In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2044

LAURIE KAY HOWARD,

Plaintiff-Appellant,

v.

LEAR CORPORATION EEDS AND INTERIORS,
formerly known as United Technologies
Automotive, Incorporated,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:99-CV-104--William C. Lee, Chief Judge.


Argued November 2, 2000--Decided December 12, 2000



  Before MANION, KANNE, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. Laurie Kay Howard worked
as a secretary and then a human resources
coordinator for United Technologies Automotive
("UTA") in its Fort Wayne, Indiana, plant until
it closed in 1997./1 She contends that UTA
violated the Equal Pay Act and Title VII of the
Civil Rights Act of 1964 by failing to promote
her to the position of human resources manager.
Arguing that the small Fort Wayne plant did not
have nor need a manager of human resources, UTA
filed for summary judgment. The district court
granted UTA’s motion on both counts, finding that
Howard failed to establish that her work
responsibilities were substantially similar to
the work performed by human resources managers at
other UTA plants and that she failed to allege a
prima facie Title VII case of sex discrimination.
Howard appeals the ruling on both claims.

  The Fort Wayne plant was one of UTA’s smaller
facilities, employing only 53 workers in 1996.
The plant was not unionized. It was primarily a
nonproduction research and development center
employing only salaried workers. Another UTA
facility was located 30 miles away in Huntington,
Indiana. Because of its size and proximity to the
Huntington plant, the Fort Wayne facility did not
have separate human resources, plant, quality, or
materials managers. Jim Price served as the human
resources manager for both the Huntington and
Fort Wayne plants.

  Howard began working in the Fort Wayne facility
in December 1992 as a secretary with an annual
salary of $19,776. The bulk of her
responsibilities included purchasing, petty cash
disbursements, and clerical responsibilities for
employee health and safety issues. By 1993 her
responsibilities had increased. At the time, the
head of the Fort Wayne plant, Gene Daley,
referred to her as the "lead person" for
environmental health and safety issues. She was
briefed on OSHA matters and was listed as the
"Health & Safety Professional" in a company phone
directory. Of the 53 workers in the plant, Howard
provided administrative support for roughly 40
employees. The remaining employees reported
employment concerns to UTA’s headquarters in
Dearborn, Michigan.

  In March 1994 Price recommended that Howard be
promoted to human resources coordinator. The
promotion went into effect in July 1994,
increasing her salary to $22,728. In 1995 Roger
Holtzinger replaced Daley as the head of the
plant./2 In August 1996 Holtzinger wrote to UTA
officials recommending Howard for a promotion to
human resource manager./3 UTA decided not to
promote Howard, noting that Mr. Price served as
the HR manager for both the Huntington and Fort
Wayne plants. UTA never created a separate
managerial position at Fort Wayne, nor did it
seek applicants for such a position. In March
1997 UTA permanently shut down the Fort Wayne
facility.

  We review a grant of summary judgment de novo,
construing the evidence in the light most
favorable to the nonmoving party. Wollenburg v.
Comtech Mfg., 201 F.3d 973, 975 (7th Cir. 2000).
Summary judgment is appropriate when there is no
genuine issue as to any material fact and the
moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).

  The Equal Pay Act, an amendment to the Fair
Labor Standards Act, forbids paying workers of
one sex less than workers of the opposite sex for
equal work that requires equal skill, effort, and
responsibility, unless the pay differential is
justified by factors other than sex, such as
seniority, merit, experience, or education. See
Wollenburg, 201 F.3d at 975. To survive summary
judgment Howard must establish a prima facie case
of sex-based wage discrimination by showing: "(1)
that different wages are paid to employees of the
opposite sex; (2) that the employees do equal
work which requires equal skill, effort, and
responsibility; and (3) that the employees have
similar working conditions." Bragg v. Navistar
Int’l Transp. Corp., 164 F.3d 373, 378 (7th Cir.
1998). Once the prima facie case is established,
the burden of persuasion shifts to the employer
to prove that the disparity is justified by one
of four affirmative defenses: (1) a merit system;
(2) a seniority system; (3) a system which
measures earnings by quantity or quality of
production; and (4) a differential based on any
factor other than sex. 29 U.S.C. sec. 206(d)(1);
see also Varner v. Illinois State Univ., 226 F.3d
927, 932 (7th Cir. 2000).

  UTA contends that Howard failed to satisfy the
second element by proving that her male
counterparts, employed as HR managers at larger
plants, performed equal work. To establish the
equal work element, Howard must show that her job
and the male employee’s job involved a "common
core of tasks" or that "a significant portion of
the two jobs is identical." Fallon v. State of
Illinois, 882 F.2d 1206, 1209 (7th Cir. 1989)
(citations omitted). "If a plaintiff establishes
this ’common core,’ the question then becomes
whether any additional tasks make the jobs
’substantially different.’" Id. "Whether two jobs
require equal skill, effort, and responsibility,
and are performed under similar working
conditions is a factual determination." Id. at
1208 (citations omitted). We will overturn such
a finding only if it is clearly erroneous.

  In making her case, Howard contends that
although she lacked the title of HR manager, she
performed all the functions of the position.
Moreover, she argues that Holtzinger, who was in
charge of the Fort Wayne plant, recognized that
she was the de facto HR manager in his letter
recommending her for promotion.

  Even assuming that Howard performed the same
"common core of tasks" as HR managers in other
plants, her male counterparts were responsible
for additional duties, requiring greater skill
and effort./4 Howard compared her job to the
positions held by male HR managers at UTA’s
Traverse City, Michigan, and Peru, Indiana,
production plants. In 1996 these plants employed
127 and 268 workers, respectively. These were
production facilities which employed both
salaried and hourly workers, and the Peru
facility was unionized. The HR managers in these
two plants were required to shoulder greater
responsibilities. They had more employees to
train, union grievances to resolve, hourly wages
to track, and a greater number of personnel
records to monitor and maintain. In contrast,
Howard was responsible for only 40 salaried
workers in a nonunion, nonproduction plant. The
additional skill, effort, and headache involved
in managing three to six times the number of
workers in a more complex employment environment
rendered the HR positions in the Traverse City
and Peru plants substantially different from the
job Howard performed in Fort Wayne. See Krenik v.
County of Le Sueur, 47 F.3d 953, 961 (8th Cir.
1995) (position of maintenance worker and
maintenance engineer unequal where engineer
carried additional responsibility of supervising
assistant and serving as department head); see
also Stanley v. University of S. Cal., 13 F.3d
1313, 1322-23 (9th Cir. 1994) (pay differential
between coaches of men’s and women’s basketball
teams justified where men’s coach responsible for
more substantial public relations and promotional
duties given that men’s team generated 90 times
greater revenue). Thus, Howard has failed to
establish that she received less pay for equal
work.

  Howard also fails to establish a claim of sex
discrimination. To establish a prima facie case
of failure to promote, Howard must show that (1)
she is a member of a protected class; (2) she
applied for, and was qualified for an open
position; (3) she was rejected; and (4) the
employer filled the position with a person not in
her protected class, or the position remained
open. Mills v. Health Care Serv. Corp., 171 F.3d
450, 454 (7th Cir. 1999). Even were we to assume
that Howard was qualified to be an HR manager,
she fails to establish the second and fourth
prongs. She fails to establish that a promotional
opportunity was available and that the promotion
she sought was given to a male applicant or,
alternatively, left unassigned. Because of its
size and proximity to the Huntington plant, the
Fort Wayne plant never had its own HR manager,
none was sought by the company, nor was such a
position created after Howard was denied the
promotion. Overall, the Fort Wayne plant was low
on managers. The facility did not have a separate
plant manager, quality manager, or materials
manager. Looking at other UTA plants, the absence
of a HR manager at Fort Wayne does not stand out
as mysterious or suspicious. UTA’s three smallest
domestic plants, including Fort Wayne, did not
have separate HR managers. Moreover, in 1996 no
facility with fewer than 68 workers had created
a managerial position for handling human resource
issues.

  The absence of any evidence of pretext is an
alternative basis for dismissing Howard’s claim.
Even assuming Howard were able to make a prima
facie showing of sex discrimination, her claim
fails because she presents no evidence that UTA’s
proffered reason for denying her promotion--that
it did not need a separate HR manager in a small
plant located near another facility--was
pretextual. Ghosh v. Indiana Dep’t of Envtl.
Mgmt., 192 F.3d 1087, 1091 (7th Cir. 1999)
(without considering prima facie case, court may
dismiss for failure to establish that employer’s
nondiscriminatory justification was pretextual).
In fact, Howard presents no evidence suggesting
that the real reason UTA refused to create a
managerial position at Fort Wayne was related to
her gender. See Turgeon v. Premark Int’l, Inc.,
87 F.3d 218, 221 (7th Cir. 1996) ("plaintiff must
show that gender played a part in an employment
decision"). Nor does she offer any circumstantial
evidence of gender bias, suggesting that UTA was
reluctant to promote women. Both the Traverse
City and Peru plants currently employ female HR
managers, and UTA employs 14 female HR managers
nationwide.

  For the reasons set forth above, we affirm the
decision of the district court.




/1 Lear Corporation acquired UTA on May 4, 1999.
Thus, Lear Corporation is now the proper appellee
in this suit. However, since the parties have
continued to refer to the appellee as UTA, for
the sake of clarity we will follow their lead.
/2 Holtzinger’s title was manufacturing/engineering
manager, a position with fewer benefits than the
plant manager designation.

/3 Holtzinger’s letter read:

  As discussed with you, concerning
Laurie Howard’s performance and abilities to
perform the responsibilities of the Human
Resources Manager here at Fort Wayne, I am
submitting her KJR evaluation and request for
promotion.

  My belief is she had full-time
responsibilities as Human Resources Manager and
EH&S (environmental health and safety)
Coordinator, and deserves this consideration for
her hard work.

/4 This point is vigorously opposed by UTA, which
argues that Howard’s responsibilities were
limited to that of a HR coordinator.
Specifically, UTA contends that Howard was not
authorized to hire, supervise, evaluate, or fire
employees. Allegedly she only had managerial
control over temporary secretaries. However, we
need not resolve this factual dispute. Viewing
the matter in the light most favorable to the
nonmoving party, and assuming that Howard
performed the duties that would have been
assigned to a HR manager at Fort Wayne, we still
find that she fails to make a showing of equal
work.
