201 F.3d 973 (7th Cir. 2000)
TERI GRAYSON WOLLENBURG, Plaintiff-Appellant,v.COMTECH MANUFACTURING CO., Defendant-Appellee.
No. 99-1714
In the United States Court of Appeals For the Seventh Circuit
Argued November 29, 1999Decided January 20, 2000

Appeal from the United States District Court  for the Western District of Wisconsin.  No.98-C-0200-S--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted]
Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
EVANS, Circuit Judge.


1
This case raises an  unlikely question: Is a Merry Maid or a meat  manager more qualified to become a factory  supervisor?


2
The plaintiff, Teri Grayson Wollenburg, began  working in March 1994 as a production employee  earning $8.56 per hour for the defendant  employer, Comtech Manufacturing Company, a  Wisconsin firm that makes automobile engine  components. In November 1995 she became a  production supervisor on the second shift,  earning $11.00 an hour. But there were problems  on Wollenburg's watch. She once neglected to turn  in time cards promptly, resulting in delayed  payment of overtime wages for the workers and an  oral warning for Wollenburg. She twice failed to  address quality control problems, requiring the  quality assurance manager to step in later to  straighten out the situation.


3
Comtech fired Wollenburg in May 1996. She filed  suit, contending that because of her gender she  was (1) paid less than her male counterparts in  violation of the Equal Pay Act, 29 U.S.C. sec.  206(d), and (2) fired in violation of Title VII,  42 U.S.C. sec. 2000e et seq. Comtech won summary  judgment on the Equal Pay Act claim and won a  jury verdict on the Title VII claim. Wollenburg  appeals both decisions.


4
This court reviews a grant of summary judgment  de novo, construing the evidence in the light  most favorable to the nonmoving party. Bragg v.  Navistar Int'l Transp. Corp., 164 F.3d 373, 376  (7th Cir. 1998). Under Federal Rule of Civil  Procedure 56(c), summary judgment is appropriate  if there are no genuine issues of material fact.  Celotex Corp. v. Catrett, 477 U.S. 317, 322  (1986). Material facts are those which might  affect the outcome of the suit. Anderson v.  Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An  issue is genuine if a reasonable trier of fact  could find in favor of the nonmoving party. Id.


5
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 and which is performed under  similar working conditions, except where the  differential is due to a seniority system, a  merit system, a system which measures quantity or  quality of production, or a factor other than  sex. 29 U.S.C. sec. 206(d)(1). To establish a  prima facie Equal Pay Act case, the plaintiff  must show (1) that different wages were 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, 164 F.3d at 378.


6
Wollenburg had one female and three male  counterparts during the time she was the second  shift production supervisor at Comtech: Cole  Meyer, who had 10 years of manufacturing  supervisory experience, earned $12.00 per hour as  first shift production supervisor. Richard Demaa,  who had 5 years of manufacturing supervisory  experience, earned $13.00 per hour as third shift  production supervisor. Delaine Recheck, who had  9 years of production and supervisory experience  at Comtech, earned $12.75 per hour when she  replaced Demaa as third shift production  supervisor in June 1995. She was promoted to  quality manager in December 1995. Ken Neuman, who  had 26 years of experience as a meat manager in  a grocery store when he was hired at Comtech by  his son's future mother-in-law, earned $11.50 per  hour when he replaced Recheck as the third shift  supervisor in December 1995. Because Meyer,  Demaa, and Neuman were paid higher wages for a  job that required equal skill, effort, and  responsibility and that involved similar working  conditions, Wollenburg made her prima facie case.


7
Once a plaintiff makes a prima facie case, the  employer bears the burden of persuasion of  showing that the pay disparity stems from a  seniority system, a merit system, a system which  measures earnings by quantity or quality of  production, or a differential based on any other  factor other than sex. Dey v. Colt Constr. & Dev.  Co., 28 F.3d 1446, 1462 (7th Cir. 1994). Even if  a man and woman are doing the same work for  different pay, there is no violation if the wage  difference stems from a factor other than gender.  Lindale v. Tokheim Corp., 145 F.3d 953, 957 (7th  Cir. 1998). Experience is a nondiscriminatory  reason for wage disparity. Fallon v. Illinois,  882 F.2d 1206, 1212 (7th Cir. 1989); Wu v.  Thomas, 847 F.2d 1480, 1485-86 (11th Cir. 1988).


8
Comtech says it paid the male supervisors more  because they had more relevant experience.  Wollenburg does not dispute that Meyer and  Demaa's supervisory experience in manufacturing  justified their higher wages. She does challenge,  however, whether Neuman's 26 years of experience  as a grocery store meat manager warranted his  being paid 50 cents more per hour than she.  Wollenburg notes that she, too, had supervisory  experience while managing a Merry Maid  subfranchise for 4 years. Managing a cleaning  service and managing a meat market seem equally  far afield from overseeing an automobile engine  parts manufacturing line. Ultimately, however, we  need not reach the pressing question of whether  a Merry Maid manager or a meat market manager is  better prepared to become a factory production  supervisor.


9
Neuman had 26 years of unrelated supervisory  experience to Wollenburg's 4 years of unrelated  supervisory experience. Whether Comtech acted  wisely in paying Neuman more because of his  lengthier supervisory experience in an unrelated  job is not the issue; whether Neuman really  deserved to be paid more is not the issue;  whether Comtech should have given Wollenburg more  credit for her extensive nonsupervisory  manufacturing experience and her associate degree  in management is not the issue. See Giannopoulos  v. Brach & Brock Confections, Inc., 109 F.3d 406,  410 (7th Cir. 1997) ("we do not sit as a kind of  'super-personnel department' weighing the  prudence of employment decisions made by firms  charged with employment discrimination"). The  point is that Neuman had more supervisory  experience, that was the reason Comtech gave for  the wage disparity, and experience is a  legitimate, nondiscriminatory reason.


10
Because there was no genuine issue of material  fact over the validity of Comtech's articulated  reason that experience was why Meyer, Demaa, and  Neuman (not to mention Recheck) were paid more  than Wollenburg, the district court's order  granting Comtech's motion for summary judgment on  the Equal Pay Act claim was appropriate.


11
Winning appellate reversal of a summary judgment  order against the plaintiffin an employment  discrimination case is difficult enough, as shown  by the discussion we just had on the equal pay  claim. See Hunt-Golliday v. Metropolitan Water  Reclamation Dist. of Greater Chicago, 104 F.3d  1004, 1006-07 (7th Cir. 1997) (noting that this  circuit affirmed summary judgment for the  employer in 21 of 26 employment discrimination  cases in 1996). Winning appellate reversal after  a jury verdict against a plaintiff in an  employment discrimination case is even tougher.  See Roy v. Austin Co.,194 F.3d 840, 842 (7th Cir.  1999). Wollenburg asks us to erase the jury's  verdict in Comtech's favor on the Title VII claim  because the district court quashed her last-  minute subpoena and barred certain evidence.


12
Evidentiary rulings are reviewed for abuse of  discretion. See Trident Inv. Mgt., Inc. v. Amoco  Oil Co., 194 F.3d 772, 780 (7th Cir. 1999)  (evidentiary rulings in general are reviewed for  abuse of discretion); In re Maurice, 21 F.3d 767,  772-73 (7th Cir. 1994) (refusing to permit  certain evidence because pretrial schedule was  violated is reviewed for abuse of discretion);  United States v. Ashman, 979 F.2d 469, 495 (7th  Cir. 1992) (granting a motion to quash a subpoena  is reviewed for abuse of discretion). An error by  the trial court does not warrant reversal unless  the error affected the essential fairness of the  trial. McDonough Power Equip., Inc. v. Greenwood,  464 U.S. 548, 553 (1984).


13
On July 1, 1998, Judge Shabaz ordered that  discovery be completed by December 1, 1998. The  trial was scheduled to begin on Monday, February  22, 1999. On February 19--the Friday before  trial--Wollenburg served Comtech with a subpoena  duces tecum demanding that it produce any copies  it held of daily notes Ms. Wollenburg submitted  to the company during her employment. This was  the first time Wollenburg requested or made any  reference to these alleged notes. Judge Shabaz  quashed the subpoena and forbade Wollenburg from  making any reference to them during the trial.


14
When we say, as we did just a moment ago, that  we review rulings of this sort for an abuse of  discretion, we mean there is a wide range of  acceptable responses that a district court can  take in situations such as the one presented here  by the eleventh hour subpoena. Some judges,  recognizing that the world of litigation is not  perfect, might grant a request like this,  believing that to do so will better ensure a just  result at the trial. Other judges take a stricter  approach. Here is how Judge Shabaz handled the  situation and a defense motion in limine which  followed:


15
JUDGE SHABAZ:  I want to make it reasonably  clear as I can. Those exhibits will not be  referred to. They will not be offered. They will  not be part of the record. The untimeliness of  the subpoena for these matters is addressed by  the Court and as it relates to these proposed new  exhibits, it is quashed. And the instructions of  this Court are very clear as to the manner in  which we're going to proceed and I'm not going to  change it based upon your inexperience and  inability to follow those procedures, Mr. Graf  [Wollenburg's counsel], nor do I plan to change  any other format that this Court has established  over the past almost 18 years as a result of  perhaps your failure to understand what it is I  expect of counsel.


16
Anything further either counsel wish to bring  to the Court's attention?


17
MS. WESTERHOF [Cari Westerhof, counsel for  Comtech]:  Yes, one other thing, Your Honor. You have previously--


18
JUDGE SHABAZ:  You'll have to either speak from  counsel table--I don't allow the roaming  minstrels in this court either. You either speak  from counsel table or you get a podium.


19
MS. WESTERHOF:  Sorry, Your Honor.


20
JUDGE SHABAZ:  These are matters that should  have been brought to the Court's attention on  Friday, if indeed you were aware of them, and I  believethat this experiment to have a telephone  conference instead of have you folks appear will  be probably the last time we're going to do it as  a result of the continued motions which you're  seeking at this time, Ms. Westerhof.


21
MS. WESTERHOF:  You have previously ruled in  this case--well, you've dismissed the plaintiff's  claim under the Equal Pay Act. And I believe--I  have a motion in limine to ask the Court to order  that there be no reference to the plaintiff's  rate of pay in comparison with the other  employees' rates of pay.


22
You have dismissed her equal pay claim on the  basis that there's no evidence to support her  claim that her pay was evidence of  discrimination. That issue has been decided and  I don't believe it would be appropriate for that  issue to be relitigated here today.


23
JUDGE SHABAZ:  Mr. Graf.


24
MR. GRAF:  Yes, sir. I'm fairly surprised by  this at the last minute.


25
JUDGE SHABAZ:  So am I and it's denied. This is  not the purpose of--I gave you a schedule in  which to file motions pending trial. You have  delayed in doing that and you're not going to do  it at this time, even if there were merit to it,  and there isn't. And so the motion in limine is denied.


26
Anything further?


27
MS. WESTERHOF:  No, Your Honor.


28
The judge's response, it seems to us, was  rather gruff and rigid. But we deal here with a  deferential standard of review, and so we  underscore that finding no abuse of discretion is  not the same thing as finding--both as to manner  and merits--that discretion was exercised wisely.


29
Wollenburg says on appeal that Judge Shabaz's  ruling "fatally undermined" and "effectively  gutted" her case. To begin with, if the notes  truly were the guts of her case, Wollenburg might  have asked for these guts earlier than on the eve  of trial. Also, just because a ruling undermines  a party's case doesn't mean the ruling is wrong.  In the criminal context, for example, sometimes  the exclusionary rule requires throwing out a key  piece of evidence or the Fifth Amendment requires  suppressing a statement. When judges make these  orders the prosecution's case may be eviscerated,  but this is called following the law--not  reversible error.


30
Fed. R. Civ. P. 16(b) authorizes district  judges to set a schedule that limits the time to  file motions and to complete discovery. These  deadlines "shall not be modified except upon a  showing of good cause." Wollenburg really offered  no good cause for her tardy request for the  notes. Judge Shabaz, therefore, was within his  discretion in granting Comtech's motion to quash  the subpoena.


31
Judge Shabaz also was within his discretion to  prohibit reference to the alleged notes during  the trial. "Two purposes for requiring the  parties to comply with a pre-hearing (or  pretrial) order include identifying witnesses and  resolving evidentiary disputes in advance of  trial, thus narrowing the issues and expediting  the trial. When one party fails to comply with a  court's pre-hearing order without justifiable  excuse, thus frustrating the purposes of the pre-  hearing order, the court is certainly within its  authority to prohibit that party from introducing  witnesses or evidence as a sanction." Maurice, 21  F.3d at 773.


32
Finally, the suggestion that Judge Shabaz's  ruling on the subpoena fatally undermined  Wollenburg's case is farfetched. Wollenburg  claims the notes were highly probative because  they created a contemporaneous record of her  interactions with Comtech's supervisors and other  employees. However, the content of the notes  would have been inadmissible hearsay under Fed.  R. Evid. 801(c). Though Judge Shabaz banned  referring to the notes, Wollenburg was free to  testify directly and to question other witnesses  about the actual conversations and meetings on  which the alleged notes were based. Thus, even if  the ruling on thenotes had been erroneous, the  error would have been harmless.


33
The grant of summary judgment on the Equal Pay  Act claim and the jury verdict on the Title VII  claim are affirmed.

