Jena McClellan v. Midwest Machining, Inc ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0037n.06
Case No. 20-1954
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JENA MCCLELLAN, ) Jan 24, 2022
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant,
)
) ON APPEAL FROM THE UNITED
v.
) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
MIDWEST MACHINING, INC.,
) MICHIGAN
Defendant-Appellee. )
____________________________________/
Before: SUTTON, Chief Judge; GUY and DONALD, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Plaintiff Jena McClellan appeals the grant of
summary judgment to her former employer Midwest Machining, Inc., with respect to claims:
(1) that she was discharged in violation of Title VII and the Pregnancy Discrimination Act,
42 U.S.C. §§ 2000e-2(a)(1) and 1981a; and (2) that she was paid lower commissions as an inside
sales representative than an outside sales representatives in violation of the Equal Pay Act,
29 U.S.C. § 206(d)(1).1 After de novo review, we affirm.
I.
Jena McClellan was hired as a telemarketer for Midwest Machining, a maker of component
parts for complex tools and machines, and was quickly promoted to work as an inside sales
1
Although McClellan’s pregnancy discrimination claim was also asserted under Michigan’s Elliott-Larsen Civil
Rights Act, MCLA § 37.2101 et seq., the district court declined to exercise jurisdiction over that state law claim and
no arguments are raised with respect to it in this appeal.
Case No. 20-1954, McClellan v. Midwest Machining, Inc.
representative starting in 2009 and continuing until she was fired on November 16, 2015.
McClellan was recognized as a highly skilled salesperson and, by 2015, was a top performer
among the three inside sales representatives. Yet, in 2014, Midwest’s President Phil Allor created
“Phil’s Office Rules” to address “incivility” in the inside sales department that he largely attributed
to McClellan.
The disparity between the commissions paid to the female inside sales representatives and
the male outside sales representative and his supervisor was a sore point. McClellan said she asked
Allor about outside sales, but was told that women could not be in outside sales or they would
outsell the men and damage the morale of Sales Manager Greg Kirchoff. Finally, in May 2015,
McClellan and fellow inside saleswoman Jessica Yoak organized a two-day “sick out” that caused
Allor to raise the inside sales commissions to match the outside sales commissions for sales to new
customers. Before that, inside sales representatives received 2% commission for such sales (or 1%
for customers with discounts over 39%), while outside sales earned 3% commission for such sales
(or 1.5% for customers with discounts over 39%). All “inherited” accounts generated 1%
commission.
Tensions were stoked by an incident at the end of June 2015, which Allor concluded had
been instigated by McClellan. In short, a piece of paper with “doodles” on it was taken from the
trash can of the inside sales supervisor Jordan Fifelski by her newly hired subordinate Amanda
Hammer. Hammer took that paper to Plant Manager Chris Childress, who had just laid off some
employees due to slow sales, and accused Fifelski of wasting time and not working hard. Childress
reported this to Allor, but Allor thought Fifelski was a hard worker and decided not to do anything.
When the same thing happened a month later, it was McClellan who stirred the pot by telling
Fifelski what Hammer had done. Hammer, in turn, said McClellan had put her up to it.
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
Allor quietly took over direct supervision of inside sales because Fifelski refused to continue doing
it. But Allor chose not to question McClellan or take any other action due to slumping sales.
On August 19, 2015, McClellan announced to her coworkers that she was pregnant.
McClellan testified that Fifelski’s attitude turned jealous and resentful. Fifelski was also short
with the rest of the inside sales team. McClellan testified that Kirchoff said something about being
“barefoot and pregnant” and made a comment about her new child having a different father than
her other children. On October 15, Allor asked McClellan what her plans were for maternity leave
because he was concerned he might lose a great salesperson. McClellan admitted that Allor was
relieved to hear that she definitely planned to return to work full-time. During McClellan’s annual
review on November 5, Allor said they should finalize her maternity leave plans and again
expressed relief that McClellan “was coming back.” McClellan received an excellent performance
review, although she got a smaller raise than she had expected.
Apart from that annual review, other events during the first week of November are relevant.
Allor assigned McClellan a research project into potential customers for bridge bushings, which
she testified she completed. Allor announced that the year-end sales promotion—the D30
initiative—would be the primary focus of calls beginning Monday, November 9, and lasting into
early December. Then, on Friday November 6, Hammer quit her inside sales job and McClellan
made a last-minute request to take vacation the following week. Two calls between Allor and
McClellan occurred on November 6.
First, according to McClellan and the notes she was apparently keeping about incidents at
work, Allor called her “in a panic” about Hammer quitting; McClellan complained about Fifelski,
whom she learned was no longer her supervisor; and Allor was upset when McClellan “put in for
the following weeks vacation” and questioned her loyalty, but “gave [her] the week off.”
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
McClellan says Allor had her transfer the call to Jennifer Anderson to approve the leave request—
while Allor denied that he did so, and Anderson testified that she did not sign McClellan’s leave
request. Allor’s account of that first call differed materially from McClellan’s: Allor testified that
he denied her vacation request, told her that the company could not spare her, and warned that her
job would be in jeopardy. Allor decided that he would fire McClellan if she did not come to work
the following week, but he was not certain he had been clear enough with McClellan. 2
Allor called McClellan a second time on November 6. Allor says he told McClellan that
“if she took the time off, report to my office immediately upon her return and we will discuss
whether [she] still ha[d] a job.” Allor added that McClellan asked if that meant she would be fired,
to which he answered, “very likely.” Indeed, McClellan’s own notes recounted: “Two hours later
[Allor] called back and threatened my job.” Although McClellan testified that she did not think
Allor would actually do it, there can be no question that she understood her vacation was not
approved. Nevertheless, she did not report to work the week of November 9.3
That next week, Yoak told Anderson—who told Allor—that McClellan had encouraged a
mass resignation of the inside sales representatives. Yoak said she did not quit because she realized
that McClellan had requested vacation time instead of quitting. Allor and Anderson believed
McClellan was trying to thwart the D30 Initiative and take over the others’ accounts when they
2
As it turns out, Midwest had an unsigned copy of McClellan’s leave request and McClellan was
never able to produce the signed copy she thought she had in her files. Anderson testified that she
kept the unsigned original.
3
McClellan testified that she asked for leave in part because her son had threatened self harm, but
she conceded that she did not tell anyone this at the time and told Allor only that she had an
invitation to go out of town.
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
quit. McClellan testified that neither was true, claiming that she had actually talked her coworkers
out of quitting earlier that fall.
On Monday, November 16, Allor met with his managers and they agreed with his decision
to fire McClellan. Allor also decided to close the inside sales department and move Yoak into
another role. Once McClellan arrived, she was called into Allor’s office and presented with a
severance agreement containing a release of claims and promising payment of $4,000 in eight
weekly installments. McClellan signed under pressure and accepted all of the payments before
filing suit. In the prior appeal, this court held both: (1) that the “tender back” rule did not apply
to claims brought under Title VII or the Equal Pay Act; and (2) that, in any event, McClellan had
effectively tendered back the payments by sending a check within a “reasonable time after learning
of her rights.” McClellan v. Midwest Machining, Inc., 900 F.3d 297, 303, 310 (6th Cir. 2018)
(remanding for further proceedings), cert. denied, 139 S. Ct. 2691 (2019); but see id. at 311-15(Thapar, J., concurring in part and dissenting in part).
On remand, Midwest renewed its motion for summary judgment. See McClellan v.
Midwest Machining, Inc., No. 1:16-cv-1308, 2020 WL 6144677 (W.D. Mich. Sept. 25, 2020). The
district court concluded that McClellan’s pregnancy discrimination claim failed because she had
not shown a question of fact on the issue of pretext. As for the Equal Pay Act, the district court
found McClellan could not make a prima facie showing of wage discrimination because the inside
and outside sales positions did not involve “substantial equality of skill, effort, responsibility and
working conditions.” McClellan has appealed both determinations. The district court also rejected
Midwest’s invitation to dismiss on the basis of the severance agreement, but added that the issue
was of no consequence because the claims fail on their merits. Midwest not only renews this
argument on appeal, but also urges us to revisit the court’s decision in the first appeal. Generally,
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
for prudential reasons, this court will not reconsider questions actually decided in an earlier appeal
absent exceptional circumstances. See Moody v. Mich. Gaming Control Bd., 871 F.3d 420, 425
(6th Cir. 2017). Here, we see no need to revisit our prior decision about the “tender back” rule
because McClellan’s claims do not survive summary judgment on the merits.
II.
We review a decision granting summary judgment de novo, considering the facts and
inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Maben v. Thelen, 887 F.3d 252, 263 (6th Cir. 2018).
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Once the moving party demonstrates the basis for its motion, the non-moving party must come
forward with “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is one which “might affect the outcome of
the suit under the governing law.” Id.A.
Title VII, as amended by the Pregnancy Discrimination Act, prohibits sex discrimination
“because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C.
§ 2000e(k). In the absence of direct evidence that she was discharged because she was pregnant,
McClellan sought to prove pregnancy-based discrimination under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Young v. United
Parcel Service, Inc., 135 S. Ct. 1338, 1353 (2015); Cline v. Catholic Diocese of Toledo, 206 F.3d
651, 658 (6th Cir. 2000).
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
The first step of that framework requires a plaintiff to present a prima facie case of
discrimination. In the context of pregnancy discrimination, McClellan can meet her initial burden
by showing: “1) she was pregnant, 2) she was qualified for her job, 3) she was subjected to an
adverse employment decision, and 4) there is a nexus between her pregnancy and the adverse
employment decision.” Cline, 206 F.3d at 658. The district court made no findings on those
elements because “Midwest [did] not contest that McClellan had established a prima facie case.”
Midwest now argues that the required nexus cannot be established because there was nearly a
three-month gap between McClellan’s first announcement of her pregnancy and her discharge.
While the fourth element may be satisfied where there is temporal proximity, that is not
the only way to establish the required nexus. Asmo v. Keane, Inc., 471 F.3d 588, 593-94 (6th Cir.
2006); see also Kubik v. Central Mich. Univ. Bd. of Trs., 717 F. App’x 577, 581-82 (6th Cir. 2017).
Generally, however, “arguments raised for the first time on appeal are forfeited.” Kreipke v.
Wayne State Univ., 807 F.3d 768, 781 (6th Cir. 2015). Among the reasons for this practice is that
it “ensures fairness to litigants by preventing surprise issues from appearing on appeal.” Scottsdale
Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008). We see no compelling reason to consider
this argument where Midwest expressly “assumed that McClellan established a prima facie case
of pregnancy discrimination.” (PageID 430.) We assume, as the district court did, that McClellan
could make this initial showing.
That being the case, the burden of production shifts to Midwest to articulate a legitimate
non-discriminatory reason for its decision to terminate McClellan’s employment. See Cline,
206 F.3d at 658. Midwest repeats four allegedly independent reasons justifying her termination—
insubordination, sabotage, misconduct, and lack of work. But the district court looked no further
than the asserted insubordination in finding that Midwest had met its burden. Indeed, Allor
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
testified that he told his managers that he decided to fire McClellan because he had given her the
option of “coming in [the] next week and keeping her job[,] or not coming in and putting her job
in jeopardy” and “[s]he chose the latter.” The implication being that if she had come in, she would
not have been fired. Midwest seems to acknowledge as much on appeal.
Once Midwest proffers a legitimate non-discriminatory reason, it is up to McClellan, who
retains the burden of proof at all times, to marshal sufficient evidence from which a jury could
reasonably conclude that the reason was merely a pretext for pregnancy discrimination. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507, 519 (1993). That is, McClellan must “produce
sufficient evidence from which a jury could reasonably reject [Midwest’s] explanation of why it
fired her.” Chen v. Down Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009) (citation omitted). Pretext
is typically shown with evidence that the employer’s non-discriminatory reason: (1) had no basis
in fact, (2) did not actually motivate the discharge, or (3) was insufficient to motivate the discharge.
Id. Although these are not the only ways to establish pretext, these categories are a convenient
way of focusing the evidence on the question of pretext. See Miles v. So. Central Human Res.
Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020).
McClellan contends that there is a disputed question of fact whether the written leave
request form she submitted on November 6 was approved and signed by Anderson. McClellan
testified that it was signed and returned to her. (PageID 705-06.) Anderson testified that Fifelski
brought it to her, but she did not approve it and kept the unsigned original. (PageID 831-32.) The
district court found McClellan’s account could not be believed because it was blatantly
contradicted by the fact that Midwest produced the only copy and it was not signed. See Scott v.
Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
McClellan speculated that she did not have a signed copy any longer because someone must have
taken it from her desk before she was fired. While this claim falls short of evidence sufficient to
lead a reasonable jury to believe her, it is nonetheless irrelevant because the material question is
not whether the form was signed by Anderson. It is, rather, whether McClellan was insubordinate
when she took the requested leave despite Allor’s verbal warning that her job would be in jeopardy
if she did.
In that regard, there were conflicting accounts of what was said during the first call between
Allor and McClellan on November 6. They do agree, however, that Allor was upset that McClellan
was asking to take the following week off when Hammer had just quit and follow up on the D30
sales promotion was about to start. McClellan says Allor was upset and questioned her loyalty in
requesting leave, but that he approved it and had her transfer the call to Anderson. By Allor’s
account, however, he told McClellan that they could not spare her the following week and denied
the request. Yet, Allor was not sure he had been clear enough, so he called McClellan a second
time on November 6. In that call, according to McClellan and the notes she was keeping, Allor
threatened her job if she took the time off. McClellan did not think he actually would fire her, but
no reasonable jury could conclude that the asserted insubordination was without factual basis. See
Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 326-27 (6th Cir. 2021) (“To show pretext on the ground
that the reason for termination had no basis in fact, a plaintiff ‘must provide evidence that the
employer’s allegations never happened.’” (citation omitted)).4
4
Nor is this a case in which the employer offered shifting rationales for the termination that could
be evidence of pretext. See Pelcha, 988 F.3d at 327-28. Although Midwest offered more than one
reason to support its decision, providing “additional, non-discriminatory reasons that do not
conflict with the one stated at the time of discharge does not constitute shifting justifications.” Id.
at 328 (quoting Miles, 946 F.3d at 891).
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
Next, McClellan seems to argue that there was evidence that the asserted insubordination
did not actually motivate her discharge. See Chen, 580 F.3d at 400. Disparate treatment evidence
can establish pretext by showing “that other employees, particularly employees outside the
protected class, were not disciplined or discharged even though they engaged in substantially
identical conduct to that which [the employer] contends motivated the discipline or discharge of
the plaintiff.” Miles, 946 F.3d at 893 (quoting Chattman v. Toho Tenax Am., Inc., 686 F.3d 339,
349 (6th Cir. 2012)). McClellan faults the district court’s assessment that “none of the vacation
requests submitted in support of McClellan’s position are ‘substantially identical’” to hers. The
shorthand of “substantially identical conduct” may be more fully described as having “engaged in
the same conduct without such differentiating or mitigating circumstances that would distinguish
their conduct or the employer’s treatment of them for it.” Pelcha, 988 F.3d at 328 (quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)).
The district court rejected McClellan’s reliance on evidence that no one else was fired “for
not giving timely notice of vacation” or without “weeks or more advance notice” as was required
by Midwest’s policy. (Br. pp. 42, 43.) The other employees’ conduct was not substantially
identical to McClellan’s, most fundamentally, because Midwest did not claim McClellan was
discharged because her request was untimely. She was discharged because she took off the week
despite being warned that her job would be in jeopardy if she did. That is, it was her
insubordination—not the lateness of her request—that Midwest articulated as the reason for her
discharge.
Finally, McClellan argues that a reasonable jury could infer from other circumstantial
evidence that pregnancy discrimination actually motivated her discharge. Starting with comments
made to her after she announced she was pregnant, McClellan says Kirchoff made a sexist
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
statement about her being “barefoot and pregnant” and asked if the child would have a different
father than her other children. McClellan also alleged that Fifelski became cold, jealous, and
resentful. Apart from evidence that there was another source of contention between them,
Fifelski’s alleged remarks indicated that she was jealous of McClellan’s “perfect life.” These
remarks were not made in connection with the discharge or by the decisionmaker, although they
both apparently concurred in Allor’s decision. “[D]iscriminatory statements by a
nondecisionmaker, standing alone, generally do not support an inference of discrimination,”
although “[c]ircumstantial evidence . . . of a discriminatory atmosphere . . . may serve as
circumstantial evidence of individualized discrimination directed at the plaintiff.” Asmo, 471 F.3d
at 595 (quoting Ercegovich, 154 F.3d at 356).
Relying on circumstantial evidence of a sexist atmosphere at Midwest, McClellan argues
that the sales force was segregated by sex, at least while she worked there, where all three inside
sales representatives were women and the outside sales representative and his supervisor were
men. McClellan says Allor told her: “Women cannot be in outside sales [because] they will outsell
the men any day.” This is not a failure to promote case, however, so McClellan is arguing that
this suggested Allor “likely had a traditional view that pregnant mothers should stay home or really
want to stay home and woudn’t be good employees after a pregnancy.” (Br., p. 44.) The comment
may be sexist, as Allor allegedly said he wanted to avoid damaging Kirchoff’s “morale.” What
cannot be said, however, is that the evidence allows an inference that Allor was inclined to
discriminate against pregnant employees. In fact, Allor thought highly of and accommodated
Fifelski’s pregnancies and allowed Fifelski to work from home part-time. Most tellingly, however,
McClellan herself conceded that she was not aware of anyone (other than herself) whom she
thought was “treated unfairly because of a pregnancy or maternity leave.”
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
Nor could a reasonable jury infer animus toward McClellan because she was pregnant from
evidence that Allor, who was the decisionmaker, did not congratulate her on the news. Even
cursory review of the facts in Asmo reveals that McClellan’s reliance on it for this proposition is
misplaced. In short, Asmo’s supervisor, Santoro, learned during a conference call that Asmo was
pregnant with twins. Although she was met with congratulations by everyone else, Santoro made
no comment and moved on to the next order of business. Santoro then studiously avoided mention
of Asmo’s pregnancy in the weekly calls that followed and terminated her employment a few
months later. Asmo, 471 F.3d at 594-95. This court explained that Santoro’s silence was evidence
of pretext because it could be read as his speculation or assumption about how Asmo’s pregnancy
with twins would interfere with her particularly demanding job. Id. This case is not remotely
similar—the undisputed evidence was that Allor asked McClellan about her maternity leave plans
when he learned of her pregnancy and expressed concern about losing an excellent salesperson.
Allor was relieved when McClellan assured him that she planned to return to work. Maternity
leave plans were raised during McClellan’s subsequent performance review, and Allor again
expressed relief that McClellan would be coming back to work.
McClellan has not marshalled sufficient evidence from which a jury could infer that the
insubordination was merely a pretext for pregnancy discrimination. As this court reiterated in
Miles, “an ‘employer may fire an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’”
Miles, 946 F.3d at 886 (citation omitted). The district court did not err in granting summary
judgment to Midwest on McClellan’s pregnancy discrimination claim.
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
B.
The Equal Pay Act prohibits wage discrimination on the basis of sex “for equal work on
jobs the performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.” 29 U.S.C. § 206(d)(1). In contrast with Title VII,
“proof of discriminatory intent is not required to establish a prima facie case under the Equal Pay
Act.” Beck-Wilson v. Principi, 441 F.3d 353, 360 (6th Cir. 2006) (citation omitted). The EPA’s
burden-shifting scheme also differs from Title VII in that “a defendant bears both the burden of
persuasion and production on its affirmative defenses.” Id. at 364-65. The district court found
that McClellan’s claim failed at the prima facie stage, and we agree.
To make a prima face case of wage discrimination under the EPA, McClellan must show
that Midwest paid “different wages to employees of opposite sexes ‘for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)
(quoting 29 U.S.C. § 206(d)(1)). McClellan compares her job in inside sales to the job performed
by a male employee, Alan Wierzbicki, who was promoted to outside sales in 2011. To the extent
McClellan’s claim is that Wierzbicki was less qualified or less skilled than she was, that is not the
question for purposes of a prima facie case under the EPA. The task is to compare the jobs they
performed, “showing that those jobs are substantially equal, not by comparing the skills and
qualifications of the individual employees holding those jobs.” Beck-Wilson, 441 F.3d at 362-63(quoting Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992)).
“Factors like education and experience are considered as a defense to an employer’s liability rather
than as part of a plaintiff’s prima facie case.” Id. at 363 (citation omitted).
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
There was evidence that McClellan’s job paid less than Wierzbicki’s job; but there was
also ample evidence that their jobs were not substantially equal. In making that determination,
“our focus is on actual job requirements or duties, rather than job classifications or titles.” Id. at
362 (citing Brennan v. Owensboro-Daviess Cmty. Hosp., 523 F.2d 1013, 1017 & n.17 (6th Cir.
1975)); see also Carey v. Foley & Lardner LLP, 577 F. App’x 573, 578-80 (6th Cir. 2014). Thus,
it is not the title of “inside sales” or “outside sales” that is determinative. Nonetheless, by
McClellan’s own account, there were a number of important differences between the skill, effort,
responsibility and working conditions required for their jobs.
Specifically, as the district court summarized: (1) “the inside sales team sells via
telemarketing, while outside [sales] sells via face-to-face contact”; (2) “the inside sales team works
out of Midwest’s office, while the outside sales team works on the customer’s premises”; (3) “the
inside sales team has ‘virtually no’ travel, while the outside sales team travels extensively”;
(4) “the inside sales team is directly supervised[,] while the outside sales team is minimally
supervised”; (5) “the inside sales team’s workflow is computer driven, while the outside sales
team’s workflow is self-driven”; and (6) “the inside sales team performs extensive cold calling,
while the outside sales team does minimal cold calling.” Without contesting that there were these
differences, McClellan points to a notation on one of Wierzbicki’s performance reviews that
indicated a need to improve in the area of “inside sales.” Wierzbicki explained that he was being
asked to make more calls to customers to set up visits and keep in contact with those customers
who were not visited as much. (PageID 853.) The fact that Wierzbicki did, or was expected to
make some calls from the office, however, does not make the jobs comparable for purposes of the
EPA. The jobs were not substantially equal.
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Case No. 20-1954, McClellan v. Midwest Machining, Inc.
In fact, consistent with the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1), Midwest’s
inside sales positions were paid hourly (and entitled to overtime), while Wierzbicki’s outside sales
position was “exempt” and salaried. McClellan agreed that the higher salary paid to outside sales
positions was justified. Conceding as much again on appeal, McClellan argues only that the
difference in commissions paid for new customers was unjustified. To be sure, Midwest chose to
level the commission schedules when pressured by a two-day sick out. That did not make their
jobs substantially equal: “Whether a job is substantially equal for purposes of the EPA is
determined on a case-by-case basis and ‘resolved by an overall comparison of the work, not its
individual segments.’” Beck-Wilson, 441 F.3d at 359 (quoting Odomes v. Nucare, Inc., 653 F.2d
246, 250 (6th Cir. 1981)).
The district court did not err in finding McClellan failed to make a prima face case of wage
discrimination in violation of the EPA.
* * *
The district court’s entry of judgment in favor of Midwest is AFFIRMED.
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