No. 11-1876 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ SUSAN KING, Plaintiff-Appellant, v. PMI-EISENHART, LLC, et al., Defendants-Appellees. __________________________________________ On Appeal from the United States District Court for the Northern District of Illinois No. 1:09-cv-00456 Hon. Robert W. Gettleman, District Court Judge __________________________________________ BRIEF OF AMICUS CURIAE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL __________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 VINCENT BLACKWOOD James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney Table of Contents Table of Authorities . . . . . . . . . ii Statement of Interest . . . . . . . . . .1 Statement of the Issues . . . . . . . . .1 Statement of the Case . . . . . . . . . 2 I. Statement of Facts . . . . . 2 II. District Court Decision . . 6 Summary of the Argument . . . . . . . . .7 Argument . . . . . . . . . . . . . . . . 9 I. The EPA Does Not Permit a Defendant to Prevail on the Basis of an Affirmative Defense by Virtue of Merely Articulating, Rather than Affirmatively Proving, That Defense, and Does Not Require a Plaintiff to Prove That the Defendant's Proffered Explanation Is Pretextual. . . . . . . . . . 9 II. The District Court Erroneously Bifurcated the Evidence When It Assessed King's Title VII Hostile Work Environment Claim. . . . . . . . . . 21 Conclusion . . . . . . . . . 24 Certificate of Compliance Certificate of Service Table of Authorities Cases page(s) Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286 (5th Cir. 2010). . . . . . . . . . . . . . . . . .16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . .16 Branham v. Snow, 392 F.3d 896 (7th Cir. 2004) . . . . . . . . . . . . . . . . . 16 Corning Glass Works v. Brennan, 417 U.S. 188 (1974) . . . . . . . . . . . . . . . . . . . .10, 13 County of Wash. v. Gunther, 452 U.S. 161 (1981) . . . . . . . . . . . . . . . . . . . . . 14 Cullen v. Ind. Univ. Bd. of Trustees, 338 F.3d 693 (7th Cir. 2003) . . . . . . . . . . . . . . . . . .9 Fallon v. Ill., 882 F.2d 1206 (7th Cir. 1989) . . . . . . . . . 9, 10, 13, 14, 17 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . . 22 Issacs v. Hill's Pet Nutrition, Inc., 485 F.3d 383 (7th Cir. 2007) . . . . . . . . . . . . . . . . . 22 King v. PMI-Eisenhart, LLC, et al., No. 09-cv-456, Memorandum Opinion and Order, (N.D. Ill. Feb. 11, 2011) . . . . . . . . . . . .6, 7, 14, 15, 21 Lucas v. Chicago Transit Auth., 367 F.3d 714 (7th Cir. 2004) . . . . . . . . . . . . . . . . . 23 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . .13 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . . . . . . 22 Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . 22, 23 Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37 (7th Cir.1992) . . . . . . . . . . . . . . . . . . .16 Stopka v. Alliance of Am. Insurers, 141 F.3d 681 (7th Cir. 1998). . . . . . . . . . . . . . . . . . .9 Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . 13 Warren v. Solo Cup Co., 516 F.3d 627 (7th Cir. 2008) . . . . . . . . . . . . . . 9, 10, 17 Statutes 29 U.S.C. § 206(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 22 Other Authorities EEOC Compliance Manual Chapter 10: Compensation Discrimination, No. 915-003 (Dec. 5, 2000); available at http://www.eeoc.gov/policy/docs/compensation.html . . . . . . 12, 17, 18, 20 Statement of Interest The Equal Employment Opportunity Commission ("Commission") is the federal agency charged by Congress with responsibility for enforcing our nation's federal prohibitions on employment discrimination, including the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) ("EPA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). In the instant matter, the plaintiff alleged violations of both of these statutes. In granting the defendant's motion for summary judgment, the district court applied legal standards in regard to claims under both the EPA and Title VII that are plainly at odds with the statutes themselves as well as the jurisprudence of this Court and the Supreme Court. Given the importance of the correct interpretation of these statutes to the Commission's ongoing enforcement efforts, the Commission respectfully offers its views on these issues to this Court. Statement of the Issues I. Whether the district court erred by permitting the defendant to rebut the plaintiff's EPA claim by merely articulating nondiscriminatory reasons for the pay disparity between her and her male colleagues, while requiring the plaintiff to prove that the defendant's reasons were pretextual. II. Whether the district court erred when, for the purpose of determining whether the evidence was sufficient to establish a violation of Title VII, it bifurcated the evidence of a hostile work environment into two discrete time periods relative to the date King filed her charge of discrimination. Statement of the Case I. Statement of Facts PMI-Eisenhart, LLC, which does business as Acosta, is a food brokerage company that represents food manufacturers in dealing with grocery stores. District Court Docket No. ("R.") 68-7 at 4-7 (Moe Dep. at 10-13). Susan King began working for Acosta as a Business Manager in its Chicago district in September 2001. R. 68-2 at 18, 26 (King Dep. at 17, 25). Acosta's Business Managers are responsible for particular manufacturers' business in an assigned market, including managing promotional planning, item introduction, and financial administration duties. R.68- 7 at 7-10 (Moe Dep. at 13-16). For almost the entire length of her employment as a Business Manager at Acosta, the company paid King substantially less than it paid male Business Managers in her district. When King started as a Business Manager in 2001 she was paid $40,000 per year, and her annual salary rose to a high of $46,850 in 2007. R.68-2 at 31-32; R.68-6 at 49 (King Dep. at 30-31; King Dep. Ex. 18). However, during the same time period the annual salaries for male Business Managers in the Chicago district ranged from a low of $40,000, to a high of approximately $122,000. See generally R.74-17 (salary histories of male Business Managers); R.74 at 12 (chart presenting salaries of male and female Business Managers). <1> The one man who was paid $40,000 at the beginning of his career at Acosta had his salary raised to $60,000 within two years. R.68-10 at 29 (Pfister salary history). The next lowest-paid male employee started at $55,000. R.68-12 at 57 (Czarnick starting salary). While Acosta asserted that it adjusted salaries annually based on employee performance reviews, these annual salary adjustments were minor-in the low single digits percentage-wise-and did not account for the vast disparity in pay between King and her male counterparts. See generally R.74-17 (salary histories of male Business Managers); R.68 at 8-9 (Defendant's summary judgment statement of facts, asserting that salary adjustments were in the low single digits and that performance appraisals played a role in pay decisions). In 2006, the company promulgated a document setting a recommended salary range of $51,600 to $88,400 for Business Managers in Chicago, with a target salary rate of $73,700. Appellant's Separate Appendix ("Apx.") 82 (Moe Dep. at 248-50). Gary Moe, the general manager of the Chicago division, testified that these salary targets were merely "guidelines" for him to "consider," and admitted that he took no action to bring King's salary up to the low end of the range (let alone the target rate) notwithstanding the fact that she had been a Business Manager for five years when the guidelines were promulgated. R.74-5 at 8; Apx.82 (Moe Dep. at 165-66; 248-50). Contrary to Moe's testimony regarding his discretion to disregard the guidelines, however, Rebecca Steele, Acosta's Executive Vice President for Human Resources, testified that Moe was in fact expected to follow the salary guidelines. R.74-15 at 3. Moe also testified that King had equaled or surpassed her male predecessor, McCann, in the performance of her Business Manager duties. R.68-7 at 12-13. He stated that the company did not offer King a higher salary when she announced her intention to resign because it felt she was being fairly compensated and made a general statement that "the education and degree level would have some bearing on the salary" and pay increases of a Business Manager. R.68-7 at 18-20. Moe acknowledged that when King was hired he never told her that the company would pay her a higher salary if she had a college degree, and that he was not aware that the company imposed any restrictions on King's potential salary at the time of her hire based on her lack of a college degree. R.68-7 at 29. When Moe was specifically asked what objective criteria the company uses in determining the starting salary of a Business Manager, he responded "[b]usiness management experience" and "realm of responsibility, again very significantly in managing proprietary systems and client trade funds." R.68-7 at 38. Neither Moe nor anyone else with Acosta explained, however, how these criteria are factored into salary decisions. See id. Moe also acknowledged that King developed these skills during her tenure as a Business Manager for Acosta, but did not offer an explanation for why King's salary nevertheless remained so far behind those of her comparably- skilled male colleagues. Id. Moe also testified regarding the qualifications of several male Business Managers, but only explained in a few instances how those qualifications may have factored into Acosta's salary-setting process. Moe stated, for example, that Skip Fritz was hired at about the same time as King, but was paid a salary that was more than double King's-$95,000 for Fritz as compared to $38,000 for King-based on Fritz's "past experience." R.68-7 at 34. Moe did not quantify Fritz's experience as compared to King's, however, and did not explain why that experience resulted in such a pay disparity, other than to acknowledge that the process is "subjective." R.68-7 at 34. Moe testified that Chris Pfeister started as a Business Manager in 2005 with the same salary as King-$40,000-but Pfeister was given a $20,000 raise within two years while King was not. R.68-7 at 26-27. Moe's only explanation for this difference in pay between King and Pfeister was to point out the employees' different characteristics-that Pfeister had been hired into the company through its Leadership Development Program and he had a college degree. R.68-7 at 26-27. Moe also testified that Acosta hired John Czarnick as a Business Manager in 2007 and paid him $55,000, but when asked to explain how they arrived at this salary, Moe's only response was "we felt that it was, you know, fair compensation for what he was looking for to come in as a business manager." R.68-7 at 37. There is also evidence that between 2001 and 2007 King was subjected to offensive conduct of a sexual nature. The harassing conduct included, but was not limited to, Moe's telling King in 2002 that he had dreamt of her and in the dream he kissed her neck; King's coworker Tom Connelly showing her in 2002 a picture of himself in his "flasher" Halloween costume, and in September 2004, in the presence of King's coworkers, stating to King "[o]h, the 'C-word' you know all about that don't you, Sue?"; and King's supervisor, Mike Puttrich, telling her in 2007 that he liked it when her hair was curly, and that Moe paid more attention to her when she wore skirts. See R.68-2 at 67-70; R.68-3 at 58-60, 66-68, 85-89 (King deposition excerpts). II. District Court Decision The district court concluded that King's Title VII hostile work environment claim was "untimely" because she "failed to present evidence that establishes a hostile work environment in the 300 days before her charge, or that establishes a continuing pattern before the 300-day window." Apx.87. As for the harassment alleged to have taken place within the 300-day period, the court noted that some of the alleged harassing conduct was "not a valid basis for a hostile work environment claim," and that the "lewd and inappropriate comments" by King's supervisors were mostly made outside of her presence or were isolated incidents. Apx.87-88. As for the harassment alleged to have occurred outside the 300-day period, the court concluded that the evidence was insufficient to "establish a hostile work environment based on a continuing pattern." Apx.88. Identifying the conduct of Connelly between 2001 and 2004 as the "most serious" of these incidents, the court noted that this conduct occurred several years before King filed her charge, and that when King reported Connelly's behavior to Acosta in 2004, the company disciplined him and his inappropriate conduct ceased. Apx.88-89. The court added that "even taken together," the other alleged pre-300-day incidents of harassment were insufficient to support her claim. Apx.89. The court also granted summary judgment to Acosta on King's EPA claim, based on its determination that King failed to demonstrate that the company's nondiscriminatory explanation for the pay disparity was "pretextual." Apx.94. Citing as an example King's argument that the company's reliance on education level was unjustified, the court observed that "[e]ducation level . . . is certainly a gender-neutral consideration that defendants were allowed to weigh in making compensation decisions." Id. The court added that Acosta's "other gender-neutral explanations-higher performance ratings, more experience, and higher salary before Acosta employment-are similarly sufficient, even if plaintiff disagrees with defendants' business judgment in using them." Id. The court stated that while the higher-paid male comparators King identified all had superior job performance, college degrees, significantly more relevant experience or leadership potential, King had "generally inferior performance, no college degree, and comparatively minimal business experience." Id. The court concluded that because King had "offered no evidence demonstrating that defendants' gender-neutral reasons are pretextual, she cannot establish a claim for wage discrimination." Apx.94-95. Summary of the Argument In granting Acosta summary judgment on King's EPA claim, the court failed to apply the proper legal standard for establishing a violation of the EPA. Rather than requiring that Acosta respond to King's prima facie case by proving that the pay disparity between King and her male colleagues actually resulted from one of four statutorily-provided defenses to liability-here, that the pay differential is based on a factor other than sex-the court held Acosta to a mere burden of production, not proof, and instead imposed on King the additional burden to prove that the company's asserted reason for the pay differential is false. As a consequence of the court's error in placing the burden of proof on King, the court failed to hold Acosta to the proper summary judgment standard applicable to a defendant who moves for summary judgment based on an affirmative defense. Under such circumstances, Acosta could only prevail upon a showing that the evidence was so one-sided that no reasonable jury could rule for King. The district court, however, did not apply that standard to Acosta's asserted defense. The evidence would not support an award of summary judgment under that standard. The district court also applied an incorrect evidentiary standard to King's hostile work environment claim. In examining such claims, it is well established that courts are to examine all the evidence together, and not in a disaggregated manner, to determine whether the alleged harassing conduct was sufficiently severe or pervasive to constitute a violation of Title VII. The district court, however, disaggregated the harassment evidence into conduct occurring before the 300-day period preceding the date King filed her charge of discrimination, and conduct within that 300-day period, and then concluded that the evidence from each group, without regard for the totality of the evidence, was insufficient to establish a violation of Title VII. In so doing, the court failed to abide by well-settled principles regarding Title VII hostile work environment claims. Argument I. The EPA Does Not Permit a Defendant to Prevail on the Basis of an Affirmative Defense by Virtue of Merely Articulating, Rather than Affirmatively Proving, That Defense, and Does Not Require a Plaintiff to Prove That the Defendant's Proffered Explanation Is Pretextual. King alleges that Acosta violated the EPA by paying her less than it paid to male employees, who performed substantially equal work, because of her sex. The EPA makes it unlawful for an employer to "pay[ ] wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1). To establish a prima facie case of an EPA violation a 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." Fallon v. Ill., 882 F.2d 1206, 1208 (7th Cir. 1989) (citations omitted). "No proof of discriminatory intent is required." Warren v. Solo Cup Co., 516 F.3d 627, 629 (7th Cir. 2008) (citing Stopka v. Alliance of Am. Insurers, 141 F.3d 681, 685 (7th Cir. 1998)). If the plaintiff establishes a prima facie case, "the burden of persuasion shifts to the [defendant] to prove one of four statutory defenses." Cullen v. Ind. Univ. Bd. of Trustees, 338 F.3d 693, 702 (7th Cir. 2003). In moving for summary judgment Acosta did not dispute that there is sufficient evidence that King was paid less than men for performing substantially equal work. Apx.33-36 (Defendant's motion for summary judgment). Instead the company argued only that the pay disparity did not violate the EPA because it was based on factors other than sex. See id. Where an employer seeks to defend against an EPA claim by relying on the "factor other than sex" defense, the employer must first establish that it actually used and applied in good faith a factor not based on sex, which resulted in the challenged pay disparity. Under such circumstances, "the question . . . [is] whether [the defendant] carried its burden of proving that the higher rate paid . . . was in fact intended to compensate for [a non-sex based pay differential], or rather constituted an added payment based upon sex." Corning Glass Works v. Brennan, 417 U.S. 188, 204 (1974) (emphasis added). "The [employer's] justification 'must also be bona fide. In other words, an employer cannot use a gender-neutral factor to avoid liability unless the factor is used and applied in good faith; it was not meant to provide a convenient escape from liability.'" Warren, 516 F.3d at 630 (quoting Fallon, 882 F.2d at 1211). In accepting Acosta's argument and granting summary judgment for the company, the district court demonstrated a misunderstanding of the operation of the EPA. First, the court failed to appreciate that most of the evidence relied on by Acosta is not even probative of the "factor other than sex" defense since it consisted largely of vague, hypothetical explanations for the salary disparities, rather than testimony that the identified factors actually caused the pay disparities. In arguing that the disparity between the salaries of King and her male coworkers was based on factors other than sex, Acosta offered general statements regarding the male coworkers' job qualifications or prior experience and speculated that those factors could have caused the company to pay them more. R.67 at 11-12, 24-27; R.68 at 6-9. The company also argued generally that "[p]ay decisions for the possible comparators were impacted by educations [sic], experience, and performance ratings, in addition to other factors." R.67 at 12, R.68 at 9. But the evidence cited in support of these arguments does not explain how any particular salary decision was actually affected by any of these criteria, or why the presence of these criteria led to the profound disparity in pay between King and her male colleagues. For example, the evidence relied on includes Moe's deposition testimony that King had equaled or surpassed her male predecessor, McCann, in the performance of her Business Manager duties; that the company did not offer King a higher salary when she announced her intention to resign because it felt she was being fairly compensated; and the general statement that "the education and degree level would have some bearing on the salary" and pay increases. R.68-7 at 12-14, 18-20. This evidence does not support Acosta's affirmative defense because it fails to provide specific admissible evidence that the compensation decisions that caused the disparity between King's salary and the salaries of her male peers were actually based on factors other than sex. The requirement that the employer prove that the factor other than sex was actually used in making the subject pay determination, and is bona fide rather than a post-hoc attempt to explain away a pay differential, is also reflected in the Commission's Compliance Manual section on compensation discrimination. "While [the fourth statutory] defense encompasses a wide array of possible factors, the employer must establish that a gender-neutral factor, applied consistently, in fact explains the compensation disparity." EEOC Compliance Manual Chapter 10: Compensation Discrimination, No. 915-003, at 10-IV.F.2 (Dec. 5, 2000); available at http://www.eeoc.gov/policy/docs/compensation.html ("Compliance Manual"). Accordingly, under the EPA, once the plaintiff establishes a prima facie case, an employer who seeks to escape liability through the fourth statutory exception bears the burden of proving that it actually used and applied in good faith a factor not based on sex, which resulted in the challenged pay disparity. The district court also appears to have based its decision on the erroneous assumption that King bore the burden of proving that Acosta's assertion that her lower salary was based on factors other than sex is not true. It is well established, however, that the four statutory defenses to liability under the EPA are in fact affirmative defenses for which Acosta bears the burden of proof. In Corning, the Supreme Court observed that requiring the defendant to affirmatively prove that its reliance on one of the EPA's statutory exceptions was the actual reason for the pay disparity "is consistent with the general rule that the application of an exception under the Fair Labor Standards Act [(of which the EPA is a component)] is a matter of affirmative defense on which the employer has the burden of proof." 417 U.S. at 196-97. This Court agrees. See, e.g., Fallon, 882 F.2d at 1211 ("Once a plaintiff establishes a prima facie case, the burden of proof shifts to the employer" to prove that the pay disparity was caused by one of the statutory defenses to liability, as "[t]hese are affirmative defenses on which the employee bears the burden of proof (persuasion)."). Rather than imposing this burden on Acosta, the district court instead assessed the company's motion for summary judgment on King's EPA claim based on the three-part burden-shifting scheme first announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This proof scheme was designed, however, for Title VII disparate treatment cases where the plaintiff at all times retains the burden of proving the defendant's discriminatory motivation. Under the McDonnell Douglas analysis, the defendant bears a burden of production, but not proof, only requiring it to respond to the plaintiff's prima facie case with an explanation for its alleged discriminatory conduct through articulation of a legitimate, nondiscriminatory reason for its action. The burden of proof never shifts from the plaintiff to the defendant. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). As such, unlike the burden of proof borne by the defendant in EPA claims, under the McDonnell Douglas analysis the defendant is never required to establish the truth of the nondiscriminatory explanation it offers for the alleged discriminatory act. The McDonnell Douglas proof scheme is not applicable to EPA claims where the employer invokes one or more of the EPA's statutory defenses. This Court and the Supreme Court have clearly and unambiguously held that a different proof scheme applies to EPA cases. In County of Washington v. Gunther, 452 U.S. 161, 170-71 (1981), the Supreme Court acknowledged the differences between sex-based unequal pay claims under Title VII and the EPA. The Court specifically recognized that "[t]he structure of Title VII litigation, including presumptions, burdens of proof, and defenses" was "designed differently" than the EPA's fourth affirmative defense, given the differences between Title VII's "broadly inclusive" prohibition on discrimination and the narrower approach reflected by the fourth affirmative defense to the EPA. Gunther, 452 U.S. at 170-71. In Fallon, this Court similarly recognized that "the Equal Pay Act and Title VII, although similar, are nonetheless distinct. They remain separate as to their proof required and to the allocation of the parties' burden of proof." 882 F.2d at 1218; see also id. at 1212-18 (examining differences in how liability is established under Title VII and the EPA). While not explicitly declaring that it was doing so, the district court did substitute the inapplicable McDonnell Douglas Title VII proof scheme for the EPA proof scheme approved by this Court in Fallon. Consistent with McDonnell Douglas, but inconsistent with the EPA proof scheme, the court indicated that Acosta could satisfy its burden on summary judgment under the EPA by "provid[ing] gender- neutral explanations" for the pay disparity between King and her male colleagues. Apx.94. While the district court did recite the EPA's four statutory defenses, and stated that the burden "shifted" to Acosta to "show" one of these defenses, it did not indicate that it believed Acosta actually bore the burden of proving the truth of its asserted defense. See id. On the contrary, the court stated that, once Acosta made its requisite "show[ing]," the plaintiff could only prevail if she "rebut[ted] this statutory defense by showing that it is merely pretextual." Id. This requirement is straight out of McDonnell Douglas and is patently inconsistent with the proper EPA analysis. Since the defendant is actually required to prove a nondiscriminatory reason for its allegedly discriminatory action under the EPA, and not merely articulate an explanation as is the case under McDonnell Douglas, the question of discrimination is settled at the point the defendant meets, or fails to meet, its burden, and there cannot be any further "proof" of discrimination. By its nature, the pretext phase of the McDonnell Douglas analysis presupposes that the defendant has not proven that it acted in a nondiscriminatory manner-otherwise there would be no possibility for a plaintiff to prove the defendant's explanation was untrue and discrimination was the true motive. As such, the McDonnell Douglas analysis-as employed by the district court on summary judgment in this case-is flatly inconsistent with the well-established requirement in EPA claims that the defendant bear the ultimate burden of proving the truth of its asserted defense. There is no room for a pretext analysis under the proper EPA analysis, and the court erred in requiring King to present evidence sufficient to prove pretext. Finally, the district court also overlooked the fact that, since the defendant bears the burden of proving that it acted based on factors other than sex, it is entitled to summary judgment on this point only if undisputed evidence clearly establishes the fact. In order to be entitled to summary judgment on a claim or defense on which it bears the burden of proof at trial, the evidence favoring the movant must be "so one-sided no reasonable jury could find" for the nonmovant. Branham v. Snow, 392 F.3d 896, 907 (7th Cir. 2004) (citing Anderson, 477 U.S. at 251-52); see also Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir. 2010) (citations omitted) ("Where the movant bears the burden of proof on an affirmative defense . . ., the movant '"must establish beyond peradventure all of the essential elements of the defense to warrant judgment in his favor."'"). In such a case, the moving party "'must establish affirmatively the lack of "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."'" Branham, 392 F.3d at 907 (quoting Reserve Supply Corp. v. Owens-Corning Fiberglas Corp., 971 F.2d 37, 42 (7th Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, (1986))). Accordingly, in order to obtain summary judgment in this case, Acosta was required to show that in the case of each male Business Manager, the evidence that Acosta actually used and applied in good faith a factor not based on sex, which resulted in the challenged pay disparity, was "so one-sided no reasonable jury" could conclude otherwise-that is, that no other explanation was possible. Branham, 392 F.3d at 907. The evidence in the record does not meet this standard. As noted above, most of the evidence is not even probative of the actual cause of the pay disparities because it is merely hypothetical. See supra, at 10-11. The evidence that could be construed as supportive of the company's actual reliance on factors other than sex is manifestly inadequate to support the district court's grant of summary judgment, since that evidence is equivocal and inconsistent with other evidence. For example, the company relied on Moe's testimony that an individual's "education and degree level would have some bearing on the salary, the starting salary as well as, then, the development and increases" (R.68-7 at 20) in support of its argument that King's lack of a college degree led to her having a lower salary than her male colleagues. But Moe provided no examples of how, or to what degree, such a factor played out in any actual salary-setting decisions, or how a particular level of education (or lack thereof) resulted in a particular salary level. Cf. Warren, 516 F.3d at 630 ("[A]n employer cannot use a gender-neutral factor to avoid liability unless the factor is used and applied in good faith; it was not meant to provide a convenient escape from liability.'") (quoting in part Fallon, 882 F.2d at 1211); see also Compliance Manual at 10-IV.F.2.a (recognizing that "the difference in education, training, experience, or ability must correspond to the compensation disparity" and the employer must establish that the asserted gender-neutral factor "in fact explains the compensation disparity") (emphasis added). Furthermore, in light of Moe's testimony that he was not aware that Acosta imposed any restrictions on King's potential salary at the time of her hire based on her lack of a college degree (R.68-7 at 29), his testimony cannot fairly be described as so one-sided in favor of the conclusion that education, not sex, was the cause of the pay disparity that no reasonable jury could reject Acosta's argument. The inconsistency between Acosta's general arguments about the cause of the pay disparity and the evidence offered in support extends to the other factors identified by the company. When asked "[w]hat objective criteria do you use when determining the starting salary of a business manager," Moe responded, "[b]usiness management experience, whether it be on the agency side or the direct CPG manufacturer's side; experience; realm of responsibility, again very significantly in managing proprietary systems and client trade funds, very significant." R.68-7 at 38. However, Moe also admitted that King acquired this experience and performed these functions as she developed as a Business Manager. Id. "[C]ontinued reliance on pre-hire qualifications is less reasonable the longer the lower paid employee has performed at a level substantially equal to, or greater than, his or her counterpart." Compliance Manual at 10-IV.F.2.a. The fact that King was nevertheless still significantly undercompensated as compared to her male colleagues even after acquiring the type of job-related experience that was generally asserted to cause her to be paid less than men performing the same job suggests that a reasonable jury could conclude that these criteria were not truly a legitimate reason for the ongoing pay disparity. This conclusion is further supported by the evidence that as late as 2006, five years into King's tenure as a Business Manager, Moe refused to raise her salary up to the company-mandated minimum or target levels for Business Managers. Apx.82. Moe offered that in 2006 he did not raise King's salary up to the company-mandated minimum or target levels for Business Managers because he believed the minimum and target salaries were non-mandatory guidelines. Id. Testifying to the contrary, however, Acosta's Executive Vice President for Human Resources disagreed, stating that Moe was in fact expected to follow those salary guidelines. R.74-15 at 3. Nor do Acosta's attempts to explain why particular male Business Managers were paid so much more than King suggest that summary judgment was appropriate. For example, Moe testified that Skip Fritz was paid more than twice as much as King when he was hired based on his "past experience." R.68-7 at 34. Moe did not quantify Fritz' experience as compared to King's, however, and did not explain why that experience resulted in such a large pay disparity, other than to acknowledge that the process is "subjective." R.68-7 at 34-35. Nor did Acosta explain why the pay disparity persisted during the years 2004 through 2006 when Acosta rated King's job performance as essentially at or above the level of Fritz' performance. See R.68 at 6 (Defendant's summary judgment statement of facts, presenting annual performance ratings for Business Managers). A reasonable jury could reject Acosta's assertion that it continued to pay King less than half what it paid Fritz based on their pre-hire qualifications where the two employees are performing at or near the same level. This evidence would not compel a reasonable jury to find that Fritz' prior experience was the reason that he was paid twice as much as King for years when the two performed at roughly the same level. Similarly, Moe testified that Acosta gave John Czarnick a salary of $55,000 when he was hired because "we felt that it was, you know, fair compensation for what he was looking for to come in as a business manager." R.68-7 at 37. This is no explanation whatsoever for why Acosta decided to offer Czarnick a salary some $8,000 more than King's then-current salary, or why it left King's salary lower than Czarnick-particularly given the evidence that around this time Moe declined to raise King's salary in conformance with the company's stated target salary range for Business Managers. See supra, at 2-4. To the extent that Moe is suggesting that market factors mandated that he bargain with Czarnick over his salary, there is no evidence whatsoever that Acosta attempted to negotiate Czarnick's salary, casting doubt over any such argument. See Compliance Manual at 10-IV.F.2.g ("If the employer did not bargain with the higher-paid comparator it will cast doubt on the employer's argument that it had to offer a higher salary to compete for him/her."). Given that the evidence in support of the explanations proffered by Acosta for the profound disparity between King's salary and the salaries of her male colleagues performing equal work, is equivocal and inconsistent, it does not justify the grant of summary judgment to Acosta, the party bearing the burden of proof on this issue. The evidence is not so one-sided that no reasonable jury could fail to rule in the company's favor, and thus Acosta is not entitled to summary judgment on the basis of its "factor other than sex" affirmative defense. II. The District Court Erroneously Bifurcated the Evidence When It Assessed King's Title VII Hostile Work Environment Claim. When the district court examined the evidence supporting King's argument that she had been subjected to a hostile work environment based on sex, the court took a novel-and legally unsound-approach. Rather than simply examining together all the conduct alleged to have created a hostile work environment, the court bifurcated the evidence into two distinct temporal groups-conduct occurring before the 300-day period preceding the date King filed her charge of discrimination, and conduct within that 300-day period-and assessed the evidence from each group independent of the other group. Apx.87-89 The court then determined that since the evidence of such conduct was insufficient to satisfy Title VII's standard for actionable harassment either within or prior to the aforementioned 300-day window, King could not establish a hostile work environment claim. Id. It is well established, however, that all evidence of a hostile work environment must be viewed together in determining whether there is sufficient evidence to support a finding that the conduct at issue created a hostile work environment. The court's failure to apply the correct analysis to the evidence supporting King's hostile work environment claim constituted legal error. <2> Title VII makes it unlawful for an employer "to discriminate against any individual" with respect to the individual's "terms, conditions or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). This statutory language "'is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women" in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting in part Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Id. (quoting in part Meritor, 477 U.S. at 65, 67). The unlawful employment practice embodied in a hostile work environment, by its "very nature[,] involves repeated conduct." Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). As such, "[t]he 'unlawful employment practice' . . . cannot be said to occur on any particular day. It occurs over a series of days or perhaps years." Id. "Such claims are based on the cumulative effect of individual acts"; that is, "[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice.'" Id. at 115, 116; see also Issacs v. Hill's Pet Nutrition, Inc., 485 F.3d 383, 385 (7th Cir. 2007) (recognizing that "[t]he Supreme Court treats a hostile work environment as one unlawful employment practice") (citing Morgan, 536 U.S. at 115-21). Accordingly, so long as "an act contributing to the claim occurs within the [charge] filing period, the entire time period of the hostile environment may be considered by a court for determining liability." Morgan, 536 U.S. at 117; see also Lucas v. Chicago Transit Auth., 367 F.3d 714, 724 (7th Cir. 2004) (same). "It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory [charge filing] time period." Morgan, 536 U.S. at 117; Lucas, 367 F.3d at 724. "The statute does not separate individual acts that are part of the hostile work environment from the whole for the purposes of . . . liability." Morgan, 536 U.S. at 118. In the instant matter, the district court erred when it disaggregated the acts King alleged created a hostile work environment into two distinct groups-acts occurring before the charge filing period, and acts occurring during the charge filing period-and separately assessed the severity or pervasiveness of the conduct occurring in each time period, independent of the other. As discussed above, the Supreme Court and this Court have clearly established that a hostile work environment is composed of a series of separate acts, either within or both within and without the charge filing period, that collectively constitute a single, unitary unlawful employment practice. There is no contrary authority, and thus no statutory or precedential support for the district court's disaggregation and separate analysis of the conduct at issue. Nor is there any support for the district court's imposition on King of the heightened burden of showing that the conduct occurring during the charge-filing period was sufficient, in and of itself and without regard for the pre-charge-filing- period conduct, to create a hostile work environment in violation of the statute, or the court's similar, separate treatment of the pre-charge-filing-period conduct. Such a requirement is not provided by Title VII, Morgan, or any of this Court's precedent-and in fact, all of this authority runs directly, and explicitly, contrary to the district court's approach in this case. As such, the district court's imposition of this heightened burden on King in regard to her Title VII hostile work environment claim was legal error. Conclusion For the foregoing reasons, the Commission respectfully requests that the Court reverse the grant of summary judgment to Acosta and remand the case to the district court for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Compliance I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B), and the typeface requirement set forth in Seventh Circuit Rule 32(b). This brief contains 6,318 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 12-point proportionally spaced type for text and 12-point proportionally spaced type for footnotes. s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Service I hereby certify that on July 29, 2011, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ********************************************************************************** <> <1> King also presented evidence that during the same time period, the salaries of the other female Business Managers in the Chicago district ranged from approximately $38,000 to a high of $60,000, roughly half that of the male Business Managers. See generally R.74-18 (relevant salary histories of female Business Managers). <2> We offer no opinion as to whether, when properly analyzed, the evidence suggests that King was in fact subjected to a hostile work environment in violation of the statute, nor do we offer any opinion on any other issue regarding her hostile work environment claim.