Gloria Terry v. Gary Community School Corpora ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1270
GLORIA D. TERRY,
Plaintiff-Appellant,
v.
GARY COMMUNITY SCHOOL CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 15-cv-00129 — John E. Martin, Magistrate Judge.
____________________
ARGUED NOVEMBER 29, 2018 — DECIDED DECEMBER 14, 2018
____________________
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
FLAUM, Circuit Judge. For thirty-five years, plaintiff-appel-
lant Gloria D. Terry worked as a teacher and an administrator
for defendant-appellee Gary Community School Corporation
(the “District”). At the end of the 2013–2014 school year, the
District closed the elementary school where Terry served as
the Principal because of declining enrollment. In turn, the Dis-
trict reassigned her to serve as the Assistant Principal at an-
2 No. 18-1270
other elementary school. From Terry’s perspective, this reas-
signment was a demotion. Additionally, the District also
picked a male employee over Terry for a separate promotion,
even though Terry had earned the highest ranking of all the
applicants from the interviewers.
These events motivated Terry to bring this lawsuit, alleg-
ing sex discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Four-
teenth Amendment via 42 U.S.C. § 1983; retaliation in viola-
tion of Title VII, 42 U.S.C. § 2000e-3(a); unequal pay in viola-
tion of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1); and a
violation of the Indiana Open Door Law, Ind. Code § 5-14-1.5-
1 et seq. Only Terry’s federal claims are at issue on appeal. The
parties consented to referral to a magistrate judge who
granted summary judgment in favor of the District on Terry’s
federal claims. Terry appeals that decision, and we affirm.
I. Background
In August 1980, Terry began her career with the District as
a teacher. Twenty-two years later, in August 2002, the District
promoted Terry to Principal of Brunswick Elementary School.
She remained in that position until the end of the 2013–2014
school year, when the District closed the school.
Brunswick Elementary was one of several schools the Dis-
trict closed at the end of the 2013–2014 school year due to de-
clining enrollment. These closings meant the Board of School
Trustees (the “Board”) had to decide whether to reassign em-
ployees from the closed schools to any positions at the schools
that remained open. To that end, the Board met on July 22,
2014, and it considered personnel recommendations from the
No. 18-1270 3
District’s Superintendent, Dr. Cheryl Pruitt. The Board ap-
proved Dr. Pruitt’s recommendation that Terry serve as Assis-
tant Principal of Jefferson Elementary School, pending enroll-
ment of at least 575 students; that William Roberts serve as
Principal of Watson Boys Academy; and that Marcus Upshaw
serve as Assistant Principal of West Side High School. But, the
Board did not approve Dr. Pruitt’s recommendation that Gina
Ellison serve as Principal of Marquette Elementary School.
Two days after the Board’s meeting, the District advertised
an opening for the position of Principal at Marquette Elemen-
tary. The posting noted an interview requirement. Several
candidates, including Terry, interviewed for the position.
Terry earned the highest ranking from the Interview Commit-
tee; but, on August 13, 2014, the District notified Terry that it
did not select her for the position.
As it turned out, Dr. Pruitt never considered the Interview
Committee’s rankings. Instead, she recommended Sheldon
Cain to fill the position even though Cain had not interviewed
nor applied for the position. What distinguished Cain from
the other candidates was his recent experience working at
Marquette Elementary. During the 2013–2014 school year,
when the Principal of Marquette Elementary had taken time
off to recover from an illness, Cain served as the Interim Prin-
cipal. And before that, Cain was the Assistant Principal of
Marquette Elementary.
In October 2014, Terry filed a charge of discrimination
with the Equal Employment Opportunity Commission (the
“EEOC”), stating that she faced employment discrimination
on the basis of her sex because she was demoted, passed over
for a promotion, and paid less, in violation of Title VII and the
4 No. 18-1270
Equal Pay Act. The District’s Human Resources Director, Wil-
lie Cook, sent a response to the EEOC. The District denied dis-
criminating against Terry and explained that it had to close
Brunswick Elementary and four other schools in July 2014
due to declining enrollment. Rather than laying off Terry, the
District reassigned her to help the Principal of Jefferson Ele-
mentary. Notwithstanding the reassignment, the District did
not change Terry’s salary. Finally, the District explained it
chose Cain to serve as Principal of Marquette Elementary be-
cause he “had served as Assistant Principal there since 2009,
Acting Principal for 2012–2013, Interim for 2013–2014, and
was familiar with the school’s operation and population.”
For two weeks in January 2015, Terry served as the Assis-
tant Principal of Jefferson Elementary until the District reas-
signed her to serve as the Assistant Principal of Marquette El-
ementary. She remained in that role until she retired at the
end of the 2014–2015 school year.
Although Terry’s responsibilities changed between her
role as Principal of Brunswick Elementary and her roles as
Assistant Principal of Jefferson Elementary and then as Assis-
tant Principal of Marquette Elementary, throughout her time
serving in those three roles, she earned the same salary
($84,308) and she received the same benefits. Nevertheless,
Terry took issue with the fact that two male principals, Cain
and Roberts, received higher salaries than she did. Cain and
Roberts each received $85,986 during the 2013–2014 school
year. Terry did not file anything with the Board requesting an
increase in salary; however, she discussed her concerns with
Cook.
Terry learned from Human Resources that for several
years, the District had been operating under a salary freeze,
No. 18-1270 5
meaning the District could not increase the salary for a given
position. In his deposition, Cook explained that the salary for
the Principal of Marquette Elementary was frozen at $85,986;
so if Terry had been selected for that role, she would have re-
ceived that salary.
Dr. Pruitt sent Terry a letter, dated February 25, 2015, ad-
vising Terry that the Board voted the day before not to renew
her contract as an administrator for the District for the 2015–
2016 school year. This prompted Terry to retire because “if
[she] didn’t retire then, [she] would lose all the benefits of an
administrator.” Accordingly, on April 2, 2015, Terry sent a
resignation letter to inform the Board and the District that her
last day of work would be June 30, 2015.
After receiving the EEOC’s right-to-sue letter, Terry filed
her initial complaint in this action on April 2, 2015. Soon there-
after, she filed an amended complaint and moved for partial
summary judgment on her Indiana state-law claim. The dis-
trict court granted Terry’s motion. Approximately one month
later, on August 17, 2015, Terry filed a second amended com-
plaint, which is the operative complaint. Then, the parties
consented to the exercise of jurisdiction by a magistrate judge
for all further proceedings pursuant to 28 U.S.C. § 636(c). The
District moved for summary judgment on Terry’s remaining
federal claims. On January 8, 2018, the magistrate judge
granted the motion. This appeal followed.
II. Discussion
We review the grant of summary judgment de novo. Bar-
bera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir. 2018).
Summary judgment is appropriate “if the movant shows that
6 No. 18-1270
there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We draw all reasonable inferences for the nonmoving
party, and we view the record in the light most favorable to
the nonmoving party. Barbera, 906 F.3d at 628. We may affirm
the grant of summary judgment on any ground supported in
the record, so long as the parties adequately presented the is-
sue in the district court and the nonmoving party had an op-
portunity to contest it. O’Brien v. Caterpillar Inc., 900 F.3d 923,
928 (7th Cir. 2018).
A. Discrimination Claims
Title VII makes it unlawful for an employer to discrimi-
nate against any employee on the basis of sex. 42 U.S.C.
§ 2000e-2(a)(1); Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir.
2018). The critical question on summary judgment is whether
Terry presented evidence that would permit a reasonable fact-
finder to conclude that the District took a materially adverse
employment action against Terry because of her sex. See Bar-
bera, 906 F.3d at 629. Although the oft-cited burden shifting
framework from McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973), provides “a means of organizing, presenting,
and assessing circumstantial evidence,” David v. Bd. of Trs. of
Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017), we
must consider the evidence as a whole in deciding whether to
grant summary judgment, see Ortiz v. Werner Enters., Inc., 834
F.3d 760, 765 (7th Cir. 2016).
Terry argues the District engaged in sex discrimination
both by demoting her from Principal of Brunswick Elemen-
tary to Assistant Principal of Jefferson Elementary and by pro-
moting Cain instead of her to serve as Principal of Marquette
Elementary. If Terry can show that the District demoted or
No. 18-1270 7
failed to promote her because of her sex, the burden shifts to
the District to present a legitimate and nondiscriminatory rea-
son for the adverse action, and if the District can make that
showing, the burden shifts back to Terry to create a triable is-
sue of fact that the proffered reason was pretextual. Barbera,
906 F.3d at 629.
1. Demotion Theory
Terry insists that the demotion from Principal of Bruns-
wick Elementary to Assistant Principal of Jefferson Elemen-
tary constitutes an adverse action because it resulted in a
lesser title, diminished job responsibilities, and less prestige.
The District disputes that the reassignment was an adverse
action given that Terry kept her same pay and benefits.
An employer’s action is “materially adverse” if it is “more
disruptive than a mere inconvenience or an alteration of job
responsibilities.” James v. Hyatt Regency Chi., 707 F.3d 775, 782
(7th Cir. 2013) (quoting Nagle v. Village of Calumet Park, 554
F.3d 1106, 1120 (7th Cir. 2009)). But, a change in pay and ben-
efits is not a prerequisite for establishing that an employer en-
gaged in a materially adverse action. See Nagle, 554 F.3d at
1119–20. Examples of qualifying actions include: (1) reduc-
tions in compensation, fringe benefits, or other financial terms
of employment, including termination; (2) preventing an em-
ployee from using the skills she developed and in which she
is trained, such that those skills atrophy and her long-term ca-
reer prospects are reduced; or (3) changing an employee’s
work conditions “in a way that subjects h[er] to a humiliating,
degrading, unsafe, unhealthful, or otherwise significantly
negative alteration in h[er] workplace environment.” Alamo v.
Bliss, 864 F.3d 541, 552 (7th Cir. 2017) (quoting Herrnreiter v.
Chi. Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002)).
8 No. 18-1270
While the title of “Principal” is more prestigious than that
of “Assistant Principal,” the magistrate judge found that the
parties had agreed that many of the duties and required skills
of principals and assistant principals are, in fact, the same. On
appeal, Terry makes a conclusory assertion that the transfer
“severely diminished her job responsibilities,” but she does
not present any evidence to support this point. Nor does Terry
show that her long-term career prospects were hampered by
the change, that the new work environment was humiliating,
or the like. Therefore, as the magistrate judge noted, there is
reason to doubt that Terry suffered an adverse employment
action when the District transferred her to serve as Assistant
Principal of Jefferson Elementary.
Deciding whether Terry can make that showing is unnec-
essary, though. Even assuming this change in position consti-
tutes a material adverse action, Terry did not marshal any ev-
idence to raise a factual dispute that the District had a dis-
criminatory purpose for taking this action. The record sup-
ports a finding that the District transferred Terry because
Brunswick Elementary closed. Terry offers no evidence or ar-
gument to suggest that this reason was pretextual. As such,
the District is entitled to summary judgment on Terry’s theory
that the District discriminated against her by demoting her.
2. Failure-to-Promote Theory
In addition to the demotion, Terry challenges the District’s
decision to appoint a male instead of her to fill the position for
Principal of Marquette Elementary. We have held that an em-
ployer’s decision not to promote an employee is discrimina-
tory when the employee establishes: (1) she was a member of
a protected class; (2) she was qualified for the position; (3) the
No. 18-1270 9
employer rejected her application; and (4) the employer pro-
moted someone outside the protected class who was not more
qualified for the position. Henderson v. Shulkin, 720 F. App’x
776, 781 (7th Cir. 2017) (citing Riley v. Elkhart Cmty. Schs., 829
F.3d 886, 892 (7th Cir. 2016)).
The District does not dispute that Terry can establish these
elements. Instead, the District reiterates the same arguments
it made in its response to Terry’s EEOC charge: The decision
was not sex-based and the District chose Cain for that role be-
cause of his experience working at Marquette Elementary.
Terry contends the District’s sex-neutral reason for hiring
Cain is pretextual. To support this argument, she relies on the
chronology of events—the Board rejected Dr. Pruitt’s nomina-
tion of a female candidate for the position; Dr. Pruitt ignored
the Interview Committee’s analysis, which gave the highest
ranking to a female candidate; and then the Board approved
Dr. Pruitt’s nomination of a male candidate. Terry believes
this sequence of events reveals three lies by the District: (1) ex-
perience working at Marquette could not have been very im-
portant to the District, otherwise it would have nominated
Cain initially, not Ellison; (2) Cain could not have been the
“best candidate” because he was not a candidate at all—he
did not apply for the position; and (3) interviews were not
“required” to apply for the position because the District se-
lected Cain and he never interviewed.
We do not agree that the chronology of events alone is ev-
idence that the District lied when it said it picked Cain for the
role because of his experience working at Marquette Elemen-
tary. There is no information about how the District typically
seeks to fill vacant positions—whether a formal interview and
application process is required, whether Dr. Pruitt makes
10 No. 18-1270
nominations to the Board independent of any such process, or
whether Dr. Pruitt is required to review the Interview Com-
mittee’s conclusions before nominating a candidate. Moreo-
ver, there is no information about why Dr. Pruitt first nomi-
nated Ellison, why the Board rejected Ellison as a candidate,
why Human Resources responded to the rejected nomination
by posting the position for Principal of Marquette Elemen-
tary, when and how the District began considering Cain as a
candidate, why Dr. Pruitt did not consider the Interview
Committee’s findings, and why Dr. Pruitt did not nominate
Terry. Without any such context, we have no basis to conclude
that a candidate’s experience was not important to the Dis-
trict, that one could not be a candidate without interviewing
or formally applying, and that Cain was not the best candi-
date according to the District because of his experience. Con-
sequently, we hold that Terry has not established pretext
here. 1 Terry’s claim that the District discriminated against her
on the basis of her sex by failing to promote her does not sur-
vive summary judgment.
1In her opening brief on appeal, Terry briefly mentions that instead
of assigning her to serve as Assistant Principal of Jefferson Elementary,
the District could have transferred her to serve as Assistant Principal of
West Side High, and that Terry believes a reassignment from Principal of
Brunswick Elementary to Assistant Principal of West Side High would
have been a lateral move. But Terry did not raise this as part of her failure-
to-promote claim, and the District did not address this point in its re-
sponse brief. Furthermore, Terry does not refer to the District’s decision
to appoint Upshaw to serve as Assistant Principal of West Side High in-
stead of her in her reply brief. Regardless of whether waiver applies, Terry
could not prevail on such a theory of discrimination because she has not
shown that she was qualified for the West Side High position, that she
applied for the position, or that Upshaw was not better qualified for the
position than she was. See Henderson, 720 F. App’x at 781.
No. 18-1270 11
Terry also brings a discrimination claim under § 1983. We
evaluate employment discrimination claims brought under
§ 1983 with the same standards we use in employment dis-
crimination claims brought under Title VII. Hildebrandt v. Ill.
Dep’t of Nat. Res., 347 F.3d 1014, 1036 (7th Cir. 2003). Thus, for
the same reasons Terry’s Title VII discrimination claim does
not prevail, her § 1983 discrimination claim also does not sur-
vive summary judgment.
We affirm the grant of summary judgment on Terry’s dis-
crimination claims under Title VII and § 1983.
B. Retaliation Claim
“A retaliation claim arises under Title VII when an em-
ployee engages in an activity protected under that statute and,
as a result, suffers an adverse employment action.” Owens v.
Old Wis. Sausage Co., 870 F.3d 662, 668 (7th Cir. 2017). The par-
ties do not dispute that Terry engaged in statutorily protected
activity by filing a charge of discrimination with the EEOC or
that the District took an adverse employment action against
Terry by deciding to not renew her contract. What the parties
dispute is the existence of a causal connection between Terry’s
activity and the adverse action.
Terry contends the District terminated her in retaliation
for her protected activity. She notes that the District termi-
nated her less than one month after she received her right-to-
sue notice and four months after she had filed her charge of
discrimination. Terry argues that the temporal proximity be-
tween these events, especially when considered in the greater
context of her career with the District—a thirty-five-year em-
ployment history with no disciplinary issues, and with con-
12 No. 18-1270
sistently positive performance evaluations—supports an in-
ference of retaliation. See Lang v. Ill. Dep’t of Children & Family
Servs., 361 F.3d 416, 419 (7th Cir. 2004) (“Close temporal prox-
imity provides evidence of causation and may permit a plain-
tiff to survive summary judgment provided that there is also
other evidence that supports the inference of a causal link.”
(citation omitted)); Lalvani v. Cook County, 269 F.3d 785, 790
(7th Cir. 2001) (“When an adverse employment action follows
close on the heels of protected expression, and the plaintiff
can show that the person who decided to impose the adverse
action knew of the protected conduct, the causation element
of the prima facie case is typically satisfied.”).
The District insists it did not retaliate against Terry, noting
the undisputed evidence that the District had to close schools
due to declining enrollment and that these closures forced the
District to downsize its administration. The District also clar-
ifies that it sent Terry a form letter that it sent to “numerous
administrators”; however, the District does not cite evidence
in the record to support that point. There is evidence that the
District sent Cain a letter warning him that the District was
“considering a decision not to renew [his] contract as an Ad-
ministrator”; but that is not the same as the letter Terry re-
ceived, informing her that “the Board … voted … to not renew
[her] contract.” Relatedly, the District explains that it sent
these form nonrenewal letters because it was required to do
so under state law. The magistrate judge decided that the Dis-
trict waived this last point by raising it for the first time in is
reply brief. Terry does not contend that waiver bars the Dis-
trict from raising this argument on appeal.
The state law that the District refers to is Indiana Code
§ 20-28-8-3(a); it provides: “Before March 1 of the year during
No. 18-1270 13
which the contract of … a principal … is due to expire, the
governing body of the school corporation … shall give written
notice of … refusal to renew the individual’s contract for the
ensuing school year.” This language supports the District’s ar-
gument that state law dictated when the District had to send
the nonrenewal letter to Terry. And the record further sup-
ports the District’s argument that it did not renew Terry’s con-
tract because of the financial crisis, school closures, and
downsized administration.
Given that “there are reasonable, non-suspicious explana-
tions for the timing of [the nonrenewal letter],” that timing,
even when combined with Terry’s positive employment his-
tory, is not enough to create a dispute of material fact as to
whether the District retaliated against Terry. See Milligan-
Grimstad v. Stanley, 877 F.3d 705, 711 (7th Cir. 2017) (quoting
Morgan v. SVT, LLC, 724 F.3d 990, 998 (7th Cir. 2013)). We af-
firm the grant of summary judgment on this claim.
C. Equal Pay Act Claim
The Equal Pay Act prohibits employers from discriminat-
ing between its employees by paying an employee lower
wages than the employer pays an employee of the opposite
sex. 29 U.S.C. § 206(d)(1). An employee establishes a prima fa-
cie claim under the Act by demonstrating a difference in pay
despite having a job that requires “equal skill, effort, and re-
sponsibility” as the comparator and a job that is performed
under similar working conditions to the comparator. Lauder-
dale v. Ill. Dep’t of Human Servs., 876 F.3d 904, 907 (7th Cir.
2017) (quoting King v. Acosta Sales & Mktg., Inc., 678 F.3d 470,
474 (7th Cir. 2012)). If the employee makes this showing, the
burden of proof shifts to the employer to prove some neutral
factor that explains the difference in pay. Id. The Act provides
14 No. 18-1270
four exceptional circumstances when an employer has a per-
missible basis to pay an employee less than an employee of
the opposite sex: “(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.” Id. (citing 29 U.S.C. § 206(d)(1)).
On appeal, Terry argues that her position as Principal of
Brunswick Elementary was equivalent to Cain’s position as
Interim Principal of Marquette Elementary and to Robert’s
position as Principal of Watson Boys Academy. The District
does not challenge Terry’s choice of comparators. Instead, the
District maintains that the undisputed evidence shows that
the combination of its pay scale and the salary freeze deter-
mined employees’ salaries; sex was not a factor.
Terry argues the District waived its “other than sex” af-
firmative defense by raising it for the first time in its reply
brief before the district court. 2 We disagree. In its opening
brief on summary judgment, the District refers to the statute’s
exception for circumstances when the pay disparity is based
on a factor other than sex. Specifically, the District quotes the
portion of Smith v. Allstate Insurance Corp., 24 F. Supp. 2d 870,
879 (N.D. Ill. 1998), which contains a block quotation of 29
U.S.C. § 206(d)(1), which outlines the “other than sex” excep-
tion. The District then argues that Terry “cannot prove she
was discriminated in regards to Equal Pay” because the Dis-
trict “had a pay scale for its employees,” and “Terry was at the
2The District did not respond to Terry’s waiver argument and so it
has waived any counter-arguments it might have raised in response to this
point. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (failure
to respond to an argument raised by the opposing party on appeal results
in waiver).
No. 18-1270 15
high end of the pay scale even though she was not at the very
top.” The District further explains that Cain received a salary
increase when the District promoted him from Assistant Prin-
cipal to Principal in order to “compensate[] [him] for the ad-
ditional duties.” These arguments were “other than sex” de-
fenses even though the District did not label them as such. The
District did not fail to raise this affirmative defense in its open-
ing brief on summary judgment.
While it is true that the District did not explicitly refer to
the “salary freeze” in addressing Terry’s Equal Pay Act claim
in its opening brief on summary judgment, the District did
discuss the salary freeze in its statement of material facts. It
stated that Terry’s salary was frozen at $84,308 and that “[t]he
district froze salaries several years prior to the closing of
[Brunswick Elementary].” It is clear from the District’s open-
ing brief that the crux of the District’s defense in this case was
the District’s financial crisis, of which the salary freeze was a
part. This was not a new theory that the District raised for the
first time on appeal. As a result, we do not conclude that the
District waived its right to rely on the salary freeze as sup-
porting its “other than sex” affirmative defense. See River v.
Commercial Life Ins. Co., 160 F.3d 1164, 1172 (7th Cir. 1998)
(holding waiver barred plaintiff from presenting issue on ap-
peal where plaintiff did not raise that same issue before the
district court).
Terry also argues that deposition testimony from Cook
and Dr. Pruitt show that her salary could have been increased
and that the District simply elected not to increase her salary,
even though it fell below the salaries of her male peers. Based
on this testimony, Terry believes she has raised a dispute of
16 No. 18-1270
material fact as to whether the District paid her less than Cain
because of a factor other than sex. We disagree.
Cook’s deposition testimony provides a counterfactual: If
Terry had become Principal of Marquette Elementary instead
of Cain, she would have received $85,986. In other words,
whoever served as Principal of Marquette Elementary was en-
titled to receive $85,986 because the salary freeze fixed the sal-
ary for that position at that amount. Dr. Pruitt’s testimony
does not undermine the idea that the salary freeze governed
the amount the District could pay an employee; she simply
responded to a question about how she would have re-
sponded, had she known about the pay disparity affecting
Terry:
Q: If you had learned about that disparity ear-
lier, would you have done something to correct
it?
A: I would have attempted to do something to
correct it. Now, what I do know is that … there
were other administrators in the district where
the salaries are not aligned . ... So what I did do
was pull out the salary schedule to even try to
understand that . ... What I was told at that time
was that historically the superintendent could
just select what the amount would be to pay
someone. That may have even happened to my-
self. But I didn’t know, from what I can remem-
ber.
Dr. Pruitt’s deposition testimony was aspirational—it effec-
tively stated that she would have tried to do something to pay
Terry more. She did not offer any concrete actions she would
No. 18-1270 17
have (or could have) taken to remedy the pay disparity. In
fact, she admitted that she was previously aware of some pay
disparity and that what she did in response was “try to un-
derstand” the salary schedule. She did not suggest that she
did (or could have) eliminated that pay disparity.
Drawing reasonable inferences in favor of Terry, we can
infer that it was possible for Dr. Pruitt to try to increase Terry’s
salary. However, there is nothing from which we may reason-
ably infer that there were ways to circumvent the salary freeze
and that because the District did not take such measures, the
District was simply choosing not to increase Terry’s salary.
We therefore do not interpret Dr. Pruitt’s testimony as creat-
ing a triable issue of fact about whether the salary freeze pre-
vented the District from raising salaries.
The record makes clear that when the salary freeze went
into effect, the Principal of Brunswick Elementary earned
$84,308 and the Principal of Marquette Elementary earned
$85,986. Those salaries remained frozen throughout the 2013–
2014 school year. And the record supports the inference that
the differences in pay between the two positions was histori-
cal (dating back to the start of the salary freeze) rather than
the product of the District’s decision to award one employee
more than the other—much less a product of the District’s de-
cision to award a male employee more than a female em-
ployee. Consequently, the District carried its burden of prov-
ing that a factor other than sex is the reason for the difference
in pay.
Terry’s reliance on Roberts, the Principal of Watson Boys
Academy, as a comparator also does not advance her Equal
Pay Act claim. Although Cook did not restate his counterfac-
18 No. 18-1270
tual in terms of Roberts and the position of Principal of Wat-
son Boys Academy, the same evidence that led to the conclu-
sion that the difference in salary between Terry and Cain was
based on the salary freeze (and not based on sex) supports the
same conclusion regarding the difference in salary between
Terry and Roberts.
We affirm the grant of summary judgment as to Terry’s
claim under the Equal Pay Act.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.