJ’s erroneous refusal (which the Commission ratified) to receive certain documents into evidence, why should we guess what the result would be in this case if the trier of fact applied the correct burden of proof? Would the majority be as willing to affirm if, in a civil bench trial, the trial court erroneously stated that the burden was on the defendant to prove by a preponderance of the evidence that the claims plaintiff made were not true? I doubt it, yet that seems to be the result here.
By definition, in a case in which the evidence is evenly balanced (like the present one), whoever has the burden of proof loses. Thus, the Commission’s misapplying the burden of proof in this case may well have been dispositive.
On the merits, the Commission’s decision simply does not work in a practical sense. Once an employee is hired into the state system, the original hire salary "sticks like glue” in the sense that it provides the base for any merit or general increase in pay. Once in the system, a pay increase accompanying a promotion is—in most cases—limited to the lowest step in the new grade (see, e.g., 80 Ill. Adm. Code § 310.80(e)(1) (1996)). Thus, once an employee starts at a lower salary, it will likely follow her to retirement; likewise, if she starts at a higher salary. •
The mechanism of allowing the hiring authority to pay more on initial hiring to better qualified or more experienced individuals enables the hiring entity to upgrade the quality of new hires. But once they are hired at higher salaries, those salaries may well be higher than those of lower-paid persons in the same or similar jobs throughout the remainder of their employment. This system is gender neutral.
According to the briefs, two men and five women received higher than minimum starting salaries. This does not have the makings of a gender pay discrimination lawsuit.
Dart’s real complaints seem to be that (1) she started at the salary she did; and (2) a salary mechanism exists that permits others to be hired in at higher salary levels. However, it appears fortuitous that she could find a male who benefited from this mechanism upon whom to base her discrimination claim.
By virtue of the Commission’s decision, plaintiff has used the Act to defeat the mechanism put in place to attract those with superior experience and education. This result should raise a red flag throughout state government because many people who started working "on the cheap,” i.e., at the minimum, now might be able to use the Commission to get a hefty raise.