UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARY TOOMEY, )

)

Plaintiff, )

)

v. ) No. 12 C 4017

)

CAR-X ASSOCIATES CORP., ) Judge Rebecca R. Pallmeyer

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Mary Toomey (“Toomey”) worked as a technician for Defendant Car-X Associates

Corporation (“Car-X”) from 2005 until the store she worked at closed in 2012. Plaintiff claims that,

though she was one of the longest-tenured and most-productive technicians on staff, Defendant

paid her less than her male counterparts and assigned her less-lucrative jobs because of her sex. 

Toomey seeks to recover under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000 et seq. (“Title VII”) and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (“EPA”). Car-X moved

for summary judgment on all counts, arguing that Toomey’s pay was determined by her credentials

rather than the fact that she is female. For the reasons explained below, the court concludes that

Defendant is entitled to summary judgment on the bulk of Plaintiffs’ claims, but that disputes of fact

preclude summary judgment on her claim that she was unfairly denied certain commission

payments. Defendants’ motion for summary judgment [25] is therefore granted in part and denied

in part.

BACKGROUND

Plaintiff has more than twenty years of experience working as a car mechanic at numerous

car repair shops in and around Chicago. (Compl. [1] ¶ 9). Plaintiff first joined Car-X in 2003,

working as a technician at its Des Plaines, Illinois location. Toomey voluntarily left Car-X for a

competitor in 2004, but returned in 2005, again as a technician, this time at the store located at

7743 South Cicero Avenue in Chicago, Illinois (“Cicero store”). (Def.’s Resp. to Pl.’s Additional
Material Facts [37], hereinafter “Def.’s Resp. to AMF”, ¶ 3.) The Des Plaines and Cicero stores are

two of approximately 175 Car-X car-repair shops nationwide. (Id. ¶ 1.) Some of these shops,

including the Cicero store, are owned by Car-X’s parent company, Tuffy Associates Corporation,

while others are franchises. (Id. ¶ 2.) Plaintiff worked at the Cicero store from her hiring in 2005

until it closed due to poor financial performance on September 4, 2012. (Pl.’s Resp. to Def.’s 56.1

[35], hereinafter “Pl.’s 56.1 Resp.,” ¶ 19.) During that period, Plaintiff was the only female

technician employed by Car-X in the Chicago area. (Def.’s Resp. to AMF ¶ 8.)

I. Car-X Employee Categories

Defendant primarily employs three categories of workers in its stores: managers, assistant

managers, and technicians. (Pl.’s 56.1 Resp. ¶¶ 21-26.) Managers run day-to-day operations at

Car-X shops, hire and discipline assistant managers and technicians, coordinate schedules for

store personnel, and produce estimates for customers. Managers typically do not diagnose or

repair problems with vehicles. (Id. ¶¶ 21-22.) Assistant managers are first-line supervisors for

technicians, observing their repair work and offering assistance as needed. Assistant managers

also exercise all managerial duties whenever their managers are not present. (Id. ¶¶ 23-24.) 

Technicians diagnose problems with vehicles and perform related repairs. They do not interact with

customers, nor do they participate in the tasks required of managers and their assistants. (Id. ¶¶

25-26.) Some Car-X stores also employed a fourth tier of employees, workers Plaintiff refers to as

“oil change technicians” or “lube techs.” (Def.’s Resp. to AMF ¶ 10.) These individuals primarily

performed oil changes and, unlike so-called “full-service technicians,” did not diagnose or repair

vehicles. (Id. ¶ 12.) They earned minimum wage, did not receive commission, and were often parttime workers. (Id. ¶¶ 10-11.) Toomey argues that the Cicero store employed three such

technicians who earned between $8.00 to $8.25 per hour and “only performed oil changes”: Scott

Compton, Kyle Zitzka, and Jacoby Williams. (Id. ¶ ¶ 13-14.) Car-X admits that some of its

technicians primarily perform oil changes, but denies that the Cicero store employed any such

2
technicians. (Id. ¶ 10-13.) Specifically, Defendant argues that Compton, Zitzka, and Williams were

eligible to receive commission pay (discussed below), “meaning that they were not hired to perform

oil changes exclusively.” (Id. ¶ 12; Christian Decl. [38] ¶ 9; Pl.’s 56.1 Resp. ¶ 73.)

II. Pay Rates at Car-X

Car-X pays its technicians using a “hybrid system” based on both hourly and commission

rates of pay. Each technician is paid according to the method of compensation that provides the

higher amount of pay for a given weekly pay period. (Pl.’s 56.1 Resp. ¶ 62.) That is, a technician

whose hourly rate was $10 would receive $400 for a 40-hour work week, unless he or she had

generated commissions of more than $400 during that week; if that happened, the technician would

be paid commission only. Technicians did not interact with customers or make sales; instead, their

commission pay was based on the jobs assigned to them by their managers. (Def.’s Resp. to AMF

¶ 43.)

A. Commission Rates

Prior to April 21, 2008, all technicians received a commission rate of 13%. (Def.’s Resp. to

AMF ¶ 23.) On that date, however, Defendant adopted the Car-X Technician Pay Plan (“Pay

Plan”), which (1) gave managers the discretion to set technicians’ commission rates; and (2)

established non-binding guideline commission rates1

 based on technicians’ tenure and Automotive

1

 The Pay Plan suggested commission rates as follows: 

Title Commission Rate ASE Certifications Experience

A Tech 15-16% 3 3+ years

B Tech 14-15% 1 1-3 years

C Tech 13-14% 0 1-3 years

(Def.’s Resp. to AMF ¶ 29.)

3
Service Excellence2

 (“ASE”) certifications.3 (Pl.’s 56.1 Resp. ¶ 41.) The guidelines were not

mandatory, however, and individual store managers were free to assign pay rates outside the Pay

Plan ranges. (Def.’s Resp. to AMF ¶ 29; Pl.’s Mem. in Opp. to Def.’s Mot. for Summ. J. [31],

hereinafter “Pl.’s Resp.,” at 6.) Though they enjoyed wide discretion, Defendant insists that

managers at the Cicero store “consistently and universally paid technicians with ASE certifications

more than those without certifications.” (Def.’s Resp. to AMF ¶ 29.)

Like all technicians at the time, Toomey started at the Cicero store in 2005 with a

commission rate of 13%. (Id. ¶ 23.) When Car-X moved to variable commission rates in 2008,

Toomey’s then-manager, Daniel Cameron, upped Plaintiff’s rate to 14.5%. Toomey’s commission

rate remained at 14.5% until her termination in 2012. (Def.’s Resp. to AMF ¶ 21; Toomey Dep., Ex.

A to Parsons Decl. [26], hereinafter “Toomey Dep. (Parsons),” at 185:8-18.) This rate was higher

than what the Pay Plan guidelines suggest for someone who, like Plaintiff, has not earned any ASE

certifications. (Def.’s Resp. to AMF ¶ 29; Toomey Dep. (Franklin) at 110:10-13.) Under the Pay

Plan, Plaintiff qualified as a “C Tech” and had a guideline commission range of 13-14%. (Def.’s

Resp. to AMF ¶ 29.) Toomey argues, however, that her commission rate should have been even

higher based on her tenure (she was the second-most senior technician of the fifty nine4

 in the

Chicago area as of 2012) and her performance (she had the fifth highest sales among Chicago2

 Though the parties do not explain this, the court understands that ASE certifications

are administered by the non-profit National Institute for Automotive Service Excellence (“NIASE”). 

NIASE offers exams in over forty automotive-related categories, and 330,000 car professionals

have one or more ASE certifications. ASE at a Glance, NAT’L INST. FOR AUTOMOTIVE SERVICE

EXCELLENCE, http://www.ase.com/About-ASE/ASE-at-a-Glance.aspx (last visited Sept. 24, 2013).

3

 Neither party has offered any information regarding the reasons that led Car-X

modify its technicians’ compensation scheme.

4

 Defendant disputes the number of technicians in the four stores Plaintiff describes

as the “Chicago-area” locations. Defendant does not go so far as to offer its own total, but

contends that Toomey “omitted many male technicians from her list” of fifty nine. (Def.’s Resp. to

AMF ¶ 28.) Regardless, the distinction is immaterial to the court’s determination here.

4
area technicians in 2011, the last full year the Cicero store was in business). (Id. ¶¶ 25, 27-28; Pl.’s

Resp. at 3.) Among technicians at the Cicero store, Plaintiff was the longest-tenured and second

most productive based on the same data. (Def.’s Resp. to AMF ¶¶ 25, 28.) Despite Plaintiff’s

performance record, seven technicians at the Cicero store received both higher commission rates

and higher hourly rates. (Id. ¶ 28.)

Defendant explains Plaintiff’s relatively low commission rate was for two reasons: First, the

Cicero store suffered from “uniquely poor financial performance,” which Defendant argues played

a role in compensation decisions at the store. (Pl.’s 56.1 Resp. ¶ 14.) (As Plaintiff herself was

among the more productive technicians in Chicago, the court presumes the Cicero store’s poor

performance resulted in spite of, not because of, her efforts.) Second, Plaintiff’s pay rate was lower

than some of her peers, according to Car-X, due to the fact that she never obtained any ASE

certifications. (Def.’s Rep. [36] at 8-9.) Toomey argues that both of these justifications are

inconsistent with actual practice for paying technicians. Compared to three other stores near the

Cicero location5

, Plaintiff suggests that Cicero’s technicians were actually the second-best

compensated.6

 (Def.’s Resp. to AMF ¶ 35.) Plaintiff reaches this conclusion by taking the average

hourly rate among technicians at each store. (Franklin Decl. ¶ 14.) Car-X disputes Toomey’s

conclusion, however, arguing that (1) there is no reason to compare, as Plaintiff does, the four

5

 Specifically, Plaintiff refers to the following four locations, which she describes as

the “Chicago-area stores”: South Cicero and South Stony Island in Chicago, Illinois; Gary, Indiana;

and North Aurora, Illinois.

6

Store Average Hourly Technician Rate

Stony Island $11.81/hour

Cicero $11.62/hour

Gary $11.34/hour

North Aurora $13.83/hour

(Def.’s Resp. to AMF 35.)

5
“Chicago area” stores; (2) Plaintiff’s calculations selectively omitted Lamar Herbert, a wellcompensated employee at the South Stony Island store, in order to artificially inflate Cicero’s

average hourly rate; (3) one of the stores (North Aurora) does not provide a fair comparison as it

was, until 2011, a franchise, and the franchisee, not Car-X, set the technicians’ wage rates; and (4)

Toomey’s methodology is otherwise flawed. (Def.’s Resp. to AMF ¶¶ 2, 35.) Car-X suggests that

in order to properly compare technicians’ compensation, “one must divide total compensation

received by technicians . . . by the hours worked by technicians in that store.” (Id.) By this

measure, Cicero’s technicians were paid significantly less on average than their peers at nearby

stores.7

 As for ASE certifications, Plaintiff points out that several male technicians at other stores

who also lacked certifications were nonetheless paid higher hourly rates than Toomey, despite also

producing less revenue. (Pl.’s 56.1 Resp. ¶¶ 33, 41.) The parties agree, however, that Plaintiff had

the highest pay rates of any technicians without an ASE certification at the Cicero store (Defendant

asserts that there were eight such technicians, while Plaintiff argues that only four of the eight

performed work comparable to Toomey). (Id. ¶ 41.)

Unlike many of her fellow technicians at Car-X, Toomey never attempted to obtain an ASE

certification. (Pl.’s 56.1 Resp. ¶¶ 43-44.) Of the eleven8

 Cicero store technicians since 2009, seven

7

Store 2012 Total

Technician Camp

2012 Total

Technician Hours

2012 Average

Hourly Technician

Comp.

Stony Island $148,623.29 9045.52 $16.43/hour

North Aurora $ 63,567.21 4472.79 $14.21/hour

Gary $ 61,943.89 4435.25 $13.97/hour

Cicero $ 41,237.21 3201.13 $12.88/hour

(Def.’s Resp. to AMF 35.)

8

 Defendant contends that there were fifteen technicians during this time period, but

Plaintiff argues that four individuals were qualified only to perform oil changes and did not perform

(continued...)

6
had active or expired ASE certifications.9

 (Id. ¶ 68.) Plaintiff testified that she chose not to seek

ASE certifications because she could not afford to take the tests, which would require her to take

time off work and pay $75 per exam (Def.’s Resp. to AMF ¶ 30); and because she viewed

certification as unnecessary because “a test doesn’t help you improve your skills.” (Toomey Dep.

(Franklin) 114:3-4.) Defendant suggests that price should not have been a concern, however, as

Car-X reimbursed technicians for the expense of obtaining ASE certification. (Pl.’s 56.1 Resp.

¶ 39.) 

As a technician’s commission is based on the total sales revenue attributable to that

individual, each technician’s commission pay depends on the value of the jobs he or she is

assigned as well as his or her commission rate. In addition to setting commission rates and hourly

rates, the manager of each Car-X store also controlled job or “ticket” assignments, and, therefore,

had significant power over how much money each technician earns under the commission pay

structure. (Def’s Resp. to AMF ¶ 43.) Managers’ discretion in this area was somewhat limited,

however, by a technician’s ability to perform the particular job to be assigned, some of which, such

as air conditioning work, require ASE certifications. (Id.; Toomey Dep. (Franklin) at 108:1-22.) 

Technicians nonetheless controlled a portion of their own commission by identifying and fixing

additional problems on cars they were assigned to service. (Def.’s Resp. to AMF ¶ 43.) Plaintiff

claims that her managers deliberately favored male employees in the assignment and allocation

of tickets. (Compl. ¶ 24.) For instance, Plaintiff claims that when a ticket required two technicians

to complete the job, management would regularly assign the commission on that job to the male

technician, leaving Toomey to complete the same work as her male peer, but without receiving any

8

(...continued)

work comparable to Toomey. (Pl.’s 56.1 Resp. ¶ 68.) 

9

 The Pay Plan does not differentiate between active and expired ASE certifications. 

(Pl.’s 56.1 Resp. ¶ 57.)

7
of the commission. (Id. ¶ 28.) Specifically, Toomey alleges that such manipulation occurred on

several jobs that Plaintiff worked with fellow technician Tom Stewart10 that were worth “$7000 each

or more.” (Id. ¶ 29; Def.’s Resp. to AMF ¶ 52.) Defendant argues that these complaints are

unfounded, citing the fact that Plaintiff signed each of her time sheets certifying that her commission

records were correct. (Def.’s Resp. to AMF ¶¶ 51-52.) The fact that Toomey certified her time

sheets as accurate does not, however, rebut her claim of unfairness in commission assignment. 

It may be that Toomey knew that, when a particular job was assigned, for commission purposes,

to her male co-worker, she herself was not eligible for commission on that job regardless of how

much work she contributed. Signing time sheets–that is, acknowledging that the math is correct–is

not the same thing as agreeing that the assignment was fair.

Even when Toomey was assigned tickets, she claims they were predominantly low-value

jobs, such as warranty work which generated no sales value and, therefore, no commission. 

(Compl. ¶ 25.) Similarly, she testified that she was assigned more than her share of “comebacks”

(cars that were not properly repaired by Car-X and require additional work free of charge.) (Id. ¶

27.) Plaintiff concedes she has no evidence, beyond her deposition testimony, as to how many

comebacks each technician performed, because comebacks were not consistently or formally

documented. (Id. ¶¶ 45, 48.) Defendant likewise has no data regarding the frequency with which

individual technicians were assigned comeback. To substantiate her claim, Plaintiff points to sales

data indicating that she was near the bottom of all technicians in terms of the average value of each

ticket assigned to her. (Def.’s Resp. to AMF ¶ 26.) Defendant argues, however, that Plaintiff

manipulated this information by “selectively omit[ing] many technicians11 from her list, almost all of

10 Stewart had eight expired ASE certifications as well as one current certification. 

(Def.’s Resp. to AMF ¶ 31.)

11 Specifically, Plaintiff refers to Leonard Banks ($6.84, Leroy Livingston ($24.14),

Benny Mohn ($23.23), Damian Shelley ($64.76), and Jacoby Williams ($45.96). (Def.’s Resp. to

(continued...)

8
whom had a lower sales per repair average” than Toomey in order to reach the conclusion that she

received low-value assignments. (Id. ¶ 26.) Car-X argues that, in reality, Plaintiff’s average sales

per repair was above the Cicero store’s average at all relevant times, and in 2012 she actually had

the highest sales per repair of any technician in the store. (Id. ¶ 47.) It is undisputed that Plaintiff

had the highest average sales per repair among all non-ASE certified technicians at the Cicero

Store. (Id. ¶ 26.) Finally, Plaintiff claims that she trained four male technicians, yet continued to

earn less than they did. (Compl. ¶¶ 19-20.) One of these technicians, Refugio Lopez, earned more

than Plaintiff only after leaving to work at another Car-X store; the other three—Robert Paxton, John

Schultz, and Michael Lesak—each had at least one ASE certification. (Def.’s Resp. to AMF ¶ 53.)

B. Hourly Rates

When first hired at the Cicero store in January 2005, Plaintiff’s manager at the time, James

Crumbowitz, set Toomey’s hourly rate at $9.00 per hour. (Toomey Dep., Ex. R to Franklin Decl.

[33], hereinafter “Toomey Dep. (Franklin),” at 242:8-15.) Plaintiff received a single $1.00 raise, to

$10.00 per hour, during her seven-year tenure at the Cicero store. (Def.’s Resp. to AMF ¶ 22.) 

That raise came on January 1, 2007 as the result of a settlement of a sexual harassment claim by

Plaintiff against Car-X.12 On at least two occasions, Toomey requested an hourly rate increase. 

First, in October 2011, Toomey told her district manager,13 Todd Armstrong, that she knew she

earned less than her male coworkers and that she needed a raise to help pay for her daughter to

11(...continued)

AMF ¶ 26; Christian Decl. ¶ 17.)

12 Toomey filed this claim with the Illinois Department of Human Rights (“IDHR”) and

the Equal Employment Opportunity Commission (“EEOC”) on September 22, 2006, alleging that

she was sexually harassed by a coworker, that her manager did nothing when she reported the

harassment to him, and that she was retaliated against as a result of her complaint to the manager. 

(Id.; IDHR Claim, Ex. 7 to Pl.’s 56.1 Statement of Additional Facts [34], hereinafter “Pl.’s 56.1”;

EEOC Settlement Agreement, Ex. 8 to Pl.’s 56.1.) 

13 District managers supervise store managers. (Pl.’s 56.1 Resp. ¶ 22.) 

9
attend college. (Def.’s Resp. to AMF ¶ 37.) Armstrong asked, “Where is her father?,” prompting

Plaintiff to leave the room before Armstrong offered a substantive response. (Id. ¶ 38.) Toomey

asserts that Armstrong’s answer reflects a gender stereotype. (Id.) A few weeks later, Armstrong

and Plaintiff had another conversation regarding her hourly pay rate. This time, Armstrong told

Toomey he would give her a $1.00 raise, to $11.00 per hour, “if she got three ASE certifications.” 

(Id. ¶ 40.) Plaintiff was also advised by a Car-X trainer on at least fourteen separate occasions

during her seven-year tenure at the Cicero store to obtain ASE certifications. (Pl.’s 56.1 Resp. ¶

44.) But Plaintiff never obtained any ASE certifications, and her hourly rate remained $10.00 per

hour until the Cicero store ceased operations in 2012. (Id. ¶ 22; 43.) 

Similar to her commission rate (discussed above), Plaintiff alleges that her hourly pay rate

was lower than that of several male colleagues with lesser credentials because of her sex. (Compl.

¶ 21.) Specifically, she argues that only eight of the 59 Chicago-area technicians had a lower

hourly rate than her. (Def.’s Resp. to AMF ¶ 28.) Hourly rates were not governed by the Pay Plan,

but Defendant asserts that these rates were also heavily dependent upon ACE certifications, and

that is why Toomey’s hourly rate remained relatively low. (Def.’s Rep. at 14-15.) Defendant further

suggests that Plaintiff has understated her hourly wage relative to her peers by “selectively

omitt[ing] many male technicians14 from her list, all of whom received lower rates of compensation

than she did.” (Def.’s Resp. to AMF ¶ 28.) Further, just as Plaintiff’s commission rate was the

highest among Cicero technicians with zero ASE certifications (Pl.’s 56.1 Resp. ¶ 73), Car-X argues

that Plaintiff also had the highest hourly rate of pay (id. ¶ 68), the highest effective rate of pay (id.

¶ 77), and the highest total compensation when compared to her true peers. (Id. ¶ 78.)

III. Working at Multiple Car-X Stores

14 Defendant does not identify by name the male technicians that it argues Plaintiff

omitted. Rather, it argues that “Plaintiff has simply removed every employee who received less

than $9.00 per hour from the chart.” (Def.’s Resp. to AMF ¶ 28.)

10
Like all Car-X technicians, Toomey was interviewed and hired by the manager of a particular

store to work in that store. (Pl.’s 56.1 Resp. ¶ 6.) Plaintiff suggests, however, that, once hired,

technicians were actually quite transient, regularly working across multiple Chicago-area Car-X

locations. (Id. ¶ 12.) Toomey bases this assertion on the fact that she herself worked in five

different Car-X stores between 2003 and 2012 (including her previous stint at the Des Plaines

shop), and that several other technicians worked at multiple Chicago-area stores from 2010-2012,

as well. (Id.) Specifically, seven technicians worked in multiple locations in both 2011 and 2012,

while three technicians worked in multiple locations in 2010.15 (Pl.’s 56.1 Resp. ¶ 12.) Car-X

acknowledges that technicians occasionally worked at multiple stores, but argues that this

interchange was insignificant. For instance, most of the seventeen technicians named by Plaintiff

worked less than forty-five hours annually at stores other than their primary location; and five of

these individuals worked no more than ten hours or less away from their assigned store in the

relevant year.16 (Def.’s Resp. to AMF ¶ 15-16.) Toomey herself worked just 36.5 hours at Car-X

stores other than the Cicero location from 2009-2012, compared to 7199.05 hours at the Cicero

shop. (Pl.’s 56.1 Resp. ¶ 13; Toomey Wage History of 2005-2012, Ex. E to Franklin Decl.) Car-X

argues that the small number of hours Toomey and others put in at stores other than their own

indicates how rare it was for individuals to migrate from store to store. (Def.’s Mem. of L. in Support

of its Mot. for Summ. J. [29], hereinafter “Def.’s Mot.”, at 11.)

IV. Administrative Proceedings

15 Plaintiff contends that three technicians worked in multiple stores in 2010, but

Defendant argues that one of the three, Hugo Acevedo, was actually an assistant manager. (Def.’s

Resp. to AMF ¶¶ 17, 35.) Acevedo worked only 18.06 hours at a store other than his assigned

store during 2010. (Id.)

16 Plaintiff does not indicate how many hours each technician worked away from his

or her assigned store in a given year. Defendant offers this information only for four technicians

in 2012, four more in 2011, and two in 2010. (Def.’s Resp. to AMF ¶¶ 15-17.)

11
On September 12, 2011, Plaintiff filed a charge of discrimination with the EEOC based on

these allegations. (Charge of Discrimination, Ex. A to Compl.) Toomey amended her charge on

April 5, 2012, adding documentation to support her allegations. (Amended Charge of

Discrimination, Ex. B to Compl.) Both charges claimed that Plaintiff was paid less than her male

counterparts on account of her sex. On May 14, 2012, the EEOC issued Plaintiff a right-to-sue

letter, and she filed the instant suit shortly thereafter. (Notice of Right to Sue, Ex. C to Compl.)

DISCUSSION

I. Standard of Review

Summary judgment is appropriate where “there is no genuine issue as to any material fact”

such that “the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). No

genuine issues of material fact exist “when no reasonable jury could find in favor of the non-moving

party.” Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 657 (7th Cir.2012). In determining the

existence of material facts, the court must examine the evidence and draw all reasonable

inferences in the light most favorable to the nonmoving party. Righi v. SMC Corp., 632 F.3d 404,

408 (7th Cir.2011). An issue is genuine "if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party." Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir.

Ill. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Although intent and

credibility are often critical issues in employment discrimination cases, no special summary

judgment standard applies to such cases. Majors v. GE Elec. Co., 714 F.3d 527 (7th Cir. 2013).

II. Equal Pay Act Claim

Plaintiff submits that Defendant Car-X discriminated against her by paying her less than her

male counterparts in violation of Title VII and the EPA. The EPA, a subsection of the Fair Labor

Standards Act (“FLSA”), prohibits sex-based wage discrimination. 29 U.S.C. § 206(d). To establish

her prima facie case for a violation of the EPA, Plaintiff must show that: (1) higher wages were paid

to a male employee, (2) for equal work requiring substantially similar skill, effort and responsibilities,

12
and (3) the work was performed under similar working conditions. Warren v. Solo Cup Co., 516

F.3d 627, 629 (7th Cir. 2008). In determining whether two jobs are equal, the crucial comparison

is between positions, not individuals. Cullen v. Indiana Univ. Bd. of Trs., 338 F.3d 681, 698 (7th

Cir. 2003) (“Possession of a skill not needed to meet the requirements of the job cannot be

considered in making a determination regarding equality of skill”) (citing 29 C.F.R. § 1620.15(a)). 

The EPA does not require proof of discriminatory intent. Randall v. Rolls-Royce Corp., 637 F.3d

818, 822 (7th Cir. 2011). 

The statute also has a geographic limitation: those employees against whom Plaintiff

compares herself must work in the same "establishment." 29 U.S.C. § 206(d)(1). Neither the FLSA

nor the EPA provides a definition for this term, but the EEOC has explained that “establishment”

had acquired a well-settled meaning by the time Congress enacted the EPA: “[i]t refers to a distinct

physical place of business rather than to an entire business or ‘enterprise’ which may include

several separate places of business. Accordingly, each physically separate place of business is

ordinarily considered a separate establishment.” 29 C.F.R. § 1620.9(a). There are “unusual

circumstances,” however, where a single establishment may include operations at more than one

physical location. 29 C.F.R. § 1620.9(b). The EEOC goes on to identify what might constitute such

an exception: “a central administrative unit may hire all employees, set wages, and assign the

location of employment; employees may frequently interchange work locations; and daily duties

may be virtually identical and performed under similar working conditions.” Id; see Smith v. Allstate

Ins. Corp., 24 F. Supp. 2d 870, 879 (N.D. Ill. 1998) (finding that multiple offices constituted a single

establishment for purposes of the EPA where compensation, job assignments, and promotions

were all conducted on a regional basis). 

Once a plaintiff has established a prima facie case, the burden shifts to the employer to

show that the pay disparity was justified in one of four ways: (1) a seniority system; (2) a merit

system; (3) a system which measures earnings by quantity or quality of production; or (4) any other

13
factor other than sex. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 793-794 (7th Cir. Ill.

2007) (citing Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir. 1989)). The fourth exception is a

"broad, 'catch-all' exception and embraces an almost limitless number of factors, so long as they

do not involve sex." Warren, 516 F.3d at 630 (quoting Fallon, 882 F.2d at 1211). Therefore, the

provisions of the EPA effectively “establish a rebuttable presumption of sex discrimination such that

once an employee has demonstrated that an employer pays members of one sex more than

members of the opposite sex, the burden shifts to the employer to offer a gender neutral justification

for that wage differential." Warren, 516 F.3d at 630 (quoting Varner v. Ill. State Univ., 226 F.3d 927,

932 (7th Cir. 2000)). The justification need not be a "good reason," so long as it is a gender-neutral

one. Wernsing v. Dep't of Human Servs., 427 F.3d 466, 468 (7th Cir. 2005). For instance,

differences in education and experience may be considered “factors other than sex" under the EPA. 

Merillat v. Metal Spinners, Inc., 470 F.3d 685, 697 (7th Cir. Ind. 2006) (citing Cullen, 338 F.3d at

702). The justification "must also be bona fide. In other words, an employer cannot use a genderneutral 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 (internal quotation marks

omitted). 

A. Scope of the Establishment

Plaintiff argues that the proper scope of comparison in this case is across all four Chicagoarea Car-X locations, rather than simply the Cicero store.17 (Pl.’s Response at 10-11.) Toomey

suggests that the facts in this case present exactly the kind of “unusual circumstance” that require

looking beyond the four walls of a single store. Specifically, Plaintiff points to three factors that she

argues make it appropriate to compare her wages not just to Cicero technicians, but to technicians

17 Plaintiff does not explain why her argument leads to the conclusion that technicians

at these four stores would be proper comparators. If, as she says, hiring, firing, and compensation

are all determined centrally by Car-X, the court’s analysis should seemingly apply company-wide.

14
at neighboring Car-X shops, as well: (1) Defendant “employs a central, company-wide policy to set

pay rates for technicians”; (2) technicians “frequently worked at different stores in the Chicago

area”; and (3) “all full-service technicians perform the same duties” at all stores. (Id. at 10.) 

Defendant, on the other hand, argues that Plaintiff overstates the power exerted by Car-X’s “central

administrative unit.” For instance, while some technicians worked at multiple stores in recent years,

such travel was quite rare, and local managers established each store’s technicians’ rates of pay. 

Further, Car-X suggests that the “uniquely poor financial circumstances” at the Cicero store make

the comparison of wages across locations especially inapt. (Def.’s Mot. at 11-12.) 

Plaintiff has not demonstrated the existence of unusual circumstances that overcome the

presumption of 28 C.F.R. § 1620.9 in favor of treating a single store as the “establishment” for

purposes of wage comparison. The undisputed evidence here shows that the manager of each

store hired that location’s technicians; that mobility between stores was actually quite minimal; and,

while the Pay Plan set company-wide guidelines, even Plaintiff concedes18 that these guidelines

were just that, and store managers were free to assign commission rates outside the guideline

range. As the facts of this case do not establish unusual circumstances as defined by 28 C.F.R §

1620.9, only employees from the Cicero store are proper comparators for purposes of Plaintiff’s

EPA claim.

B. Prima Facie Case

As compared to her fellow Cicero store technicians, it is undisputed that Plaintiff satisfies

the three prongs of the prima facie case: (1) she was paid less than male coworkers; (2) for equal

18 At various points in her response brief, Plaintiff argues that the Pay Plan was a

stringent company-wide policy (for purposes of showing that the “establishment” included multiple

stores), but also that the Pay Plan was not strictly followed by local store managers who had

discretion to award rates outside the Pay Plan guidelines (for purposes of showing that managers

were empowered to give Plaintiff a lower rate because of her sex). (Pl.’s Resp. at 6, 10, 12-13.) 

As the court sees the evidence, the Pay Plan was not determinative in setting technicians’

commission or hourly rates.

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work, that was (3) performed under similar conditions. Specifically, since 2009, seven male

technicians in the Cicero store received a higher hourly rate of pay than Toomey (Pl.’s 56.1

Response ¶ 68), and the same seven men also earned a higher commission rate. (Id. ¶ 73.) While

Defendant argues that Toomey’s credentials were inferior to these men (unlike them, she did not

hold ASE certifications), the comparison at this juncture is between positions, not individuals; and

Defendant acknowledges that Toomey held the same position as the higher-paid male technicians. 

C. Statutory Exceptions

As Toomey has established a prima face case under the EPA, the burden shifts to Car-X

to show that the pay disparity was justified by one of the four statutory affirmative defenses. 

Defendant contends that Toomey’s hourly and commission rates are explained by a characteristic

that falls under the exception for “factor[s] other than sex”: ASE certifications. (Def.’s Mot. at 15.)

Factors other than sex must be gender neutral and bona fide. The policy is undoubtedly

gender-neutral. Indeed, the Seventh Circuit has specifically found that differences in education and

industry-related experience—such as ASE certification—may be considered a factor other than sex. 

Merillat, 470 F.3d at 697. The preference for ASE-certified technicians is also bona fide. Toomey

disputes that the Pay Plan was actually followed by store managers, because “a full one-half [of

technicians] were paid outside the guidelines of the policy.”19 But Toomey’s argument confuses a

rigid, mechanically applied policy with a bona fide one. Although many technicians fall outside the

guideline ranges of the Pay Plan (including Plaintiff, who is overpaid according to guidelines), it is

undisputed that (1) Plaintiff did not have an ASE certification; (2) every male employee that was

paid more than Plaintiff had an ASE certification; and (3) Plaintiff was the highest-paid technician

without an ASE certification. There is no evidence in the record to support the notion that Car-X

19 Plaintiff also suggests that Car-X’s justification is not bona fide because Car-X did

not consistently track years of service. While Defendant disputes the accuracy of this contention,

the court notes that years of service are immaterial in that Car-X’s “factor other than sex” is ASE

certification, not its Pay Plan. Thus, seniority or tenure is not relevant here.

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is using ASE certifications as a convenient escape from liability. As Defendant has proven with

undisputed evidence that Toomey was paid less than some male counterparts as a result of a

gender-neutral factor applied in good faith, Toomey’s EPA claim cannot survive summary judgment.

III. Title VII Claim

Plaintiff also seeks relief under Title VII based on two separate grounds. First, she argues

that the bases for her prima facie case under the EPA similarly establish a prima facie case under

Title VII.20 But, as discussed above, Plaintiff has failed to establish an EPA violation, and “a

successful affirmative defense to an EPA claim likewise serves as a valid defense to a claim based

on Title VII.” Davis v. Chi. Transit Auth., No. 01 C 4782, 2003 WL 1193274, at *7 (N.D. Ill. March

13, 2003) (quoting Fallon, 882 F.2d at 1213). Thus, the failure of Toomey’s EPA claim also dooms

this aspect of her Title VII claim. 

What remains of Plaintiff’s complaint is her allegation that Car-X management assigned her

lower-value jobs than her male counterparts. (Id.) This aspect of her complaint requires more

careful scrutiny. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating

against an employee "with respect to [her] compensation, terms, conditions or privileges of

employment, because of [her] . . . sex." 42 U.S.C. § 2000e-2(a)(1). Under Title VII, a plaintiff

alleging discrimination may proceed under two methods of proof: direct or indirect. Smiley v.

Columbia College, 714 F.3d 998, 1002 (7th Cir. 2013). Toomey pursues her discrimination claims

under the latter. 

20 Plaintiff relies on 29 C.F.R. § 1620.27 for the idea that “any violation of the EPA is

also a violation of Title VII.” (Pl.’s Resp. at 15.) The Seventh Circuit has declined to follow that

regulation, however, holding instead that “EPA liability, without more, will not lead automatically to

liability under Title VII” because Title VII, unlike the EPA, requires a finding of discriminatory intent. 

Fallon v. Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989); see also Lang v. Kohl’s Food Stores, Inc.,

217 F3d 919, 922 (7th Cir. 2000) (distinguishing the EPA from Title VII in that the former does not

require discriminatory intent). 

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Under the indirect method, Plaintiff may avert summary judgment by first establishing a

prima facie case, which requires her to show that (1) she is a member of a protected class; (2) she

met United’s legitimate employment expectations; (3) she suffered an adverse employment action;

and (4) similarly situated employees outside of her protected class were treated more favorably. 

Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 702 (7th Cir. 2012). The “similarly situated” 

test requires a comparator to be “comparable to the plaintiff in all material respects.” Harper v. C.R.

England Inc., 687 F.3d 297, 310 (7th Cir. 2012) (emphasis in original) (internal quotation marks

omitted). This inquiry takes account of all relevant factors, including whether the employees “(i)

held the same job description, (ii) were subject to the same standards, (iii) were subordinate to the

same supervisor, and (iv) had comparable experience, education, and other

qualifications—provided the employer considered these latter factors in making the personnel

decision.” Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir. 2005) (quoting Ajayi v. Aramark

Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003)). 

Similar to the EPA context (discussed above), the parties disagree about which Car-X

employees may be properly compared to Toomey. The fact that technicians with ASE certifications

or technicians from other stores are not proper comparators for purposes of Plaintiff’s equal-pay

claim may not preclude their consideration with respect to the commission assignment issue;

Defendant has not suggested, for example, that management relied on ASE certifications in

deciding which mechanic was entitled to a commission. And Plaintiff and the other mechanics did

work under the same supervisors. See Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012)

(“In the usual case a plaintiff must at least show that comparators . . . dealt with the same

supervisor.”). 

True, the ASE designation might be a basis for different treatment even for mechanics

performing the same work. See Warren, 516 F.3d at 631 (finding two employees not materially

comparable under Title VII due to their different levels of education, though these qualifications

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were not required by the job description). Notably, however, Defendant has not directly relied on

this distinction in response to Toomey’s assertion that Car-X management “assigned her lowervalue jobs than comparable male technicians, which depressed her commission pay.” (Pl.’s Resp.

at 15.) Instead, Defendant argues that the evidence does not support the assertion that she was

in fact treated less favorably. (Def.’s Rep. at 14-15.) Indeed, in support of this claim, Plaintiff cites

to portions of her deposition testimony21 that are otherwise unsubstantiated by the record. (Pl.’s

Resp. at 15. ) For instance, Toomey’s 56.1 Statement includes a table that purportedly shows that

she was assigned lower-value tickets because her average job value was lower in 2011 than that

of male technicians in the Chicago area in 2011. (Def.’s Resp. to AMF ¶ 26.) While some male

technicians did have higher average repairs than Plaintiff that year, the table reveals that Toomey

actually had the highest average of any Cicero technician who lacked an ASE certification. Further,

Plaintiff had the highest average sales per repair for the entire Cicero store in 2012. (Def.’s Resp.

to AMF ¶ 48.) But Plaintiff was one of the most productive mechanics at any Car-X store, and her

productivity may conceal inequalities in commission or repair assignments. Thus, though the

documentary evidence does not confirm Plaintiff’s belief that she was assigned less valuable jobs

than her comparators, neither does it defeat that belief. There are no records concerning numbers

of “comebacks,” and Defendant has not offered a specific explanation of its practice for assigning

commissions in instances in which two mechanics performed a job together. Thus, the record does

not defeat Plaintiff’s unfair-job-assignment claim, either. On this aspect of her case, summary

judgment must be denied. 

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment [25] is granted in part

21 That testimony only refers to two technicians—Armando Contrares and Tom

Stewart—both of whom had ASE certifications. (Toomey Dep. (Franklin) at 156:15-21; 174:10-17;

Pl.’s 56.1 Resp. ¶ 73.) 

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and denied in part. Car-X is entitled to judgment as a matter of law on Plaintiff’s Equal Pay Claim,

and the evidence defeats her claim that she was denied a fair rate of pay in violation of Title VII. 

Because there are disputes of fact concerning her claim that she was the victim of unequal and

unfair commission assignments, however, that aspect of her case survives for trial. 

ENTER:

Dated: September 30, 2013 ________________________________________

REBECCA R. PALLMEYER

United States District Judge

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