In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3043

DEBORAH CULLEN,

Plaintiff-Appellant,

v.

INDIANA UNIVERSITY BOARD

OF TRUSTEES,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 00 C 1107—Richard L. Young, Judge.

____________

ARGUED APRIL 10, 2003—DECIDED JULY 29, 2003

____________

Before BAUER, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. On July 6, 2000, Deborah Cullen,

Ed.D., filed a complaint against the Indiana University

Board of Trustees (the “University”), alleging violations of

the Equal Pay Act and of Title VII, based on sex discrimination and retaliation. The University filed a motion for

summary judgment, which the district court granted on

July 2, 2002. Dr. Cullen filed this appeal on July 29, 2002.

She appeals all of the district court’s determinations except

for its grant of summary judgment in favor of the University on the retaliation claim. For the reasons set forth in the
2 No. 02-3043

following opinion, we affirm the judgment of the district

court.

I

BACKGROUND

A. Facts

Deborah Cullen began her employment at Indiana University’s Indianapolis campus in May 1990. She was appointed

Director of the Respiratory Therapy Program, with the rank

of associate professor. She also was credited with three

years toward tenure. Her salary was $45,000. Dr. Cullen’s

male predecessor had been paid $36,742. The Respiratory

Therapy Program operates as a department of the School of

Allied Health Sciences (“SOAHS”), which has eighteen

programs, including Physical Therapy.

Dr. Cullen holds a Bachelor of Science degree in Respiratory Therapy, a Master of Arts in Education and a Doctor of

Education degree. She had fifteen years’ teaching experience

prior to arriving at the University, including serving as

Director of Grossmont College’s two-year Respiratory

Therapy Program from 1984-1990. In 1994, Dr. Cullen was

granted tenure at Indiana University; she was promoted to

full professor in April 1995. Dr. Cullen has chaired numerous committees, authored articles and secured grants for the

Respiratory Therapy Program, including $150,000 of annual

funding from Clarian Health Providers. In 1997, acting

SOAHS Dean Mark Sothmann increased her salary from

approximately $58,000 to $62,000, so that she would be paid

more than a male associate professor whom she supervised.

From 1991 through 1998, Dr. Cullen’s annual salary increases averaged 4.37%; the average of SOAHS faculty

increases was 3.25% per year.
No. 02-3043 3

In July 1998, Sandy Quillen, Ph.D. was hired by Dean

Sothmann as Program Director for Physical Therapy and as

a tenured associate professor at a salary of $90,000. His

predecessor, a woman, had been paid $85,696. Dr. Quillen

holds five degrees: a Bachelor of Science degree in Health

and Physical Education, a Bachelor of Science degree in

Physical Therapy, a Master of Education in Developmental

and Adaptative Physical Education, a Master of Public

Affairs in Health Services Management, and a Ph.D. in

Sports Medicine. Before he was hired by the University, Dr.

Quillen was Chair of the Department of Physical Therapy at

the College of Mount St. Joseph in Cincinnati, Ohio. In that

post, he was paid a comparable salary in the “high 80’s.”

R.68, Ex.2 at 125-26. 

At the time of Dr. Quillen’s hiring, Dean Sothmann

conducted a national search, but received few applications

for the Physical Therapy Program Director position. The

Physical Therapy Program was on probationary accreditation status and in danger of losing its accreditation. This

situation presented a major problem for the University because students must graduate from an accredited program

in order to be permitted to sit for the physical therapy

licensing exam. Upon assuming his responsibilities, therefore, Dr. Quillen was required to extricate the program from

probation and to create a graduate program in order to

maintain accreditation. Dr. Quillen has launched successfully a graduate program, which now offers the only

doctoral program in the SOAHS. 

The Physical Therapy Program accounts for a significant

amount of tuition in the SOAHS; for example, in 1998-99, it

generated 29.3% of the SOAHS’ tuition revenue. In fact, the

SOAHS could not survive without a financially viable

Physical Therapy Program. In 1998-99, Physical Therapy

generated $567,771 to Respiratory Therapy’s $87,517. Phys-
4 No. 02-3043

ical Therapy also has twice as many students and faculty as

Respiratory Therapy (e.g., in 1999, 116 students as opposed

to 57 students and 6 faculty as opposed to 3 faculty).

Between 1995 and 2000, Physical Therapy awarded two and

a half times as many bachelor’s degrees as Respiratory

Therapy.

During 1998-99, Dr. Cullen was paid $63,240; Dr. Quillen

was paid $90,000. In 1999-00, the comparison was $67,114 to

$93,150; in 2000-01, $68,121 to $94,547; and in 2001-02,

$70,505 to $97,856. This disparity is in accord with the

average differential between directors in these positions at

other Midwestern schools. That disparity was $18,000 in

1999, more than $20,000 in 2000, and approximately $30,000

in 2001. Both Dr. Cullen and Dr. Quillen are compensated

within the range of salaries paid for their respective disciplines.

In the early 1990s, a University professor of economics,

Paul Carlin, conducted a pay equity study. The study found

a statistically significant gap between the salaries of male

and female faculty members, and Carlin could not rule out

discrimination as a cause. In 1997-98, Patrick Rooney,

Special Assistant to the Chancellor, and Paul Carlin conducted a second study, which was controlled for a number

of factors. The results found a “statistically-significant” gap

between the salaries of male and female faculty members.

R.71, Ex.D at 25. Dr. Cullen was identified as an “outlier,”

which the study defined as more than one standard deviation below her predicted salary for 1996-97. Her predicted

salary was $71,313.60. One standard deviation below this

figure is $61,774.29. Dr. Cullen actually earned $58,128. Paul

Carlin testified that he could not rule out gender discrimination as the cause of Dr. Cullen’s lower salary. It is notable

that approximately 60% of the outliers identified by the

study were male.
No. 02-3043 5

The University submits that, although the study is a

helpful tool, it fails to account accurately for the market at

the time of hire and for an individual’s productivity. The

study was not designed to ascertain the appropriate salaries

of professors, but was to be used as a first step in the

compensation analysis. It contemplated that committees in

each department would undertake a further assessment that

took into account individual factors. The University also

notes that, for purposes of academic research, a figure of

less than two standard deviations is not considered statistically significant; however, it identified individuals of

greater than one standard deviation as outliers in order to

ensure a thorough analysis. Dr. Cullen’s salary fell between

one and two standard deviations. 

The SOAHS ad hoc review committee “strongly recommend[ed]” that Dr. Cullen’s pay be increased to rectify

salary inequity, but concluded that her history of small

incremental salary increases was not significantly less than

the averages for SOAHS and Respiratory Therapy faculty.

R.71, Ex.11. Dean Sothmann informed Dr. Cullen that

he would recommend a raise to her “predicted salary of

$64,901.” R.71, Ex.10. This “predicted salary” is one standard deviation below the mean figure. Dean Sothmann also

informed the Chancellor’s office that Dr. Cullen’s salary

ought to be adjusted to the predicted level. Dr. Cullen’s

salary was then adjusted from $63,240 to $64,901.

B. District Court Proceedings

Before the district court, Dr. Cullen alleged that the

University discriminated against her in violation of the

Equal Pay Act and on the basis of her sex in violation of

Title VII of the Civil Rights Act of 1964. Dr. Cullen claimed

that the University employed a similarly situated male, Dr.
6 No. 02-3043

Quillen, to perform the same job as her own and paid him

a higher salary. Moreover, she argued that the University’s

actions constituted indirect evidence of an intent to pay her

less than male employees because of her gender. The

University moved for summary judgment on both claims.

The district court granted summary judgment for the

University on the Equal Pay Act claim because it determined that Dr. Cullen failed to establish a prima facie case.

See R.86 at 20. The court concluded that Dr. Quillen had

“substantially more additional responsibilities than Dr.

Cullen which justifi[ed] his higher salary.” Id.

Alternatively, the court concluded that, assuming a prima

facie case, Dr. Cullen’s evidence did not present a material

dispute to contradict the University’s affirmative defense

that the pay differential was based on factors other than sex.

See id. at 23. The court noted the significance of disparate

educational backgrounds and job responsibilities as reasons

for its conclusion that the University had carried its burden

of persuasion on the affirmative defense. See id. at 21-22. The

court also concluded that the University’s Pay Equity Study

was not prima facie evidence of wage-based discrimination

because it was not designed to prove or calculate discrimination alone but to identify cases that merited further

inquiry. See id. at 22-23.

With respect to the Title VII claim, the court concluded

that Dr. Cullen failed to establish a prima facie case because

she did not identify an adverse employment action (her

salary was increased) or present evidence of a similarly

situated male that was treated more favorably. See id. at 24-

25. The court also found it significant that there was no

evidence of intent to discriminate. See id. at 25.
No. 02-3043 7

II

DISCUSSION

A. Equal Pay Act

Dr. Cullen submits that the district court erred in granting

summary judgment in favor of the University on her Equal

Pay Act (“EPA”) claim; we review a district court’s grant of

summary judgment de novo. See Boyce v. Moore, 314 F.3d

884, 888 (7th Cir. 2002).

1. Prima Facie Case

To establish a prima facie case of wage discrimination

under the EPA, Dr. Cullen must show: “(1) higher wages

were paid to a male employee, (2) for equal work requiring

substantially similar skill, effort and responsibilities, and (3)

the work was performed under similar working conditions.” Stopka v. Alliance of Am. Insurers, 141 F.3d 681, 685

(7th Cir. 1998). In determining whether two jobs are equal,

the crucial inquiry is “whether the jobs to be compared have

a ‘common core’ of tasks, i.e., whether a significant portion

of the two jobs is identical.” Fallon v. Illinois, 882 F.2d 1206,

1209 (7th Cir. 1989) (citations and quotation marks omitted).

Once the plaintiff establishes a common core, the court must

ask whether any additional tasks make the jobs “substantially different.” Id. (citation and quotation marks omitted).

Significantly, the EPA does not require proof of discriminatory intent. See Stopka, 141 F.3d at 685.

It is undisputed that in this case the first element is

established. In 1998-99, Dr. Cullen was paid $63,240 and Dr.

Quillen, a male, was paid $90,000. See R.71, Ex.27. The

disparity continued through the 2001-02 academic year

when Dr. Cullen earned $70,505 and Dr. Quillen earned
8 No. 02-3043

1 The regulations are cast in very general terms in order to

ensure general applicability throughout the economy. Consequently, in their application, a single factual consideration is

often relevant to more than one of the criteria established by the

regulations.

2 The actual differences between educational pedigree are relevant in the affirmative defense of proving a pay differential based

(continued...)

$97,856. See R.71, Ex.43. Nevertheless, Dr. Cullen must

establish that the jobs were equal. Although the “common

core” of the positions held by Dr. Cullen and Dr. Quillen

suggests equality, Dr. Quillen’s job entailed significant

additional responsibilities, making it substantially different.

The EPA specifies three separate elements that are to be

considered in comparing job duties: skill, effort and responsibility. See 29 U.S.C. § 206(d)(1). Each of these elements

must be met individually to establish a prima facie case. See

29 C.F.R. § 1620.14.1

 Moreover, the jobs must be performed

under similar working conditions. See 29 U.S.C. § 206(d)(1);

Stopka, 141 F.3d at 685.

First, we consider whether the positions required the same

level of skill. “Skill includes consideration of such factors as

experience, training, education, and ability.” 29 C.F.R. §

1620.15(a). Although Dr. Cullen and Dr. Quillen have

different educational credentials, the comparison at this

juncture is between positions, not individuals. See id.

(“Possession of a skill not needed to meet the requirements

of the job cannot be considered in making a determination

regarding equality of skill.”); 4 Joseph G. Cook & John L.

Sobieski, Jr., Civil Rights Actions ¶ 20.15[B], at 20-123-24

(2003) (noting that the issue is comparison of jobs, individual qualifications are irrelevant at this point in the

analysis).2

 Although different educational levels required by
No. 02-3043 9

2 (...continued)

on “any factor other than sex.” See Covington v. Southern Illinois

Univ., 816 F.2d 317, 323 n.9 (7th Cir. 1987).

different positions can be significant, there is no suggestion

that Physical Therapy Program Directors are required to

hold more degrees than Respiratory Therapy Program

Directors. However, the positions did require different

levels of ability, for the Physical Therapy Program Director

was required to create a new graduate program, which the

Respiratory Therapy Program Director position did not

require. See Horner v. Mary Inst., 613 F.2d 706, 714 (8th Cir.

1980) (finding different skill requirements between positions

of elementary school teachers when one teacher was

required to develop and implement a physical education

curriculum and the other was to teach courses selected by

someone else). Accordingly, the positions do not require

equal levels of skill.

The second inquiry is whether the two positions require

equal amounts of effort. Dr. Quillen was appointed when

the Physical Therapy Program was on probation, and he

was given the task of saving the program and creating a

graduate course of study. See R.68, Ex.2 at 124-26. Dr.

Cullen nevertheless submits that, although Physical Therapy has a strong tuition base, she had to exert more effort to

secure outside funding to supplement her department’s

resources, an effort, she claims, that Dr. Quillen does not

match. See R.71, Ex.B at 49-53; R.71, Ex.42 at 8. Although

this consideration may decrease somewhat the significance

in the disparity between the effort required by the two

positions, we think the district court correctly concluded

that the effort required to create Master’s and Doctoral

courses of study in a program on probation to be greater

than that required to secure grants for the Respiratory
10 No. 02-3043

Therapy Department. See R.75, Ex.24 at ¶¶ 12-13 (stating

that Physical Therapy requires a graduate program to

maintain accreditation, and failure to do so would preclude

graduates from sitting for the licensure exam); R.68, Ex.2 at

124-26 & 137; R.68, Ex.20 at ¶ 12 (indicating that SOAHS

would not be able to operate without a viable Physical

Therapy Program); 29 C.F.R. § 1620.16(a) (“Job factors which

cause mental fatigue and stress . . . are to be considered in

determining the effort required by the job.”). The jobs do

not require equal effort; Dr. Cullen cannot establish her

prima facie case of equal positions.

Third, we must determine whether the two positions

impose the same level of responsibility. The Respiratory

Therapy Program at the University required Dr. Quillen to

create and launch a graduate program. Dr. Cullen is not

responsible for such a program. See R.68, Ex.2 at 124-26. Dr.

Cullen argues that the creation of the graduate program was

not an additional duty, for she was also required to meet

accreditation requirements. However, this argument places

too much emphasis on the job description or title of “establishing program accreditation,” see R.71, Ex.B at 45, instead

of considering “the duties actually performed by each

employee.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1461

(7th Cir. 1994).

Dr. Quillen supervises more students and faculty members. As of September 1999, Dr. Quillen was responsible for

116 students to Dr. Cullen’s 57, and Dr. Quillen supervised

six faculty members and two secretaries to Dr. Cullen’s

three faculty members and one secretary. See R.71, Ex.25 at

5. Dr. Cullen contends that the record contains no evidence

that Dr. Quillen exercises any supervision over students or

that the additional faculty members create a greater bur-den

in terms of responsibility. Supervisory responsibilities

“must be real, significant, regular, and recurring.” Mack A.
No. 02-3043 11

Player, Employment Discrimination Law § 4.11(b)(3), at 147-48

(1988). Nevertheless, it is reasonable to conclude that Dr.

Quillen’s management of a department twice the size of Dr.

Cullen’s is indicative of greater responsibility. See Howard v.

Lear Corp. Eeds & Interiors, 234 F.3d 1002, 1005 (7th Cir. 2000)

(“The additional skill, effort, and headache involved in

managing three to six times the number of workers in a

more complex employment environment rendered the []

positions . . . substantially different . . . .”); Orahood v. Board

of Tr. of Univ. of Arkansas, 645 F.2d 651, 655 (8th Cir. 1981)

(affirming a finding of unequal positions because male

employee supervised a much larger department with more

employees).

The most significant factor in this responsibility comparison is the differential in tuition revenue generated by each

program. Each school at the University must operate with

budgets based on the tuition resources generated within

the school. See R.75, Ex.27 at 31 & 56. Significantly, Physical

Therapy generates nearly 30% of SOAHS’ tuition revenue,

and the school would not be able to operate without a

viable Physical Therapy Program. See R.68, Ex.2 at 137;

R.68, Ex.20 at ¶ 12. In 1998-99, the Physical Therapy Program produced more than six times the tuition generated by

Respiratory Therapy. See R.71, Ex.25 at 5. In Stanley v.

University of Southern California, 13 F.3d 1313 (9th Cir. 1994),

the Ninth Circuit concluded that the additional pressure to

win placed on the USC men’s basketball coach created a

different job under the EPA because the men’s program

generated ninety times more revenue than the women’s

program. See id. at 1322-23. The court found that “the

relative amount of revenue generated should be considered

in determining whether responsibilities and working

conditions are substantially equal.” Id. In this case, the

SOAHS’ dependence upon the revenue generated by the
12 No. 02-3043

3 The district court did not reach the issue of similar working

conditions, but the University contends that Dr. Cullen cannot

meet this requirement because Dr. Quillen was hired to extricate

the Physical Therapy Program from probation, which is a dissimilar working condition. In Corning Glass Works v. Brennan, 417

U.S. 188 (1974), the Supreme Court concluded that “working

conditions” refers to physical surroundings and hazards encountered on the job. See id. at 202; 29 C.F.R. § 1620.18 (“The term

‘similar working conditions’ encompasses two subfactors: ‘surroundings’ and ‘hazards.’ ‘Surroundings’ measure the elements,

such as toxic chemicals or fumes, regularly encountered by a

worker, their intensity and their frequency. ‘Hazards’ take into

account the physical hazards regularly encountered, their

frequency and the severity of injury they can cause.”). In this

case, the parties have introduced no evidence that Dr. Cullen and

Dr. Quillen are exposed to different physical surroundings or

hazards in performing their duties, therefore they cannot be said

to work under dissimilar conditions.

Physical Therapy Program creates additional pressure and

responsibility on the Director of the Physical Therapy

Program, Dr. Quillen. Consequently, the positions do not

have equal levels of responsibility; therefore, Dr. Cullen

cannot establish a prima facie case.3

2. Pay Equity Study

Dr. Cullen contends that the district court erred by failing

to consider the Pay Equity Study as evidence to prove her

prima facie case under the EPA. She argues that, because

she has identified a specific male comparator, Dr. Quillen,

this court should adopt the Second Circuit’s rationale in

Lavin-McEleney v. Marist College, 239 F.3d 476, 481 (2d Cir.

2001), and permit her to rely on statistical evidence to

support her prima facie case. In Lavin-McEleney, the Second
No. 02-3043 13

4 The University contends that, even if the court should consider

statistics alone, the Pay Equity Study is not admissible under

Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in part, because certain critical

factors such as productivity are difficult to quantify. However,

this argument is not in accord with the Supreme Court’s discussion of regression analyses in Bazemore v. Friday, 478 U.S. 385

(1986). In Justice Brennan’s concurring opinion in Bazemore,

which was joined by all other members of the Court, he stated:

While the omission of variables from a regression analysis

may render the analysis less probative than it otherwise

might be, it can hardly be said, absent some other infirmity,

that an analysis which accounts for major factors “must be

considered unacceptable as evidence of discrimination.”

Normally, failure to include variables will affect the analysis’

probativeness, not its admissibility. 

Id. at 400 (Brennan, J., concurring) (citation omitted). See

Rudebusch v. Hughes, 313 F.3d 506, 516 (9th Cir. 2002) (citing

Bazemore for the proposition that the “propriety of controlling for

particular variables in a regression analysis goes to weight rather

than admissibility”); Smith v. Virginia Commonwealth Univ., 84

F.3d 672, 676-77 (4th Cir. 1996) (finding that disputes over excluded variables in multiple regression analysis are questions of

material fact precluding summary judgment).

Circuit held that “statistical evidence of a gender-based

salary disparity among comparable professors properly

contributed to plaintiff’s case in conjunction with her

identification of a specific male comparator.”4 Id. The court

specifically declined to decide whether statistical evidence

alone would be sufficient to establish a prima facie case

under the Equal Pay Act. See id. at 482. As we have discussed above, in Dr. Cullen’s case, Dr. Quillen is not a

comparable male. Therefore, if she is to prevail, she must

rely on statistics alone to support her prima facie case. We

have noted that, in the Title VII context, statistical evidence
14 No. 02-3043

5 See also Rudebusch, 313 F.3d at 515-17 (concluding that a pay

equity study finding 2.0 standard deviation among salaries was

insufficient to establish discrimination in violation of Title VII in

light of evidence that salaries fell below predicted levels across

ethnic and gender lines); cf. Plemer v. Parsons-Gilbane, 713 F.2d

1127, 1135-36 (5th Cir. 1983) (stating “[i]t may well be questionable whether in an action grounded on a classic unequal pay for

equal work claim, such statistics could ever suffice to make a

prima facie case, if the proofs were otherwise insufficient for purposes of an individual Equal Pay Act or Title VII disparate

treatment suit”).

6 See Adams v. Ameritech Servs., Inc., 231 F.3d 414, 424 (7th Cir.

2000) (commenting that “[t]wo standard deviations is normally

enough to show that it is extremely unlikely . . . that the disparity

is due to chance, giving rise to a reasonable inference that the

hiring was not race-neutral; the more standard deviations away,

the less likely the factor in question played no role in the

decisionmaking process”). But see Kadas v. MCI Systemhouse Corp.,

255 F.3d 359, 362 (7th Cir. 2001) (rejecting bright-line rule that

(continued...)

of discrimination may be very useful, but “it will likely not

be sufficient in itself.” Adams v. Ameritech Servs., Inc., 231

F.3d 414, 423 (7th Cir. 2000).5

 We need not decide today

whether Dr. Cullen could base her prima facie EPA case

solely on statistical evidence because the Pay Equity Study

could not establish discrimination alone on these facts.

The study was designed as the initial step in a two-part

process of evaluating faculty for raises, not as a single

quantitative measure of appropriate salaries. In fact, in

order to ensure thoroughness, the University characterized

Dr. Cullen as an “outlier” even though generally accepted

principles of statistical modeling suggest that a figure less

than two standard deviations is considered an acceptable

deviation. See R.71, Ex.D at 28-29.6

 Although the study
No. 02-3043 15

6 (...continued)

would find statistical evidence of less than two standard deviations inadmissible). 

sought to account for market forces by considering average

national salaries for a given position, see R.71, Ex.D at 26-28,

the study could not consider the significance of detailed

individual facts such as those surrounding the University’s

need to pay a premium to attract Dr. Quillen to accept a

position as the director of a distressed program. Because of

such particularized factors, the University determined that

the Pay Equity Study would serve as a rough starting point

to be followed by committee review. The Pay Equity Study

was instructive in identifying faculty members deserving

further review, but it cannot support a prima facie case of

discrimination under the EPA.

As a second step in the reevaluation of faculty pay, the

University directed each school to establish a review panel

to consider the individual characteristics of all outliers. In

the SOAHS, the ad hoc review panel consisted of four

women and one man, and it “strongly recommend[ed] that

an adjustment to [Dr. Cullen’s] base salary be made to

rectify the salary inequity.” R.71, Ex.11. The committee also

found that Dr. Cullen’s salary increments were not significantly less than the averages for the SOAHS or Respiratory

Therapy Program faculty and concluded that her salary

increments reflected the school’s history of small salary

increases. See id.

3. Affirmative Defense

Assuming that Dr. Cullen had established a prima facie

case, which she did not, the burden of persuasion shifts to

the University to prove one of four statutory affirmative

defenses. See 29 U.S.C. § 206(d)(1); Dey, 28 F.3d at 1462
16 No. 02-3043

(noting defendant bears burden of proof on affirmative

defense). The University relies on the defense that there

exists “a differential based on any other factor other than

sex.” 29 U.S.C. § 206(d)(1)(iv).

Education is a relevant consideration in determining

whether disparate salaries exist for reasons other than sex.

See Covington v. Southern Illinois Univ., 816 F.2d 317, 323 n.9

(7th Cir. 1987). Dr. Cullen holds three degrees, and neither

of her graduate degrees are in the field of Respiratory

Therapy. See R.71, Ex.A at 13-20. Dr. Quillen holds five

degrees, including a Ph.D. in Sports Medicine. See R.75,

Ex.D. It is possible for an individual to earn a Ph.D. in

Respiratory Therapy, but Dr. Cullen does not have such a

degree. See R.71, Ex.A at 20. Dr. Quillen clearly holds more

degrees with a focus in his respective discipline. This

consideration supports the University’s position that this

was a valid reason other than sex to pay Dr. Quillen more

than Dr. Cullen.

The University also focuses on market forces at the time

of Dr. Quillen’s hiring. See Stanley, 13 F.3d at 1322 (“An

employer may consider the marketplace value of the skills

of a particular individual when determining his or her

salary.”); Ross v. University of Texas at San Antonio, 139 F.3d

521, 526 (5th Cir. 1998) (commenting that disparities were

accounted for by market factors). At the time Dr. Quillen

was hired, the Physical Therapy Program was on probation

and any potential applicant for the position would be

required to take over a foundering department, extricate it

from probation by the accrediting body, and create a

graduate program. See R.68, Ex.2 at 124-26. Faced with these

responsibilities, the national applicant pool was small, and

the University found it necessary to offer Dr. Quillen a

significant salary to attract him to take the position.
No. 02-3043 17

7 Because Dr. Cullen cannot establish a prima facie case and

because the University can establish an affirmative defense, we

need not address Dr. Cullen’s contention that the University’s

alleged violation of the EPA was willful. 

It is also notable that in 1999 Physical Therapy directors

were paid $18,000 more than their peers in Respiratory

Therapy, a disparity that increased to approximately $30,000

in 2001. See R.75, Ex.I. Additionally, in establishing a

starting salary it is also appropriate to consider the salary a

newly hired employee was receiving elsewhere. See Dey, 28

F.3d at 1462. Dr. Quillen was compensated in the “high

80’s” in his previous position. R.68, Ex.2 at 125-26.

Moreover, as we have noted earlier, it is significant that

Dr. Quillen is responsible for a department that generates

six times as much revenue as Dr. Cullen’s and that is vital

to the operation of SOAHS. See R.68, Ex.2 at 137; R.68, Ex.20

at ¶ 12; R.71, Ex.25 at 5. See also Player, Employment Discrimination Law § 4.14(e)(2)(h), at 173-74 (“An employer may

provide different wage rates for the sale or production of

products based upon the relative economic benefit or

profitability of the product.”). The University’s decision to

compensate Dr. Quillen for the pressure imposed by this

added responsibility constitutes another reason other than

sex that explains his salary. Dr. Cullen has not provided

sufficient evidence to place a material fact in dispute

regarding the University’s affirmative defense that

Dr. Cullen and Dr. Quillen were paid different salaries

“based on any other factor other than sex.”7

 29 U.S.C.

§ 206(d)(l)(iv). 
18 No. 02-3043

8 Moreover, a Title VII plaintiff must prove the intent to discriminate, specifically the “actual desire to pay women less than men

because they are women.” Lloyd v. Phillips Bros., Inc., 25 F.3d 518,

525 (7th Cir. 1994) (emphasis in original). 

B. Title VII

Having addressed Dr. Cullen’s arguments concerning

the Equal Pay Act, we turn to her Title VII claim, for “even

if the plaintiff’s Equal Pay Act and Title VII claims [are]

identical, Title VII is an independent remedy, in that it

may be pursued in conjunction with other remedies.”

Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 130 (7th

Cir. 1989) (citing Alexander v. Gardner-Denver Co., 415 U.S.

36, 48-49 (1974)); see County of Washington v. Gunther, 452

U.S. 161, 178-80 (1981) (commenting that Title VII’s coverage

of equal pay claims is broader than that of the EPA); Fallon

v. Illinois, 882 F.2d 1206, 1218 (7th Cir. 1989) (holding that

the EPA and Title VII are distinct remedies). Dr. Cullen

seeks to establish her Title VII claim by relying on indirect

evidence of discrimination.8

 Therefore, the burden-shifting

paradigm of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973), governs our analysis. See Haywood v. Lucent

Techs., Inc., 323 F.3d 524, 531 (7th Cir. 2003); Stone v. City of

Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002).

In this context, to establish a prima facie case of sex discrimination under Title VII, Dr. Cullen must show that 1) she

was a member of a protected class, 2) she was meeting her

employer’s legitimate expectations, 3) she suffered an

adverse employment action, and 4) the employer treated a

similarly situated man more favorably. See Johnson v. Zema

Sys. Corp., 170 F.3d 734, 742-43 (7th Cir. 1999); Morrow v.

Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998). If Dr.

Cullen establishes a prima facie case, the burden shifts to

the University to provide legitimate reasons for the dispar-
No. 02-3043 19

ity. See Johnson v. University of Wisconsin-Eau Claire, 70 F.3d

469, 478 (7th Cir. 1995). If the University provides legitimate

reasons, then Dr. Cullen must establish that the proffered

reasons are pretextual. See id.

Dr. Cullen cannot establish a prima facie case because she

has not presented evidence of a similarly situated male that

the University treated more favorably. Dr. Quillen is not a

similarly situated male and, as discussed above, the Pay

Equity Study is not sufficient to establish gender discrimination. Nevertheless, even if we assume that Dr. Cullen can

establish her prima facie case, Dr. Cullen has failed to

introduce sufficient evidence to create a material dispute

regarding pretext. The University has provided unrebutted,

nondiscriminatory reasons for the pay disparity, including

market forces at the time of Dr. Quillen’s hiring, different

educational credentials, and differences in responsibility

due to the larger amount of revenue generated by the

Physical Therapy Department. Consequently, Dr. Cullen

cannot prevail on her Title VII claim.

Conclusion

The judgment of the district court is affirmed.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-29-03