factual situation which is a bit unusual but occurred in june two thousand it began the spring of two thousand and ten miss lauderdale who currently held the position of superintendent of the illinois school for the deaf i s d was asked to take a newly man named reggie clinton who was earning one hundred twenty one thousand dollars a year because lauderdale in her position as i esteem was earning eighty eight thousand dollars a year and the evidence is underspin making a difference that she was acting superintendent of the new position on the opposition but i don't think i'm a she was acting superintendent of the school run by but i don't think that makes any difference in or because the positions that should be compared here are not her position a school for the deaf in her position school for the blind but her new position as dual superintendent with the with mr quinn's position of school for want and so she was essentially asked to take a new position whereby she would be assuming one hundred percent of mr clinton's duties in her new to pay as much as he was because i'm now doing two jobs including his and my old defendant saylor responded that she did not think there would be a problem in the defendant's actions at the outset of this case show that no one thought it was going to be a problem but that the a first step in the approval of the new position was a approval of a c m s one zero four designating the new position with a salary range of fifty one thousand to one hundred twenty six thousand thereafter missed was lot of it was asked to submit a proposal which she did for one hundred thirty thousand dollars which was slightly higher than mr clinton seller but reflected the additional duties and also the fact that she was in title to a five percent bump for her bilingual plan only allowed for five percent raises counteroffers and suit and discussion by ms lauderdale that i'm being asked to do two jobs here the total paid for those two jobs was approximately two hundred thousand and if you pay me the same salary as you paid mr clinton in the one job there's still a huge savings here in the amount of eighty thousand dollars and change eventually the the negotiations went out into the summer and it was in late july i close to the beginning of school where m told him that she could not have received the salary higher than one hundred six thousand five hundred dollars lauderdale was told also told that this time that she did not take the job she would be demoted to an assistant superintendent position with a twelve thousand to fourteen thousand dollars annual reduction in pay given the fact that she was a single mother with three children the school year was starting and it would be impossible to find comparable employment at this late date lauderdale except that on aug nineteenth two thousand  under both the equal pay act in title seven the veil of comparison exists between ms lauderdale's position as dual superintendent and mr clinton's below because she assumed one hundred percent of his duties and had her own on top of defendants have offered to defenses the first of these is that a merit based pay plan in place in the state of indiana prohibit them from paying lauderdale a salary equal to her male counterpart mr clinton no evidence whoever's been designated to the court indicate any portion of the pay plan which to unite the indiana i'm sorry illinois who thin that did not allow a big difference between an indiana illinois where it becomes  you're correct on your honor i think that's right no evidences the designate to the district court to show that the pay plan did not allow the defendants the pay lauderdale a seller equal to him her male compared to the contrary the evidence shows that the defendants to first did not bother to follow the pay plan and that even when they did follow parts of the pay plan that the not prohibit them from paying her a salary equal to the person who was doing ha the defendant's h r director scott been here to charge with administering the plan testified that the pay plan would allow for an offer of a five percent increase in salary upon completion of a decision memo and then eventually a c m s one sixty three special salary request the defendants never undertook to compile a decision memo which would have required them to sign off on that salary take it up the chain they did eventually file a c m s one sixty three nineteen it shows that they requested and received it thirty seven percent increase now they only offer this lauderdale eighteen percent and that's what she eventually accepted because she was told that's by the gov that's that all that's all she could get but it was approved in the c m s one sixty three clearly shows that it was not considered a promotion it was considered a newest new assignment and that the five percent offered as an excuse was not a valid reason for th it clearly under the pay plan many avenues exist offer more than the five percent particularly it's a new position for example if one is a law clerk for the attorney general's office and the one takes a position as an attorney to only give you a five percent raise it's a new position it's a new salary structure here the pay plan allowed them to pay her a salary equal to her male counterpart even when she has been doing much more work they didn't even offer the same to budgetary problems you've got to as a president about how much you can increase from one to another senator clinton had i don't know how he got that high first place but and that's where he was that seems to be the only compared to her that you're seeing that she should have gotten his cell reply us yes dear i think your honor as opposed to most cases this is the easiest comparative lot of cases you have people on the same level and you have different duties and you're trying to equal here we know she did one hundred percent to us so it was certainly a valid comparison word clear now no i'm sorry where did you need retire or something or he was resigning and that goes to your honor's who was more recent question in the sex discrimination occurs and how she was treated as opposed with regard to these two defenses and the pay plan and the budgetary concerns as opposed to mr clinton it's undisputed that no one ever made a complaint that mr clinton's hundred twenty one thousand dollars salary for doing half her job was a budget concern had he not chosen to resign or retire nothing with there's no evidence that anything ever would have been done about that so it's clear that she is the woman was being treated differently and the concerns that were being expressed were never expressed about the male compared to similate the district court made a point that a miss lauderdale seller might be higher than her immediate superior but once again mr clinton saylor was even higher and no one ever made a complain about the male earning that amount of money for doing half the job and you superior yes male superior was male yes all of the superiors were male until we get up to defend and say other now the budgetary concerns once again we believe  in nature there was a lot of talk in surmising rumor about potential problems that there could be cuts there could be school closings but there's no actual evidence that this occurred the defense of budget concerns comes in the catch all  provision for the equal pay act or title seven there must be something in any of these defenses both pay plan and budgetary concerns to show that there was something binding or prohibitive on the decision maker not simply that we shout budget concerns and i have the discretion to do what i want here there's no evidence and the defendant sturmer who's from the governor's office testified that the difference in her salary and mr clinton's was mitt minuscule compared to a seven billion dollars budget there was no budgetary concern but to show that she couldn't be paid they were still going to save a three eighty thousand dollars they should have just paid her what he what she asked for which is what he paid and they still would had huge savings this was a positive budget not a negative budget the budget move help me understand how your argument that sort of the we're seeing versus department of human services judge is in the worsening case the argument is that there was that there was a differing they were differing jobs and they had different qualifications therefore the in their history their pay history about what they had received was different and that get that gave rise to the decision in the spirit seller's but here that's not the the budget is the actions by the defendant in setting the salary structure at fifty one thousand to one hundred twenty six thousand what that tells us that the defendants in the state of illinois said we can pay one hundred  twenty six thousand dollars for this newly created dual position without having negative effects on the budget now but the budgetary concerns excuse by its very nature must be broader than one employee if they could have hired someone new and paid them  hundred twenty six thousand without and never going to effect on the budget then certainly they can pay their employee the same amount without having a negative effect on the budget that's the only actual financial information that was taken by anyone  was one of the things right there if you're also with the governor's intervention right and that's it that shows they could have been a political hot potato to get rid of those two schools like that the each had their constituencies and that gives it gives reason why the government governor might be involved but it once again the decision about whether they're going to be closed or cut all of that takes place in the setting of the c m s want to for that says we will pay up to one hundred twenty six thousand for this position that's when that decision making takes place you're not going to and mr vineyard testified we're not going to put one hundred twenty six thousand dollars on or if we can't pay and that's the point all of these budget decisions take place in the beginning in the defense actions at the time showed that they didn't think there was any reason verbal communication here the evidence is that she was treated differently because she was a woman they had an opportunity to do it sition memo which they did not do they didn't follow the pay plan they had nor the pay plan they never thought it was a pretty hitting factor contemporaneously at the time the paperwork where they didn't do the special salary quest they got approved for thirty seven thousand dollars this five percent was meaningless that's something they threw up because they  themselves didn't like the idea that she might make more money but they the defendants had never been upset about mr clinton salary for doing half the work the reason why difference there is that they they could if since they weren't upset with that which says if you leave and come back to pay the higher salary that you have a new left will treat you better than their actual police will pay you but the other one is playing paying and that's how his salary got to where it was was because he was a skirts or something like that well we have to look it is within the process is she being treated different than her male counterpart and that's the evidence of sex discrimination in here she was because there was never any complaints about a male doing half the work in the neutral reasons that determine her salary and for those reasons the defendants were entitled to judgment as a matter of law on her sex discrimination claims details position has focused entirely on the resulting pay disparity but it has ignored the process in the context in which her salary was determined on summary judgment she failed to offer sufficient evidence to undermine the state's justifications or show that some other sex based factor was at play using the pay plan three factors are relevant to determine a candidate salary a prior salary or candidates current salary the percentage increase over that salary and the state's budget the department is authorized by itself to offer up to five percent over the prior salary reggie clinton when he came in when he came back to state service in two thousand and eight he was making one hundred eighteen thousand dollars and his prior job his salary when he came back in was based off that prior salary and he landed one hundred twenty thousand dollars his prior job he was outside the government correct he was while he was a superintendent a local school district and that explains how he landed that salary in two thousand and ten the state offered the department gave its up to five percent off her but she declined that but they wanted to pay her above five percent and there's a special salary request procedure for that and that's what they did for miss lauderdale but that special salary request procedure still takes in into account the prior salary the percentage increase over the prior salary and ultimately has to go all the way up to the governor's office and the governor's office of management and budget and that's where final approval for the final number comes from using that process the governor's office decided that it was going to draw the line at about one hundred thousand dollars and that's what stuck which was a twenty percent roughly twenty percent increase over her interim superintendent position but it was a thirty seven percent increase over her original non interim position so that's why the c m s one sixty three form reflects both a twenty one and a thirty seven percent twenty people were considered for this position lauderdale was the top choice i know that there was one other person mentioned for consideration  that's lauderdale belle was always based on this record was always the first choice and they were trying to get her as much money as they could but that number has to be limited by something in the governor's office and it just doesn't automatically mean that they have to pay her one hundred twenty one thousand dollars in two thousand and nine the state experienced a significant budget crisis the state cut its agency's budgets across the board in the school for the deaf in the school for the blind with no exception the school for the deaf faced closure in two thousand and nine two thousand and eleven they could not fill vacant positions their operating budgets were cut and cannot give raises to their employees so it's in that context that the governor's office making a budget policy decision decided that one hundred thousand or roughly twenty one percent increase was all it was going to do allocate to that position is that is that evidence of what was going on all around them i understand how that might be circumstantial evidence that the budget played a role but is there any anything that somebody said or or did  indicates that the budget concerns played a role in the decision decision just to stop offering anything about this i think the emails between the departments had which was dependent michelle sadler and the governor's office they they put those concerns in writing in those e mails i encourage court to see those e mails but i don't think it's undisputed that there are that's not in dispute that there was more money to go around at this time everyone is operating under budget constraints and i think that's why frustrations probably very high during that time everyone is feeling the budget squeeze at that point that is the process in the context in which the salary was determined on summary judgment they did not offer sufficient evidence to to say there was enough money in the budget where that some other inference of sex based decisions were play they've pointed to three main things i think to show that the state didn't follow their own process or could have paid or more the first is the c m s pay range the second is this lack of a decision memo in the record and cite to the savings that might have been realized with the dual superintendent position with respect to the pay range pay ranges are not budgets they are determined without respect to any one particular agenc budget they are determined by central management services which is sort of the bureaucracy of the bureaucracy it just make sure that the t s are crossed i's are dotted and they they are not a budget policymaking agency they just process the paperwork budgets are determined by the governor's office in the governor's office of management and budget they are the budget policymakers and they are the ones that determined the salary number  the decision memo that there is a lack of a decision memo in this case doesn't mean that one was not created that the state didn't have want to produce  discovery but whether it's really an irrelevant piece of the puzzle because the decision was made to pay her about five percent the the decision memo is relevant only as a  created by the department to justify to the governor's office to c m s central management services to everyone who needs approval needs to approve the salary that the department agrees it's justified and here's the justification for it and that justification is also stated on the c m s one sixty three form that's page nineteen of the record everyone was on board that she needed to be paid more money that decision was made to justify that final number however is it above the department's pay for the the last thing about consolidating and saving money no matter what they did the consolidation was in response to the budget crisis that they were going to still follow the pay plan and and pay or salary using the pay plan doesn't mean that there was all of a sudden money in the budget the state across the board still had a budget problem the school still faced closure in two thousand and eleven it still couldn't fill vacancies it still couldn't pay raises for its employees it didn't solve any budget problem sufficient that there was really money in the coffers to pay her the money she requested was a school confined to those disabilities or is it just part of a bigger  school school for the deaf in school for the blind are standalone boarding schools in jacksonville illinois that's an interesting question i think that if the if the department stopped at five percent this case would and with lawrence versus department of human services but that they opened the door to try to pay for more money doesn't mean that they necessarily had to go all the way up to  hundred twenty one thousand it doesn't mean that that money was in the budget at that time and they made a decision was made by the budget policy decision makers in the governor's office that one hundred thousand was all they were going to allocate to that schools position corps now for the questions we ask that you affirmed the judgment of the district court you simply weren't other than the mentioned maybe one other applicant but she had breaux unique qualities she had not only the language but but you should go to she be pretty close together yes the design of that the job was not was not a combination of two positions we disagreed that characterization was no doubt a lot of work but it was supposed to have a different reporting structure underneath a dual superintendent so that there would be a separate reporting process but it wasn't simply com terrorism weighing evidence we should be entitled we've raised enough evidence they have a fact question on both the pay plan and the budgetary concerns so that the fact finder in this case could find whether those were viable defenses it's clear that the governor is a in this case in the disk or air that posing council is quite clear that the government's office was the one making the decision here finally that there's no evidence of any budgetary constraints and this particular position there's a lot of rumor and supposition but there's no one who came and said here's the constraint that we can't do that in fact the c m s was the opposite that you did just the decision that the defenses must contain some sort of nondiscretionary item to be a meaningful defense if it's simply we have budgetary concerns we can do whatever you want discriminate it that's not what's contemplated under the e p a or title seven same thing with the pay plan they say we have a paper plan we can request more we just didn't want to request as much as the mail that's